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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> O'Donnell & ors -v- South Dublin County Council & ors [2015] IESC 28 (13 March 2015) URL: http://www.bailii.org/ie/cases/IESC/2015/S28.html Cite as: [2015] IESC 28 |
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Judgment
Notes on Memo: Judgment also by Mr. Justice McKechnie ___________________________________________________________________________ | ||||||||||||||||||||||||||||||||||||||
THE SUPREME COURT Hardiman J. [Appeal No: 115/08] O’Donnell J. McKechnie J. MacMenamin, J. Dunne J.
Mary O’Donnell, Patrick O’Donnell, Michael O’Donnell (a minor suing by his mother and next friend Mary O’Donnell), Ellen O’Donnell (a minor suing by her mother and next friend Mary O’Donnell), Mary O’Donnell (suing by her mother and next friend Mary O’Donnell), Margaret O’Donnell (a minor suing by her mother and next friend Mary O’Donnell), Theresa O’Donnell (a minor suing by her mother and next friend Mary O’Donnell), Gerry O’Donnell (suing by his mother and next friend Mary O’Donnell) Applicants/Respondents and
South Dublin County Council, Minister for the Environment, Heritage and Local Government, Ireland and The Attorney General Respondents/Appellants 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 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 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 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 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 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 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
(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. The High Court Judgment 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
(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.” 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:
The Appeal 36. S. 2 and s.3 of the ECHR Act, 2003, insofar as relevant, provide:
(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. …”
(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.” 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:
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:
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:
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 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:
(b) who, in the opinion of the authority, are in need of such accommodation and are unable to provide it from their own resources.” 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):
(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.”
(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.” 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:
62. With these considerations in mind, s.10 of the 1988 Act provides:
(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) 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:
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 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 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:
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? 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:
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:
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 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.
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