Doherty & anor v South Dublin County Council & ors [2007] IEHC 4 

This judicial review focused on whether State parties were obliged to provide the applicants, as members of the Traveller Community, with a new serviced caravan, rather than accommodation consisting of bricks and mortar. The Court found in favour of the respondents, deeming the offer of temporary accommodation in bricks and mortar sufficiently reasonable in the circumstances. In relation to the operation of the Equal Status Acts 2000-2004 the court also found that it did not create new legal norms justiciable outside the Equality system framework established to deal with complaints.

Facts

This was a judicial review taken by the applicants, Paddy and Bridget Doherty. The respondents were South Dublin County Council (‘the Council’), the Minister for the Environment, Heritage and Local Government, Ireland, and the Attorney General. The Equality Authority was a notice party.

Mr and Mrs Doherty are Travellers of seventy and seventy-five years respectively, traditionally nomadic, they have been situated in Lynch’s Lane Halting site (‘Lynch’s Lane’) since around 1999. This was offered as a temporary housing solution as the halting site maintained by the Council, provided serviced bays to Travellers while awaiting permanent accommodation. Due to the halting site’s transient nature, many bays are unserviced with sanitation provided via a central block.

Mrs Doherty had suffered from ill health, which is suggested to have been exacerbated by the applicant’s poor living conditions. Following discharge from hospital in 2005 a Community General Nurse, wrote to the Travellers Unit of South Dublin County Council, describing Mrs. Doherty’s serious chest condition and recommending that provision of services such as heating, and sanitation were needed for Mrs. Doherty’s basic needs.

The Doherty’s were offered standard housing accommodation, comprising of a two bed ground floor apartment in a named address in Dublin in February 2006, six weeks after the proceedings had commenced. The Council determined that the allocation of a new caravan with internal plumbing would not adequately, or safely address the applicant’s needs or safeguard them from cold, draughts or dampness. Consequently, the Council decided that this meant they could no longer stay at Lynch’s Lane and were deemed ‘as homeless persons for the purpose of the Housing Acts’. The Council made a subsequent offer on 21st of April 2006 of a (different) two bed ground floor apartment in a sheltered housing development. Noting that this was to be temporary while a new residential caravan park is developed at Lynch’s Lane. Both offers were refused by the Doherty’s on the basis that they would not be able to “adjust to living in a house” and the offers did not meet their (culturally appropriate) housing needs. 

Issues

The applicant’s sought a declaration that the failure of the respondents to provide a serviced caravan is in breach of the respondents’ duties under the Housing Acts 1966-2004, as interpreted in the light of s.2 of the European Convention on Human Rights Act, 2003 (‘2003 Act’); is in breach of s.3 of the 2003 Act; is in breach of the Equal Status Act 2000-2004; which is in breach of Council Directive 2000/43/EC (‘The Race Directive’).

The applicants sought an injunction requiring the Council to provide them with a serviced caravan, with an order of mandamus in that regard and ancillary reliefs.

The respondents claim that the reliefs sought are not available in judicial review proceedings.

The applicants further claim that they are being treated unequally based on their Traveller status and that they have an absolute statutory right to opt for a traditional Traveller way of life. The Council asserted that their offer of bricks and mortar accommodation was reasonable and accorded with what they are obliged to do by statute.

Equality Acts

The Attorney General and South Dublin County Council argue that there was no unequal treatment in the provision of accommodation, and that the Court under judicial review proceedings was not entitled to have any regard to the provisions of the Equal Status Act 2000 and the Equality Act 2004. Contending that these Acts had mechanisms for investigating and remedying discrimination through the Equality Authority, which has its own legal norms, including redress, and time limits, where this case would be better heard.

The applicants claim that under Article 34.3.1. of the Irish Constitution they have the right to have their case pleaded and determined in judicial review.

Right to be Housed

The Court summarised the core issue as ‘to whether there is a statutory duty on a housing authority to make provision for sites for Travellers and as to whether the duty has been fulfilled.

The applicants contend that the Housing Act 1966 has created a discriminatory housing scheme for Travellers. Specifically, that the scheme for the housing of Travellers and settled persons comprises an unequal basis resulting in Travellers only receiving a serviced site whereas a non-Traveller receives full accommodation.

Counsel for the Attorney General argued that homelessness should not depend solely on the accommodation the person is occupying, but also what is available to them. Once a reasonable offer of accommodation has been made available to them which complies with section 2 of the Housing Act 1988, they should no longer be deemed homeless.

Human Rights

The applicants argued that their status as Travellers meant that special arrangements are required, outside of the statutory provisions already mentioned. They contend that the Housing Acts should operate on an unrestrained choice between accommodation in bricks and mortar and a caravan. The applicants urge for this interpretation to be accepted and placed upon the Housing Acts. They further argued the respondent housing authority have an obligation to treat the applicants in a special way having regards to their status as Travellers, as arising from s.3 of the 2003 Act.

It was also argued that what is reasonable in terms of accepting or refusing accommodation within the definition of homelessness in s.2 of the 1988 Act should consider the applicants’ particular circumstances who live a nomadic way of life.

The applicants argued that the failure to provide them with a caravan was a break of Article 8 and 14 of the European Convention on Human Rights on the basis that there was discrimination with regards to their enjoyment of family life.

The Council in response stated the applicant’s tradition would be preserved in the shape of a site for their caravan beside a day house, but after a reasonable amount of time due to the need for sire re-development.

Reasoning:

The Court found no evidence that the respondents acted out of prejudice against Travellers, the Court noting the Council’s Traveller Accommodation Programme.

The Court stated that there was ‘no doubt the Council could, or perhaps should, do more. That, however, is not an issue for the Court’.

Equality Acts

The Court found the Equal Status Acts 2000-2004 did not create new legal norms, that were justiciability outside of the framework of compliance established by the Acts. However, the Court still retains its supervisory jurisdiction to ensure hearings are held within jurisdiction, operate under constitutional standards, and do not fly in the face of fundamental reason and common sense. Judicial review was therefore still available to such applicants, despite the creation of a special statutory scheme/appeal body to deal with equality cases. The Court stated the ultimate test is one of statutory interpretation. The Court notes that s.21 Equal Status Act 2000 creates a specific legal obligation for the mode of enforcement through an agency. The Court thereby found that this amounted to a creation of a seperate legislative and administrative scheme, which does not create a series of private rights enforceable in damages, or outside the context of that scheme.

The Court found that they could not hold the treatment of the appellants as being discriminatory for reasons set out below.

Right to be Housed

The Court found that they were confined by the definition of homelessness as per section 2 of the Housing Act 1988.

The Court stated that if the statutory scheme would allow a distinction conferring a special right on Travellers to always be housed in a caravan, then they could avail of such, but instead the court was confined by section 2 of the Housing Act 1988 which made no such distinction.

The Court agreed with the Attorney General’s argument that the state of homelessness should end once an offer of accommodation has been made which could be reasonably occupied. The Court recognised the living conditions of the applicants deemed them homeless. However, the Court stated their state of homelessness ended once a reasonable offer was made by the housing authority, regardless of whether that offer was rejected.

Human Rights

The Court found that within Irish law and the European Convention on Human Rights, there is no positive obligation to intervene and uphold private and family life, and that the text within Article 8 forbids ‘interference by a public authority with the exercise of this right’. The Court stated that it would be impossible to apply a test of culpability and of inhuman treatment where a few offers have been made, and where the best form of halting site accommodation is to be made available to the applicants within 18 months.

The Court also found that there was nothing in any decision of the European Court of Human Rights, Ireland, or the UK, that would establish that a particular aspect of family life requires a member of the Traveller Community could demand a new, centrally heated, plumbed caravan with electricity supply. Having analysed the relevant case law under the European Court of Human Rights, the Court found the statutory entitlements of the applicants exceeded those offered under an interpretation of Article 8 of the European Convention of Human Rights.

The Court stated that where there is a plea that the Court declare the absence of welfare support to be wrong in a particular situation, the applicant would need to show a complete inability to exercise a human right from their own means and a serious situation that has set the right at nought with the prospect of serious long-term harm. The Court stated that any proposed intervention by the Court would need to take into consideration the responsibility of the legislature ad executive to decide on the allocation of resources and priorities.

Conclusion:

In conclusion the Court found the applicants had not been treated in a discriminatory fashion by the respondents. That the Council had discharged their duty with the offering of reasonable accommodation in the form of bricks and mortar and were not obliged to supply, members of the Traveller Community with a new, centrally heated, plumbed caravan with electricity supply.