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Supreme Court finds Dublin City Council did not apply fair procedures in important housing case taken by the Law Centre

Date:29.05.2019

Judgment of the Supreme Court delivered 29th May 2019 [2019] IESC 56

In a significant judgment, which should have local authorities re-evaluating certain practices and procedures, the Supreme Court on 29th May 2019 unanimously dismissed an appeal by a Local Authority against a decision of the High Court that it had failed to adopt fair procedures when directing the Gardai to remove a person from a local authority house.

In its considered judgment the Supreme Court tracked the evolution of the law relating to social housing and obligations on local authorities. In the judgment the Court acknowledges the rights of persons dealing with local authorities and the onus upon local authorities to afford such persons fair procedures.
It noted the “hugely expansive and highly important” role the local authorities have in the provision of social housing, that the housing allocation system operated by local authorities “must be fair and command widespread respect” and there has to be confidence “in the structure of such a system and how it operates”.

The Court noted the evolution of safeguards of the rights of persons housed or seeking housing from local authorities. In particular, the Court referred to the Housing Act 2014 which “entirely changed” “the process by which and the grounds upon which a housing authority may seek possession of a dwelling house”. The Supreme Court underlined the obligation on the District Court to make orders pursuant to the 2014 Act only if it is “reasonable to do so having regard to all the circumstances of the case”.

This case involved an allegation of anti-social behaviour against a person staying in a local authority dwelling. The Local Authority invoked S.20 of the Housing Act 1997 and notified the Gardai who then removed the Applicant and the Local Authority boarded up the house.

The allegation of anti-social behaviour and potential consequences of S.20 have serious implications for a person. In such circumstances, the Supreme Court found that “fairness would dictate that some engagement at some level was necessary”. The Local Authority failed to afford the Applicant any fair procedures, it did not put the allegation to the Applicant thereby failing to afford the Applicant an opportunity to respond; it effectively acted summarily on foot of the allegation. The Court found this to be a breach of the Applicant’s rights and a process lacking the necessary safeguards Local Authorities as public bodies, are expected to implement.

The Supreme Court noted a direction given by a local authority pursuant to S.20 “has the effect of removing a person from a house ‘immediately’”. In what shall have consequences for decisions made pursuant to S.20 and possibly wider, the Court laid out a test for a Local Authority in exercising this power. It held that the Local Authority’s belief “must be backed up by evidence” which must be “reliable and genuine”. Such evidence should be “verified in so far as possible”. It went on to say that “what is required is that the underlying belief is reasonably based and well founded in the circumstances”.

The Supreme Court referring to In re Haughey (1971) IR 217 held that “the Constitution itself which contains within it a guarantee of fair procedures” applies. Furthermore, the Court referred to similar rights in Article 8 of the European Convention on Human Rights. The Court stated at paragraph 63 of its judgment that “it is clear beyond dispute therefore that certain rights similar to those in Article 8 of the Convention and in Article 40.3.1 of the Constitution, apply to the operation of S.20 of the 1997 Act”. In the circumstances of this case the Court was “satisfied that quite an informal process would have been sufficient to respect [the Applicant’s] rights” such process “would have to involve the Council informing [the Applicant] of the basic information which they had, and giving [the Applicant] an opportunity of responding”.

The implications of this judgment are significant for how Local Authorities; and indeed other public bodies, carry out inquiries and make decisions which have potentially serious consequences for individuals involved.

Ballymun Community Law Centre, Solicitors for the Applicant/Respondent

Link to judgment