Council direction leading eviction was unlawful, Supreme Court rules

A direction leading to the eviction of a Dublin man from a local authority house was made unlawfully by Dublin City Council, the Supreme Court has ruled.

The Council maintained Mark Kelly was not entitled to be in the two bedroom bungalow at Marewood Drive, Ballymun, following the death in mid-November 2011 of his aunt Rose Kelly.

On December 2nd 2011, relying on section 20 of the Housing Miscellaneous Provisions Act 1997, the Council had the house boarded up and Mr Kelly evicted by gardai based on alleged anti-social behaviour being conducted within and from the house.

Section 20 provides, where a housing authority notifies gardai a person who is not a tenant has engaged in anti-social behaviour and whose eviction is considered necessary for good estate mangement, gardai may evict that person.

Mr Kelly took judicial review proceedings, claiming he had lived at the house since 2003 and the Council acted in breach of his constitutional rights.

He claimed he was effectively reared from birth by his grandmother Juliet and aunt Rose and lived with them in another council house in Ballymun before moving with them to the Marewood Drive property in 2003, when he was aged 21.

He claimed he had lived at the house from 2003 except for two brief periods in 2010 and 2011, including when he was jailed for driving offences and when he unsuccessfully tried to set up home with his partner.

The Council argued Mr Kelly was not a tenant and said, after Juliet died in 2006, Rose listed herself as the sole resident and had said he was not living there. It also said Mr Kelly had been granted homeless accommodation.

It further said it had received complaints of anti-social behaviour at the house after his aunt’s death, including intimidation, drug-taking and “wild parties”.

Mr Kelly denied such behaviour and claimed he had registered himself as homeless for social welfare purposes but was unhappy with the accomodation provided for him.

He claimed he was given the keys of the Marewood Drive house by one of his brothers after his aunt’s funeral and was in the process of advancing his claim to tenancy when evicted.

The Council appealed to the Supreme Court after the High Court ruled in 2012 the Council acted in excess of his powers in directing the eviction.

This week, a three judge Supreme Court dismissed the Council’s appeal.

Giving the judgment, Mr Justice William McKechnie said it was important to differentiate between Mr Kelly’s application to succeed to the tenancy and the use of section 20 to evict him.

Even though he was informed by the council on November 17th 2011 he was not entitled to be in the house and should hand back his keys, no application to succeed to the tenancy was made by December 2nd 2011. That application was eventually made on December 12th and was unsuccessful.

While he would not accept a suggestion Mr Kelly was entitled to remain in the house until the tenancy application was made and determined, that was not the issue.

The case was not about succeeding to a tenancy but about the existence of anti-social behaviour as the specific ground for invoking section 20, he said.

It is a “serious” thing for any person to be evicted for anti-social behaviour based on an allegation including a reference to drugs which might well impact on any future housing application by Mr Kelly.

At no point before the house was forcibly entered and secured was Mr Kelly informed he was even under suspicion of engaging in anti-social behaviour, he said.

Given the potential consequences of such an allegation, “fairness would dictate some engagement at some level was necessary but that did not take place”.

On that basis, he was dismissing the Council’s appeal.

The nature of such engagement, the judge added, will vary according to the circumstances.

As Mr Kelly had no right to occupy the property and, according to the Council’s records, never had any connection with it, quite an “informal process” would have been sufficient to respect his rights.

That would have to involve the council giving him the basic information it had concerning alleged anti-social behaviour and an opportunity to respond. A decision could then have been made whether or not there was a sufficient basis for invoking section 20.