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

• Date: 01 January 2020

110

e Focus of Ireland: Homelessness in the Courts

Fagan v Dublin City Council [2019] IESC 96

CLAIRE O’CONNELL*

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.

3 [2017] IEHC 288.

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.

6 [2017] IEHC 604.

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

proceedings.

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