The High Court has refused an application by Eamon McCauley and Anne Callaghan to quash a Circuit Court decision affirming an order for possession of a dwelling in Ballintra, Co Donegal, sought by Donegal County Council.
Mr Justice Eagar delivered judgment on 21 December 2015. The application for judicial review challenged a decision made on 25 June 2015, which had upheld a District Court possession order made on 16 January 2015 under section 62 of the Housing Act 1966.
The dispute concerned whether the applicants could succeed to the tenancy of a cottage previously let to Liam McCauley, the first applicant’s brother. The Council’s allocation scheme required a family member seeking succession to have lived continuously in the dwelling for at least two years before the tenant’s death or departure, and to have had their income taken into account when rent was set.
The Council said those requirements were not met. Its housing area manager gave evidence in the earlier proceedings that the Council owned the property and that Liam McCauley’s disability allowance had been included in differential rent reviews from June 2000 to February 2013. The first applicant applied for housing support in September 2013, giving an address in Ballyshannon. The judgment records that he moved into the Ballintra house in December 2012 to care for his brother, who died in March 2013. It also records that he accepted he had not occupied the house for the required two years.
For the applicants, counsel argued that the courts should consider the impact of the possession order on the right to respect for the home under Article 8 of the European Convention on Human Rights. He relied on earlier decisions concerning proportionality and possession proceedings. The Council argued that the applicants had not established that the dwelling was their family home or that Article 8 applied, and that they had not challenged the District Court proceedings at the appropriate stage.
The High Court was satisfied that the applicants’ Article 8 rights were not engaged. It refused certiorari on that basis and also exercised its discretion to refuse the remedy, considering the likely effect of quashing the Circuit Court decision. The judge noted that the applicants could have sought to prevent the section 62 proceedings or challenged the District Court proceedings. The ruling did not quash either earlier order.