P.T. v Wiclow County Council

• Jurisdiction: Ireland
• Judge: Ms Justice Faherty
• Judgment Date: 30 May 2017
• Neutral Citation: [2017] IEHC 623
• Docket Number: [2017 No. 348 J.R.]
• Court: High Court
• Date: 30 May 2017

BETWEEN

P. T.

AND

A. T. H. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND P. T.)

APPLICANTS

AND

WICKLOW COUNTY COUNCIL

RESPONDENT

[2017] IEHC 623

[2017 No. 348 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Housing – s. 10 of the Housing Act 1988 – Emergency accommodation – Consideration of relevant factors – Executive discretion

Facts: The applicants sought an order for certiorari for quashing the decision of the respondent for refusing them emergency accommodation. The application cited that the said decision was ultra vires and contravened applicants' rights enshrined under art. 40 of the Constitution. The respondent claimed that a proper assessment of the first named applicant's circumstances were taken out and it was found that she had no sufficient funds, either to support herself or her child (‘second named applicant’) on a long term basis. The respondent submitted that the applicants were in effect seeking a mandatory injunction for compelling the respondent to provide accommodation in case wherein there were more such contenders for emergency accommodation based on their pressing needs.

Ms. Justice Faherty refused to grant the desired relief to the applicants. The Court held that the function of the Court was limited to ascertain the lawfulness of the decision of the executive or administrative decision maker. The Court could not direct that decision maker as to how it should carry out its functions. The Court found that the first named applicant gave contradictory evidence in relation to her financial status, which leaned the balance of justice against her. The Court noted that it would not interfere with the respondent's orderly implementation of its housing responsibilities unless circumstances revealed gross injustice being done to the parties.

JUDGMENT of Ms Justice Faherty delivered on the 30th day of May, 2017

1 On 9th May, 2017, the applicants were granted leave by the High Court (Noonan J.) to apply for judicial review for:

(1) an order for certiorari quashing the decision of the respondent of 4th April, 2017 (subsequently affirmed in writing by the respondent on 11th April, 2017 and 20th April, 2017) refusing the application of the first named applicant on her own behalf and on behalf of the second named applicant seeking emergency homeless accommodation pursuant to s. 10 of the Housing Act 1988 (‘the 1988 Act’);

(2) A declaration that the refusal of the respondent to provide emergency homeless accommodation was:

(a) based on an error of law and thus ultra vires;

(b) irrational and unreasonable and based on irrelevant considerations;

(c) based on a material error of fact and for that reason unlawful;

(d) constituted a failure to vindicate the applicants and each of them as protected under Articles 40.1, 40.3 and/or 42 A of the Constitution and/or their fundamental rights protected under Articles 3 and/or 8 and/or 14 of the European Convention on Human Rights (ECHR);

(3) Damages for breach of their Constitutional and/or ECHR rights;

(4) Such interim and interlocutory relief restraining the respondent from further limiting the applicants constitutional and ECHR rights; and

(5) Such interim and/or interlocutory order as is necessary for the vindication of the applicants' rights pending the determination of the within proceedings including an order requiring the respondent to identify, make available and provide financial assistance to secure accommodation to the applicants pending the determination of the judicial review proceedings.

2 The grant of leave was in circumstances where having been put on notice of the ex parte application by the Court, the respondent neither objected nor consented to the leave application save to state that they would be fully contesting the judicial review and contesting the application for interlocutory relief.

3 It is the application for an interlocutory order requiring the respondent to identify, make available and provide financial assistance to secure accommodation for the applicants pending the determination of the within judicial review proceedings which forms the subject of this judgment.

4 At this juncture it is apposite to set out the grounds upon which leave was granted. These are:

The refusal the respondent to provide emergency homeless accommodation was based on an error of law and was for that reason ultra vires and unlawful. In particular:

(i) the respondent failed refused and/or neglected to assess the housing needs of the applicants' household, including the urgency of that need, adequately or at all;

(ii) the respondent failed to properly construe its powers pursuant to s. 10 of the 1988 Act in accordance with Article 40.3 and Article 42A of the Constitution and/or in accordance with Article 3 and/or 8 ECHR;

(iii) by leaving the first named applicant at real and immediate risk of being totally without shelter and sleeping rough, the respondent failed to exercise its statutory functions in a manner compatible with the first named applicant's rights pursuant to Art.40.3 of the Constitution;

(iv) by leaving the second named applicant, a child and therefore inherently vulnerable, at real and immediate risk of being totally without shelter and sleeping rough, the respondent failed to exercise its statutory function in accordance with Article 40.3 and Article 42A of the Constitution;

(v) the respondent failed to construe its statutory functions pursuant to s. 10 of the 1988 Act in a manner compatible with ECHR.

5 It is also pleaded that the refusal of the respondent to provide emergency homeless accommodation was irrational and unreasonable by the failure to assess the urgency of the situation, making a decision that flew in the face of fundamental reason and common sense, failing to have regard to relevant factors, having regard to unnecessary factors, in particular the first named applicant's mother's housing situation in Malaysia and failing to have regard to the level of vulnerability of the applicants.

6 It is further pleaded that the refusal of the respondent to provide emergency homeless accommodation was based on a material error of fact and was for that reason unlawful by the respondent:

(vi) proceeding to make a decision in respect of the applicants' application for emergency homeless accommodation based on the assumption that the first named applicant had access to a pension fund in Malaysia which the first named applicant does not in fact have access to;

(vii) proceeding to make a decision in respect of the applicants application based on the assumption that the first named applicant had access to funds from a family business in Malaysia when the family business has in fact ceased trading;

(viii) failing to have any or any adequate regard to the information provided by the first named applicant on 4th April, 2017;

(ix) failing, refusing and/or neglecting to confirm the accuracy of the purported information upon which the refusal to provide emergency homeless accommodation was based; and

(x) failing, refusing and/or neglecting to have any or any adequate regard to documentation subsequently provided by the first named applicant through her solicitor which set out the true picture of her means.

7 It is pleaded that the respondent's refusal to provide emergency homeless accommodation, contrary to its obligations to the Constitution and ECHR has:

(xi) increased the applicants risk of rough sleeping;

(xii) failed to take account of the risks facing the second named applicant, a child;

(xiii) treated the applicants less favourable than applicants who had not previously resided outside of the State;

(xiv) treated the first named applicant less favourably then an Irish national; and

(xv) amounted to discrimination against the applicants on grounds of ethnicity and/or nationality.

Background and chronology

8 The first named applicant is a national of Malaysia. The second named applicant is also a Malaysian national but is entitled to Irish citizenship by reason of her father's Irish nationality. The father resides in Malaysia. In June 2016, the applicants moved to Ireland. According to the first named applicant's grounding affidavit, prior to that move, the applicants lived with the first named applicant's mother in Malaysia, where the first named applicant also worked in her family's business. She ceased employment in that business in January, 2016 and she states that the business is no longer trading. Following their arrival in the State, the applicants travelled around the country staying in bed and breakfast accommodation. Ultimately, they travelled to a town in Co. Wicklow and resided in bed and breakfast accommodation for a period of time. The second named applicant was duly enrolled in school. Subsequently they moved to another town in Co. Wicklow and again, the second named applicant was enrolled in the school which she currently attends.

9 Following their arrival in the State, the applicants funded their accommodation needs and living expenses from the first named applicant's savings of approximately €10,000. During the time they were staying in bed and breakfast accommodation the first named applicant tried to source private rented accommodation which proved unsuccessful.

10 In or about February, 2017, the first named applicant's savings were running low and in order that she might save money for private rented accommodation, she and the second named applicant resorted to sleeping in the first named applicant's car. The first named applicant avers that after approximately sixteen or seventeen days their living circumstances came to the attention of An Garda Siochana, who put them in touch with Bray Women's Refuge. They stayed at the Refuge for approximately a month but had to leave because they did not meet the criteria for that specific accommodation. It was at this time that the second...