Housing & Constitution
Cases
O’Donnell v South Dublin County Council
[2007] I.E.H.C. 204
Judgment of Miss Justice Laffoy delivered on 22nd May, 2007.
Factual background
The plaintiffs are siblings. They are members of a traveller family and they reside with their parents Bridget O’Donnell (Mrs. O’Donnell) and Simon O’Donnell (Mr. O’Donnell) and other members of their family in a mobile home at Lynch’s Lane temporary halting site in Clondalkin, County Dublin. The facilities at Lynch’s Lane are provided by the defendant, which is the housing authority for the area in which it is located.
The three plaintiffs suffer from a condition known as Hurler’s syndrome, sometimes called gargoylism. The condition is caused by the body’s inability to produce specific enzymes and leads to severe abnormalities in development resulting in orthopaedic complications with pain and immobility, obstructive airways disease with repeated respiratory infections, cardiac complications, visual impairment, loss of hearing and learning disability. Each of the plaintiffs has had a bone marrow transplant, aimed at halting the disease process and prolonging life. Each has had corrective surgery for joint contractures and other skeletal deformities. Functional performance across the range of personal activities of daily living is limited in each case.
The first plaintiff (Mary) has just turned eighteen years of age, although she was a minor when the proceedings were commenced and at the date of the hearing. She attends St. Michael’s School in Chapelizod. She has had corrective surgery to her hips and knees. She has carpal tunnel syndrome in her right hand and poor manual dexterity bilaterally. Her vision is poor and she is awaiting a cornea transplant in both eyes. Her hearing is very bad and she underwent an operation some time prior to the hearing. She has a learning disability and her speech is unclear. On examination by Mary Patterson, occupational therapist, in January, 2006, Mary was found to be mobile without a walking aid. However, she had difficulty ascending and descending steps. Mary and her mother reported poor walking time and distance with frequent falls. Her knees and ankles were prone to swelling and were painful and she was constantly fatigued. She was found to have a limited range of movement in her upper limbs. As a result, she needs help in washing and drying and combing her hair and in dressing. She needs assistance in showering and needs to sit in the shower. She also suffers from nocturea.
The second plaintiff (Patrick) is fourteen years of age. He also attends St. Michael’s School. He has undergone surgery to his knees, hips and wrists. He had a cornea transplant at the end of 2006 and at the date of the hearing was awaiting another. His hearing is very bad and he has a hearing aid in each ear. Ms. Patterson found that he was fully mobile without an aid, but he had a history of falls. Mrs. O’Donnell reported to the physiotherapist that he complained constantly of pain in his knees and that, following a period of inactivity, he had difficulty in moving from sit to stand because of stiffness and pain in the joints of his lower limbs. At the hearing, Mrs. O’Donnell testified that he can still walk without help, but that she is worried about the future. Patrick needs help putting on his socks and shoes because he is unable to bend and stoop. He is unable to reach over his head due to reduced range of movement at his shoulders. He needs assistance in washing his hair and showering. His manual dexterity and grip is reduced and he is unable to flex his fingers fully to form fists.
The third plaintiff (Bernard) is of full age. He is now over twenty-one. He has had surgery to his hips, knees and hands. He has pronounced kypho-scoliosis, which causes persistent back pain. He has severe learning disability and his speech is indistinct. He has not been made a ward of court. His mother brings these proceedings as his next friend. He had a cornea transplant at the end of 2006 and at the time of the hearing was awaiting another. His hearing is poor. Mrs. O’Donnell testified that he is on antibiotic medication for life. Ms. Patterson found Bernard’s mobility to be limited. She found that he was poorly mobile in or around his home with a walking frame or pushing a wheelchair. He used the wheelchair for longer distances. He requires contact assistance from one person in order to negotiate a single step. Ms. Patterson found that within his home he became breathless on walking a short distance. Bernard requires help in dressing. He has reduced power and range of movement in his shoulders and has difficulty in bending and stooping. His father assists him to shower. Bernard attends Stewart’s Hospital Training Centre.
In 2002 Bernard, suing by his next friend, Mrs. O’Donnell, brought proceedings against the defendant in this Court (Record No. 2002/3138P) in which he sought relief largely in the same terms as the relief sought in these proceedings, including an order requiring the defendant to provide accommodation for him as assessed and approved as being suitable to his needs, in particular, a wheelchair-accessible caravan, with indoor and wheelchair-accessible shower and toilet and adequate sanitary facilities and central heating. Those proceedings were compromised on terms that the defendant provided a wheelchair-accessible Pemberton Sovereign mobile home to accommodate Bernard as a wheelchair user. The mobile home was installed on Bay 18 at Lynch’s Lane, which had been occupied by the O’Donnell family since about 1996 in October 2002. The defendant also provided an external ramped access to facilitate wheelchair access and the mobile home was connected to the services to ensure that Bernard had access to indoor running water, toilet and sanitary facilities. The provision of the mobile home was funded by means of a disability grant in the sum of €40,000 made available to the defendant by the Minister for the Environment and Local Government under s. 15 of the Housing Act, 1988, as amended.
That mobile home is currently occupied by ten persons: Bernard, Mary and Patrick and their parents and also two adult sisters of Bernard, two minor sisters of Bernard, who are aged sixteen and thirteen respectively, and a granddaughter of Mr. and Mrs. O’Donnell, who is ten years of age. The accommodation in the mobile home comprises two bedrooms, a living area and a bathroom with level access shower, toilet and wash hand basin. The six girls, including Mary, sleep in the larger of the two bedrooms in two beds, three to a bed. Bernard and Patrick share the smaller bedroom, which as two 3 ft. beds. Mr. O’Donnell and Mrs. O’Donnell sleep in the living area, bringing in a mattress at night and taking it out in the morning.
The O’Donnells have lived at Lynch’s Lane since the temporary halting site was opened in 1996. Before the Pemberton mobile home was provided in compromise of Bernard’s proceedings in 2002, there were two caravans on Bay 18. Mrs. O’Donnell’s evidence was that one belonged to another son and that now occupies Bay 27 in Lynch’s Lane, where the son and his family live. The second was hers but it was old and, because of its condition, was scrapped.
As is required under the Housing (Traveller Accommodation) Act, 1998 (the Act of 1998), the defendant has in place a Traveller Accommodation Programme (the Programme), which was adopted on 9th May, 2005 and covers the period from 1st January, 2005 to 31st December, 2008. In the course of the assessment carried out by the defendant of traveller accommodation needs in connection with the Programme, Mrs. O’Donnell was interviewed and expressed a preference for a bay in a residential caravan park in Clondalkin as permanent accommodation for her and her family, rather than accommodation in standard housing or group housing. In implementation of the Programme, the defendant is in the course of developing a permanent facility at Lynch’s Lane which will comprise ten residential caravan bays and ten group houses. Mr. Philip Murphy, Senior Executive Officer of the Housing Department, testified at the hearing that, while that development had been delayed between 2000 and 2005 for a variety of reasons including local opposition and litigation, it is now on target and should be ready by the middle of 2008. The evidence is that the O’Donnell family will be provided with a large bay in that development, which will be tarmacadamed and will accommodate two or three caravans and it will also have a day house, which will have a kitchen and daytime living area and will be fully serviced to accommodate the O’Donnell’s needs.
It was suggested by an officer of the defendant to Mrs. O’Donnell early in 2005 that, having regard to the medical condition of the plaintiffs, she might consider an offer of a specially adapted house in the new Lynch’s Lane facility. However, Mrs. O’Donnell’s position is that, as a traveller, she would not be happy living in a house; she wants a bay and she wants her children living in mobile homes in the bay with her. I am satisfied on the evidence that the suggestion about a suitably adapted house was merely a suggestion, which I have no doubt the officials of the defendant bona fide considered to be in the best interests of the plaintiffs, which never evolved into a specific offer.
Over the past year the defendant has been upgrading the existing temporary facilities at Lynch’s Lane. The utility pod on Bay 18 was replaced last year. The new utility pod has been adapted for special needs with a ramp and grab rails. It is heated by a blow heater. Works have been carried out to the ground at Bay 18 to render it level and suitable for wheelchair use.
The defendant accepts that the plaintiffs are living in overcrowded conditions in the Pemberton mobile home, but suggests that the overcrowding is of the O’Donnell’s own making. Mrs. O’Donnell has been advised by officers of the defendant to apply for a caravan loan to enable her to acquire a caravan to accommodate some members of her family. The maximum loan for purchase of a new or second-hand caravan payable under the Traveller Accommodation Schemes, which was laid down in Circular Letter TAU 4/2002 dated 22/2/02, is €6,350. Mrs. O’Donnell has not applied for a loan. Indeed she has rejected the loan as a solution to the family’s accommodation problems on two grounds. First, she contends that she could not get a suitable caravan for €6,350. Despite Mr. Murphy’s evidence to the contrary, I am far from convinced that it would be possible to acquire a second-hand caravan, eight to twelve years old, in excellent condition and fully serviceable and ready to move into for €6,350. I am satisfied that it would not be possible to acquire the type of caravan or mobile home, which would be suitable for Mary or any of the plaintiffs at that price. The second reason is that Mrs. O’Donnell is of the view that she would not be able to service the loan. The loan would be repayable over five years at the rate of €20 per week. Leaving aside the income of Mr. O’Donnell from his business of dealing in scrap and recycled vehicles, between them, the adult members of the O’Donnell family who reside in the Pemberton mobile home in 2006 had a weekly income of €993.20, comprising unemployment assistance paid to the plaintiffs’ two adult sisters, carer’s allowance paid to Mrs. O’Donnell and disability assistance paid to Bernard and Mary. In addition, Mrs. O’Donnell was in receipt of €670 per month in respect of children’s allowance. The defendants calculation is that, disregarding Mr. O’Donnell’s income, the weekly household income was €1,317.75, which equates to an annual income of €68,263.00. I assume those benefits have increased in 2007. While I have no doubt that there are many calls on that income, I do not accept that, if the caravan loan was a solution to the problem, Mrs. O’Donnell and the other members of her family could not fund the loan repayments.
Expert evidence
Ms. Patterson’s evidence was that the Pemberton mobile home is seriously overcrowded. The space available is inadequate having regard to the needs of the family members with disability. Bernard has been supplied with a mobile shower chair, but there is insufficient space in his bedroom for either that chair or his wheelchair. The three plaintiffs require assistance with dressing and washing. On school days they have to be ready by 8 o’clock in the morning when they are collected by bus and the able-bodied children also have to be ready around the same time. The three plaintiffs suffer from visual impairment and, in the crowded environment, their safety is compromised. They have no privacy when using the shower room independently, because the sliding door is awkward and heavy and cannot be closed by any of them. Bernard’s mobility has deteriorated as he has grown older. Ms. Patterson’s view was that it was to be expected that Mary and Patrick will suffer similar limitations as they grow older as they face increased orthopaedic complications. However, Ms. Patterson could not say when the condition of either will deteriorate in the future.
Ms. Patterson’s opinion was that, in order to alleviate the overcrowding situation, a second wheelchair-accessible mobile home is required, with ramped access in order to accommodate mobility restrictions. Ideally, in her view, it should have three bedrooms. But she acknowledged that the provision of wheelchair-accessible showering and toileting facilities reduces the space available for bedrooms within a mobile home. Her opinion is that appropriate showering facilities are essential to meet existing and long-term functional limitations of the plaintiffs.
In line with Ms. Patterson’s recommendation, Mrs. O’Donnell envisaged that the new mobile home would be for Mary. The girls would live there with her and her eldest sibling would look after her. The existing Pemberton mobile home would be for Bernard and Patrick and Mr. and Mrs. O’Donnell. Ms. Patterson’s opinion was that the room which Bernard and Patrick currently share is not of sufficient size and they need a bigger room. The bigger room would be available, if Mary moved out to another mobile home.
Fiona Maguire, occupational therapist, gave evidence on behalf of the defendant. Ms. Maguire was retained by the defendant in October, 2004 to carry out an assessment regarding the long-term housing needs of Bernard, Mary and Patrick for both a residential caravan bay and group housing, in the context of the proposed new development at Lynch’s Lane. Ms. Maguire reported on 21st January, 2005. She has not been asked to update her report since then. Ms. Maguire pointed out that the bedroom occupied by Bernard and Patrick did not allow for storage of Patrick’s wheelchair. The mobile home would be fully wheelchair accessible if the larger bedroom were occupied by Bernard and if one bed was removed. The smaller bedroom would be suitable for Patrick, again if one bed was removed. An alternative approach to accommodating Bernard and Patrick was also suggested: they could be accommodated in the main bedroom in the mobile home, which would allow an able-bodied family member to be accommodated in the smaller bedroom, which in Ms. Maguire’s opinion would undoubtedly better accommodate the needs of Bernard and Patrick.
While in Ms. Maguire’s opinion those suggestions would alleviate the obvious overcrowding and the consequent compromise to wheelchair access in the mobile home, she also recognised that they would necessitate suitable alternative accommodation being provided for Mary and the other family members. The only difference which I discern between Ms. Maguire’s assessment in 2005 and Ms. Patterson’s assessment in 2006 is that Ms. Maguire was of the view that Mary was then able to climb steps and should be able to manage steps provided they were not excessively high. As I have already recorded, Ms. Patterson’s assessment a year later was that ascending and descending steps presented a difficulty for Mary. Ms. Maguire recognised that wheelchair access might become essential for Mary and also that Patrick’s mobility might disimprove to a degree where he would also have to use a wheelchair. In either event, the facilities would have to be modified or extended for them. While Mary’s need for wheelchair accessible accommodation at this point in time was the subject of much debate at the hearing, the fact is that she needs accommodation and, given her condition, prudence would seem to suggest that it should be wheelchair accessible.
In her report in 2005 Ms. Maguire also made recommendations in relation to the provision of a satisfactory recreational and play area for Bernard, Mary and Patrick around the mobile home. As I understand Mr. Murphy’s evidence, her recommendations have been implemented.
Ms. Maguire readily acknowledged at the hearing that the accommodation available for the plaintiffs is far from ideal and that they require more space.
Mr. Murphy’s suggestion that the family arrangements could be configured to meet the plaintiffs’ special needs if the able-bodied members moved into a standard caravan is at variance with the analysis of the experts. On the evidence, it is clear that it is Mrs. O’Donnell’s wish and her intention that Bernard, Mary and Patrick will continue to be cared for within their home environment. Because of the nature and extent of their disabilities and their dependency, they require a considerable degree of care and supervision and this is likely to increase in the future. In my view, it is beyond doubt that even in the short term there is an urgent necessity that they be provided with more appropriate accommodation, which they do not have at present, their current accommodation being grossly over-crowded, potentially unsafe for them and wholly unsuitable to their special needs.
The issue in this case is whether there is any obligation on the defendant to make that provision.
The claim and defence as pleaded
In these plenary proceedings, the plaintiffs claim that the defendant is in breach of its statutory duties to them and is in breach of their constitutional rights and their rights under the European Convention on Human Rights (the Convention).
The primary relief the plaintiffs seek is an order requiring the defendant to provide accommodation for them, as has been assessed as being suitable to their needs, in particular a second wheelchair-accessible mobile home with ramped access and appropriate showering and toilet facilities. In the alternative, they seek an order that the defendant make sufficient funding available to the plaintiffs to enable them to provide such accommodation.
In broad outline, the defendant takes a somewhat different approach in answering Bernard’s claim to the approach adopted in answering the claims of Mary and Patrick. In relation to Bernard’s claim, it is contended that he is estopped from maintaining the proceedings because of the 2002 proceedings, the settlement thereof and the fact that the settlement was approved by the court. Alternatively, it is contended that the bringing of these proceedings on behalf of Bernard is an abuse of process. Without prejudice to that position, the defendant denies that Bernard has an entitlement to be provided with or has a need for a wheelchair-accessible mobile home as claimed, given that he was provided with a Pemberton mobile home in 2002.
In relation to Mary and Patrick, the defendant denies that either is entitled to be provided with, or has need of, a wheelchair-accessible mobile home as claimed and asserts that the overcrowding conditions in which they are living can be relieved by the acquisition of another caravan by their parents.
The defendant denies any breach of its statutory duties and asserts that it is carrying out its duties, asserting that it has provided the site (Bay 18) at Lynch’s Lane and the existing facilities for the plaintiffs and the Pemberton mobile home. It also asserts that it has assessed the plaintiffs’ long-term accommodation needs and that appropriate permanent accommodation will be provided for them under the Programme in the new development at Lynch’s Lane. In the interim, it asserts, it has made reasonable efforts to meet their temporary accommodation needs and for the provision of financial assistance by means of loans and grants.
The specific breaches of statutory duty, constitutional rights and of the provisions of the Convention alleged by the plaintiffs are denied.
Scheme of judgment
There is a certain degree of overlap between the various breaches alleged and the relief claimed by the plaintiffs. Further, having taken an overview of the submissions made, it seems to me that certain aspects of the submissions can conveniently be dealt with in tandem. For those reasons, I propose addressing the following issues and the submissions made by the parties and setting out my conclusions in the following order:
(1) Whether there has been a breach by the defendant of its statutory duties under the Housing Acts, as properly construed having regard to the provisions of the Constitution and s. 2 of the European Convention on Human Rights Act, 2003 (the Act of 2003).
(2) Whether there has been a failure on the part of the defendant to perform its functions in a manner compatible with the State’s obligations under the Convention, in particular, articles 3 and 8 of the Convention, and whether a remedy is available to the plaintiffs under s. 3 of the Act of 2003.
(3) Whether the plaintiffs have established any breach of the Equal Status Act, 2000 (the Act of 2000) or any failure on the part of the defendant to perform its functions in a manner compatible with article 14 of the Convention.
(4) Whether the plaintiff’s constitutional rights have been infringed by activity or inactivity on the part of the defendant.
(5) Whether Bernard is estopped or, as regards his participation, these proceedings are an abuse of process.
One matter raised on the pleadings – whether the plaintiffs have a case on the basis that the defendant has acted in breach of the State’s duties arising from international legal covenants – was not pursued on behalf of the plaintiffs at the hearing and I do not propose to address it. Another matter – whether the plaintiffs can rely on the Disability Act, 2005 – was raised on behalf of the plaintiffs, although not pleaded at all. I do not propose to address that matter because, although counsel for the defendant evinced a reasonable attitude, I consider that the novel and important issues which that Act raises should be left for a forum in which they have been fully explored in the pre-trial process and at the hearing.
Before considering the issues outlined, I have some general observations to make.
First, I think it is important to emphasise at this juncture that the defendant is a defendant to these proceedings in its capacity as a local authority and as the housing authority for the area in which Lynch’s Lane is situated. Other organs of the State, no doubt, owe duties to the plaintiffs because, in the case of Patrick and until recently Mary, of their minority status, and, in the case of all three, the state of their health and their disabilities. Moreover, no doubt there are administrative schemes operated by organs of the State from which they could benefit. I mention this because counsel for the defendant in their submissions referred to the Disabled Persons’ Grant Scheme operated by the Department of the Environment and Local Government, which they stated is discretionary and subject to the largesse of the Minister for Finance. This judgment is concerned only with whether the defendant has liability to the plaintiffs for any of the alleged breaches of the plaintiffs’ rights.
Secondly, while there is an inherent contradiction in the manner in which the defendant ultimately responded to Bernard’s proceedings in 2002 in the settlement thereof and its response in these proceedings to the claims of Mary and Patrick, I consider that it would be inappropriate to attach any weight to that factor in addressing the legal issues which arise here.
Breach of the Housing Acts?
One of the reliefs sought by the plaintiffs is a declaration that the defendant, in failing to provide for the accommodation needs of the plaintiff’s, has acted in breach of its duties, including its statutory duties under the Housing Acts, 1966 to 1988, the Act of 1998 and the Department of the Environment and Local Government Guidelines pursuant thereto. Specifically, the provisions of the Housing Acts which the plaintiffs allege impose a duty on the defendant to provide them with the accommodation which they seek and which they allege have been breached are:
(a) ss. 9 to 13 of the Housing Act, 1988 (the Act of 1988):
(b) ss. 6 to 17 and s. 24 the Act of 1998 and
(c) s. 138 of the Local Government Act, 2001 (the Act of 2001).
In the Act of 1988, for the first time, the provision by a housing authority of housing accommodation for travellers was addressed. Section 9 required a housing authority to carry out periodic assessments of the need for provision by the authority of adequate and suitable housing accommodation for persons requiring or likely to require such accommodation who were unable to provide it from their own resources. Sub-section (2) of s. 9 directed that a housing authority should have regard to the needs of certain categories of persons for example, homeless persons and persons to whom s. 13 applied. Section 13 applied specifically to travellers.
Sub-section (2) of s. 13, as now contained in s. 29 of the Act of 1998, provides as follows:
“A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, including sites with limited facilities for the use by such persons otherwise than as their normal place of residence or pending provision of permanent accommodation under an accommodation programme within the meaning of s. 7 of the [Act of 1998], and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.”
Sub-section (3) of s. 13 provides that s. 56(2) of the Housing Act, 1966 shall apply in connection with the provision of sites under s. 13 as it applies in connection with the provision of dwellings under s. 56. Section 56 empowers a housing authority to:
“… maintain in good order and repair roads, shops, playgrounds, places of recreation, parks, allotments, open spaces, sites for places of worship, factories, schools, offices and other buildings or land and such other works or services, as will, in the opinion of the authority, serve a beneficial purpose either in connection with the requirements of the persons for whom the dwellings are provided or in connection with the requirements of those persons and of other persons.”
It is well settled, as a result of a long line of authority commencing with the seminal judgment of Barron J. in University of Limerick v. Ryan (Unreported, High Court, 21st February, 1991), that s. 9 and s. 13 are not merely enabling provisions which confer power on a housing authority to meet the accommodation needs of those unable to provide for themselves, but the sections also impose a corresponding duty on the housing authority to make use of those powers where appropriate. Indeed, the defendant accepted that it is clear from s. 13 and the authorities, including a later decision of Barron J. in Mongan v. South Dublin (Unreported, High Court, 31st July, 1995), that the duty imposed on a housing authority in respect of a traveller, who does not wish to be provided with a dwelling, should be performed by providing a caravan site with the same quality of services which are provided to dwellings. However, the defendant contends that s. 13 does not extend to imposing a duty on a housing authority to provide a caravan or mobile home.
The response of counsel for the plaintiffs to that was not to point to a provision in the Housing Acts which empowers or mandates a housing authority to provide a caravan or a mobile home. No such provision exists, although s. 30 of the Act of 1998 amended s. 15(1) of the Act of 1988 to enable regulations be made providing for a grant or a subsidy toward the provision of a caravan out of public funds. The response was that the statutory of provisions relating to the defendant’s duty towards the traveller community, by virtue of s. 2 of the Act of 2003, must now be construed and applied in a manner that is consistent with the articles of the Convention they invoke, in particular, articles 3 and 8. However, that argument was advanced in a general way and they did not indicate precisely what specific provision should be interpreted as required by s. 2 or what meaning should be ascribed to such provision, which would not be open but for the application of s. 2, which provides as follows:
“In interpreting and applying any statutory provision or rule of law, a court shall, insofar as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”
In relation to the application of that provision, both sides submitted that there is guidance to be obtained from decisions of the superior courts in England and Wales on the application of the corresponding provision of the Human Rights Act 1998 (HRA), s. 3(1), of which provides:
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with the Convention rights.”
The authority relied on by counsel for the plaintiffs is the decision of the House of Lords in R v. A [2001] 3 All ER 1. They referred the court to the following analysis of s. 3 of HRA contained in the speech of Lord Steyn (at para. 44):
“Section 3 of the 1998 Act places a duty on the court to strive to find a possible interpretation compatible with Convention rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: s. 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: s. 3 is more radical in its effect. It is a general principle of the interpretation of legal instruments that the text is a primary source of interpretation; other sources are subordinate to it … Section 3 of the 1998 Act qualifies this general principle because it requires a court to find an interpretation compatible with convention rights if it is possible to do so. … In accordance with the will of Parliament as reflected in s. 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only invoke the reading down of express language in a statute but also the implications of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on convention rights is stated in terms, it is plainly impossible to do so.”
The wide scope of a court’s entitlement to depart from the words of the legislature in interpreting a statutory provision which that passage appears to permit, in my view, is not necessarily borne out by the result. The provision at issue in the case was a provision which gave a court, on a trial for rape, power to give leave in relation to any evidence sought to be adduced or question sought to be put in cross-examination by the accused about sexual behaviour of the complainant, if it was satisfied that a succeeding provision applied and that the refusal of leave might have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case. One “gateway”, as Lord Steyn put it, in the succeeding provision which permitted the evidence, s. 41(3)(c), applied where the evidence or question related to a relevant issue in the case and “it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar – (i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or (ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event, that the similarity cannot reasonably be explained as a coincidence.” In essence, the House of Lords held that, on ordinary methods of interpretation, that provision could render inadmissible evidence in a manner which would deprive the accused of his right to a fair trial as guaranteed by article 6 of the Convention. The ratio of the decision is to be found in para. 46 of Lord Steyn’s speech, with which the other Law Lords expressly concurred. Lord Steyn said:
“The effect of the decision today is that under section 41(3)(c) …, construed where necessary by applying the interpretative obligation under section 3 of the 1998 Act, due regard being paid to the importance of seeking to protect the complainant from indignity and from humiliating questions, the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the Convention. If this test is satisfied the evidence should not be excluded.”
It is interesting to note that Lord Hope stated (at para. 108) that he would find it very difficult to accept that it was permissible under s. 3 of the 1998 Act to read into s. 41(3)(c) a provision to the effect that evidence of questioning which was required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible and continued:
“The rule of construction which section 3 lays down is quite unlike any previous rule of statutory interpretation. There is no need to identify an ambiguity or absurdity. Compatibility with Convention rights is the sole guiding principle. That is the paramount object which the rule seeks to achieve. But the rule is only a rule of interpretation. It does not entitle the judges to act as legislators. As Lord Woolf C.J. said in Poplar Housing … v. Donoghue [[2001] 3 WLR 183], section 3 of the 1998 Act does not entitle the court to legislate; its task is still one of interpretation. The compatibility is to be achieved only so far as this is possible. Plainly this will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible. It seems to me that the same result must follow if they do so by necessary implication, as this too is a means of identifying the plain intention of Parliament …”
Counsel for the defendant relied on decision of Woolf C.J. in Poplar Housing v. O’Donoghue referred to in the above quotation. They also referred the court to the decision of the House of Lords in In re S (Care Order: Implementation of Care Plan) [2002] 2 AC 291. There, Lord Nicholls, with whom the other Law Lords agreed, made some general observations on the effect of s. 3(1) HRA. He described it as a powerful tool whose use is obligatory, as is the case with s. 2 of the Act of 2003 in this jurisdiction. However, the reach of the tool is not unlimited. Section 3 is concerned with interpretation. Section 4 of HRA, the power to make a declaration of incompatibility, he suggested presupposes that not all provisions in legislation can be rendered Convention compliant by the application of s. 3(1). A similar comment could be made in this jurisdiction in relation to the interrelationship of s. 2 and s. 5 of the 2003 Act. He then went on to consider the parameters of s. 3, stating as follows at paras. 39 and 40:
“39. In applying section 3 courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament. By this means the Act seeks to preserve parliamentary sovereignty. The Act maintains the constitutional boundary. Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes, are matters for Parliament.
40. Up to this point there is no difficulty. The area of real difficulty lies in identifying the limits of interpretation in a particular case. … For present purposes it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate. In such a case the overall contextual setting may leave no scope for rendering the statutory provision Convention compliant by legitimate use of the process of interpretation. The boundary line may be crossed even though a limitation on Convention rights is not stated in express terms. Lord Steyn’s observations in R v. A …, para. 44 are not to be read as meaning that a clear limitation on Convention rights on terms is the only circumstance in which an interpretation incompatible with the convention may arise.”
In the ordinary course of the application of s. 2 of the Act of 2003 one would follow the rubric suggested by Woolf C.J. in the Poplar Housing case at p. 204 and one would first ascertain whether, absent s. 2, there would be any breach of the Convention. If there would, then one would limit the extent of the modified meaning to that which was necessary to achieve compatibility. I have not been able to follow that approach here because, as I have stated, counsel for the plaintiffs have not pointed to a specific section which, by the application of ordinary canons of construction, would be incompatible with the Convention, nor have they suggested what would have to be read down of the language of such provision or, alternatively, implied into it to render it compatible with the Convention. Counsel for the defendant have assumed that the plaintiffs’ argument is that the court should read into s. 13(2) the words “may provide caravans”. They submit that such an amendment may appear modest, but its effect would be wide. It would have a significant impact on social housing policy and impose a significant burden on housing authorities and their resources. I incline to agree with that submission and I incline to the view that to interpret s. 13(2) in that way would cross the boundary between interpretation and amendment. I think it probable that it is s. 13(2) which the plaintiffs say should be construed by reference to s. 2 and it may be that they have an even more modest and narrower meaning in mind to bring it in line with the Convention. However, it would not be proper for the court to speculate on that. In my view, the plaintiffs have not made out a case for the application of s. 2 of the Act of 2003 to the statutory provisions relating to the defendant’s duties to the travelling community or persons in the position of the plaintiffs in a manner from which one could conclude that the defendant is infringing its statutory duties to the plaintiffs.
The plaintiffs’ submission that relevant statutory provisions must be construed having regard to the provisions of the Constitution is no more fruitful than their submission based on s. 2 of the Act of 2003. The plaintiffs referred the court to the decision of Costello J. in O’Brien v. Wicklow Urban District Council (Unreported, 1st June, 1994) and in particular the following passage:
“I accept the argument that the plaintiffs have a right to bodily integrity which is being infringed by the conditions under which they are living. I accept that the provisions of the Housing Act, 1988 must be construed in the light of a constitutional duty towards the plaintiffs and the factual position in which the plaintiffs find themselves. The Supreme Court has held in the course of a number of judgments and particularly in the judgment of Mr. Justice Walsh in the East Donegal Co-operative case that the Acts of the Oireachtas must be read in the light of the Constitution. If statutory powers are given to assist in the realisation of constitutionally protected rights by a Local Authority and if the powers are given to relieve from the effects of deprivation of such constitutionally protected rights and if there are no reasons why such statutory powers should not be exercised then I must interpret such powers as being mandatory.”
As I have already indicated, although framed as conferring powers, in accordance with the authorities, including that decision, the defendant accepts that ss. 9 and 13 of the Act of 1988 impose positive duties on the defendant. Beyond that, the plaintiffs have not pointed to a constitutionally permitted construction of s. 13(2) which would require the defendant to give plaintiffs what they say they are entitled to: the provision of another mobile home for Mary. As counsel for the defendant pointed out, the constitutional limitation on the “double construction” rule of interpretation is clear from the following passage from the judgment of Walsh J. in East Donegal Co-operative Livestock Mart Limited [1970] I.R. 317 at 3431:
“Therefore, an Act of the Oireachtas or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring validity of an Act should be given in cases of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision, which is clear and unambiguous, cannot be given an opposite meaning.”
To interpret s. 13(2) as mandating a housing authority to provide a mobile home for a traveller, or even a seriously disabled traveller, would, it seems to me, be usurping the functions of the Oireachtas.
Sections 6 to 17 of the Act of 1998 contain provisions imposing duties on a housing authority to assess the need for sites when making an assessment under s. 9 of the Act of 1988, to adopt an accommodation programme specifying the accommodation needs of travellers after going through certain processes, and to secure the implementation of the accommodation programme. The defendant’s position is that it has complied with those provisions in the Programme for 2005 to 2008 and in the provision they are making for the plaintiffs under the Programme. It is unfortunate that the defendant encountered opposition in implementing its plans in relation to the development of the new facility at Lynch’s Lane. However, the difficulties appear to have been surmounted and hopefully the new facility will be ready for use in August, 2008 as is anticipated. In my view, the plaintiffs have not established any breach of the provisions of ss. 6 to 17 of the Act of 1998.
Section 24 of the Act of 1998, as amended by the Act of 2001, provides that nothing in the Act of 1998 shall prevent a manager from exercising the powers conferred on a manager under sub-ss. (4) and (5) of s. 138 of the Act of 2001 in an emergency situation. Sub-section (4) empowers a manager to deal with an emergency situation calling for immediate action without regard to ss. (1) to (3), which impose a duty on him to inform the elected members of the council before embarking on any works, other than works for maintenance, or before committing the local authority to any expenditure in connection with the proposed works, other than maintenance and repair. Sub-section (5) provides that an emergency situation is deemed to include a situation where the works concerned are urgent and necessary, having regard to personal health, public health or safety considerations, in order to provide a reasonable standard of accommodation for any person. The plaintiffs submitted that s. 24 and s. 138 should be construed as providing for a duty on the part of the defendant to act in circumstances of urgency. Even if that submission is correct, it does not avail the plaintiffs because they have failed to point to a substantive provision of the Housing Acts which obliges the defendant to do what they say should be done.
For the reasons outlined, in my view, the plaintiffs have not established an entitlement to a declaration that the defendant, in failing to provide for the accommodation needs of the plaintiffs in the manner in which they assert they should be provided for, has acted in breach of any of its duties under the Housing Acts.
Breach of Convention/Act of 2003
One of the reliefs claimed by the plaintiffs is a declaration that the defendant, in failing to provide for their accommodation needs, has acted in breach of the Convention and in breach of s. 3 of the Act of 2003. The plaintiffs also claim damages, including damages under s. 3 of the Act of 2003.
Section 3(1) of the Act of 2003 provides as follows:
“Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”
Sub-section (2) of s. 3 provides for a remedy in damages for a person who has suffered injury, loss or damage as a result of a contravention of sub-s. (1), where no other remedy is available.
The plaintiffs have invoked article 3 and article 8 of the Convention. Article 3 provides:
“No-one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.”
The fundamental issue which emerged in relation to the plaintiffs’ Convention based claim to have the provision made for them which they seek from the defendant was whether article 8 gives rise to positive obligations on the part of organs of the State to vindicate a person’s right to respect for their private and family life and their home. Counsel for the plaintiffs submitted that it does, whereas counsel for the defendant submitted that the European Court of Human Rights (ECHR) has consistently held that article 8 rights do not confer any right to be provided with a home or any positive obligation to provide alternative accommodation of an applicant’s choosing. It is necessary to look at recent decisions of national courts and the ECHR on article 8 to determine which contention is correct. I propose considering the authorities which I believe to be of importance chronologically.
Chapman v. The United Kingdom (2001) 33 EHRR 399 was a decision of the ECHR, Grand Chamber, delivered on 18th January, 2001. Mrs. Chapman was a Gypsy by birth. Her complaint was that the refusal of planning permission to station caravans on her land and the enforcement measures implemented in respect of her occupation of her land constituted a violation of article 8. The ECHR stated (at para. 95) that to accord to a Gypsy who has unlawfully stationed a caravan at a particular place different treatment from that accorded to non-Gypsies who have established a caravan site at that place or from that accorded to any individual who has established a house in that particular place would raise substantial problems under article 14 of the Convention. However, it went on to state (at para 96), that, although the fact of belonging to a minority with a traditional lifestyle different from that of the majority does not confer an immunity from general laws intended to safeguard the assets of the community as a whole, such as the environment, it may have an incidence on the manner in which such laws are implemented. The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyles both in the relevant regulatory planning framework and in reaching decisions in particular cases. The court stated that, to that extent, there is thus “a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.”
Having stated that it appeared from the material placed before the ECHR that the provision of an adequate number of sites in the United Kingdom which Gypsies found acceptable and on which they could lawfully place their caravans at a price which they could afford was something which had not at that point in time been achieved, the court continued (at para. 98) as follows:
“The court does not, however, accept the argument that, because statistically the number of Gypsies is greater than the number of places available on authorised Gypsy sites, the decision not to allow the applicant Gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on all other Contracting States, an obligation by virtue of Article 8 to make available to the Gypsy community an adequate number of suitably equipped sites. The court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the framework convention, and domestic legislations in regard to protection of minorities, that Article 8 can be interpreted as implying for States such far reaching positive obligations of general policy.”
There followed (at para. 99) the passage from the judgment which was particularly relied on by counsel for the defendant which is to the following effect:
“It is important to recall that Article 8 does not in terms recognise a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being have a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter of political not judicial decision.”
The ECHR identified the issue to be determined in the Chapman case as the narrow one of whether the particular circumstances of the case disclosed a violation of Mrs. Chapman’s right to respect for her home under article 8 of the Convention, not the broader issue of the acceptability or not of a general situation, however deplorable, in the United Kingdom. The narrow issue involved balancing the conflicting interests of the right of the individual under article 8 for her home and the right of others in the community to environmental protection. The court found that there had been no violation of article 8.
In R. (Bernard) v. Enfield London BC [2003] L.G.R. 423, which was a decision of the Queen’s Bench Division of the English High Court, the claimants, who were husband and wife, sought damages for breach of their rights under articles 3 and 8 of the Convention on the basis that the defendant local authority had not provided them with accommodation in accordance with an assessment of their needs. The husband and wife lived with their six children in accommodation provided by the defendant. The wife was severely disabled and the accommodation had not been adapted to her needs. The defendant undertook an assessment of their needs in September, 2000 and concluded that the family needed to be re-housed in accommodation suitably adapted. After the court had made a mandatory order in the proceedings directing the defendant to provide the claimants with accommodation in accordance with their assessment, the defendant complied with the order in October, 2002. The issue which the court was concerned with in the judgment delivered on 25th October, 2002 was whether the claimants were entitled to damages. In dealing with the claim under article 8, Sullivan J. noted that, while the main thrust of article 8 is to prevent arbitrary interference by public authorities with an individual’s private and family life, the ECHR has recognised that article 8 may require authorities to take positive measures to secure respect for private or family life, citing and quoting from Botta v. Italy (1998) 26 EHRR 241. In the passage from the judgment of Sullivan J. relied on by counsel for the plaintiffs (at para. 32 et seq.) he stated as follows:
“Respect for private and family life does not require the State to provide every one of its citizens with a house … However, those entitled to care under s. 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life. … Whether the breach of statutory duty has also resulted in an infringement of the claimants’ art. 8 rights will depend upon all the circumstances of the case. Just what was the effect of the breach in practical terms on the claimants’ family and private life?”
Sullivan J. answered that question as follows (at para. 33):
“Following the assessments in September, 2000 the defendant was under an obligation not merely to refrain from unwarranted interference in the claimants’ family life, but also to take positive steps, including the provision of suitably adapted accommodation, to enable the claimants and their children to lead as normal a family life as possible, bearing in mind the second claimant’s severe disabilities. Suitably adapted accommodation would not merely have facilitated the normal incidence of family life, for example the second claimant would have been able to move around her home to some extent and would have been able to play some part, together with the first claimant, in looking after the children. It would also have secured her ‘physical and psychological integrity’. She would no longer have been housebound, confined to a shower chair for most of the day, lacking privacy in the most undignified of circumstances, but would have been able to operate again as part of her family and as a person in her own right, rather than being a burden, wholly dependent upon the rest of her family. In short, it would have restored her dignity as a human being.”
The court concluded that the failure of the defendant to act on the September 2000 assessments over a period of twenty months was incompatible with the claimants’ rights under the Convention. They were awarded damages under s. 8 of the HRA.
The domestic provision at issue in R (Bernard) v. Enfield L.B.C., s. 21 of the National Assistance Act, 1948, which empowers a local authority to “make arrangements providing … residential accommodation for persons aged 18 or over who by reason of age, disability or other circumstances are in need of care and attention which is not otherwise available to them …” was also in issue in one of the appeals which were dealt with by the Court of Appeal of England and Wales and are reported as Anufrijeva v Southwark London B.C. [2004] 1 All ER 833. The Anufrijeva claimants were members of a family who claimed that their local authority failed to respect their private and family life, contrary to article 8. The basis of the claim was that the local authority failed to discharge their duty under s. 21 to provide them with accommodation that met the special needs of one elderly member of the family, with the result that the quality of family life was drastically impaired. Delivering the judgment of the Court of Appeal, Lord Woolf C.J. reviewed the decision in R (Bernard) v. Enfield London B.C., noting (in para 40) that, so far as article 3 was concerned, no issue had been raised before Sullivan J. as to there being a positive duty to provide accommodation that would not subject the claimants to conditions that constituted inhuman or degrading treatment. The only issue was whether the degree of severity of the claimants’ predicament reached the article 3 threshold. Lord Woolf C.J. noted that “with some hesitation” Sullivan J. had concluded that it did not, but he had held that it was a clear breach of article 8. Paragraphs 32 to 34 of the judgment of Sullivan J. were quoted. The conclusions of the Court of Appeal on the judgment of Sullivan J. were set out at para. 43 as follows:
“Neither [counsel instructed by the Treasury solicitor] nor [counsel], who appeared for the defendant in the Anufrijeva’s case challenged the decision of Sullivan J. in Bernard’s, either in principle or on the facts. Our conclusion is that Sullivan J. was correct to accept that art 8 is capable of imposing on a state a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that art 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage art 3. Article 8 may be more readily engaged where a family unit is involved. Where the failure of children is at stake, art 8 may require the provision of welfare support in a manner which enables family life to continue. Thus, in R(J) v Enfield London B.C. … [2002] L.G.R. 390, where the claimant was homeless and faced separation from her child, it was common ground that, if this occurred, art 8(1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the claimants’ home in Bernard’s case and we consider that it was open to Sullivan J. to find that art 8 was infringed on the facts of that case.”
The Court of Appeal went on to outline, in general terms, the circumstances in which maladministration would constitute a breach of article 8. The other two appeals, in broad terms, concerned complaints by asylum seekers that, due to maladministration in dealing with their applications and resulting delay, their rights under article 8 had been breached. Of relevance to the issues which arise here is the following passage from the judgment (at para. 45), which was quoted by this Court (Charleton J.) in Doherty v. South Dublin County Council & Ors. [2007] IEHC 4, in which judgment was delivered on 22nd January, 2007:
“Insofar as art 8 imposes positive obligations, these are not absolute. Before inaction can amount to a lack of respect for private and family life, there must be some ground for criticising the failure to act. There must be an element of culpability. At the very least there must be knowledge that the claimant’s private and family life were at risk … Where the domestic law of a state imposes positive obligations in relation to the provision of welfare support, breach of those positive obligations of domestic law may suffice to provide the element of culpability necessary to establish a breach of art 8, provided that the impact on private life or family life is sufficiently serious and was foreseeable.”
The Court of Appeal dismissed the Anufrijeva appeal, essentially on the ground that there was no basis for upsetting the findings of fact made by the trial judge, who, unusually on a judicial review, had heard oral evidence over six days, and found that there was no conduct on the part of the defendant local authority which could arguably amount to an infringement of article 8.
The most recent decision of the ECHR dealing with article 8 to which the court was referred was the decision in Moldovan & Ors. v. Romania (application Nos. 41138/98 and 64320/01), in which judgment was delivered on 30th November, 2005. Counsel for the plaintiffs emphasised that this decision post-dated the decision of the Court of Appeal in Anufrijeva. The complexity of the facts in the Moldovan case gave rise to a multiplicity of issues. The essential facts were that, during a fracas in a bar in a village in Romania in which the applicants, who were of Roma origin lived, a non-Rom was killed, following which three Roma involved fled the scene. This led to attacks on Roma living in the village and on their property. Thirteen Roma houses belonging to the applicants were destroyed. In invoking articles 3 and 8 of the Convention, the applicants complained that, after the destruction of their houses, they could no longer enjoy the use of their homes and had to live in poor, cramped conditions. They alleged the involvement of State officials in the destruction of their homes. They claimed that the Romanian Government had a positive obligation under article 3 to provide sufficient compensation to restore them to their previous living conditions. They alleged that the reconstruction funds had been mis-managed by local officials and that the houses which were re-built by the State were badly constructed and largely uninhabitable. They contended that the government’s failure in respect of their positive obligations had resulted in families with small children and elderly members being forced to live in cellars, hen houses, stables, burnt-out shells, or to move in with friends and relatives in such overcrowded conditions that illness frequently occurred.
In outlining the general principles applicable, the ECHR stated (at para. 93):
“The Court has consistently held that, although the object of art 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference. There may, in addition to this primary negative undertaking, be positive obligations inherent in an effective respect for private or family life and the home. These obligations may involve the adoption of measures designed to secure respect for these rights even in the sphere of relations between individuals …”
Later (at para. 97) the ECHR stated:
“Whatever analytical approach is adopted – positive duty or interference – the applicable principles regarding justification under Article 8.2 are broadly similar …In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole. In both contexts the State enjoys a certain margin of appreciation in determining the steps to ensure compliance with the Convention … Furthermore, even in relation to the positive obligations flowing from Article 8.1, in striking the required balance, the aims mentioned in Article 8.2 may be of relevance.”
Later, in outlining the general principles applicable to article 3, it was stated (at para. 100) that, according to the case law of the ECHR, ill-treatment must attain a minimum level of severity if it is to fall within the scope of article 3. It depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some case, the sex, age and state of health of the victim, citing The Ireland v. United Kingdom, judgment of 18th January, 1978. It then gave examples (in para. 101) of cases in which the ECHR had considered treatment to be “inhumane” and “degrading”.
In applying the principles to the facts of Mr. Moldovan and the other applicants the court found that there had been a violation of article 3. There also had been a serious violation of article 8 of a continuing nature in the hindrance by, and repeated failure of, the authorities to put a stop to the breaches of the applicants’ rights. On the issue of living conditions, the ECHR stated (at para. 110):
“It furthermore considers that the applicants’ living conditions in the last ten years, in particular the severely overcrowded and unsanitary environment and its detrimental effect on the applicants’ health and well-being, combined with the length of the period during which the applicants have had to live in such conditions and the general attitude of the authorities, must have caused them considerable mental suffering, thus diminishing their human dignity and arousing in them such feelings as to cause humiliation and debasement.”
The scope of the duties imposed on an organ of the State by s. 3 of the Act of 2003 in combination with article 8 was considered recently by this Court (Finlay Geoghegan J.) in Bode v. Minister for Justice, Equality and Law Reform [2006] IEHC 341 in which judgment was delivered on 14th November, 2006. In that case each of the judicial review proceedings to which that judgment related included, as applicants, an Irish citizen child and a non-national parent or parents whose application to remain in the State under the administrative scheme established by the respondent in 2005, which came to be known as the IBC/05 Scheme, was refused or not considered. The applicants contended that the respondent, in deciding to refuse the parents’ application under IBC/05 by reason of the alleged failure to establish continuous residency in Ireland since the date of the birth of the Irish citizen child without having regard to and considering the private and family rights of the child and their own family rights, had acted in a manner which was not compatible with the State’s obligations under article 8 and hence contrary to s. 3(1) of 2003. Counsel for the plaintiffs referred the court to a passage from the judgment of Finlay Geoghegan J. in which she quoted from the decision of the ECHR of 16th June, 2005 in Sisojeva v. Latvia. In the context of having found that the first named applicant had lived in the State since the date of her birth and so had a private life in the State which commanded respect from the respondent, and having identified the issue as whether the applicants had established that the taking of a decision to refuse an application under IBC/05 constituted an interference with the respect for such right, Finlay Geoghegan J. quoted para. 104 of the judgment in the Sisojeva case in which the ECHR stated, inter alia:
“The Court further notes that no formal deportation order has been issued in respect of the applicants. It reiterates, however, that article 8, like any other provision of the Convention or the Protocols thereto, must be interpreted in such a way that it guarantees not rights that are theoretical or illusory but rights that are practical and effective … Furthermore, while the chief object of Article 8, which deals with the right to respect for one’s private and family life, is to protect the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effect of respect for private and family life… In other words, it is not enough for the host State to refrain from deporting the person concerned; it must also, by means of positive measures if necessary, afford him or her the opportunity to exercise the rights in question without interference.”
On the facts of the case, and, in particular, the nature of the rights of the Irish citizen child, which were constitutionally protected personal rights, Finlay Geoghegan J. held that there had been an interference with the Irish citizen child’s right to respect for his or her private life within the meaning of article 8.1 of the Convention. The respondent had not sought to justify that interference under article 8.2. On that basis, she held that the decision to refuse the parents’ application was contrary to article 8 and a breach of s. 3(1) of the Act of 2003.
Coincidentally, the applicants in Doherty v. South Dublin County Council & Ors. were an elderly couple residing in a caravan in the temporary halting site at Lynch’s Lane, who are to be accommodated in the new facility at Lynch’s Lane. Their complaint was that, being in poor health, and having regard to the condition of the mobile home in which they resided, which had only basic electricity supply, had no internal plumbing, no internal toilet and shower facilities, no central heating and was cold and damp, the failure of the respondents to provide them with a centrally-heated, insulated and, internally plumbed caravan was in breach of, inter alia, s. 3 of the Act of 2003. In the proceedings, which were by way of judicial review proceedings in which the Minister for the Environment, Heritage and Local Government, Ireland and the Attorney General were respondents, in addition to South Dublin County Council, and to which the Equality Authority was a notice party, the applicants invoked articles 3, 8 and 14 of the Convention. As I have stated, Charleton J. quoted from the judgment of the Court of Appeal in Anufrijeva. At para. 40 he stated:
“I would find it impossible to apply the test of culpability and of inhuman treatment where a number of offers of housing have been made, and where the best form of halting site accommodation is to be made available to the applicants within eighteen months.”
In that case, South Dublin County Council, citing the applicant’s homelessness and medical priority as the reason for so doing, offered to allocate to the applicant standard housing accommodation in a two-bedroomed, ground floor apartment. It was made clear that the new facility at Lynch’s Lane would not be available until the summer of 2008 and that the council was unable to provide the applicants with suitable temporary accommodation of the type they would prefer and did not possess any other suitable temporary alternatives at the time.
Having considered the decision of the ECHR in Chapman and its later decision of 7th February, 2006 in Codona v. The United Kingdom, in which Chapman was followed, Charleton J. set out his decision on the claim by reference to article 8 (at para. 45) as follows:
“In addition to the foregoing, I can find nothing in any other decision of the European Court of Human Rights, or of the courts in the United Kingdom or here, which would establish that the particular aspect of family life that requires to be respected in the case of a member of the Irish Traveller Community demands the provision of a new, centrally heated, plumbed caravan with electricity supply. On analysis of the relevant case law under the European Convention of Human Rights, my judgment is that the statutory entitlements of the applicants exceed any benefit that might be available to them on the basis of an interpretation of article 8 of the European Convention on Human Rights.”
Turning to the claims made by the plaintiffs in this case, I am not satisfied that the plaintiffs have made out a case for breach of s. 3(1) of the Act of 2003 by reference to article 3. Counsel for the defendant submitted that the defendant’s treatment of the plaintiffs did not attain the minimum level of severity necessary to constitute ill-treatment within the scope of article 3, that it to say, inhuman and degrading treatment, and that the defendant has not engaged in any conduct that was capable of amounting to a violation of the plaintiffs’ rights under that article. I accept that submission as being correct, subject to what follows in relation to the relationship between article 3 and article 8.
The general proposition advanced by the Court of Appeal in the Anufrijeva case, that it was difficult to conceive of a situation in which the predicament of an individual would be such that article 8 would require him to be provided with welfare support, where his predicament was not sufficiently severe to engage article 3, raises the question whether the conclusion I have reached on the plaintiffs’ claim that article 3 was breached precludes the plaintiffs from maintaining a case that the failure to provide a wheelchair accessible home for Mary is a breach of article 8. It must be acknowledged that it could be argued that that proposition is not at variance with the decision of the ECHR in Moldovan, where the court looked at the applicant’s bad living conditions in combination with the general attitude of the authorities, which it concluded led to humiliation and debasement and where the court actually found that there had been a breach of article 3. Notwithstanding that, the conclusion I have come to is that it is open to this Court to make a finding on the facts of this case that there has been a breach of article 8, even though I conclude that it is not appropriate to make a finding that there has been a breach of article 3.
The question which arises in determining whether there has been a breach of article 8 is whether practical and effective respect for the private and family life and of the home of each of the plaintiffs requires the defendant to adopt the measure which the plaintiffs contend is necessary to alleviate the overcrowded and potentially unsafe conditions in which the plaintiffs are living. That question has to be considered in the context that the defendant accepts that the provision in the temporary halting site at Lynch’s Lane which the defendant has made, and which the plaintiffs, their parents and siblings are now availing of, is not adequate or sufficient to fulfil the defendant’s obligation to provide the plaintiffs with suitable and adequate living accommodation. It has also to be considered in the context that the defendant is committed to remedying that situation by the summer of 2008 when accommodation in the new facility at Lynch’s Lane will be available. Therefore, the issue boils down to whether the compliance with article 8 requires that another wheelchair accessible mobile home be made available for occupation and use by Mary, so that her living conditions and those of Bernard and Patrick can be brought to an acceptable level now. In determining that issue the court must strike a fair balance between competing interests, the interests of the community as a whole, on the one hand, and the interests of the individual plaintiffs, on the other hand, within the margin of appreciation which the ECHR has held the State has.
As long ago as January, 2005, Ms. Maguire reported to the defendant on the overcrowding in the Pemberton mobile home and the necessity for more accommodation for Bernard, Mary and Patrick. The inevitable delay which was going to be encountered in completion and commissioning of the new Lynch’s Lane facility was clearly known to the defendant at that stage.
The general interest which has to be weighed in the balance against the effect of having to live in overcrowded, potentially unsafe and admitted inadequate accommodation for three and a half years and, perhaps, longer, which is what the defendant’s refusal to fund the second mobile home has consigned the plaintiffs to, in the terminology of article 8, is the economic well being of the State. It is possible to evaluate the impact on the economic well being of the State of providing the second mobile home for the plaintiffs: the cost will be in the region of €58,000 and the installation cost and the cost of connecting it with the services and such like.
This case is very unusual, if not unique. It is difficult to comprehend the level of disability, hardship and deprivation which Bernard, Mary and Patrick endure between them. That Mrs. O’Donnell desires, and intends, to care for them with the assistance of other members of her family in the home setting must be in their best interests and it must be in the interest of the State and its organs to facilitate her in so doing.
This is not a case which is based on an assertion that the State or any of its organs has a positive obligation to make certain provision for every traveller family, for instance, that the State should legislate or have an administrative scheme to provide two de luxe mobile homes for every traveller family. This case is about the particular circumstances of one family, which has three severely disabled members, two of whom were minors when these proceedings started, who to the knowledge of the defendant have been living in unacceptable conditions since 2005 and whose plight is not going to be alleviated until August, 2008 at the earliest, if it will be then. I express that reservation because it is by no means clear that, from August, 2008 onwards, the plaintiffs will have adequate sleeping accommodation with suitable sanitary facilities at the new facility, because what the defendants officers have in contemplation is to move the Pemberton mobile home onto the large bay and to encourage Mr. and Mrs. O’Donnell to acquire a standard caravan for which there will be space in the bay The offer of a loan of €6,350, which I have found would not be sufficient to fund the acquisition of a second suitable caravan or mobile home for Mary, even with the possibility of a €500 grant, is not a sufficient answer to ensure that the rights of Bernard, Mary and Patrick under article 8 are effectively and practically respected.
As regards its factual component, this case is very similar to the Bernard case, if not worse. In my view, it is open to the court to make a finding on the facts that there has been a breach of article 8. I so find.
Counsel for the defendant, in addressing the relevance of the decision in the Moldavan case to this case, submitted that there is nothing in the relevant legislation here, the Housing Acts, which can be pointed to as a gap in the protection of the plaintiffs. The judgment of the Court of Appeal in Anufrijeva suggests that a breach of positive obligations under domestic law, although it may be indicative of, is not an essential prerequisite to an infringement of article 8. In my view, given that the defendant has argued successfully that the defendant does not have a statutory obligation to provide a suitable mobile home for Mary, and that there has been no breach of a positive obligation of domestic law, there must be a gap in the protection of the plaintiffs. Sections 9 to 15 of the Act of 1988, impose obligations on housing authorities to address housing requirements, including need arising from inter alia, overcrowding and disability or handicap. Sections 6 to 17 of the Act of 1998 impose additional obligations on a housing authority in relation to traveller accommodation. If there is no statutory protection for the plaintiffs in their current predicament which ensures suitable and appropriate accommodation for them having regard to their age, mental condition, disability, dependency and family circumstances, the interstices into which they have fallen must represent a failure of the State and its organs to function in a manner compatible with article 8.
Having regard to the special facts of this case, in my view, a finding that article 8 has been breached in this case does not amount to the court “second guessing” the housing authority or acting as a “shadow housing authority”, as the defendant contended. The Oireachtas has legislated in s. 3 of the Act of 2003 that a housing authority shall perform its functions in a manner compatible with the Convention.
For completeness, I should say that, as was urged on behalf of the plaintiffs, I consider the Doherty case to be distinguishable on the facts. The applicants in that case were offered accommodation pending the completion of the new facility at Lynch’s Lane which the court considered that it was reasonable that they should avail of. I believe that that the level of disability and dependency of Bernard, Mary and Patrick and the degree of care and supervision they require and the appalling conditions in which they and their carers are living and the meagre inadequate assistance proffered by the defendant distinguishes the factual situation in this case from the factual situation in the Doherty case, which Charleton J. summed up in the following passage in his judgment (at para. 42):
“Circumstances can occur where persons who have led a nomadic way of life may find it difficult to accept, on a permanent basis, settled accommodation. It is not, however, what the applicants are being asked to do here. In asserting their rights to nomadic accommodation they are being met with an answer, from the Council, that a symbolic vestige of their tradition may be preserved in the shape of a site for their caravan with a day house, but only after a reasonable interval of time for the purposes of redevelopment. In the meanwhile, it is not unreasonable that the available accommodation is in bricks and mortar nor is it unreasonable that the County Council will not go and immediately buy them a plumbed, centrally heated mobile home with electricity supply: …”
I will deal with how the breach of article 8 is to be remedied later.
Act of 2000/Article 14 breached?
One of the reliefs sought by the plaintiffs is a declaration that the defendant, in failing to accommodate their special needs, or in failing to make the funding available to them to enable their needs to be met, has discriminated against them as persons suffering from a disability and/or as members of the traveller community contrary to the Act of 2000 and incompatible with the State’s obligations under article 14 of the Convention, thereby giving rise to a breach of s. 3 of the Act of 2003.
Both the claim under the Act of 2000 and the claim by reference to article 14 can be disposed of summarily. As counsel for the defendant submitted, the plaintiffs have neither put forward a factual basis in the statement of claim to justify a complaint of discrimination nor was any evidence adduced that the defendant had discriminated against them on the grounds alleged or any ground. Aside from the fact that, having succeeded under article 8, it is unnecessary to address the plaintiffs’ claim under article 14, the position is that the plaintiffs have made no case that there was different treatment as respects a substantive Convention right meted to them, on the one hand, and to other persons they have put forward as comparators, on the other hand. Therefore, they have made out no case on discrimination under article 14.
Similarly, no question of discrimination having occurred within the meaning of the Act of 2000 arises because the plaintiffs have made out no case on the pleadings or on the evidence of having been treated less favourably on any ground than any other person or persons.
Infringement of the plaintiffs’ constitutional rights?
The plaintiffs also seek a declaration that the defendant, in failing to provide for their accommodation needs, has acted in breach of their constitutional rights. The claim for damages also covers alleged breach of constitutional rights.
The plaintiffs’ allegation of such breach, as pleaded, is that the defendant failed to properly respect, vindicate and act in accordance with their constitutional rights, including their right to bodily integrity, their right not to have their health endangered, and their right to respect for their private and family life.
I have already outlined the argument advanced on behalf of the plaintiffs that the statutory provisions of the Housing Acts should be construed in the light of the Constitution by reference to the judgment of Costello J. in O’Brien v. Wicklow Urban District Council. While the right to bodily integrity is one of the unenumerated personal rights guaranteed by Article 40.3.1 of the Constitution, the plaintiffs did not develop the argument to show how the defendant, on the facts of this case, should be held to have infringed the right of each of the plaintiffs to bodily integrity.
Counsel for the defendant addressed the issue on the basis that what the plaintiffs were claiming was the right to be provided with accommodation which, if it was to be found in the Constitution, could only be found in an unenumerated personal right guaranteed by Article 40.3.1. Counsel reminded the court of the caveats issued by the Supreme Court in T.D. v. Minister for Education [2001] 4 IR 259: first that, save where an unenumerated right has been unequivocally established by precedent, for example, the right to travel and the right to privacy, some degree of judicial restraint is called for in identifying new rights (per Keane C.J. at p. 281); and, secondly, the inadvisability of the courts at any stage assuming the function of declaring what are frequently described as “socio-economic rights” to be unenumerated rights guaranteed by Article 40 (per Keane C.J. at p. 282). Finally, counsel referred to the passages in the judgment of Murphy J. in the T.D. case, which the Chief Justice earlier had commended in his judgment, in relation to that second point, including the concluding paragraph of his judgment in which Murphy J. stated (at p. 321):
“It is, of course, entirely understandable, and desirable politically and morally, that a society should, through its laws, devise appropriate schemes and by means of taxation raise the necessary finance to fund such schemes as will enable the sick, the poor and the underprivileged in our society to make the best use of the limited resources nature may have bestowed on them. It is my belief that this entirely desirable goal must be achieved and can only be achieved by legislation and not by any unrealistic extension of the provisions originally incorporated in Bunreacht na hÉireann. I believe that Costello J. (as he then was) was entirely correct when, in O’Reilly v. Limerick Corporation [1989] I.L.R.M. 181, he concluded that the courts were singularly unsuited to the task of assessing the validity of competing claims on national resources and that this was essentially the role of the Oireachtas. It is only fair to add, as I have already pointed out, that those who framed the Constitution seem to have anticipated this problem and provided a solution for it”
That being the state of the submissions, I am not satisfied that a case has been made out that the defendant has infringed the plaintiffs’ constitutional rights.
Estoppel/res judicata abuse of process
The defendant’s contention that Bernard is estopped from bringing these proceedings, or alternatively, these proceedings are an abuse of process, is based on the fact that Bernard’s proceedings in 2002 were compromised and that Bernard’s current action is similar to the action he brought in 2002. In my view, that analysis is not factually correct.
Bernard is not trying to re-litigate the claims which were settled in 2002. His claim relates to the circumstances which have prevailed since October 2002 and the family circumstances as a result of which he has not been adequately or suitably accommodated, having regard to his disability and dependancy, in recent years.
Accordingly, in my view, the objection based on estoppel and abuse of process is misconceived.
Remedy
On the basis of the plaintiffs’ claim as formulated, the only remedy which the court can provide for the breach it has found of article 8 of the Convention is an award of damages. The only evidence which has been adduced which would go towards measuring the damages is that the cost of the Pemberton mobile home of the type provided for Bernard. The evidence is that a similar mobile home would cost €58,000 today.
I propose adjourning the matter, to give the parties an opportunity to consider this judgment and to decide how to proceed from here.
Finally I wish to emphasise that the claims with which I have dealt are the claims of Bernard, Mary and Patrick and the overall case has been presented on the basis that a new mobile home is required to accommodate Mary. Whatever approach is adopted as a result of this judgment, in my view, whatever assets accrue to the plaintiffs should be secured for the plaintiffs, not for the O’Donnell family generally.
O’Reilly v Limerick Corporation
[1989] ILRM 181
Costello J
The plaintiffs are members of the traveller community residing in caravans on unofficial sites in the city of Limerick. They and their children (of which there are 150 under the age of 16) live in conditions of great poverty and deprivation. They have no running water or toilet facilities; no hard surface on which to place their caravans; no means for storing their domestic refuse and no service for its collection. They are the persons referred to by the city manager in a report to the city council of 4 December 1987 as ‘living in totally unacceptable conditions without basic facilities’.
The plaintiffs’ wants are comparatively modest. They do not demand that they be rehoused by the corporation; what they need are serviced halting sites, that is, sites with hard surfaces on which their caravans could be placed, toilet facilities, running water and a regular refuse collection. Their principal claim is for a mandatory injunction directing the corporation to provide such sites claiming that the corporation have a duty to do so under the Housing Act, 1966. Their second principal claim is that the State should pay them damages for the suffering, inconvenience and mental distress which they have undergone, a claim based on an allegation that the conditions which they have been required to endure amounted to a breach of their constitutional rights.
The plaintiffs are, as I have said, travellers. It is accepted by all the parties to these proceedings that this is an identifiable group in Irish society and for the purposes of these proceedings I will use the phrase as it was defined in the Report of the Travelling People Review Body of February, 1983 in which (at paragraph 1.6) members of the traveller community are described as
an identifiable group of people, identified both by themselves and by other members of the community (referred to for convenience as the ‘settled community’) as people with their own distinctive life style, traditionally of a nomadic nature but not now habitual wanderers. They have needs, wants and values which are different in some ways from those of the settled community. More than half of those in the group now have a place to live either in houses or on serviced sites. Some take to the road occasionally or seasonally. The majority of those not yet provided with accommodation desire a fixed place of abode, and many of them are, in fact, encamped in locations with reasonable permanence. However, there is still a substantial number of transient families.
There is another part of this report which is relevant to these proceedings. The opinion of the review body was that the vast majority of traveller families wished to be accommodated in houses, but its report went on to point out that
There is, however, a considerable number whose long-term accommodation needs cannot be met by housing, especially families who have spent so much of their lives on the road that the transition to housing would be too difficult for them and who wish to spend the remainder of their lives in caravan dwellings.
These families had special needs and the report recommended (paragraph 10.0) that
serviced sites for their caravans must be provided for such families as an alternative to housing.
This recommendation is important and relevant to the issues in these proceedings. The evidence in the case established that the corporation did in fact offer to re-house some of the plaintiffs and would if required re-house them all (a fact which distinguishes this case from McDonald v Feely Supreme Court 1980 No. 196, 23 July 1980). But the evidence also establishes that the plaintiffs’ claim that they are part of that minority of the traveller community whose housing needs cannot be met by housing is accepted by the corporation and it is one of the striking features of this case that both the city manager and city council have acknowledged that these plaintiffs have special needs which are different to those of the members of the settled community or indeed to some other travellers.
The sequence of events which led up to the institution of these proceedings can be briefly re-told. Five of the plaintiff families (identified in the helpful report prepared for these proceedings by Mr Gordon the social worker employed by the Limerick Corporation to care for the needs of travellers) have been living in caravans for upwards of eight years on a site owned by Limerick Corporation on Childers Road near its junction with the main Dublin Road. They have been there illegally and as trespassers. As a result of commercial development at the junction and attendant traffic problems it was decided to build a roundabout at the junction. The plaintiffs’ caravans directly impeded the proposed works. Apprehensive as to what was to happen to them they instructed a solicitor to look after their interests. He threatened injunction proceedings unless the corporation provided an alternative serviced site for his clients. Negotiations to this end fell through (mainly as a result of successful picketing by residents living in the vicinity of the proposed new site). When it became apparent that matters were reaching a crisis point these proceedings were instituted at the end of last year. At the hearing of a motion for interlocutory relief a without-prejudice agreement resulted in the plaintiffs moving their caravans away from the proposed road works. These plaintiffs still, however, maintain their claim for an injunction to restrain their removal from the site until adequate alternative serviced sites have been provided for them. They have been joined in this action by the other members of the traveller community, although it is accepted that no immediate threats to remove any of the plaintiffs from their unofficial sites have been made, other than those on the Childers Road site to which I have referred.
I now turn to deal with the steps taken by Limerick Corporation to provide in its functional area serviced halting sites for members of the travellers community.
In 1970 a policy to provide halting sites was approved by the city council and three sites were nominated, one at Clonglong, one at Rhebogue and one at Watch House Cross. Eight mobile homes were installed, four at Clonglong and four at Rhebogue and a terrapin building put up at Watch House Cross. The eight mobile homes quickly deteriorated and the building at Watch House Cross was destroyed by fire. In 1974 a policy to provide durable homes at the halting sites was approved and four bungalows were built on the Rhebogue site, two at Clonglong and two at Watch House Cross. As a result there were no official sites available on which travellers could place their caravans. In 1980 a proposal was made to consider the provision of three further sites but this came to nothing. In June 1983 the Conference of St. Martin of the Society of St. Vincent de Paul became involved. At its request the Limerick Council of Trade Unions organised four meetings at which the problems of accommodating travellers was discussed. In 1984 the Conference organised another meeting on the subject and as a result a working party was set up to prepare a detailed report on the matter. An official of the Corporation as well as representatives of the travellers, the Limerick Council of Trade Unions, the Society of St. Vincent de Paul and a representative of the diocesan Catholic clergy and a member of the Salesian Sisters comprised the working party. Its report, a model of its kind, proposed an action plan of two phases, one containing proposals for immediate action and the second proposals for action in the medium term. In relation to existing unofficial sites it recommended the immediate provision of water, sanitary facilities, and the provision of skips for domestic refuse and the provision of animal enclosures. In connection with phase two it recommended in relation to the forty families which it identified as in need of special help that ten serviced sites should be provided. It pointed to the existence of six sites which could be made available immediately.
In 1986 the city manager brought the subject formally before the city council in a report headed ‘Report on Travelling Families in Limerick City and County’. He pointed out that Limerick Corporation was the statutory authority responsible for the re-settlement of the travelling people, that the corporation in acknowledging this responsibility had adopted a three pronged approach (1) the allocation of corporation dwellings, (2) the provision of dwellings on designated sites and (3) ‘the provisions of approved halting sites’, adding that although there had been considerable success in the implementation of its policies ‘it is fair to say that its endeavours to date in relation to the provision of purpose built dwellings and halting sites has been less than satisfactory’. The city council acknowledged the special needs of the travellers in a motion which it passed in April 1986 which approved in principle the establishment of eight serviced halting sites within the city boundary, two for each ward, to facilitate the accommodation of travellers who did not wish to be accommodated in conventional local authority housing. But nothing happened to give effect to this resolution. However, at a meeting of the council on 7 September 1987 the council agreed that the city manager would meet the members of the council on a ward by ward basis to seek agreement on eight suitable places for the location of halting sites.
The ward meetings met with only limited success. On 15 September the members of Ward 4 agreed to the provision of one site on the Dock Road near the racecourse. A meeting of the representatives of Ward 1 was held the next day but adjourned without a decision. A meeting of the representatives of Ward 3 on 21 September agreed to an additional site adjacent to the Industrial Estate at Clonglong. Meetings of the representatives of Ward 2 were adjourned without decision on three different occasions. Eventually a joint meeting of the representatives of Wards 1 and 2 agreed on a site at Cooperage ‘subject to acceptance of the local residents and the St. Mary’s RFC.’ The city council discussed the subject again on 13 January of this year (after these proceedings had been instituted) and it then formally nominated three sites for use as halting sites. Only two of these, however, are presently in the ownership of the council.
Limerick Corporation, like other housing authorities, is under statutory duty to adopt a building programme and to review it from time to time and it is relevant to record that the last programme adopted by its council was in 1985 and that whilst it contained proposals for the erection of dwellings in the year 1985 and the following years to 1989, it contained no proposals for the provision of serviced halts for travellers. It is, however, also relevant to note that when it had prepared and adopted this programme the working party had not yet issued its report on the special needs of the travellers in the area and the need for serviced sites was not as clearly established as it was later to become.
The evidence establishes the following facts:
(a) Limerick Corporation has acknowledged that it has the statutory responsibility and power to provide serviced halting sites for members of the travelling community.
(b) In 1986 both the city manager and the city council acknowledged that there were members of the travelling community in their functional area who had special housing needs and that to meet them serviced halting sites should be provided. It was then acknowledged that the provision of eight sites would be required to meet those special needs.
(C) Steps have been taken to provide only two serviced sites. Priority in the provision of serviced sites will be given to the plaintiffs on the unofficial site at the junction of Childers Road and the Dublin Road.
(d) The needs of something less than half of the plaintiffs in these proceedings will be met by the provision of two sites.
The Housing Act 1966
To succeed in their main claim in this action the plaintiffs have to establish (a) that Limerick Corporation as a housing authority under the Housing Act 1966 has a duty (as distinct from a statutory power exercisable at its discretion) to provide them with halting sites and (b) that this is a proper case in which the court should make a mandatory order directing them to carry out that duty. They rely principally (but not exclusively) on s. 55 of the Act. Examination of their claim involves however a consideration of most of Part III of the Act and to that I will now turn.
Part III of the Act is entitled ‘Provision and Management of Dwellings’.
S. 53 is the first section to impose in this part a statutory duty on the corporation; as a housing authority it is under a duty to inspect houses in its functional area and having regard to the information which it receives to assess the adequacy of the supply of housing and the future demand for housing and to report thereon. S. 54 also imposes a statutory duty, that is a duty at specified times to prepare and review the costs of its housing services. S. 55 again imposes statutory duties on the corporation this time in relation to what is called a ‘building programme’. As this section is crucial to the issues in this case I must quote it in full.
The first subsection imposes a duty to prepare a building programme in the following words:
Subsection (1).
It shall be the duty of a housing authority, within such period after the commencement of this section as may be specified by the Minister and thereafter either at least once in every five years or at such intervals, being less than five years, as the Minister may direct from time to time, to prepare and adopt a programme (in this Act referred to as a building programme) setting out the works which they propose to undertake having regard to the housing needs of their functional area.
I draw attention to the fact that the duty is to prepare and adopt a building programme, and that in carrying out this duty it is to have regard to the ‘housing needs’ in its functional area.
The second subsection sets out what the building programme is to contain. It reads:
Subsection (2).
A building programme shall be in such form as the Minister may from time to time direct and shall include the proposals of the housing authority, as respects the period to which the programme relates, for the provision of houses, amenities, buildings and other land together with the ancillary works or services to be provided in connection therewith , together with the proposals of the authority for the assistance of persons providing houses for their own occupation, and for the execution of repair works, together with such other information as the Minister may require, and the housing authority may, if they think fit, include in the programme, an order of priorities relating to any one or more of the following:
(a) particular projects;
(b) projects in particular areas;
(c) projects to provide housing accommodation for particular categories of persons .
I have drawn attention (by underlining) to the words ‘other land together with the ancillary works or services to be provided in connection therewith’ because a question to which these words are relevant arises as to whether the building programme which a housing authority is required to prepare and adopt may contain proposals for the supply of serviced halting sites, and I have also underlined for the same purpose the words in sub-paragraph (c) which indicate that projects to provide housing accommodation for particular categories of persons may be given priority in the programme. The third subsection places a duty on the housing authority to have regard to certain objectives when carrying out its duty in preparing a building programme. It reads:
Subsection (3):
In preparing a building programme, a housing authority shall have regard to the following objectives:
(a) the repair, closure or demolition of houses which are unfit or unsuitable for human habitation;
(b) the elimination of overcrowding;
(c) the provision of adequate and suitable housing accommodation for persons (including elderly or disabled persons) who, in the opinion of the authority, are in need of and are unable to provide such accommodation from their own resources ;
(d) the provision of adequate housing accommodation to meet needs arising from the obsolescence of dwellings or the prospective increase in the population;
(e) the provision of adequate and suitable sites for building purposes;
(f) the securing of the objectives contained in a development plan under the Local Government (Planning and Development) Act, 1963, for the area which comprises or includes, as the case may be, the functional area of the authority;
(g) the encouragment by the authority of the provision by persons of houses for owner-occupation by the owner or for letting.
I have underlined the sentence contained in sub-paragraph (c) of this subsection again because it is relevant to the issue as to the contents of the programme. I have quoted the entire subsection in full to draw attention to the wide range of matters to which a housing authority must have regard when preparing its programme.
Subs. (4) places a further duty on housing authorities, this time to review their building programmes. It reads:
Subsection (4):
Where a housing authority have prepared and adopted a building programme they shall review the programme from time to time as the Minister or occasion may require and make in it and adopt any variation which they consider proper.
I have underlined the words ‘as the Minister or occasion may require’ to draw attention to the fact that a statutory duty to review a building programme arises not only if the Minister directs that it be done but also if circumstances require it to be done.
The last subsection imposes the duty of adoption and review of a building programme on the city council of a local authority which is a housing authority. It reads:
Subsection (5):
The adoption under this section of either a building programme or a variation in a building programme shall each be a reserved function.
The sections which follow s. 55 are all permissive in form. S. 56 provides that a housing authority ‘may erect, acquire, purchase, convert or reconstruct, lease or otherwise provide dwellings (including houses, flats, maisonettes and hostels) and such dwellings may be temporary or permanent’. And s. 56(2) provides that a housing authority ‘may, in connection with dwellings provided, to be provided or which … will in the future require to be provided … provide … other buildings or land and such other works or services, as will … serve a beneficial purpose either in connection with the requirements of the persons for whom the dwellings are provided or in connection with the requirements of those persons and of other persons’. S. 57 enables housing authorities to provide sites for building purposes, s. 58 deals with the management of houses provided by a housing authority, s. 59 with the definition of ‘dwelling’ in the Local Government (Rates on Small Dwellings) Act 1928 and s.60 with the duties of housing authorities in relation to priorities in lettings. As some reliance has been placed on this latter section I should examine it briefly. It imposes a statutory duty on housing authorities to make at specified times ‘a scheme determining the priorities to be accorded to categories of persons specified in the scheme in the letting of dwellings provided by the authority under this Act and of which they are the owner’, and the remaining subsections make more detailed provisions for such matters as the Minister’s role and the matters to which regard is to be had when preparing a scheme. The remaining two sections of this part are not relevant to the issues in this case.
I must, however, refer to s. 111 because part of the claim against the Minister for the Environment is based on that section. It is a section dealing with a situation in which the Minister forms the opinion that a housing authority has failed to perform any of its functions under the Act. When he reaches such a conclusion then he may (and I underline the word ‘may’) by order require the authority to perform the function and the manner and time in which the function is to be performed. What I am required to consider is whether I can order the Minister to exercise his s. 111 powers, Limerick Corporation having failed, it is claimed, to exercise its statutory functions in regard to the plaintiffs’ needs.
I have the following comments to make of these sections.
Firstly, I think it is relevant in construing the duties imposed and the powers granted to bear in mind the overall objectives which the Act was designed to achieve, and in this connection I draw attention to what the Chief Justice said in McNamee v Buncrana UDC [1983] IR 213, at 217:
The Housing Act 1966, was a major legislative measure aimed at tackling, in a planned manner, the persistent problem of bad and inadequate housing — not only in the large centres of population but throughout the country. It envisaged the launching of a new and sustained housing drive, financed by loans and grants-in-aid to local bodies and handled by these bodies, as housing authorities, under the supervision of the Minister concerned.
An examination of part III discloses the thinking policy behind the Act. In the first place, the magnitude of the problem was to be assessed by an inspection by each housing authority of all the houses in its functional area. This was to be done in accordance with a time scale specified by the Minister and was aimed at ascertaining in each area the existing extent of poor housing and overcrowding. In the second place, housing authorities were required to review the cost of their existing and proposed building programmes so that the Minister could be fully informed as to existing or contemplated expenditure. It was further required that all housing authorities should draw up long-term building programmes, having regard to the ascertained needs in relation to housing in their functional areas. These needs were to be considered in relation to the replacement of unsuitable houses, the elimination of overcrowding, and the number of persons unable to provide for themselves; and housing authorities were to have regard to various other social objectives set out in s. 55, sub-s. 3, of the Act.
Secondly, I cannot accept the argument that a duty to provide serviced halting sites is to be found in s. 55. The section imposes a duty to prepare and adopt a ‘programme’, but does not contain any power to carry it out. It is, as the Chief Justice observed in McNamee, an important part of the machinery for the achievement of the overall objectives of Part III of the Act, but it would be quite inconsistent with the general statutory scheme to suggest that each housing authority was obliged by law to give effect to every proposal contained in the programme they had adopted. The power to give effect to its programme, which as the Chief Justice pointed out, is subject to ministerial approval, is to be found in s. 56. Counsel for the Minister accepts that this section is broad enough to empower the provison of serviced halting sites by housing authorities but as it is permissive only it cannot be relied on by the plaintiffs to support a claim for an order to the housing authority to supply serviced halting sites if no provision for them is contained in their building programme.
Thirdly, I cannot accept the argument that a duty to provide serviced halting sites is to be found in s. 60. This is a secton exclusively relating to schemes of priorities for the letting of dwellings of which the housing authority is owner and it does not contain any reference to the duty which the plaintiffs assert has been imposed on Limerick Corporation by the statute.
Fourthly, it seems to me that s. 111 is merely an enabling section and does not impose any duty on the Minister which the court could order him to perform. The Minister has, I would have thought, evidence on which he could come to the conclusion that Limerick Corporation has failed to perform the function of fulfilling the housing needs of members of the traveller community in its functional area because of the failure to provide serviced halts but this Court has no power to order him to come to such a conclusion or to exercise the undoubted powers which the Oireachtas bestowed on him to deal with the very situation which has occurred in this case.
I now come, fifthly, to some further conclusions on the Corporation’s s. 55 powers and duties which are relevant to the present claims and relate to the adoption of building programmes.
(a) A question arises under the section as to whether the Corporation in preparing and adopting a building programme under the section is empowered to include in it proposals for the provision of serviced halting sites. I think it is. Subs. (2) makes specific reference to proposals for the provision of land together with ancillary services and to priorities to be given in its proposals to projects for housing accommodation for particular categories of persons. Although the main programme will be concerned with the provision of dwelling houses, bearing in mind (i) the provisions of subs. (2) and (ii) the duty under subs. (3) to have regard to the provision of adequate housing accommodation for persons in need of such accommodation and who are unable to provide it from their own resources it seems to me that the section would allow a housing authority to make such proposals in its building programmes.
(b) The next question that arises is whether there are circumstances in which it can be said that a housing authority is under a duty to include in its building programmes proposals for the provision of such sites. A housing authority is under a duty to have regard to the provision of suitable housing accommodation for persons who are in need of it and who are unable to provide it from their own resources. If therefore it is established that there are a group of persons whose need is for housing accommodation in caravans which are situated on serviced sites because their needs cannot be met by the provision of ordinary dwelling houses then the housing authority must have regard to the needs of those persons. This does not mean that having considered them they may then ignore them. Bearing in mind the overall objectives of the statute it seems to me that once the existence of the special needs to which I have referred is established then the housing authority is under duty to include proposals to meet those needs in its building programme if the following conditions exist—
(i) that financial resources would permit the work involved in the proposals to be carried out;
(ii) that sites are available, that is that they are either in the possession of the Corporation or are capable of being acquired by them;
(iii) that the sites are suitable bearing in mind the reasonable needs of the travellers and the reasonable needs of members of the settled community, as well as the responsibilities and duties of the Corporation as planning authority in the area;
(iv) that the provision of serviced sites would not conflict with the achievement of other statutory objectives laid down in the Act or other statutory duties of the Corporation which in their opinion should reasonably take precedence.
(c) And a further question arises as to whether there are circumstances in which a housing authority is under a duty to review a building programme already adopted so as to include in it proposals for the provision of serviced halting sites. There is a duty to review a programme if the Minister should so require. But there is also a duty to review should circumstances so require, and it seems to me that if after a programme has been adopted it is established that there are housing needs in the corporation’s functional area in respect of which no proposals are made in an existing programme then, unless those needs are being met informally and by some other means the authority is under a duty to review its programme and vary it by the insertion of proposals to remedy these newly ascertained needs once the conditions mentioned at (b) can be shown to exist.
I must now apply the conclusions I have reached concerning the duties of the corporation to review their building programme under s. 55 to the facts of this case.
Firstly, it has not been established that in 1985 when the corporation adopted its building programme under the section that it was then under a duty to include in it proposals for the provision of serviced halting sites. It would be a mistake to minimise the extent of the problems involved in adopting the proper policies to meet the needs of the traveller community. At the time the Corporation were prepared to offer travellers housing accommodation in their housing estates and had had considerable success in settling members of the traveller community who wished to settle in the community. The working party had not yet reported and the special needs of the group of travellers living in their functional area were not then clearly established. But, secondly, the situation after the programme had been adopted changed materially. The city manager recognised that special housing needs existed which could only properly be met by the provision of serviced sites and he drew attention to these needs in his report of 1 October 1985. The city council acknowledged the existence of these special needs in April 1986 and considered that eight sites should be provided to meet them, but took no decision as to where those sites should be. Since 1986 therefore the Corporation has recognised the existence of the plaintiffs’ special housing needs. Do the conditions now exist which give rise to a statutory duty to review the building programmes? I think they do.
(a) Financial considerations permit its review in the manner suggested in that the Minister is prepared to give a 100 per cent grant to the corporation towards the provision of serviced sites. (b) There are sites available and (c) There are suitable sites available in their functional area. I think these conclusions (b) and (c) are warranted by the fact that the working party was able to identify the existence of at least six sites. The city manager strongly urged the provision of an adequate number of sites and he would not have done so had suitable sites not existed. And by its decision to provide eight sites the city council acknowledged that it was probable that that number of sites could be provided. (d) It has not been suggested that the provision of sites would in any way conflict with any other duties which the Corporation may have either as planning authority or otherwise. In my opinion, therefore, the city council is under a statutory duty under the section to review its building programme, less formal steps to meet the housing needs of the traveller community having failed.
Whilst the plaintiffs are not entitled to an order directing the Corporation to provide them with serviced sites they are entitled to a declaration that the defendants are obliged to review the building programme adopted by the council in 1985 and to vary it so as to include proposals relating to the work it proposes to undertake to provide serviced sites for the members of the travelling community in its functional area. It has not been established to my satisfaction that I should make a mandatory order in this connection as I cannot assume (a) that the city council will neglect to perform the statutory duty which has now been shown to exist or (b) that if it should fail to do so that the Minister would not exercise his s. 111 powers in the light of the court’s order. I will, however, adjourn the application for mandatory relief and give liberty to the plaintiffs to apply.
Before leaving the Housing Act there is one further issue in relation to it to which I should refer. The report of the working party recommended in relation to existing unofficial halting sites that improvements should be made by the provision of a water supply of potable water, and the provision of temporary-type water closets, the provision of a skip to hold domestic refuse and arrangements for regular removal of refuse and the provision of an animal enclosure. The recommendation was in line with the review body’s report. It was urged on the plaintiffs’ behalf that pending the development of serviced sites the Corporation was under a statutory duty to make such provision and that I should order it to do so. I can find nothing in the 1966 Act from which such a statutory duty can be inferred and I have not been referred to any other statutory provision which would justify the order which the plaintiffs seek. At the same time I should make it clear that if the corporation is empowered to provide such facilities (as they accept they are) then it could do so in respect of unofficial sites without prejudicing in any way its claim that the plaintiffs are trespassers on them or its rights to recover possession of them. If I am asked to make a declaratory order to that effect I will hear submissions on the matter.
The claim for damages
The plaintiffs’ claim for damages is not based on an allegation that they suffered loss due to past breaches of the corporation’s statutory duty, but that they are entitled to damages against the State for past breaches of their constitutional rights. It is this part of the plaintiffs’ claim that I must now turn to consider.
As I understand the plaintiffs’ argument it is this. Each individual in society requires a certain minimum standard of basic material conditions to foster and protect his or her dignity and freedom as a human person; the right to be provided with these conditions is one of the unenumerated personal rights embraced by Article 40.3.2° of the Constitution; the State’s duty to respect and as far as practicable to defend and vindicate this unenumerated right has been broken by permitting the plaintiffs to live in conditions without water and sanitary services, and the plaintiffs are entitled to damages for this breach. It is further submitted that damages can be claimed under Article 41.2. By virtue of this sub-article the State is under a duty to protect the family in its constitution and authority and it is urged that there is implied in this obligation a right that the State will provide to each family certain minimum standards of basic material conditions to sustain the constitution and authority of the family, that each member of a family is entitled to the benefit of this right and that by permitting each of the families in which each of the plaintiffs are members to live in conditions without water and sanitary services the State has committed a wrong which entitles each plaintiff to recover damages. I decided that I should hear legal submissions before hearing evidence in relation to these issues. Should I conclude the legal issues in the plaintiffs’ favour it would then be necessary to hear each individual plaintiff so that a proper award of damages could be made.
An analysis of these claims can begin by pointing to the jurisdiction which they require the court to exercise. In actions where plaintiffs assert that they enjoy a consitutionally guaranteed right which is not explicitly enumerated in the Constitution the court is asked to determine either that the asserted right is an ‘unspecified right’ within the meaning of Article 40.3.1° or that it is a right which can be inferred from a textual analysis of some other article. In both instances it will be submitted that either the asserted right is one of those basic human rights which inhere in the citizen because of the particular concept of man enshrined in the Constitution or because it is one of those fundamental civil or social rights which inhere in the citizen by virtue of the particular political regime which the Constitution has established. Usually the claim relates to a wrongful interference in some activity which the plaintiff seeks to protect. In this case an entirely different kind of claim is advanced; the court is asked to consider a claim that the plaintiffs have a constitutionally protected right to be provided by the State with certain physical resources and services. As all rights which are constitutionally protected involve correlative constitutionally-imposed duties it will help an analysis of the validity of their claim if I look at the duty correlative to the asserted right. It will be then seen that what is involved in the plaintiffs’ case is an assertion that the State has a duty to provide them with the resources and services they lack and the adjudication the court is asked to make is that the State has failed in that duty and to award damages because of it. That this claim raises a problem concerning the court’s jurisdiction is, I think, tacitly accepted by the plaintiffs’ advisers. The claim for mandatory relief is based on an allegation of breach of statutory duty but although a breach of constitutional duty is also alleged no claim for mandatory relief based on such breach is advanced. This seems to me to imply an admission that the court would not have jurisdiction to make such an order and to raise the question why if the court lacks jurisdiction to make a mandatory order for the present breach of a constitutional duty it has jurisdiction to award damages for past breaches?
Whilst the matter was not broached in argument I will assume for present purposes that if the plaintiffs’ claim is sustainable that they are entitled to damages for what they have suffered over the past six years. It is relevant then to point out that if the court has jurisdiction to entertain the present claims then it must have jurisdiction to entertain similar claims not only on behalf of the 150 children of the plaintiffs now living in similar conditions to those of the plaintiffs but also claims by the travellers on the roadside on unofficial and unserviced sites elsewhere throughout the State (numbering 1,149 families in 1980 according to the Report of the Travelling People Review Body). And if the court has jurisdiction to adjudicate on a claim by travellers that the State has breached a duty to make adequate provision for their welfare there is no reason why it should not have jurisdiction to entertain similar claims by other deprived persons in our society. To take but two examples; it is a notorious fact that there are many homeless people who have not even a caravan in which to live and whose needs have not been met by any State authority, and it is well established that there are many young people whose lives are in danger of being permanently blighted because the educational and welfare services available are not adequate for their needs. It is certainly at least open to argument that the personal freedom and dignity of which the Constitution speaks cannot be adequately achieved without the provision of certain basic services for (a) the homeless and (b) deprived young people. If this is so and if the plaintiffs are right then the court has jurisdiction to entertain a claim (a) that the State was under a duty to provide services for the homeless and deprived young persons which they reasonably require; (b) that the State had breached that duty; and (c) to order that damages by way of compensation be paid them. I would agree that in a case such as the present one the floodgates argument is somewhat suspect and I am not employing it; I am merely pointing to the nature of the jurisdiction the plaintiffs say the courts can exercise. The question raised by their claim is this; can the courts with constitutional propriety adjudicate on an allegation that the organs of Government responsible for the distribution of the nation’s wealth have improperly exercised their powers? Or would such an adjudication be an infringment by the courts of the role which the Constitution has conferred on them?
It will, I think, help to answer these questions if I refer briefly to certain aspects of the traditional academic distinction which is made between the two different types of justice which should exist in a political community, distributive justice and commutative justice and to the different concepts involved in this distinction. There is an important distinction to be made between the relationship which arises in dealings between individuals (a term which includes dealings between individuals and servants of the State and public authorities) and the relationship which arises between the individual and those in authority in a political community (which for convenience I will call the Government) when goods held in common for the benefit of the entire community (which would nowadays include wealth raised by taxation) fall to be distributed and allocated. Different obligations injustice arise from these different relationships. Distributive justice is concerned with the distribution and allocation of common goods and common burdens. But it cannot be said that any of the goods held in common (or any part of the wealth raised by taxation) belong exclusively to any member of the political community. An obligation in distributive justice is placed on those administering the common stock of goods, the common resource and the wealth held in common which has been raised by taxation, to distribute them and the common wealth fairly and to determine what is due to each individual. But that distribution can only be made by reference to the common good and by those charged with furthering the common good (the Government); it cannot be made by any individual who may claim a share in the common stock and no independent arbitrator, such as a court, can adjudicate on a claim by an individual that he has been deprived of what is his due. This situation is very different in the case of commutative justice. What is due to an individual from another individual (including a public authority) from a relationship arising from their mutual dealings can be ascertained and is due to him exclusively and the precepts of commutative justice will enable an arbitrator such as a court to decide what is properly due should the matter be disputed. This distinction explains why the court has jurisdiction to award damages against the State when a servant of the State for whose activity it is vicariously liable commits a wrong and why it may not get jurisdiction in cases where the claim is for damages based on a failure to distribute adequately in the plaintiffs’ favour a portion of the community’s wealth.
I must of course apply the law of the Constitution to the plaintiffs’ claims and if there was anything in the Constitution which would require me to ignore the principles which I have just outlined I should have to do so. But there is not; indeed I think they accord well with the constitutional text. The State (against whom damages are sought) is the legal embodiment of the political community whose affairs are regulated by the Constitution. The powers of Government of the State are to be exercised by the organs of the State established by it. The sole and exclusive power of making laws for the State is vested in the Oireachtas; the executive power of the State is exercised by or on the authority of the Government; and justice is to be administered in courts established by law. In relation to the raising of a common fund to pay for the many services which the State provides by law, the Government is constitutionally responsible to Dail Eireann for preparing annual estimates of proposed expenditure and estimates of proposed receipts from taxation. Approval for plans for expenditure and the raising of taxes is given in the first instance by Dail Eireann and later by the Oireachtas by the enactment of the annual Appropriation Act and the annual Finance Act. This means that questions relating to raising common funds by taxation and the mode of distribution of common funds are determined by the Oireachtas, although laws enacted by the Oireachtas may give wide discretionary powers to public authorities and public officials (including Ministers) as to their distribution in individual cases. It is the Oireachtas or officials acting under the authority of the Oireachtas which under the Constitution determine the amount of the community’s wealth which is to be raised by taxation and used for common purposes and the Oireachtas or officials acting on its authority determine how the nation’s wealth is to be distributed and allotted. The courts’ constitutional function is to administer justice but I do not think that by exercising the suggested supervisory role it could be said that a court was administering justice as contemplated in the Constitution. What could be involved in the exercise of the suggested jurisdiction would be the imposition by the court of its view that there had been an unfair distribution of national resources. To arrive at such a conclusion it would have to make an assessment of the validity of the many competing claims on those resources, the correct priority to be given to them and the financial implications of the plaintiffs’ claim. As the present case demonstrates, it may also be required to decide whether a correct allocation of physical resources available for public purposes has been made. In exercising this function the court would not be administering justice as it does when determining an issue relating to commutative justice but it would be engaged in an entirely different exercise, namely, an adjudication on the fairness or otherwise of the manner in which other organs of State had administered public resources. Apart from the fact that members of the judiciary have no special qualification to undertake such a function, the manner in which justice is administered in the courts, that is on a case by case basis, make them a wholly inappropriate institution for the fulfilment of the suggested role. I cannot construe the Constitution as conferring it on them. So I must hold that I am not empowered to make the adjudication which the plaintiffs ask me to make. I should add that I am sure that the concept of justice which is to be found in the Constitution embraces the concept that the nation’s wealth should be justly distributed (that is the concept of distributative justice), but I am equally sure that a claim that this has not occurred should, to comply with the Constitution, be advanced in Leinster House rather than in the Four Courts.
I must conclude therefore that I cannot award damages to the plaintiffs.
O’Donnell v South Dublin County Council
(SDCC) [2015] IESC 28
JUDGMENT of Mr. Justice John MacMenamin dated the 13th day of March, 2015
1. As citizens of Ireland, members of the travelling community are entitled to equivalent levels of social protection as the settled community. One recurrent issue in the case law is the extent to which the level of social protection can be adjusted in order to respond to particular accommodation requirements. The need to address such requirements becomes more acute if families are living in substandard or overcrowded accommodation.
2. At the time of the proceedings, the fourth named applicant was living in very overcrowded accommodation. On 5th February, 2008 Edwards J., in the High Court, granted a declaration that the first named respondent, South Dublin County Council, had, by reason of its failure to provide adequate temporary accommodation, failed to respect the rights of the fourth named applicant, Ellen O’Donnell, under Article 8 of the European Convention on Human Rights (“the Convention”), and s.3 of the European Convention on Human Rights Act, 2003 (“the ECHR Act, 2003”). He dismissed claims brought by the applicants in the High Court.
3. Both the applicants and respondents have appealed that judgment. For ease of reference, the O’Donnell family, when appropriate, will be referred to collectively as “the applicants”. They contend that the judge erred in failing to hold that the duty to provide that the term “dwelling” under s.56 of the Housing Act, 1966, extended to the provision of what is termed a “temporary dwelling” as defined in s.10(14) of the Housing (Miscellaneous Provisions) Act, 1992. The applicants alternatively submit that the trial judge erred in failing to hold that the first named respondent, (“the County Council” or “the Council”), had a statutory duty to provide the entire O’Donnell family with adequate and suitable caravan accommodation, and submit that an order of mandamus should be made to give effect to that duty.
4. The County Council, in its cross appeal, contends that the claim, in its entirety, should have been dismissed in the High Court, and that no member of the O’Donnell family is entitled to relief.
Background
5. The O’Donnell family consisted of two adults and seven children. Mrs. Mary O’Donnell, the first named applicant, is a full-time carer for her seven children. Mr. Patrick O’Donnell, her husband, the second named applicant, is unemployed, and in receipt of disability allowance. At the time leave to seek judicial review was granted in the High Court (13th November, 2006), the applicants, who are members of the travelling community, were living in a two-bedroom adapted caravan/mobile home which the County Council had provided to the family.
6. By the time this appeal came on, a number of the older children, namely, Mary junior, Patrick junior and Michael, had moved out of the mobile home. Nonetheless, the issues which the O’Donnells seek to canvass remain live ones. They maintain that they are still living in an overcrowded situation, and have a right to have their situation remedied. The County Council submits that, in accordance with statute and the established case law, its legal duty was simply to provide the applicants with a halting site. The Council contends that, in fact, it had gone much further than its legal duty by providing two caravans (or mobile homes) for the family. It says that when it provided those two mobile homes, in the year 2003, it had complied with all its statutory duties.
7. Ellen O’Donnell is the fourth-named applicant. She is a citizen of Ireland. At the time of the High Court hearing, she was aged 15 years, and as a result of cerebral palsy, was constrained to use a wheelchair. She was educationally disadvantaged. Some measure of her situation can be gleaned from the fact that she did not have access to a toilet until she reached the age of 13 years.
A Chronology of the Interaction between the Parents and the County Council
8. The interaction between Mr. and Mrs. O’Donnell and the County Council goes back many years. In 1994 the family were provided with a house in Clondalkin under the County Council scheme of letting priorities. But less than one month later, they voluntarily vacated that house and surrendered the keys. There is a suggestion that there was garda harassment. But the correspondence also strongly suggests that, in fact, Mr. Patrick O’Donnell felt that he was unable to live in permanent settled housing accommodation. That Mr. O’Donnell has apparently long held this view is worthy of recall throughout the narrative of events which follows.
9. Having returned the keys of the house, Mr. and Mrs. O’Donnell moved to St. Maelruan’s halting site in Tallaght, which was owned and managed by the County Council. In May, 2001 the Council expended €5,625 resurfacing the caravan bay in order to facilitate Ellen’s wheelchair. Following a family bereavement, the family left St. Maelruan’s. They then moved to an un-serviced plot of land in Tallaght. There, the Council provided them with further temporary facilities.
10. December, 2003 is a key date. What the Council provided the O’Donnells then lies at the centre of the case. In addition to the temporary halting site, the family were provided with a second-hand Pemberton Sovereign mobile home, which was made wheelchair-accessible, and, additionally, a second-hand Lunar Eclipse caravan. (The terms mobile home and caravan will be used interchangeably in this judgment). The total cost of this provision came to €47,000, which was paid from State funds, by means of a disability grant made available for Ellen O’Donnell’s benefit under the Housing (Disabled Persons and Essential Repairs Grants) Regulations, 2001. To facilitate access to the Pemberton mobile home, the Council funded the installation of a wheelchair ramp at a cost of €11,293. It is not clear now whether this latter sum was in addition to, or part of, the grant of €47,000.
The Swap Arrangement
11. The two units which the O’Donnell family had available by December, 2003, taken together, might well have been sufficient to accommodate the family. Unfortunately, things did not turn out that way. Mr. and Mrs. O’Donnell gave away the Lunar Eclipse caravan to Mr. O’Donnell’s mother. They received Mrs. O’Donnell Senior’s own caravan in return. This older caravan was entirely unsatisfactory. It was infested with mice, and in such a state of dilapidation that, within a short time, it was uninhabitable. As a result of this swap arrangement, the entire O’Donnell family were left in the position that all of them, both parents and children, had to live in the very over crowded Pemberton Sovereign mobile home. The County Council took the view that this situation was entirely as result of Mr. and Mrs. O’Donnell’s own decision. There is no evidence that the children were involved in this arrangement which, obviously, was to their ultimate detriment.
12. The High Court judge felt that that the O’Donnells’ decision to make this swap was never adequately explained. Insofar as an explanation was given, through counsel in the High Court, it was to the effect that, even with the two caravans, the accommodation was insufficient, and that the Lunar Eclipse had been just a one-room caravan with no separate bedroom. It was said Mrs. O’Donnell senior’s caravan had two separate bedrooms, as well as some living space, and, therefore, it gave more sleeping accommodation. But this was little use when that caravan turned out to be so unfit for use. The adults never sought permission, sanction or advice from the County Council in relation to this swap arrangement. There is no information on where the Lunar Eclipse caravan went, or for how long it was used. The two original caravans were provided as part of an arrangement funded for Ellen’s benefit by reason of her disability.
Ellen O’Donnell’s Accommodation
13. It is now necessary to describe living conditions in the Pemberton mobile home. More than a year before the initiation of these judicial review proceedings, Ms. Dolores Murphy, a housing support worker with the Irish Wheelchair Association, wrote to a Senior Administrative Officer in the County Council’s housing department. This letter, written on the 19th October, 2005, specifically addressed Ellen O’Donnell’s accommodation needs, and set out how she could not manage to get into, or out of, the mobile home without assistance. Nine people, parents and children, were all living in the two-bedroom mobile home. Ellen shared a bedroom with four other family members. Her wheelchair did not fit into that bedroom, so she had no independent living space. She had to be carried to her bed from her wheelchair. An internal toilet was broken and un-repaired. To access an outside toilet at night time, Ellen O’Donnell had to be assisted out of bed, into her wheelchair, over a step in the mobile home, and then, bodily lifted up over a high door-step into the cubicle. The shower facility in an outside unit adjoining the mobile home was too small for her wheelchair. Its temperature control was defective. The water was “always scalding”. There was no air-heating in the shower unit. Ms. Murphy pointed out that this was not healthy or desirable for the fourth named applicant, because, having showered, she then had to go back outside getting to the relative heat of the mobile home. In fact, Ms. Murphy wrote, the heating in the mobile home did not work anyway. The fourth named applicant was prevented by the cramped conditions from engaging in normal teenage activities such as doing chores or preparing food. The family had told Ms. Murphy that the mobile home was infested with mice, which had built nests within the walls of the mobile home.
14. Ms. Murphy called on the Council to make an overall long-term accommodation plan for the O’Donnells. More immediately, she asked the Council to provide the family with the biggest possible mobile home with the greatest number of bedrooms available. This was to be vetted by an occupational therapist to ensure that it met Ellen’s needs. Ms. Murphy suggested buying a three-bedroom house as an alternative. She asked the Council to look at the outside shower facility to make it wheel chair accessible. She added, “whatever happened to the previous caravan, nine people sleeping in a two or even three bedroom space is just not workable.”
The Council’s Response
15. In response, the Council does not deny that these problems existed. The officials wrote that there was enough space in Whitestown Way to accommodate another small caravan. However, they took the view that, having provided two fully equipped caravans in good condition in 2003, it was now for Mr. and Mrs. O’Donnell to solve the problem they themselves had created, if necessary, by buying themselves another caravan to replace the Lunar Eclipse which they had given away. Mr. and Mrs. O’Donnell contended that they could not afford to repair the existing mobile home, and would certainly be unable to repay a loan to buy an extra one. The Council officials pointed out that an interest free loan, to a maximum value of €6,350, would be available under the Councils’ Caravan Loan Scheme. This loan would be re-payable over a five year period. The Council officials laid emphasis on the fact that the O’Donnell family had of a total income of €36,350 per annum, all from Social Welfare. If Mr. and Mrs. O’Donnell applied for a loan under the scheme the officials suggested the family could repay the loan by means of a household budget deduction involving payment of no more than €20 per week or less.
16. In fact, the O’Donnells did make a further application for grants under the Disabled Persons Grant Scheme, and the Essential Repairs Grant Scheme. They sought a loan under the Caravan Loan Repairs Scheme. The application under the Disabled Persons Grant Scheme was made in Ellen O’Donnell’s name. The other applications were made in the names of Mr. and Mrs. O’Donnell. What they requested is described below.
17. The Council wrote back saying that Ellen had already received a disabled persons grant. One Council official wrote, in a letter of 3rd June 2007 that a second grant was not normally payable to the same applicant under the Disabled Persons Grant Scheme, unless their medical circumstances had changed. However, Ellen’s O’Donnell’s medical condition had not changed. Furthermore, one official wrote, the O’Donnells were ineligible to avail of the Essential Repairs Grant Scheme because no family member had reached the age of 65 years.
The Applicant’s Requests
18. In a letter dated the 17th July, 2007, the applicants’ solicitors set out a series of requests under the various grant and loan schemes. Their clients were seeking a loan of in or around €56,000 to purchase a replacement two-bedroom disabled person’s caravan; or €20,000 to repair their current two-bedroom disabled person’s caravan; and €20,000 to purchase a second hand three-bedroom caravan. There was no mention of the family being amenable to any offer involving a house built of bricks and mortar. These were very substantial claims.
19. The Council responded on 20th July, 2007, to the effect that the sums being sought significantly exceeded the maximum loans available under the loan scheme, and that, in the circumstances, it had no power to pay out more than the €6,350 maximum available.
20. In September 2007, two members of the Council’s housing department inspected the applicants’ caravan. There is no indication that things had changed in the interim. A further letter from the applicants’ solicitors drew attention to black damp spores in the mobile home, and expressed concern that some of the children had chronic asthma while winter was approaching. The solicitors called on the local authority to invoke emergency powers, failing which they would seek relief from the courts. Matters then reached a stand off which, even now, seven years later has not been resolved. The O’Donnells made no further steps to process the loan application. The Council did, however, make a range of further counter offers, both around the time of the High Court hearing and later.
The Council’s Offers of Permanent Accommodation
21. The Council offered:
(i) on the 22nd January, 2008, a 4 bed wheelchair adapted two-storey house in Tallaght.
(ii) on the 22nd January, 2008, a four bedroom bungalow on a traveller specific site.
(iii) on the 1st August, 2008, a four bedroom house within a traveller specific development in Tallaght.
(iv) on the 22nd December, 2008, a bay for a caravan at Stocking Hill Residential Caravan Park.
(v) on the 8th June, 2009, a four bedroom house within an estate owned by a Housing Association.
(vi) at a meeting on the 29th July, 2013, a bay for a caravan at another caravan park in Tallaght.
(vii) on the 12th December, 2013, a house on its own lands at Steelstown, adapted specifically for Ellen’s needs.
(viii) on May, 2014, two four bedroom houses at Kimmage Manor in traveller specific accommodation.
22. The fact that these (housing) offers were made and not taken up is not disputed. The family have never fully answered why none of these offers was acceptable. It would appear that Mr. and Mrs. O’Donnell were insistent on additional new caravan accommodation, rather than moving into a house. Of course, to make such a choice was their entitlement. But it must be seen in the context of what had happened the Lunar Eclipse, and the fact that, as a result, the Pemberton mobile home was totally overcrowded and unfit for human habitation. But in the light of these offers it is not easy to see how the County Council had failed in its duties to the O’Donnell family as a whole, excepting Ellen.
The High Court Judgment
23. A number of the High Court judge’s findings must now be considered. He observed that a particularly regrettable feature of the overcrowding was that it effectively set at nought the custom-adaptations that had been made to the Pemberton mobile home to accommodate Ellen O’Donnell’s disability. He referred to the problems identified in Ms. Murphy’s letter. He was satisfied that both of the second-hand caravans provided in 2003 had been in good condition, when provided. The judge pointed out that the Council had engaged consultants to install the suitable access ramp to the mobile home. What had caused the disrepair within the short space of three years was not clear. This judicial review was heard on affidavit. In hindsight this was a case where a plenary hearing might have been more appropriate.
24. The judge found no evidence that either of the O’Donnell parents had made any effort either to find or employ a carpenter to fit a half-door to the shower, or to find a plumber to fix the hot water and the radiators. He thought this failure more remarkable in light of the fact that the O’Donnells were receiving such significant social welfare payments. He expressly rejected any explanation of impecuniosity. He held that there appeared to be a complete “abdication of responsibility” by the O’Donnell parents for the maintenance and upkeep of the caravan, and that the swap resulted in an “artificial” overcrowding situation.
25. As against this, however, he commented that, by 2005, the County Council were aware of, the fact, that the O’Donnell family were living in conditions which were not just substandard, but, as the officials themselves accepted, “unfit for human habitation”. In order to place other findings in some context, it is necessary now to briefly set out some elements of the County Council’s statutory powers and duties.
Section 13 Housing Act, 1988, as amended
26. Section 13 of the Housing Act, 1988, as amended by s.29 of the Housing (Traveller Accommodation) Act, 1998, provides:
“(1) This section applies to persons belonging to the class of persons who traditionally pursue or have pursued a nomadic way of life.
(2) A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, including sites with limited facilities for the use by such persons otherwise than as their normal place of residence or pending the provision of permanent accommodation under an accommodation programme within the meaning of section 7 of the Housing (Traveller Accommodation) Act, 1998, and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.
…
(7) In this section—
‘caravan’ means any structure designed or adapted for human habitation which is capable of being moved from one place to another, whether by towing or transport on a vehicle or trailer, and includes a motor vehicle so designed or adapted and a mobile home, but does not include a tent;
‘sites with limited facilities’ means sites which, having regard to the temporary nature of such sites or the short duration of periods of use, have sufficient water, facilities for solid and liquid waste disposal and hard surface parking area for caravans.”
27. To enable it to prepare its traveller accommodation programme for the period 2005 – 2008, the Council carried out an assessment of the O’Donnells on 7th December 2004. The judge was satisfied that Mrs. O’Donnell had indicated the family would, in fact, accept a group house as being their preferred choice of accommodation, having been told that the design of the individual group house would be modified to suit Ellen O’Donnell’s needs. To that extent, therefore, the judge considered that the Council had complied with its statutory duty identified in s. 13 of the 1988 Act.
28. The judge pointed out that the cost of repairing the broken or missing items in a mobile home would have been modest compared with the cost of replacing the mobile home, even on a second-hand basis. This finding is to be seen in the context of the sums of money sought in Mr. and Mrs. O’Donnell’s grant and loan applications, described earlier. The judge held that the necessity for repairs arose entirely as a result of Mr. and Mrs. O’Donnell’s actions; he pointed out that, rather than repairing the indoor toilet, the parents had actually removed it from the caravan altogether. He was satisfied that the Council had not received any complaint in relation to the lack of hot water. He concluded that, although the O’Donnell parents had allowed the condition of the mobile home to deteriorate, it could nonetheless be made fit for habitation, provided repair work was carried out.
29. Against this, however, the judge considered that there was no evidence that any County Council official had thought to ask the O’Donnells why they were not getting on with repairs, once they had been told that the Council itself would not be carrying out the work. He made findings adverse both to the Council, and to Mr. and Mrs. O’Donnell, in these terms:
“There may well have been a genuine difficulty but nobody enquired if that was the case. By the same token, the applicants have not provided the court with any evidence as to why they have not attempted to carry out necessary maintenance, save for asserting that they could not afford to do so. I expressly reject the explanation of impecuniosity. There is not even a scintilla of evidence that any attempt was made to even enquire about getting repairs done, much less the obtaining of an estimate”.
30. He found there was:
“also a corresponding duty on the first named respondent (the County Council) to engage with (the O’Donnells) so as to provide them with assistance, if they require(d) it, to access the necessary services. Further, the County Council should provide the (O’Donnells) with all necessary assistance to access loan finance for the purpose of effecting repairs within the parameters of the Caravan Loan Scheme.”
31. He concluded that:
“The present overcrowding situation is exceptional in the circumstances of the present case. It is exceptional because, in this particular case, it goes beyond creating the sort of discomfort that is only to be expected in an overcrowding situation … [A] particularly regrettable feature of the present overcrowding situation is that effectively it sets at nought the custom adaptations that were made to the mobile home to accommodate Ellen’s disability. What is the point in having a wheelchair adapted mobile home if it is so crowded with people that the wheelchair bound occupant who it was intended to benefit cannot move around? The first named respondent has been aware of this problem since 2005 and has allowed it to continue. They should not have done so.”
32. He said:
“I believe that Ellen’s rights under article 8 are not currently being vindicated in so far as the overcrowding situation is concerned, and I so hold. I am therefore prepared to make a declaration to that effect and I am prepared to order the first named respondent to exercise its statutory powers under the Housing Acts 1966-2004 requiring it to provide the applicants, with whom the fourth named applicant dwells as part of a family unit, with adequate temporary accommodation pending their placement in permanent accommodation under the Traveller Accommodation Programme 2005-2008. I am not prepared to specifically order the provision of another caravan.”
33. But, despite this apparent finding in favour of the entire family, the High Court held that any relief should be confined to Ellen O’Donnell:
“As the breach of rights that I have found relates only to the fourth named applicant, there is no question of an award of damages to anybody except her. Moreover, although her rights have been breached and she is entitled to some damages for that, that breach has not, to date, continued long enough to have caused her lasting physical or psychological prejudice. The damages which she will receive are therefore likely to be modest …”
34. At first sight it might be thought there is some inconsistency between some of the passages of the judgment quoted earlier, and the declaration actually granted. There is no doubt that the declaration granted only concerns Ellen O’Donnell. While the Court may have indicated it was prepared to order the County Council to exercise its statutory powers requiring it to provide all the O’Donnells with adequate temporary accommodation pending their placement in permanent accommodation, the final quotation, and the order, is confined to finding a breach of Ellen O’Donnell’s ECHR rights.
The Appeal
35. The first part of this appeal involves a relatively simple task of statutory construction. The applicants say that the High Court failed to interpret the term “dwelling” contained in the Housing Act 1966, in accordance with the ECHR Act, 2003.
36. S. 2 and s.3 of the ECHR Act, 2003, insofar as relevant, provide:
“2(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.
(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”
3(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions. …”
37. Article 3 of the Convention itself provides:
“3. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
38. Article 8 of the Convention addresses private and family life in the following terms:
“8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
39. Clearly, s.2(1) provides that “statutory provisions” or “a rule of law” are subject to the general rules of law governing interpretation. Even accepting that the statute here may be remedial in nature and entails a purposive interpretation, a court is not entitled to interpret in such a manner so as to legislate. A statute can be interpreted only in a manner consistent with clear and constant ECtHR jurisprudence. It is not open to a Court to engage in a “free-standing” process of interpretation, or application, by simply comparing the statute with the provisions of the Convention.
40. Section 56(1) of the Housing Act, 1966 enables a housing authority to “provide dwellings (including houses, flats, maisonettes and hostels). Such dwellings may be temporary or permanent”.
41. A “temporary dwelling” is defined in the Housing (Miscellaneous Provisions) Act, 1992 as:
“any tent, caravan, mobile home, vehicle or other structure … which is capable of being moved from one place to another, and …was used for human habitation …”
42. A caravan is in terms defined in s.13(6) of the 1988 Act:
“In this section “caravan” means any structure designed or adapted for human habitation which is capable of being moved from one place to another, whether by towing or transport on a vehicle or trailer, and includes a motor vehicle so designed or adapted and a mobile home, but does not include a tent.”
43. The O’Donnells contend that the trial judge erred in failing to hold that the power to provide a “dwelling”, under s.56 of the Housing Act, 1966, should, by application of s.2 ECHR Act, 2003, have the same meaning as what is termed “a temporary dwelling” as defined in s.10(14) of the Housing (Miscellaneous Provisions) Act, 1992.
44. I do not think there is substance to this point. While, s.56 of the Housing Act, 166 falls to be interpreted in accordance with s.2 of the ECHR Act, 2003, in a manner consistent with the State’s convention obligations, in fact, the provisions of s.56(1) are explicit and unambiguous. The power provided therein is to provide permanent accommodation, although the duration of such accommodation may be temporary or permanent. However the definition contained in s.10 of the 1992 Act arises in the entirely different context of local authorities’ powers to remove unauthorised temporary dwellings from certain locations. Both the context and nature of the definitions are entirely distinct and arise in quite different situations. To interpret the term “dwelling” in s.56 of the 1966 Act so as to include caravans or mobile homes, would be to impermissibly legislate. It would radically alter the nature of the duty, in a way not consistent with any ECtHR jurisprudence. It would not be consistent, either, with the manner in which statutes fall to be interpreted in accordance with national law. The interpretation urged would, in fact, have a far reaching effect, entitling an applicant to a caravan on the same basis as an applicant would be entitled to a dwelling house. As citizens they have the same level of entitlement to housing as any other citizen. No judgment of the ECtHR assists Mr. and Mrs. O’Donnell on this issue, and therefore it is not possible to engage in the process of interpretation which is urged (see generally the judgments of Murray C.J., Denham J. (as she then was) and Fennelly J. in JMcD v. EL [2009] IESC 81). In fact, in Chapman v. UK (Application no. 27238/95) (2001) 33 E.H.R.R. 442, the ECtHR expressly states that member states of the Council of Europe are not under a duty to provide accommodation of a claimant’s own choosing.
45. Insofar as special provision exists, a local authority’s duty is to provide travelling people with halting sites, but not caravans. Both the case law and the statutory provisions in this regard, are explicit. As long ago as University of Limerick v. Ryan (Unreported, High Court, 21st February, 1991), Barron J. pointed out that, absent a wish to live in permanent accommodation, a local authority’s duty to a traveller family was to provide halting sites. This duty is now embodied in statute. In s.13 of the Housing Act, 1988, as substituted by s.29 of the Housing (Traveller Accommodation) Act, 1998 provides that the duty of a local authority towards persons pursuing “a nomadic way of life” is expressed in the following terms:
“…(2) A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, including sites with limited facilities for the use by such persons otherwise than as their normal place of residence or pending the provision of permanent accommodation under an accommodation programme within the meaning of section 7 of the Housing (Traveller Accommodation) Act, 1998, and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.” (emphasis added)
46. Sub-section (3) provides:
“(3) Section 56(2) of the Principal Act shall apply in connection with the provision of sites under this section as it applies in connection with the provision of dwellings under that section.”
47. The emphasised words “may provide” in s.13(2) are significant. It is now well settled that those words in the 1988 Act, as in its 1998 successor, are to be construed in a mandatory way; and, that in the particular context of the statute, the natural and ordinary meaning of the word “may provide” implies a duty, not a discretion, which, in the absence of any countervailing reason or principle, is to be interpreted as giving rise to a right. That duty, then, is to provide halting sites for travelling people (see Ryan case above).
48. The history of the enactment is relevant. Prior to its amendment, s.13 of the 1988 Act, in its un-amended form, specifically recognised that travellers might require housing in the form of serviced halting sites, rather than permanent dwellings. Section 13(2) in its original form provided:
“(2) A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.” (emphasis added)
49. On this provision, Barron J. stated in Ryan’s Case:
“The position of a traveller family which becomes entitled to be provided with a dwelling must be considered. It is uncontested that such a family must be offered a dwelling. If this is refused because the family belongs to the class of persons who traditionally pursue, or have pursued, a nomadic way of life, does this mean that the Council now has a discretion whether or not to provide that family with a caravan site? The answer to the question is no. It would not be a proper construction to be placed upon the relevant provisions of the Act. Section 13 must be taken to intend that the obligation of the Council to provide for housing needs extends in the case of those to whom s.13 applies to the provision not of dwellings but of caravan sites”.
50. He confirmed:
“In my view, s.13 imposes on the local authority an obligation to provide serviced halting sites to those who require them instead of conventional dwellings, in the same way as s.56(1) requires them to provide the latter.”
51. Barron J., therefore, treated the term “may” contained in s.13 of the 1988 Act, as imposing a statutory duty to provide a caravan site for travellers, just as there was a statutory obligation to provide dwellings for those in the settled community. The only difference in the obligation lay in the nature of the facility to be provided in the case of those who wished to live in caravans. This was not judicial legislation. As a matter of natural construction, the meaning flowed from the context of the section itself.
52. In its present amended form, and as now substituted by s.29 of the Housing (Traveller Accommodation) Act, 1998, s.13(1) of the 1988 Act contains much the same phraseology in the words “may provide, etc.”. The effect of the amendment is simply to extend its ambit, so that such sites may include limited facilities for the use of travelling people, otherwise than as a normal place of residence, or pending the provision of permanent accommodation under an accommodation programme within the meaning of s.10 of the Housing (Traveller Accommodation) Act, 1988. (See generally O’Brien v. Wicklow County Council (Unreported, 10th June, 1994); County Meath VEC v. Joyce [1994] 2 ILRM 210 and Ward v. South Dublin County Council [1996] 3 IR 195); as considering the 1998 Act, to O’Donoghue v. Limerick Corporation [2003] 4 I.R. 93 and O’Reilly v. Limerick County Council [2006] IEHC 174.
53. Apart from the obligation to provide halting sites, housing authorities, also have power to grant loans for the repair and acquisition of caravans. This is provided for under s.25(1) of the Act of 1988. This power is, however, subject to a delimitation, contained in s.25(2) of the 1988 Act, which provides that the Minister shall, with the consent of the Minister for Finance, specify terms and conditions for loans made under sub-section (1). As the Council pointed out to the O’Donnells’ solicitors, this limited the maximum loan available under the Scheme to €6,350. Clearly, the grants the O’Donnells requested in the 2007 correspondence were very considerably in excess of what could be provided, unless there had been a change in Ellen O’Donnell’s medical condition.
Sections 6, 9 and 10 Housing Act, 1988
54. I move now to consider sections 6, 9, and 10 of the Housing Act, 1988.
55. Section 6 of the 1988 Act may simply be summarised as allowing County Councils to employ or engage social workers to assess travelling people’s housing needs. By virtue of s.9, a housing authority is to “assess” the need for provision of adequate and suitable housing accommodation of persons:
“(a) whom the authority have reason to believe require, or are likely to require, accommodation from the authority, and
(b) who, in the opinion of the authority, are in need of such accommodation and are unable to provide it from their own resources.”
(See s.9(1)(a) and (b))
56. To understand other references contained in s.9(2)(6) of the Act, it is necessary, first, to again refer to s.13 of the 1988 Act, quoted earlier, which refers to “the class of persons who traditionally pursue or have pursued a nomadic way of life”.
57. The 1988 Act provides in s.9(2):
“(2) Without prejudice to the generality of subsection (1), a housing authority in making an assessment under this section shall have regard to the need for housing of persons who -are homeless,
(a) are persons to whom section 13 applies,
(b) are living in accommodation that is unfit for human habitation or is materially unsuitable for their adequate housing,
(c) are living in overcrowded accommodation,
(d) are sharing accommodation with another person or persons and who, in the opinion of the housing authority, have a reasonable requirement for separate accommodation,
(e) are young persons leaving institutional care or without family accommodation,
(f) are in need of accommodation for medical or compassionate reasons,
(g) are elderly,
(h) are disabled or handicapped, or
(i) are, in the opinion of the housing authority, not reasonably able to meet the cost of the accommodation which they are occupying or to obtain suitable alternative accommodation.”
58. The section, therefore, provides that a Council shall have regard to the need for housing, homeless members of the travelling community, that is, those who are living in conditions which are unfit for human habitation, or materially unsuitable. These provisions are to be seen in the context of the definition of “homelessness” set out in s.2 of the same Act, which provides:
“2. A person shall be regarded by a housing authority as being homeless for the purposes of this Act if –
(a) there is no accommodation available which, in the opinion of the authority, he, together with any other person who normally resides with him or who might reasonably be expected to reside with him, can reasonably occupy or remain in occupation of, or
(b) he is living in a hospital, county home, night shelter or other such institution, and is so living because he has no accommodation of the kind referred to in paragraph (a), and he is, in the opinion of the authority, unable to provide accommodation from his own resources.”
The Council itself accepted that the mobile home was unfit for human habitation.
59. The criteria for assessment under s.9 are to be seen in light of the fact they are to be used in assessing the medium and long term accommodation needs of travelling people. The obligation placed on the housing authority under s.9(1) is to carry out such an assessment not less frequently than every three years.
60. But those same statutory criteria are very revealing when one looks at Ellen O’Donnell’s position from 2005 onwards. There is no dispute but that she was “living in accommodation that was unfit for human habitation” (see s.9(2)(c) above; that she was “living in overcrowded accommodation” (see s.9(2)(d) above; that she was “sharing accommodation with another person or persons and [had], in the opinion of the housing authority, …. a reasonable requirement for separate accommodation” (s.9(2)(e); that she was “in need of accommodation for medical or compassionate reasons” (s.9(2)(g); that she was “disabled or handicapped”; s.9(2)(i) and that she personally was:
“not reasonably able to meet the cost of the accommodation which they are occupying or to obtain suitable alternative accommodation.”
61. The Council knew and accepted that the mobile home was unfit for human habitation, Ellen O’Donnell was therefore a person who could not “reasonably occupy or remain in occupation of” the mobile home. Not only was she “homeless”, but she fulfilled seven of the other criteria identified under section 9.
62. With these considerations in mind, s.10 of the 1988 Act provides:
“10.-(1) A housing authority may, subject to such regulations as may be made by the Minister under this section –
(a) make arrangements, including financial arrangements, with a body approved of by the Minister … for the provision by that body of accommodation for a homeless person,
(b) provide a homeless person with such assistance, including financial assistance, as the authority consider appropriate, or
(c) rent accommodation, arrange lodgings or contribute to the cost of such accommodation or lodgings for a homeless person.
2. A request for accommodation may be made to a housing authority by or on behalf of a homeless person …” (emphasis added)
A duty devolves on a housing authority to act when a “request for accommodation has been made to it” (s.10(2)). Dolores Murphy’s letter had made such request. Can it then be said that the Council did not owe special duty to Ellen O’Donnell when they had specific notice of all of her problems?
63. Unfortunately, the loan application for €6,350 did not progress. There was a stand off. Such a loan would have improved the mobile home, and reduced a substantial degree of the day by day and night by night degradation and indignity to which Ellen O’Donnell was subject. It would have allowed her to function as a more autonomous, non-dependent young person, although not eliminating the over-crowding. The County Council was aware of the situation, and its impact on Ellen O’Donnell. But it took no further steps to process the loan or to initiate the repairs, or to ascertain why the O’Donnells themselves were not repairing the caravan. The Council had, however, made offers of permanent housing to Mr. and Mrs. O’Donnell.
64. How should the statutes be interpreted and applied in the case of Ellen O’Donnell? The process of statutory interpretation, in the first instance, must be informed by the Constitution.
65. In East Donegal Co-operative Livestock Mart Limited v. Attorney General [1970] I.R. 317 at 343, Walsh J. pointed out that:
“… an Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning.”
Clearly, the established jurisprudence of this Court makes clear that, to interpret s.13(2) as mandating a housing authority to provide a mobile home for a travelling person would be to usurp the functions of the Oireachtas. But Acts of the Oireachtas are to be read and interpreted in the light of the Constitution. If, in an exceptional case such as this, statutory powers are given 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. In so finding I do no more than reiterate a statement of interpretation in cases of this exceptional category expressed by Costello J in the High Court, in O’Brien v Wicklow Urban District Council (Unreported, High Court, 10th June, 1994)
66. Both Mr. and Mrs. O’Donnell were repeatedly offered housing. It is not possible to conclude that the County Council failed in its statutory duty to them. The extent and range of the offers is sufficient to negative any finding in their favour. The parents must be taken as having spoken for the other children. The Council cannot be fixed with notice of sufficient information as to the other children’s position, which would have placed them under a duty. The courts must apply the law on the evidence in the case.
The Statutory Duty owed to Ellen O’Donnell
67. But Ellen’s situation is distinct. The terms of s.10 of the Housing Act, 1988 are that a housing authority “may … provide a homeless person with such assistance as the authority would consider appropriate”; or “… may … rent accommodation, arrange lodgings or contribute to the cost of such accommodation or lodgings for a homeless person”. There is a distinction between paragraph (b) and paragraph (c) of s.10, in that the words “as the authority consider appropriate” do not arise in paragraph (c). Did the County Council’s duty to Ellen end with these offers?
68. The preamble to the Constitution outlines the values of promoting the common good with due observance of prudence, justice and charity, so that “the dignity and freedom of the individual may be assured”. It is clear that constitutional values established by our jurisprudence, specifically those of autonomy, bodily integrity and privacy, are engaged here (In the matter of A Ward of Court (withholding medical treatment) (No. 2) [1996] 2 I.R. 75, and Ryan v AG [1965] IR 294). The position of Ellen O’Donnell is distinct by virtue of the evidence. Of course, in every family situation, and in all forms of accommodation, the constitutional values just identified are compromised by the inevitable activities of other family members, or economics, or lack of space. But because of the exceptional overcrowding, and the destruction of the sanitation facilities, and in light of Ellen O’Donnell’s disability, her capacity to live to an acceptable human standard of dignity was gravely compromised. Her integrity as a person was undermined. Her rights to autonomy, bodily integrity and privacy were substantially diminished. The Council was aware of the issue.
69. The situation, as known to the County Council in 2005, was truly, exceptional. That situation was, to my mind, sufficient as to impose a special duty upon the County Council towards Ellen O’Donnell. The County Council says in this appeal that it complied with its duties to her. Insofar as privacy rights might arise under Article 8 of the Convention, the Council assessed her long term accommodation needs; provided temporary accommodation in 2003; upgraded and specially adapted the service unit and facilities on the bay; provided a wheelchair accessible caravan; offered a loan to the first and second named applicants for the purchase of a second-hand caravan to alleviate overcrowding, and made provision in its Traveller Accommodation Programme for the provision of a purpose built specially adapted group house designed to meet Ellen O’Donnell’s long term accommodation needs, having regard to her disability. There is considerable strength in each submission.
70. Arguably the situation was, partially, at least, the responsibility of Mr. and Mrs. O’Donnell. It can be said that, under Article 42 of the Constitution, the parents, as her guardians, were entitled to make decisions as to her education, upbringing and welfare; and that consequently the County Council was entitled, perhaps under a duty, to accept what the parents decided, in the words of Article 42, as “educators” of the children. But, insofar as Ellen O’Donnell is concerned, this is not only a case about parental choices, rights and duties (though these arise), but also about the duty of the Council, when faced with clear evidence of inhuman and degrading conditions, to ensure that it carried out its statutory duty. This was to vindicate, insofar as was practicable, in the words of Article 40.3 of the Constitution, the rights of one young woman with incapacities to whom, by virtue of the evidence, the Council owed a discrete and special duty under Article 40 of the Constitution. That statutory duty is to be informed with due regard to Ellen O’Donnell’s capacity as a human person (Article 40.1 Constitution of Ireland).
71. There are abundant examples in our jurisprudence as to the approach applied by the courts when considering socially “remedial” legislation such as this. Such statutes allow for a purposive interpretation, and are to be constructed as widely as can fairly be done, subject to the Constitution itself, and within the constitutional limits of the courts interpretive role. See: Bank of Ireland v. Purcell [1989] I.R. 327 and Gooden v. St. Otteran’s Hospital [2005] 3 I.R. 617. Is there a difference in principle between a council being fixed with knowledge and therefore a duty, in the context of a defectively repaired pavement creating a hazard to pedestrians, and the knowledge which it had in this case insofar as Ellen O’Donnell is concerned? I am not persuaded there is. Of course the extent of a duty, (if it exists), must be gauged against the degree of incursion into the constitutional and statutory rights engaged. A mere letter will not fix an authority with liability. It was the truly exceptional nature of what was in the letter, and its acceptance, which viewed in the circumstances, gave rise to the duty to interpret and apply “may” as “must”.
72. I do not seek to entirely absolve Mr. and Mrs. O’Donnell from potential liability for what occurred. But the degree of such liability is a matter which requires to be ascertained in a plenary hearing, affording an opportunity to examine and cross-examine. Speaking generally, as a matter of justice, adult persons who make negligent choices with legal consequences may be made answerable for those choices. A parent who is a defendant in a tort claim brought by a child in a car accident cannot seek the protection of Article 42 of the Constitution, if that child’s injuries occurred because the parent neglected to ensure that a child wore a seat belt. It is self-evident that Mr. & Mrs. O’Donnell were very aware of Ellen’s situation.
73. The exceptional evidence, and the acknowledgment of its truth, is sufficient to lead to the consequence of fixing the County Council with a duty under s.10 to take practicable steps on foot of the request for accommodation which was made to it (see s.10(2)). At its highest, that duty was, then, to “provide a homeless person with such assistance (including financial assistance) as the authority considered appropriate” (see s.10(1)(a)), or to “rent accommodation, arrange lodgings or contribute to the cost of such accommodation or lodging for this young person who was homeless” (see s.10(c)).
74. I appreciate that, if offered lodgings or accommodation, Ellen O’Donnell might well have responded that she would not, or could not, move without her family. This consideration does not absolve the County Council from taking such ‘practicable’ steps as might be taken to vindicate her position. Without being overly prescriptive, and without in any way trespassing into “judicial legislation”, or transgressing constitutional boundaries as to the separation of powers, the County Council, in compliance with its statutory duty under s.10(1)(b) of the 1988 Act quoted earlier, could, at minimum, have written in the clearest possible terms offering “financial assistance”, that is to say, that workers would be available on a specified date and time to carry out repairs to the caravan, and, if necessary, making arrangements to ensure repayment of the cost afterwards. This message could have been reinforced by a social worker visit explaining the contents of the letter, again in the clearest possible terms, together with a written acknowledgment of its contents. Even in light of the unfortunate experience with the Lunar Eclipse, the Council might, too, have contemplated lending a second caravan so as to make available temporary accommodation space for Ellen, her brothers and sisters. None of this happened. The evidence, therefore, does not show that the County Council performed its statutory duty, towards Ellen, “insofar as it was practicable” as the Constitution provides.
The ECHR Claim
75. As there is no basis, thus far, under the statutes or the Constitution, for a finding in favour of Mr, and Mrs. O’Donnell in their claim for a second caravan, I move to a consideration of potential ECHR rights. Many of the issues explored in this appeal bear resemblance to judgments by Laffoy J. in O’Donnell & Others v. South Dublin County Council [2007] IEHC 204 and Charleton J. in Doherty v. South Dublin County Council [2007] IEHC 4. While much may be gleaned from these prior authorities, the observations therein as to rights and duties under the Convention must now be seen in light of the more recent jurisprudence of this Court, specifically in the judgments in JMcD v. PL [2009] I.R.
76. The County Council is “an organ of State”. It is “established by law”. Through it, the “executive … powers of the State are exercised”. (see s.1 ECHR Act 2003). However, in order to establish that it has committed a wrong, it is necessary, by virtue of s.1 ECHR Act 2003, that a Council defaulted in its “functions” which include powers and duties. In engaging in the process of interpretation, pursuant to ECHR jurisprudence, a court is to take notice of any declaration, decision, advisory opinion or judgment of the ECtHR (s.4 ECHR Act, 2003). The courts are, subject to the Constitution to take “due account” of clear and consistent principles laid down in Strasbourg jurisprudence. This is to be seen in the context of the function of the ECtHR to adjudicate within its own powers, as identified under the its Treaty of establishment (see the judgments of Murray C.J., Denham J. and Fennelly J. in JMcD v. PL; and the references therein to R.(Ullah) v. Special Adjudicator [2004] 2 AC 323).
77. With regard to Mr. and Mrs. O’Donnell and the other children, the questions to be asked are the following:
1. Is there any statutory duty on the County Council, in the context the evidence regarding the other applicants, which, insofar as the claims for a second caravan are concerned, falls to be interpreted and applied in this case?
2. If so, can those statutory duties be interpreted in light of principles laid down in clear and constant Strasbourg jurisprudence?
3. In the absence of such principles, can any power or duty be interpreted or applied on the facts of this exceptional case, which might benefit the other applicants insofar as there is evidence?
78. For such duties to exist there must be an ECHR right, arising either under Article 3 or Article 8 of the Convention, cited earlier. As Murray C.J. pointed out in JMcD v. PL [2009], the ECHR may only become part of domestic law through what he described as the “narrow portal” of Article 29.6 of the Constitution; and then only to the extent determined by the Oireachtas and subject to the Constitution itself. The Convention does not in itself provide a remedy at national level to victims whose rights may have been breached by reference to the provisions of the Convention. Section 8 of the ECHR Act, 2003 permits a claimant, if there is no other remedy, to recover damages where an organ of State has failed to perform its functions in a manner compatible with the State’s obligations under the ECHR.
79. In Doherty Charleton J. pointed out that there is no positive obligation on a court to intervene to uphold the private and family life rights to be found in Article 8, and that, expressly, the text of Article 8 itself forbids “interference by a public authority with the exercise of this right”. The judgment points out that both the courts of England and Wales, and the European Court of Human Rights had attempted to address the issue in respect of housing or welfare conditions without formulating a principle as to when State welfare provision may be necessary in order to allow for the meaningful exercise of the rights protected. He observed:
“It may be that there is a positive duty cast upon public authorities to intervene under Article 8, consistent with the proper disposal of available resources, where special circumstances cause a direct interference of a serious kind in family life and where the subject of that interference has no available means to alleviate the absence of that right.”
80. In general, I consider that this expresses the hypothetical legal position correctly; but the existence and extent of such a duty would have to be discerned from clear and consistent Strasbourg jurisprudence.
81. Doherty pre-dated JMcD v. PL, and must be read subject to the later decision of this Court. Charleton J. (then a judge of the High Court) considered a number of authorities from England and Wales, where, on the basis of U.K. law as applied, the English courts had hypothesised on where situations potentially, a positive obligation of intervention might exist. He concluded it would be hard to conceive of a situation in which the predicament of an individual would be such that Article 8 would require that person to be provided with welfare support, where his/her predicament was not sufficiently severe also to engage Article 3. However, he thought Article 8 would be more readily engaged where a family unit is involved, or where the welfare of children was at stake. The Article might also be engaged where a family life was seriously inhibited by what are termed the “degrading conditions” prevailing in a claimant’s home.
82. However, it is clear that before an act or failure to act can amount to a lack of respect for private and family life, there must be some ground for criticising a failure to act. There must be an element of culpability. At the very least there must be knowledge that a claimant’s private and family life were at risk. Next, there must be a clear statement of principle to that effect discernible from the ECtHR jurisprudence. I would observe, the application of the principle must be subject to the conditions identified by this Court in JMcD v. PL.
83. A consideration of ECtHR case law demonstrates that, in fact, no judgment confers a right to be provided with a home of one’s choice, nor are there any positive obligations to provide alternative accommodation of an applicant’s choosing (see Chapman v. UK (Application no. 27238/95) (2001) 33 E.H.R.R. 442. However, an observation of the ECtHR in Marzari v. Italy [1999] 28 EHRR CD 175 is not without interest:
“The Court considers that, although Article 8 does not guarantee the right to have one’s housing problem solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such refusal on the private life of the individual.”
The decision in relation to the appellants other than Ellen O’Donnell
84. The difficulty here is that, in the case of Mr. and Mrs. O’Donnell, it is impossible to identify any right, however interpreted, which was not forgone, by their own actions in disposing of a usable caravan, and in refusing the range of housing solutions offered to them and their family. This was sufficient in law to discharge the County Council’s statutory duties. The same considerations also apply insofar as a claim could be said to arise deriving from consideration of ECtHR case law.
The order now proposed
85. There are passages in the High Court judgment herein where it might appear that the judge in fact gave “direct effect” to provisions of the ECHR. This would be at variance from the sub-constitutional status of the Convention. It is true that legislation is to be interpreted pursuant to s.2 of the ECHR Act, 2003. The judgment pre-dates the decision of this Court in JMcD v. PL. But this must be in a manner compatible with the State’s obligations. The interpretative obligation is limited, in that the Convention-compatible construction contended for, must be possible in accordance with existing legal rules concerning the interpretation and application of legislation. The interpretative obligation under s.2 cannot be relied on to support an interpretation which is manifestly inconsistent with the legislative intention behind the provisions. Moreover, a correct interpretation of a provision is irrelevant, unless there is actually some right of a claimant which is protected by the Convention and which has been breached by the manner in which the provision has been applied (see JMcD v. PL). Consequently, I would not alter the judgment insofar as concerns the other appellants.
86. I would vary the order of the learned High Court judge insofar as it concerns the fourth named applicant only. She is entitled to a declaration that she is entitled to damages (which may be moderate) by reason of the County Council’s breach of statutory duty toward her. I would remit her claim for damages for plenary hearing back to the High Court. I would add that the circumstances of the case pre-date the inception of the Charter of Fundamental Rights and Freedoms of the European Union, or the accession of the European Union to the United Nations Convention for the Protection of Persons with Disabilities. These instruments did not arise in the pleadings could not form part of the case.
87. The claim for damages for breach of statutory duty is of a quasi tortious nature. Therefore, it is one to which the Civil Liability Act, 1961, as amended, applies. While I express no view on this, issues may arise as to whether, in the assessment of damages to which Ellen O’Donnell is entitled, the question of the parents’ potential legal liability or part liability for what occurred may also arise. That question falls to be determined on facts as established at plenary hearing, and having regard to all the circumstances of the case.