About this case:

• Citation:
  [2025] IESC 49
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Donal O'Donnell

Delivering the lead judgment for the Supreme Court, Chief Justice Donal O’ Donnell determined: “The reality is that there is an entirely rational basis for the differentiation here and it cannot be said to be the product of prejudice or stereotype. It is a differentiation which is a common place feature of the law.”

Background

EW, a minor, was the only son of his mother, a tenant of Clúid Housing Association since June 2022. 

The death of EW’s mother in tragic and violent circumstances terminated her statutory tenancy with Clúid pursuant to s.39(1) of the Residential Tenancies Act 2004 (as amended), when EW was only 14 years of age. EW’s father did not live at the premises.

EW was unable to succeed to his mother’s tenancy, as the statutory entitlement to do so under s.39 is limited to a spouse, partner, cohabitant, parent or child of the tenant who was living in the premises at the time of the death and who are over 18 years of age.

ZG, EW’s aunt and the sister of the deceased, proposed that she would give up her own dwelling and move into the apartment with EW. However, this arrangement did not fall within Clúid’s policies as ZG was not assessed as having a housing need and she had not been in occupation of the premises for the qualifying period. Furthermore, ZG did not come within s.39(3)(a) as the section does not include siblings and is limited to close family members actually living in the premises.

When it became apparent that Clúid proposed to recover possession of the premises, ZG commenced judicial review proceedings seeking a declaration that s.39(3) was unconstitutionally underinclusive by not providing for succession to the tenancy by ZG so as to permit EW to continue to live in the flat, which the applicants argued was indirectly discriminatory against single-parent families.

The amicus curiae, the Irish Human Rights and Equality Commission (IHREC) argued that the section effected a direct discrimination based on age, a suspect classification requiring close scrutiny,

The claim having been dismissed in the High Court, the Supreme Court granted leave to bring a leapfrog appeal. 

The Supreme Court

The Chief Justice observed that the case should have been commenced by or converted to plenary proceedings to facilitate the giving of oral evidence, noting: “The fact is that the absence of oral evidence and the opportunity to explore and test it has been a significant hindrance in this case. The evidence adduced here was essentially directed towards the applicants’ challenge to the way they had been dealt with by Clúid rather than towards establishing the basis for the constitutional challenge, and what evidence there is has not been elaborated on, explained, amplified or tested as might have been the case if there had been oral evidence.”

Declining to dismiss the appeal on that basis, the Chief Justice expressed that “the form of proceedings should [not] become a trap to be sprung on one side, or avoided on the other”.

The court turned to the applicants’ argument that if EW was a child of a two-parent family and the surviving parent was living in the apartment at the time of the death, EW would, in all probability, be able to remain living in the apartment.

The majority did not agree that s.39(3)(a) effected a discrimination based upon marital status, noting that this difference in outcome would also occur if there was other eligible person living in the premises at the time of the tenant’s death and entitled to succeed to the tenancy: “Plainly therefore, the line between a minor child being permitted to remain in the premises and not, is not one drawn on the basis of marital status of the child’s parents.”

The Chief Justice continued: “The ability of any minor child to remain living in premises is contingent on and is dependent upon the decision of adults. In that sense all children are treated equally: the difference of outcome is as a result of factors other than childhood.”

Turning to the IHREC’s argument, the Chief Justice highlighted that an amicus curiae cannot normally advance a different case to that made by an applicant or plaintiff where the amicus supports that party, finding: “Litigation is not an abstract debate upon the merits of legislation open to all comers. A plaintiff or applicant must be entitled to remain dominus litis (in charge of their litigation): it is, after all, their challenge and any argument must be made on their own circumstances.”

Nonetheless, the argument was allowed to proceed in circumstances where it was the only plausible equality challenge and where the State parties did not object.

The Chief Justice opined that there was no doubt that the section effects a discrimination based on age and agreed that such discrimination could offend Article 40.1 of the Constitution, “although it falls into a different category to other immutable characteristics because it is a classification regularly and legitimately used”.

Noting that the proper application of an irrationality standard as explained in Donnelly v The Minister for Social Protection [2022] IESC 31 would capture any age-based discrimination which is invidious, arbitrary, unfair or prejudicial so as to offend Article 40.1, the Chief Justice found no such discrimination in the case before him.

The Chief Justice considered that a provision in law for a minor to become a “Part 4” tenant seemed unrealistic in the case of most children, that minors are different from adults and therefore cannot be said to be the same for the purposes of Article 40.1, and that there is a significant difference between a law permitting a landlord to contract with a minor of their choice, accepting risk of repudiation (which is what the law currently provides) and a statute which requires landlords to accept any minor child of a tenant as a Part 4 tenant in their own right.

The majority agreed that the market for private rental dwellings and for social housing is an important and sensitive one which has been subject to repeated regulation, and that the law in this regard imposes obligations on landlords in the interests of tenants and balances their rights and interests. 

The Chief Justice emphasised: “It is quintessentially a judgment to be made and remade in the light of experience by the Oireachtas and not by the courts using the relatively blunt and inflexible instrument of constitutional interpretation. In my view, the limitation of the statutory right of succession to children over 18 is not irrational.”

The Chief Justice was also unconvinced that the text or history of Article 42A of the Constitution, which recognises the rights of children, provided any proper basis for treating it as an open-ended provision requiring the courts to substitute their judgment on social issues affecting children for that of the Oireachtas, and declined to read Article 42A with Article 40.1 to find that s.39(3) was repugnant to the Constitution as to do so would ignore the warning of O’Malley J. in Donnelly “to avoid the trap of reducing the equality test to a binary one in which scrutiny is strict in theory but fatal in fact or rational in theory and nonexistent in fact”.

Conclusion

Accordingly, the Supreme Court dismissed the appeal.

ZG & Anor v Ireland & Anor [2025] IESC 49