High Court upholds council’s finding that woman and child were not homeless due to accommodation outside jurisdiction

Four CourtsA Malaysian woman who moved to Ireland with her daughter, an Irish citizen, and had her application for emergency homeless accommodation refused by Wicklow County Council has had her application for judicial review dismissed by the High Court.

Finding that the Council’s decision was not ultra vires, Mr Justice Noonan stated that since the applicants chose to leave their home in Malaysia, and were still able to live there, that they did not satisfy the definition of “homeless” under the Housing Act 1988.

Background

The applicants, Ms Peggi Tee and Ms Aishling Tee Hann (A minor), travelled from Malaysia to Ireland in June 2016. Both applicants are Malaysian citizens, and since Aishling’s father is an Irish citizen (residing in Malaysia) she is entitled to Irish citizenship.

In the High Court, Justice Noonan pointed out that Ms Tee graduated from Bond University, a prestigious institution in Australia, with a degree in business. Her family ran a distribution business in Malaysia in which she was employed as a sales manager although she ceased her employment there in January 2016 when the business closed.

Ms Tee averred that the reason she came to Ireland was to secure suitable second level education for Aishling, which she considered not available to persons of her ethnicity in Malaysia.

Ms Tee says that her funds began to run out in February 2017, and as a result, she and Aishling resorted to sleeping in her rented car for over two weeks; until they came to the notice of An Garda Síochána who put them in touch with a woman’s refuge in Bray. Since then, the applicants have been accommodated by a variety of NGOs and charitable institutions and have had to sleep in a Garda station on a number of occasions.

Application for accommodation

In February 2017, Ms Tee applied to be put on the Council’s housing list, and a meeting took place between Ms. Tee and Council officials at the Council’s offices on the 4th April, 2017.

What transpired precisely at this meeting is a matter of dispute between the parties: Ms. Tee averred that she told the Council that she had a retirement fund in Malaysia but she could not access it either until retirement age or if earlier, on certain conditions which did not arise.

The Council then gave its reasons for refusing; in particular, the Council emphasised the €40,000 in an employee’s fund, that her family ran a business in Malaysia, and that Ms Tee’s mother had “recently purchased a five-bedroomed property”.

The Applicants’ Case

Ms Tee’s solicitor claimed that the applicants were entitled to have emergency accommodation provided to them by the Council having a statutory obligation to provide such accommodation under the terms of the Housing Act 1988; and a right to such accommodation by virtue of the Constitution and the European Convention on Human Rights Act 2003.

The applicants impugned the Council’s decision on four broad grounds:

  1. that the decision was based on errors of law which vitiate it – i.e. the failure by the Council to assess the applicants’ housing needs, to construe the relevant provisions of the Housing Act 1988 correctly and in accordance with the requirements of the Constitution and the European Convention on Human Rights.
  2. that the Council’s decision was irrational and unreasonable and based on irrelevant considerations – i.e. Ms. Tee’s mother’s housing circumstances in Malaysia
  3. that the decision was based on errors of fact i.e. access to funds, in particular the pension fund.
  4. that the Council failed to vindicate their rights under Articles 40.1, 40.3 and 42A of the Constitution and Articles 3, 8 and 14 of the ECHR – i.e. the increased risk to the applicants of rough sleeping, in particular the risks to Aishling as a child. It was also pleaded that the Council treated the applicants less favourably than Irish nationals, therefore they were discriminated against on grounds of ethnicity and/or nationality.

Discussion

In the present case, the Council concluded that the applicants are not homeless because they have a home, albeit not in this jurisdiction. Justice Noonan stated that the fact that the applicants had no home in Ireland, but could live with Ms Tee’s mother in Malaysia, did not require the Council to form the opinion that they were homeless.

Justice Noonan added “…it would clearly be absurd, for example, to suggest that a person who enjoys the benefit of a comfortable residence a few miles across the border in Northern Ireland is homeless because he or she has nowhere to live in the State. It could hardly be suggested that every tourist who comes to Ireland and has the misfortune to run out of money while here is entitled to emergency homeless accommodation, be they an Irish citizen or not”.

The Council discretion must be exercised within well settled norms as explained in cases such as O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 so that it must not be exercised in an arbitrary or capricious manner or in a manner that flies in the face of fundamental reason and common sense. Absent that however, the court cannot interfere with the Council’s determination.

The decision was not at variance with fundamental reason and common sense. Nothing in s. 2 of the 1988 Act requires the Council to ignore the fact that an applicant for homeless accommodation has a home outside the State.

Citing Zambrano v. Belgium Case C- 34/09, the applicants argued that the fact that they had a home outside the EU was significant. Given that they were not forced to leave the jurisdiction of Malaysia, Justice Noonan stated that Zambrano did not assist the applicants’ case.

Dismissing the application, Justice Noonan stated that the applicants had not established that the determination of the Council that they were not homeless was ultra vires.

  • by Seosamh Gráinséir for Irish Legal News