The Supreme Court declared section 62(3) of the Housing Act 1966 incompatible with the State’s obligations under the European Convention on Human Rights in the case of Anthony Donegan. The court found that the possession process did not provide an adequate safeguard where a central factual dispute could not be heard by an independent decision-maker.
The court considered Donegan’s appeal together with Dublin City Council’s appeal in proceedings involving Liam Gallagher. It held that section 62 applications are confined to formal proofs, such as whether a tenancy has ended and a demand for possession was made. The District Court cannot use that procedure to determine disputed facts about the council’s reasons for terminating a tenancy.
Donegan had lived in council housing for many years. After a 2003 search of his home found no unlawful drugs, gardaí reported that items in his son’s bedroom indicated heroin preparation and packaging. Donegan denied that his son was dealing drugs and said he was an addict addressing his addiction. The council pursued possession, and Donegan faced eviction based on alleged anti-social behaviour connected to his son. The Supreme Court said he had no opportunity to have that dispute determined by an independent body. Judicial review could not resolve the underlying factual conflict.
The court held that obtaining and executing a possession warrant would interfere with the right to respect for a home under Article 8. It concluded that, in Donegan’s circumstances, the existing process failed to respect that right. It therefore made a declaration of incompatibility under section 5(1) of the European Convention on Human Rights Act 2003. The declaration does not invalidate or suspend the legislation.
The Gallagher case concerned his application to succeed to his late mother’s council tenancy. The council’s scheme required two years’ residence and inclusion on the rent account during that period. Although a District Court judge found that Gallagher had lived at the property during the relevant period, he did not dispute that his name had been removed from the rent account in 1995 and had not been restored. The Supreme Court held that this undisputed failure meant he could not obtain relief through the Article 8 argument. It answered the four questions referred by the District Court: yes to the first and no to the other three. It also dismissed Gallagher’s cross-appeal concerning Deasy’s Act.
The court did not decide whether serving a notice to quit itself interferes with Article 8 rights. Its declaration concerned section 62(3) and the circumstances of Donegan’s case.