The FLAC Casebook provides updates about FLAC’s ongoing case work to highlight notable outcomes and to provide an insight into how FLAC uses litigation in the public interest as a mechanism for achieving its broader aims.
The FLAC Traveller Legal Service (TLS) was launched in July 2020. It functions under the auspices of a Steering Group of Traveller organisations and its purpose is to address unmet legal need of the Traveller community through legal representation and the provision of legal training to Traveller advocates.
Access to the TLS functions principally on a referral basis with the majority of its current cases originating with local Traveller groups or advocates. While the TLS aims to provide as much assistance as possible, within its resources and capacity, it particularly seeks to bring strategic litigation which could benefit the wider Traveller community.
FLAC has come on record in a number of proceedings, as well as entering into pre-litigation correspondence in others.
Today’s post focusses on two recent cases where the TLS was able to argue successfully for local authorities to change their approach without needing to bring proceedings.
Provision of Emergency Accommodation to Traveller family
The TLS was contacted by an advocate working on behalf of a Traveller family (a single mother and three children) to secure emergency accommodation. The family were facing homelessness due to a court order requiring them to vacate the site where they had been living in a caravan for over two years. The court order had been sought by the local authority for reasons of, amongst others, fire safety. However, the same local authority was refusing to provide emergency accommodation to the family and insisted that they would need to return to the jurisdiction of a separate local authority, where they had previously received social housing support, in order to access emergency accommodation.
The local authority’s position appeared to be premised on a similar idea to that which was recently dismissed by the Minister for Housing, Local Government and Heritages that some form of local connection is required to access emergency accommodation under the Housing Act 1988 (the “1988 Act”). Indeed, neither the assessment criteria in section 2 nor the provisions regarding the homeless accommodation in section 10 of the 1988 Act make reference to the need for a local connection or specify that emergency accommodation may only be sought in from a local authority which has previously provided social housing support.
The TLS wrote to the local authority challenging its interpretation of the 1988 Act and requiring that the Traveller family be correctly assessed as homeless and provided with accommodation failing which judicial review proceedings would be commenced.
On foot of the TLS’s correspondence the local authority dropped its requirement that the Traveller family should return to the county where they had previously received social housing support and agreed to provide them with emergency accommodation.
Illegal detention of horses
The TLS was contacted by an advocate assisting an elderly Traveller man whose horses were seized and impounded by a local authority pursuant to s.37 of the Control of Horses Act 1996 (the “1996 Act”). The local authority was refusing to release the horses unless the owner complied with certain conditions including the payment of substantial fees. The man was told that a failure to satisfy the conditions imposed by the local authority could lead to his horses being put down.
The 1996 Act, in particular the powers granted to local authorities to dispose of horses by putting them down, had received recent judicial attention in the cases of Burke v South Dublin County Council where Hedigan J described the power to dispose of horses as “draconian” and McDonagh v Galway County Council where Simons J censured Galway County Council for disposing of a horse when there were questions over its ownership.
The TLS contacted the local authority to determine the reasons for its actions and the legal authority according to which it was purporting to act. From its enquiries, the TLS determined that the elected council had not yet passed bye-laws under the 1996 Act, this was relevant because, pursuant to s.39 of the 1996 Act, unless the horse seized had been seized before or used in a crime (neither of which were the case here), a local authority is required to deal with a seized horse in accordance with bye-laws passed under the 1996 Act.
The significance of an elected council determining certain matters under the 1996 Act by way of bye-laws was emphasised by Simons J in McDonagh as it lent a “democratic imprimatur” to the actions of a council. Therefore, in the present case, unelected officials were purporting to act according to powers reserved for elected councillors.
The TLS wrote pre-litigation correspondence pointing out the deficiencies in the local authority’s practice consequent on which its client’s property rights were being infringed upon and threatening judicial review should the horses fail to be released immediately.
Following receipt of the TLS’s correspondence the local authority agreed to release the horses without seeking to charge fees.
These two cases highlight the enormous power held by local authorities vis-à-vis individuals within their jurisdiction. More importantly, they show that local authorities, as creatures of statute, must act in accordance with and cannot act beyond the powers assigned to them under statute.
Christopher McCann, Solicitor with the FLAC Traveller Legal Service