Irish Supreme Court declares eviction due to alleged anti-social behaviour in breach of fair procedures

The Irish Supreme Court has declared an eviction from local authority housing due to alleged anti-social behaviour in breach of the constitutional right to fair procedures.

Mark Kelly was the sole occupant of a two bed bungalow in Ballymun since his aunt died in November 2011. Mr Kelly stated that he was raised by his grandmother and aunt whom he lived with in the Ballymun property since 2003, except for two brief periods in 2010 and 2011. On 17 November, the Council informed Mr Kelly that he was not entitled to be in the house and requested that he return the keys.

Mr Kelly made an application to succeed the tenancy on 2 December 2011, however this was unsuccessful. The Council claimed that Mr Kelly had not been a tenant as, following the death of his grandmother, his aunt listed herself as the sole resident. The Council had a number of other addresses on record for him, however Mr Kelly maintained that these were given for social welfare purposes.

On 2 December 2011, the Council boarded up the house and Mr Kelly was evicted by the Gardaí under Section 20 of the Housing Miscellaneous Provisions Act 1997. This allows the Gardaí evict someone who is not a tenant, on instruction from the local authority, for anti-social behaviour and where necessary for good estate management. The Council alleged that Mr Kelly engaged in intimidation, drugs and held parties at the property. Mr Kelly denied all such behaviour.

Mr Kelly took judicial review proceedings for breach of the right to fair procedures and constitutional justice, which succeeded in the High Court. The Council therefore appealed.  

Delivering the judgment of the Supreme Court, Mr Justice William McKechnie differentiated between the application to succeed the tenancy and the eviction.  While Justice McKechnie did not believe Mr Kelly was entitled to remain in the house throughout determination of his tenancy application, this was not material to the case. The substance of the case went to the allegation of anti-social behaviour which formed the basis of the eviction under Section 20.

The Court acknowledged that the power granted under Section 20 was of some significance, and therefore must be used on foot of evidence that was reliable and genuine, verified in so far as possible and reasonably based.

The Judge criticised the lack of engagement with Mr Kelly to inform him that he was suspected of anti-social behaviour prior to the eviction or give him opportunity to respond. Justice McKechnie was particularly cognisant of the potential impact that drug-related allegations could have on any future application for housing. In dismissing the appeal, Judge McKechnie held that, given Mr Kelly had no right to occupy the property, a basic process of notification and right of reply would have sufficed. Having done so, fairness would dictate that a decision could be arrived at as to whether the invocation of Section 20 was well founded.

Judge McKechnie also referenced the ability of housing authorities to reclaim and retain possession of its housing stock, which under Section 62 of the Housing Act 1966 gave no discretion to the District Court in granting an order for possession once the formal proofs demanded had been satisfied. According to the Court, the concern over the absence of a role for the court in adjudicating upon the factual dispute have now been responded to in the Housing (Miscellaneous Provisions) Act 2014 which gives the District Court the power to grant a possession order under certain sections when reasonable to do so having regard to the circumstances of the case.

The case was taken by Ballymun Community Law Centre, which believes the judgement will have wide consequences for local authorities, and perhaps other public bodies, in how inquiries are carried out and decisions are taken that may have serious implications for those involved.



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