Severely disabled woman living in damp council house fails in court bid

Council offered to carry out further works to house of disabled woman in Fermoy

The Law Library in the Four Courts, Dublin. File photograph: David Sleator

The Law Library in the Four Courts, Dublin. File photograph: David Sleator

 

A young woman with profound physical and mental disabilities living in a damp council house unsuitable to her needs has failed to get court orders aimed at being rehoused in more appropriate accommodation.

Cork County Council had offered to carry out further works to the house at Fermoy shared by Elizabeth Mulhare and her mother Barbara, on whom Elizabeth is totally dependent, but they want to be housed within five miles of Cork University Hospital where Elizabeth attends a clinic for treatment.

The Council said it has no such suitable accommodation and also said its housing list in 2017 had more than 7,480 approved applicants, including 557 with needs based on physical disability. Its top two housing list priorities are those living in dangerous accommodation and the homeless. Those with disabilities are the sixth priority, it also said.

Elizabeth (29) has cerebral palsy and severe disabilities and has lived since 2011 in Fermoy, 43kms from the clinic where she is treated for severe and persistent respiratory infections. An occupational therapist had stated their home is unsuitable for Elizabeth’s needs for reasons including it is affected by dampness and there is no level access to a shower room or bedroom with a door wide enough to enable access by a wheelchair.

The therapist recommended it be renovated or they be moved to more suitable accommodation. Dismissing their case last year, the High Court’s Ms Justice Marie Baker said it would be an “impermissible breach” of the constitutional separation of powers to order the Council to provide the Mulhares with more suitable housing or declare they should get greater priority on the housing list.

There is no statutory basis entitling them to be housed in a particular house in a particular area, she ruled. She also rejected arguments the failure to provide a more appropriate house breached the Mulhares private and family life rights under Article 8 of the European Convention on Human Rights. Article 8, she held, does not create a positive obligation on the part of a local authority to provide a home. The judge noted, before Fermoy, the Mulhares had lived in a Cork City Council house and that council in October 2015 refused to consider their application for housing within its area until outstanding arrears on the previous tenancy which, it alleged, Barbara Mulhare had “abandoned”, were paid.

The Court of Appeal on Monday unanimously dismissed the Mulhares appeal over the High Court decision. Mr Justice Michael Peart, with whom Ms Justice Elizabeth Dunne and Mr Justice Gerard Hogan, agreed, said he shared the High Court’s sympathy for the position the applicants found themselves in and believed it was of the “utmost importance” for the health and welfare of both that they live in better conditions.

However, the Council must perform its statutory functions in accordance with the housing list priorities and the management of a council’s housing stock is very much a matter for the housing authorities concerned in the first instance, “not for the courts”, he said.

The courts cannot intervene unless a “clear error” is established in the decision making process and no such error had been established, he ruled. The judge also described as “speculative” the Mulhares claims that Cork County Council had, in its decision, improperly taken into account Cork City Council’s refusal to consider their application for housing within its area until rent arrears were paid. The County Council had specifically denied that claim and there was no basis to quash its decision on that ground, he held.