The Focus of Ireland: Homelessness in the Courts - Fagan v Dublin City Council

Date01 January 2020
e Focus of Ireland: Homelessness in the Courts
Fagan v Dublin City Council [2019] IESC 96
is article critiques the Supreme Court judgment of Fagan v Dublin City
Council,1 as one of several recent cases that engage social housing issues. e current
homeless crisis in Ireland has been an impetus for a call for a right to housing from
several prominent human rights bodies and housing organisations.2 Against this
backdrop, this article examines the court’s role in judicially reviewing the allocation
of emergency accommodation, social accommodation, housing subsidies, and
the gatekeepers of the same. When considering a potential constitutional right
to housing, whether as an unenumerated right within either Article 40.3.2° or
42A.1 or as a standalone constitutional right, it is important to consider the
impact that such a right would have, in and of itself, and any positive obligations
it would impose upon the State. e enforcement of such a right in practice by
imposing a positive obligation on the State would in turn pose challenges in terms
of the applicable standards of review, the balancing of the right with the rights and
interests of others, the limitation of available remedies, and above all: the practice
of judicial deference and the principle of the separation of powers. e Supreme
Court’s judgment in Fagan highlights these challenges.
I. Housing and the Irish courts
Consideration of a right to housing
e scope of a right to housing has only been the subject of brief discussion in
the Irish courts. It has not extended to the context of social housing, aside from
a right to apply for housing in Mulhare v Cork County Council,3 discussed below.
While there was an aside made by the Master4 and a refusal to engage the issue by
* Leg al clerk with the Legal Aid Board and part-time Ph.D. student, University College Cork. e
views expressed in this article are the author’s own.
1 [2019] IESC 96 (‘Fagan’).
2 Among these are the Simon Community, Focus Ireland, Mercy Law Resource Centre, the Irish
Human Rights and Equality Commission, the Ombudsman for Children’s Oce and reshold.
4 In the case of Shoreline Residential Ltd v Sheila Ruth Pelzer and David Pelzar [2018] 10 JIC 0405,
the matter of relevant information to be included in adavits was being discussed and the Master
saw t to clarify points that need not be included: ‘adavits are for facts, not law, and frequently
defendants have a lot to say about themselves and their situation which they probably should say in
their adavits. (You are not going to win the case by pointing out that the jurat in your opponent’s
e Focus of Ireland: Homelessness in the Courts 111
the Supreme Court in its consideration of a leapfrog appeal,5 the most substantive
examination is a judgment of Barrett J in EBS Ltd v Kenehan.6 In that case the
court found that there was ‘no express right to housing in Irish law; but that is
not to say that a qualied, as yet unrecognised, un-enumerated right pertaining to
housing may not at some point be recognised by the courts as existing in and under
the Constitution.7 e court spoke to an abundance of sources for this assertion
such as the European Convention on Human Rights (‘ECHR’) and its case law,8
the European Social Charter (‘ESC’) and many other international instruments.9
However, it also stated that should such a right be found to exist, it would
‘doubtless not be absolute’.10 erefore, while it is clear that there is no right to
housing currently in Irish law, it is important to consider what benet such a right
would bestow on an applicant and through what mechanism it may be exercised.
As Barrett J clearly stated, any right to housing would not be absolute. Such a right
would not deem every person in Ireland eligible for a home, and moreover, not
a particular home in a particular location.11 Nor would it grant the power to a
court to direct the authorities to provide such a particular home.12 Its exact usage
adavit is in the wrong place). (Or indeed, by asserting that you have a Constitutional right to
housing. You don’t.)’, at [57].
5 In Kearney v Permanent TSB [2019] IESCDT 98, the appellant was subject to a possession order
in respect of the family home. He sought to make a preliminary reference to the Court of Justice
of the European Union and listed several provisions of the European Charter of Fundamental
Human Rights to support that his right to housing was being infringed. e Supreme Court found
that this claim was bound to fail as it was not germane to the appeal as formulated and in any event,
could not give rise to any relief from the possession order.
7 ibid [13].
8 Namely, Moldovan v Romania (2007) 44 EHRR 16, Marzari v Italy (1999) 28 EHRR CD175,
Botta v Italy (1998) 26 EHRR 241, and Guerra v Italy (1998) 26 EHRR 357.
9 Article 11.1 of the International Covenant on Economic, Social and Cultural Rights; Article 27
of the Convention on the Rights of the Child; Article 5 of the International Convention on the
Elimination of All Forms of Racial Discrimination; and Article 14 of the UN Convention on the
Elimination of All Forms of Discrimination against Women, and the International Covenant on
Economic, Social and Political Rights all make reference to a right to housing.
10 EBS Ltd v Kenehan [2017] IEHC 604 [14]. is judgment was subsequently endorsed by the
High Court in Ulster Bank Ireland Ltd v Costelloe [2018] IEHC 289 [72]. In this case, the rst
defendant sought relief on the basis of the right not to be rendered homeless by virtue of possession
11 In Mulhare v Cork County Council [2017] IEHC 288, the court found that it would be outside of
its ‘competence, and not a matter for judicial review, to direct that the respondent would provide
a house within the narrow geographical radius identied by the applicants as suitable for their
needs, as to do so would be to engage in an assessment of the housing stock and of the needs of
the applicants which are outside the power of a court’, [41]. It therefore refused the applicant’s
application in the form of mandamus as it was outside the competence of the court and would be
an impermissible interference by the court in the allocation of resources by a statutory body.
12 e High Court in McDonagh v Clare County Council [2004] IEHC 184 held that the ‘obligation
of a housing authority is to respond to a need not a want. An applicant is of course entitled to
express a preference for the type of accommodation he/she bona de believes, grounded on
objective evidence, is suited and meets his/her accommodation needs. ere is however no

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