Mulhare & Anor v Cork County Council

Factual and Procedural Background

The applicants are a mother and her adult daughter who suffers from profound physical and mental disabilities. The daughter is fully dependent on her mother for care and attends medical practitioners and a hospital located approximately 43km from their current residence. The applicants reside in housing provided by a local housing authority (the Respondent) in a town within its functional area. The accommodation currently occupied is acknowledged by both parties as unsuitable for the daughter's physical and medical needs, lacking necessary adaptations and affected by dampness and mould.

The applicants applied to the housing authority to be rehoused in accommodation that is both structurally appropriate and geographically proximate to the medical facilities they attend. This request was refused by the housing authority in a letter dated 17th November 2015, which forms the basis of the judicial review application. The applicants seek to quash that decision and alternatively seek a mandamus order compelling the housing authority to provide suitable housing within a five-mile radius of the hospital and medical practitioners. They also seek declaratory relief for priority in housing allocation.

The housing authority contends that the decision is not amenable to judicial review as it concerns the statutory discretion and priority scheme governing housing allocations. It asserts it has properly considered the applicants' needs and offered to carry out adaptations to their current home, but has no suitable alternative accommodation available within the requested geographic area.

The applicants have also applied to a separate housing authority for accommodation within its functional area, but that application was declined due to outstanding rent arrears on a previous tenancy.

Leave to apply for judicial review was granted by the High Court.

Legal Issues Presented

1. Whether the decision of the housing authority refusing to rehouse the applicants in accommodation suitable to the physical and geographical needs of the first applicant was lawful and amenable to judicial review.
2. Whether the housing authority failed to properly consider the physical and medical needs of the first applicant in accordance with natural and constitutional justice.
3. Whether the applicants are entitled to an order of mandamus compelling the housing authority to provide suitable accommodation within a specified geographic radius.
4. Whether the refusal to provide accommodation in the requested area breaches Article 8 of the European Convention on Human Rights.

Arguments of the Parties

Applicants' Arguments

• The housing authority failed to give proper and sufficient weight to the physical and medical needs of the first applicant, including the geographical proximity to medical practitioners.
• The refusal to rehouse them in suitable accommodation was made without adequate consideration of relevant factors and involved irrelevant considerations, including the prior tenancy arrears and alleged refusal to permit modifications.
• The current accommodation is unsuitable and causes hardship and distress, particularly due to travel requirements for medical treatment.
• The applicants seek a mandamus order requiring the housing authority to provide adapted accommodation within five miles of the hospital and medical practitioners and to prioritize their application.
• They allege a breach of statutory duty and negligence under the European Convention on Human Rights Act 2003, specifically Article 8 rights to respect for home and family life.

Respondent's Arguments

• The decision is not properly the subject of judicial review as it concerns the housing authority's statutory discretion and the scheme of priorities in housing allocation.
• The housing authority has properly considered the applicants' needs and offered to carry out recommended adaptations to their current home.
• No suitable alternative accommodation is available within the requested geographical area.
• The applicants cannot veto the housing authority’s rational decisions or demand housing in a specific location.
• Previous rent arrears with a different housing authority are relevant to the refusal of housing applications within that authority’s functional area, though not directly relevant to the respondent's decision.
• Article 8 of the European Convention on Human Rights does not impose a positive obligation on the housing authority to provide housing or to provide housing of the applicants’ choice or preference.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McDonald v. Feely & Anor (Unreported, Supreme Court, 1980)	Local authority must act according to its adopted scheme of priorities in housing allocation.	Confirmed the statutory requirement on housing authorities to apply their scheme of priorities.
O’Donnell v. South Dublin County Council [2007] IEHC 204, [2011] 3 IR 417	Housing authorities have a duty to use their powers to meet accommodation needs appropriately.	Affirmed the corresponding duty on housing authorities to assess and consider housing applications properly.
McNamee v. Buncranna U.D.C. [1983] I.R. 213	Housing Act 1966 is a major legislative measure governing housing allocation.	Referenced to contextualize the statutory framework governing housing authorities' functions.
McDonagh & Ors. v. Clare County Council & Anor. [2004] IEHC 184	Housing authorities respond to need, not to applicants’ preferences; no obligation to provide immediately the accommodation sought.	Supported the principle that housing authorities have discretion and applicants do not have veto power over housing decisions.
Fingal County Council v. Gavin & Ors. [2007] IEHC 444	The authority’s view of the reasonableness of accommodation is determinative; applicants have no veto.	Used to reject applicants’ claims for specific accommodation preferences that are unreasonable.
Doherty v. South Dublin County Council & Ors. (No. 2) [2007] IEHC 4, [2007] 2 IR 696	Housing authorities’ obligations are resource-dependent and must be exercised within available resources and priorities.	Reinforced that housing duties are constrained by resources and policy decisions of housing authorities.
Ward v. Dublin South County Council [1996] 3 IR 195	Court will not interfere with housing authorities’ policy decisions on resource allocation and priorities.	Supported the principle that judicial review is limited and will not direct housing authorities on resource deployment.
Chapman v. United Kingdom (2001) 33 EHRR 18	Article 8 ECHR does not impose a positive obligation on states to provide housing.	Applied to reject claims that failure to provide housing breaches Article 8 rights.
Marzari v. Italy [1999] 28 EHRR CD 175	Refusal to provide assistance to a severely ill individual may raise Article 8 issues in certain circumstances.	Referenced but distinguished; court found no such breach in this case.

Court's Reasoning and Analysis

The Court acknowledged the profound disabilities of the first applicant and the dedicated care provided by the second applicant. It accepted that the current accommodation is unsuitable and that adaptations recommended by an occupational therapist are necessary. The housing authority has offered to carry out these adaptations but does not have alternative accommodation available within the requested geographical radius.

The Court emphasized the statutory framework governing housing authorities, which requires them to allocate housing according to an adopted scheme of priorities. The applicants fall within a category that is sixth in priority. The Court noted that while the housing authority has discretion to depart from the priority scheme in exceptional or compassionate circumstances, the Court’s role is limited and does not extend to directing the housing authority on how to allocate resources or where to provide housing.

Judicial review is not the appropriate mechanism to compel a housing authority to provide housing in a specified location or to override the statutory scheme of priorities. The applicants do not have a veto over the housing authority’s decisions, and the Court cannot interfere with rational and lawful decisions made within the housing authority’s competence.

The Court also considered the applicants’ argument that the housing authority failed to properly consider geographical proximity as part of the needs assessment. It found that the authority had taken the applicants’ needs into account but was constrained by lack of suitable housing stock. The Court rejected allegations that irrelevant considerations, such as tenancy arrears or refusal of modifications, improperly influenced the decision.

Regarding the claim under Article 8 of the European Convention on Human Rights, the Court noted established jurisprudence that Article 8 does not create a positive right to housing or to housing of a particular choice. The Court found no breach of Article 8 in the housing authority’s decision, particularly given the offer to adapt the current accommodation.

Holding and Implications

The Court REFUSED the relief sought by the applicants. The judicial review application to quash the decision and the mandamus order compelling provision of housing within a specified geographical area were dismissed.

The decision confirms that housing authorities have discretion in allocating housing according to statutory schemes and resource constraints, and that courts will not direct specific housing allocations or interfere with policy decisions unless there is a clear breach of law or procedure. The ruling underscores the limited role of judicial review in housing allocation matters and confirms that Article 8 of the European Convention on Human Rights does not impose a positive obligation to provide housing or housing in a preferred location.