O’Donnell v South Dublin Co Co: a plague on both your houses

2066563765_4afd3fb6d0-390x285Here, the Court held that, in an exceptional case such as this, where the purpose of statutory powers is “to assist in the realisation of constitutionally protected rights or values, and if powers are given to relieve from the effects of deprivation of such constitutionally protected rights, and if there are no reasons, constitutional or otherwise, why such statutory powers should not be exercised, then I think such powers may be seen as being mandatory” [65] (judgment).

Background

Ellen O’Donnell was a 15 year old girl who was wheelchair bound due to cerebral palsy and living in a two-bedroom mobile home with both her parents and her six siblings at the time of the High Court decision in February 2008. She was educationally disadvantaged. She shared a bedroom with four others. She did not have access to a wheelchair accessible toilet. And the mobile home was so overcrowded that she could not move about in her wheelchair. More than a year earlier a support worker for the Irish Wheelchair Association wrote to the Council outlining the cramped conditions in which Ellen was living and requested that the Council rehouse the family in suitable accommodation immediately.

The Council’s response was that those conditions were caused by the O’Donnells themselves. The Council had provided them with a house in Clondalkin in 1994. But they handed back the keys within one month and moved to a halting site in Tallaght. In 2001, the Council spent €5,625 resurfacing that halting site to accommodate Ellen’s wheelchair. The O’Donnells soon after moved from that site to an un-serviced site. Then, in 2003, the Council provided a wheelchair accessible mobile home with a wheelchair accessible toilet and shower and a second caravan for additional accommodation. That was at a cost of €47,000. The O’Donnells swapped the second caravan for a different one which quickly became infested with mice and uninhabitable. The wheelchair accessible toilet came in need of maintenance. But instead of repairing it, they removed it completely. And they failed to maintain the heating. All that left Ellen with no accessible toilet and living in an unheated two-bedroom mobile home with her parents and her six siblings.

The O’Donnells wanted the Council to provide them with a loan of €76,000 to purchase a two-bedroom wheelchair accessible mobile home and a second three-bedroom mobile home for additional accommodation. But the Council stated that the maximum loan it could provide was statutorily limited to €6,350.

In September 2007, the family’s solicitors wrote to the Council pointing out that there was black damp spores in the mobile home, that a number of the children had chronic asthma, that winter was approaching, and requesting that the Council invoke emergency powers. The Council offered the family a house; the family refused, requesting caravan accommodation. The family issued High Court judicial review proceedings against the Council which were heard on affidavit.

High Court

Edwards J held (here) that the O’Donnells had completely abdicated their responsibility to repair the caravans and created an artificial overcrowding by swapping the second caravan for one which was uninhabitable. He refuted their claim that they did not have the means to do pay for the repairs, as they had a net yearly income of €36,350 and the repairs were minor. However, he did hold that the Council was aware that the family was living in accommodation which was unfit for human habitation. And although there was no evidence that the parents even made inquiries about getting repairs done, the Council did not ask why the repairs were not being done. Because of that, Edwards J held that the Council had not vindicated Ellen’s rights under Article 8 of the ECHR and that she was entitled to modest damages and ordered the Council to provide temporary accommodation until permanent accommodation is available. However, he held that none of the other family members were entitled to damages and refused to specifically order that the Council provide caravan accommodation. The O’Donnells appealed the decision to the Supreme Court.

Supreme Court

MacMenamin J wrote the judgment for the Court; Hardiman, O’Donnell and Dunne JJ concurred; McKechnie J wrote a concurring opinion. There were two parts to the appeal. Firstly, the O’Donnells argued that the Court should interpret dwelling in the Housing Act 1966, in accordance with the ECHR Act 2003, as including caravan accommodation. That would oblige the Council to provide the O’Donnells with caravan accommodation. The Court rejected that argument: that would be to “impermissibly legislate” [44]. The case law and the statutory provisions regarding a local authority’s duty to the Traveller community are clear. It is to provide halting sites. There is no obligation to provide caravans. However, it is settled law that the the words may provide in s 13 of the Housing Act 1998 implies a duty, not a discretion, on a local authority to provide, manage and control halting sites [45-47].

The second part of the appeal concerned s 6, 9 & 10 of the Housing Act 1998. S 9(2) provides nine criteria of which a local authority must have regard when assessing whether a member of the Traveller community should be provided with accommodation. Qualification can be under any one of those criteria. The Court stated that Ellen O’Donnell fell under eight of the nine criteria. The Council was aware of her situation and the impact it was having on her. But it took no steps to initiate repairs to the O’Donnells’ caravan or to determine why the O’Donnells were not repairing it. However, between January 2008 and the hearing of the appeal, the Council made the O’Donnells eight offers of accommodation, including one offer of two four-bedroom houses on a traveller specific site.

As s 13 of the 1988 Act cannot be interpreted as obliging the Council to provide the O’Donnells with caravans, and the Council had made numerous offers of housing to them, the Council could not be seen to have failed in its duty to the O’Donnell parents and Ellen’s siblings. MacMenamin J stated that it was impossible to identify any right which the O’Donnells did not forgo by their actions in disposing of a usable caravan and by refusing a range of housing offers [84].

Without entirely absolving her parents of their responsibility, though, and accepting that Ellen may not have been prepared or able to move to alternative accommodation without her family, the Council could have, as a minimum, written in the clearest possible terms offering financial assistance for repairs to be carried out [74]. Arguably, under Article 42 of the Constitution, her parents were entitled to make decisions relating to her welfare. But in Ellen’s case the Council had a duty “when faced with clear evidence of inhuman and degrading conditions” to carry out its duty, as informed by her capacity as a human person under Article 40.1 of the Constitution [70].

The Court dismissed the appeal. Although, as the Council did not perform its statutory duty towards Ellen, the Court varied the order to make a declaration that she was entitled to damages and remitted the case back to the High Court for an assessment of damages. However, as the breach of duty is quasi tortious, under the Civil Liability Act 1961, her parents may be liable in part.

Advertisements
Leave a comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: