Tee v Wicklow County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 15 September 2017 |
| Neutral Citation | [2017] IEHC 194 |
| Docket Number | [2017 No. 348 J.R.] |
| Court | High Court |
| Date | 15 September 2017 |
[2017] IEHC 194
THE HIGH COURT
JUDICIAL REVIEW
Noonan J.
[2017 No. 348 J.R.]
AND
Housing – The Housing Act 1988 – Refusal to pay housing accommodation – Judicial review – Non-interference in executive functions – Right to shelter – Appropriate remedy
Facts: The applicants filed a judicial review application for challenging the decision of the respondent for refusing to provide homeless accommodation to the applicants. The applicants contended that the decision of the respondent was unreasonable and without any merit. The applicants also contended that the said decision was contrary to the European Convention on Human Rights Act 2003.
Mr. Justice Noonan dismissed the applicants' application. The Court held that it was not the function of the courts to guide the executive, such as the respondent, as to how to deploy its resources in the performance of its statutory functions. The Court observed that it had no discretion in interfering in the decision of the respondent unless it was arbitrary. The Court noted that the applicants were not homeless within s. 2 of the Housing Act 1988 as they had a home, albeit outside the jurisdiction of Ireland. The Court held that if the applicants had wished to challenge the provisions of the Housing Act 1988 as being contrary to the European Convention on Human Rights Act 2003, the appropriate remedy would have been to challenge the relevant provisions on notice to Ireland and the Attorney General.
In these proceedings, the applicants seek to challenge by way of judicial review a decision of the respondent ('the Council') to refuse to provide the applicants with emergency homeless accommodation on the 4th April, 2017.
The first named applicant (Ms. Tee) travelled with her fourteen year old daughter, the second named applicant (Aishling) from Malaysia to Ireland on the 23rd June, 2016. Up to that time, the applicants resided with Ms. Tee's mother in Malaysia. Both applicants are Malaysian citizens. Aishling's father is an Irish citizen who resides in Malaysia and she is thus entitled to Irish citizenship. She has recently received an Irish passport since arriving in this country.
Ms. Tee appears to be a highly educated woman. English is her first language. She graduated from Bond University, a prestigious third level institution in Australia, with a degree in business. Her family ran a distribution business in Malaysia in which she was employed as a sales manager although she ceased her employment there in January, 2016 when the business closed. When initially interviewed by the Council, Ms. Tee gave as her home address a house which is described in an affidavit of Joseph Lane, the Council's Director of Housing and Corporate Estate, sworn on the 15th May, 2017. Mr. Lane avers that he searched Google Maps for this address and it disclosed that the address backs onto a golf course and is within a gated and affluent community. Ms. Tee avers that her mother has now sold this house in order to downsize to a 4,000 sq. ft. house which is currently being renovated so that it will have five bedrooms. It would appear that since the applicants left Malaysia, Ms. Tee's mother lives alone.
Ms. Tee avers that the reason she came to Ireland was to secure suitable second level education for Aishling, which she considers is not available to persons of her ethnicity in Malaysia. When Ms. Tee arrived in Ireland, she had available to her €10,000.00 on a credit card. She decided to settle initially in Arklow, Co. Wicklow because Aishling's paternal grandparents reside in Arklow. However, they appear to have no contact with either applicant. Aishling was initially enrolled in a school in Arklow in August 2016, but Ms. Tee decided to move to Bray subsequently and Aishling now attends school there.
Since coming to Ireland, the applicants have lived in bed and breakfast accommodation as Ms. Tee says she was unsuccessful in securing private rented accommodation. Ms. Tee says that her funds began to run out in February 2017, and as a result, she and Aishling resorted to sleeping in her rented car. This continued for about sixteen or seventeen days until they came to the notice of An Garda Síochána who put them in touch with a woman's refugee in Bray. Since that time (early February) the applicants have been accommodated by a variety of NGOs and charitable institutions. They have had to sleep in a Garda station on a number of occasions.
One of these organisations put Ms. Tee in touch with the Council in February 2017, for the purpose of seeking accommodation. Ms. Tee applied to be put on the Council's housing list. Ms. Tee says that since the middle of February, she presented as homeless at the Council's offices on several occasions. Eventually, a meeting took place between Ms. Tee and Council officials at the Council's offices on the 4th April, 2017. The meeting lasted approximately an hour and was attended on behalf of the Council by Ms. Noeleen Roche, a Staff Officer in the Homeless Outreach Section of the Housing and Corporate Estate Department and Ms. Winifred Kelly who was working in the Council's Homeless Section pursuant to a service level agreement with the Dublin Simon Community.
What transpired precisely at this meeting is a matter of dispute between the parties. A contemporaneous note of the meeting was made by Ms. Roche. In her first affidavit, Ms. Tee avers that she told the Council at the meeting that she had a retirement fund in Malaysia but she could not access it either until retirement age or if earlier, on certain conditions which did not arise. She says that she was told by the Council officials that there was no accommodation available for her and was given a list of bed and breakfast accommodation in the area.
After the meeting, lengthy correspondence ensued between various parties representing Ms. Tee, including her solicitor, and the Council. In particular, Ms. Tee's solicitor, Ms. Keatinge, wrote a long letter on the 7th of April, 2017, to the Council setting out the factual background and the legal basis upon which the applicants claimed to be entitled to have emergency accommodation provided to them by the Council. The letter contended that the Council had a statutory obligation to provide such accommodation under the terms of the Housing Act 1988 and further that the applicants had a right to such accommodation by virtue of the provisions of the Constitution and the European Convention on Human Rights Act 2003.
In a letter of the 11th of April, 2017, sent by email, the Council gave its reasons for refusing:-
'On Tuesday the 4th April, 2017, during assessment at County Buildings, Wicklow, Ms. Tee stated she had sufficient funds to self-accommodate.
In addition, she stated she has current access to monies from an employee's fund in the amount of €40,000.00, which can be used for education and housing.
Ms. Tee's family has a business in Malaysia and she resided in the family home prior to coming to Ireland. Her mother has recently purchased a five bedroomed property.
It is the opinion of Wicklow County Council therefore that Ms. Tee does not satisfy the criteria for eligibility for emergency homeless accommodation, at this time.
I trust this clarifies the situation.'
On the 15th of May, 2017, Ms. Roche swore an affidavit in reply to the affidavit of Ms. Tee. Ms. Roche says that she asked Ms. Tee if she was in receipt of any State payments and she replied that she was not looking for payments or assistance as she had just come to Ireland to seek education for her daughter. She avers that Ms. Tee told her that her family in Malaysia owned their own business and were continuing to provide her with financial support.
With regard to the averments in Ms. Tee's affidavit that she was unable to access her pension fund, Ms. Roche avers that at the interview, Ms. Tee stated that she has current access to the fund which could be used for education and housing. Clearly, there is a significant divergence of recollection on this important point between Ms. Tee and Ms. Roche.
Although not directly relevant to the decision taken by the Council on the 4th of April, 2017, it is notable that Ms. Tee was again interviewed on the 27th of April by another council official, Mr. Damien Marah, who has also sworn an affidavit and exhibited a memo of the interview. In the memo, Mr. Marah noted that Ms. Tee told him that she would be returning to Malaysia in July to assist her mother with moving house and also to take a small holiday. She advised Mr. Marah that she was not receiving any social welfare but that she got €300.00 to €400.00 per month from her family in Malaysia and also has access to a fund of €40,000.00 for housing assistance and education.
In a further replying affidavit sworn on the 3rd of July, 2017, Ms. Tee contests the correctness of the averments made by Ms. Roche and Mr. Marah. She suggests that the reference to the family business and support she received from the family were all in the past, not present, tense and that she had made it clear that these sources of funding were not available to her. She also exhibits a significant number of documents for the purpose of, inter alia, demonstrating that the position as she outlines it is the correct one.
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