Donegan -v- DCC & Gallagher v DCC [2012]

The Supreme Court has ruled in Donegan v DCC & Gallagher v DCC that section 62 of the Housing Act 1966 (eviction procedure for Local Authority tenancies) is incompatible with Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR) as it fails to provide procedural protections to Local Authority tenants against eviction.


Section 62 of the Housing Act 1966 is a summary procedure for the recovery of possession of local authority housing. A local authority must first serve the tenant with a Notice to Quit. Where the tenant does not give up possession, the local authority may make an application to the District Court which is then obliged to grant a warrant for possession, provided the formal proofs under the section are complied with. The Court does not have any discretion in respect of the underlying merits of the application. Subject to any stay in proceedings put in place by the Court, the local authority may immediately execute the warrant for possession.


Where a local authority tenant has been subject to section 62 possession proceedings on the basis of a decision by a local authority that the tenant has engaged in anti-social behaviour, the future entitlements of the individual will also be affected. Section 14 of the Housing (Miscellaneous Provisions) Act 1997 provides that where a local authority considers that a person was engaged in anti-social behaviour, it may refuse to make, or defer the making of a letting of a dwelling to such a person. Also, under section 16 of the Housing Act 1997, the Health Service Executive may also determine that such an individual is not entitled to a payment of rent supplement allowance for private accommodation.


A person found guilty of anti-social behaviour may thus end up in emergency accommodation indefinitely. This affects a wide range of other human rights. Residents in emergency accommodation generally have to leave their home all day. Access to adequate cooking facilities is totally interrupted. Health will suffer as a result of poor diet. The family unit is totally disjointed. Education and ability to remain employed or gain employment also suffers.
The lack of an independent or impartial hearing on the merits of the case where so fundamental a matter as one’s entitlement to remain in one’s home is concerned has led to a number of cases being instituted in Irish courts.


The recent decision of the Supreme Court in the Donegan and Gallagher cases concerned an appeal by Dublin City Council against the decision of the High Court that the Section 62 process was incompatible with Article 8 (right to respect for private and family life) of the European Convention of Human Rights.


In the Supreme Court, Justice McKechnie held that under the relevant legislation, “an occupier has no right or entitlement to raise any defence to ... an application [for possession], other than by way of challenging the housing authority on ...[certain] formal proofs. In addition, the absence of judicial discretion means that the personal circumstances of such occupier must be disregarded as being irrelevant; equally so with questions regarding the reasonableness or fairness of making the Order: these simply have no part in this statutory procedure”.

The suggested procedural safeguard of judicial review was then held to be unsatisfactory in such instances. The court further rejected the ‘floodgates’ argument submitted by the Council, holding that violations could not be allowed to remain without a remedy merely to avoid administrative burdens on the Council.


This is only the second declaration of incompatibility with the European Convention to be finalised in Ireland since the ECHR Act 2003. While such declarations do not affect “the validity, continuing operation, or enforcement” of the provision, the Taoiseach must formally notify the Oireachtas that it has been made, though s/he is not obliged to initiate steps to amend the law or even to tell the Oireachtas what the Government’s intentions in the matter are.
The full judgment may be viewed on www.courts.ie

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