Blog 28th Sept 2012

High Court Judicial Review

Kinsella – v – Dun Laoghaire/Rathdown County Council

Neutral Citation: 2012 IEHC 344

HIGH COURT

JUDICIAL REVIEW

                                                                                                                                                        Record No: 2012 62 JR

BETWEEN

LISA KINSELLA

                                                                    APPLICANT

AND

DUN LAOGHAIRE/RATHDOWN COUNTY COUNCIL

                                                                         RESPONDENT

JUDGMENT of Mr. Justice Hogan delivered on the 31st July, 2012.

This is a judicial review which raises an important question arising from the Housing (Miscellaneous Provisions) Act 2009.  The specific issue is whether someone receiving social housing from one local authority is entitled to apply for housing to another local authority.

Ms. Kinsella is the mother of a 5 year old daughter and a tenant of Dublin City Council. Ms. Kinsella has a medical condition which creates serious difficulty in caring for her daughter without any assistance from family members.  Her extended family live in Dun Laoghaire/Rathdown County Council area (DLRCC) and Ms. Kinsella wished to apply for housing from DLRCC so that she could have family support to help care for her daughter.

DLRCC declined to accept Ms. Kinsella’s application for housing on the basis that she was already housed by another local authority and as such, was deemed ineligible to apply.  The council relied on the provisions of the 2009 Act and the Social Housing Assessment Regulations, 2011 in support of its position.

The 2009 Act obliges a housing authority to carry out an assessment of an applicant’s eligibility and need for social housing support. The Act provides expressly for only one circumstance in which an applicant is considered ineligible and that is where arrears of rent are due for a specific period.  The 2011 Regulations contain further limitations on eligibility for social housing support and these relate to the availability of alternative accommodation.

Judge Hogan held that the wording of the 2009 Act ‘seems to reflect a clear intention on the part of the Oireachtas to have a two stage assessment process, namely, eligibility and then need. ‘He went on to say that the only precedent restrictions on applications for housing support are those prescribed by the Oireachtas in s. 20(5) of the Act of 2009’ and any attempt to add a further such limitation on who could apply for social housing would be a “usurpation of the exclusive legislative power of the Oireachtas, contrary to Article 5.2.1 of the Constitution”.   The logical corollary of the single explicit restriction on eligibility in the Act is that all other applicants may in principle apply for housing support. Judge Hogan concluded therefore that Ms. Kinsella was entitled to apply to the respondent and was not disqualified by law in so doing.  DLRCC’s decision to refuse to consider Ms. Kinsella’s application was therefore quashed by the Court.

This judgment is particularly significant because it reiterates the law on the exclusive power of the Oireachtas to legislate. In particular, the judgment clarifies the limitations on the power of executive bodies to change or extend the law through regulations which could restrict or alter the rights of applicants. In reaching his conclusions, the learned judge acknowledged  that ‘the issue presented here goes straight to the policy choices confronting the legislative and executive branches with regard to the allocation of scarce resources in the area of social housing.’ However, it is the 2009 Act that reflects the choice of the legislature in relation to who should be excluded from applying for social housing support.

Mercy Law Resource Centre (MLRC) supported and represented Lisa Kinsella in this case.  The Centre welcomes the decision of Justice Hogan particularly as it confirms Lisa’s right to apply to DLRCC for housing support.  A move to that area will greatly improve the quality of life of Lisa an her daughter because of the support they can get from their relatives there in the area where Lisa grew up.

MLRC also welcomes this High Court clarification of the rights of people seeking housing support. It confirms their right to apply, to have an application assessed on its merits and not to be excluded from eligibility without a legitimate reason. This is especially relevant and helpful for the clients of MLRC who are people experiencing or at risk of homelessness.  More information regarding this High Court Judicial Review is available at  MLRC Court Updates.  More information on the work of MLRC is available on the website at www.mercylaw.ie.

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