Alan D.P. Brady BL is a practicing barrister and an Adjunct Lecturer at the TCD Law School. Alan's piece looks at socio-economic rights in Ireland and in particular he considers these rights in the context of social assistance and administrative law.
Socio-economic rights are human rights that protect the basic social and economic needs of individuals. Examples of these rights include a right to food and drinking water, a right to housing, a right to education and a right to healthcare. Socio-economic rights have had a well-established place in international human rights law since the aftermath of World War II. However, their place in the Irish human rights law framework has traditionally been very limited. Human rights law in Ireland is found mainly in the 1937 Constitution and the European Convention on Human Rights Act 2003 (the ECHR Act). There is very limited protection in either of these for socio-economic rights. The 1937 Constitution guarantees a right to primary education and the ECHR Act has been used to provide for damages in certain types of disability cases. Both the Constitution and the ECHR Act provide for ‘justiciable’ rights: i.e. rights that can be pursued through the courts. The Irish State’s approach to protecting socio-economic rights is generally not through justiciable rights, but through a welfare state model. This model involves the provision of social assistance through statutory decision-making processes, rather than by allowing individuals to seek court orders to enforce their socio-economic rights.
While there are unquestionably many drawbacks to this approach, it would be unfair to describe this model as incapable of providing any legal protection to those in need of social assistance. The provision of social assistance is not, as a matter of law, a question of the largesse of autocratic state administrators. Administrators’ powers are based on law and limited by law. This may not, of itself, ensure that a specific vulnerable person will receive assistance; however it can affect the transparency and accountability of decision-makers, with a view to ensuring that everyone entitled to assistance under the statutory framework does in fact have access to it.
The recent High Court case of Kinsella v Dun Laoghaire Rathdown County Council illustrates this point. Ms Kinsella applied to Dun Laoghaire Rathdown County Council (DLRCC) for social housing assistance. She argued that her current accommodation (which was provided by Dublin City Council) was entirely unsuitable because of her severe epilepsy. DLRCC refused to accept Ms Kinsella’s application for social housing support. The reason given was that she was ineligible on the basis that she was currently housed by another local authority. The governing legislation was the Housing (Miscellaneous Provisions) Act 2009 and the Social Housing Assessment Regulations 2011. These did include some eligibility criteria, which Ms Kinsella argued she satisfied. However, the legislation did not include any eligibility requirement which disqualified a person who was already housed by another local authority from even having their level of need considered.
Mr Justice Hogan found that it was not open to a local authority to impose an eligibility requirement on an applicant for social housing assistance unless there was a clear statutory basis for that eligibility requirement. He stated that if he were to imply additional criteria into the Housing (Miscellaneous Provisions) Act 2009 ‘it would be tantamount to adding a further ex ante limitation on who could apply for housing support over and above those limitations stipulated by the Oireachtas’. Having found that there was no such statutory basis for the ‘already housed by another local authority’ eligibility requirement, Mr Justice Hogan quashed the DLRCC’s refusal to accept Ms Kinsella’s application and sent the matter to DLRCC to reconsider her eligibility.
The Kinsella decision is a valuable restatement of a proposition well known to administrative lawyers, but not always to public administrators. Decision-makers with responsibility for the provision of social assistance exercise their authority because the Oireachtas has given them that authority. The most basic, narrowest conception of the rule of law requires that the authority be exercised on the basis of legislation and within the terms of legislation. Where the Oireachtas has determined that social assistance programmes are to be executed, they must be executed within the terms set out by the Oireachtas. At some stage in the future, Ireland might move to a system where socio-economic rights are directly enforceable in the courts. That might come through a new set of rights, or through a broader judicial interpretation of existing rights. In the meantime existing administrative law does provide some valuable and significant controls on the social assistance system which can effectively ensure transparency and accountability.