The High Court declared that the statutory process used to seek possession of a council home was incompatible with the European Convention on Human Rights, after finding that a man had no adequate hearing on his claim to succeed to his late mother’s tenancy.
The ruling followed a consultative case stated by a District Court judge in proceedings brought by Dublin City Council against Liam Gallagher. The court answered questions about the District Court’s powers and the safeguards available before a possession warrant was issued.
The tenancy at 11 Adare Road, Coolock, was in the sole name of Gallagher’s mother, Nancy, who died in July 2005. Gallagher applied to succeed to the tenancy. The council refused, saying he had not met its residence and rent-account criteria. Gallagher disputed its account of his residence. The District Court judge found that he had lived with his mother except for a period when he lived with a partner.
Justice O’Neill held that the District Court’s role under section 62 of the Housing Act 1966 was limited. Once the statutory requirements for a warrant were proved, the judge had to issue it and could not hear the underlying dispute about succession or assess the merits of the council’s procedure. The European Convention on Human Rights Act 2003 required Convention-compatible interpretation where possible, but could not be used to rewrite section 62. The court also ruled that the housing authority was not required by that Act to adduce evidence justifying its decision to terminate a tenancy.
The High Court nevertheless found that the process as a whole failed to protect Gallagher’s rights. It said the council’s investigation was unstructured and did not give him a chance to address conflicting records relied on to reject his application. The council’s decision could not be appealed within its own process, while the section 62 proceedings could not reconsider the merits. The court concluded that he had not received an adequate hearing or a proper assessment of whether eviction would be proportionate, engaging his rights under Articles 6 and 8 and the constitutional right to fair procedures.
The court rejected judicial review as an adequate substitute for a hearing on the merits in this situation. It answered the District Court’s questions accordingly and made a declaration under section 5 of the 2003 Act that section 62 of the 1966 Act was incompatible with Article 8. The declaration did not give the District Court power to decide the succession dispute in the warrant proceedings.