Court cancels RTB order due to tenant's vulnerability and orders fresh hearing under s.125. Vacant possession enforcement stayed pending new determination.

Record No: 2024/ 04053

Neutral Citation: [2024] IECC 15

AN CHÚIRT CHUARDA

THE CIRCUIT COURT

DUBLIN CIRCUIT CIVIL COURT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF S.124 OF THE RESIDENTIAL TENANCIES ACT 2004 AS AMENDED ON THE APPLICATION OF CLÚID HOUSING ASSOCIATION

BETWEEN:

CLÚID HOUSING ASSOCIATION

APPLICANT

AND

IMELDA REILLY

RESPONDENT

AND

RESIDENTIAL TENANCIES BOARD

NOTICE PARTY

Judgment of Her Honour Judge Jennifer O’Brien delivered this 25th day of July 2024

1. This case comes before the Court by way of appeal from the District Court (pursuant to Section 124 of the Residential Tenancies Act 2004 as amended) directing the respondent tenant Ms. Imelda Reilly who resides at 4 The Griffith, Prospect Hill, Finglas Road, Dublin

11 to comply with the terms of a determination order dated 9 February 2022 which was issued by the notice party to the respondent tenant on 16 February 2022 regarding the tenancy of the said dwelling. It was also sought to enforce an order for vacant possession of the dwelling.

2. By way of procedural background, the respondent had applied for judicial review of the District Court decision and while leave to bring those proceedings was granted and matters were ventilated before Simons J, he was of the view that the Circuit Court appeal avenue should be exhausted first, prior to consideration of the application for judicial review. In those proceedings the respondent contends that s.124 requires and permits an individualised proportionality test based on the application of the Supreme Court decision in Clare County Council v Bernard McDonagh and Helen McDonagh and the Irish Human Rights and Equality Commission [2022] IESC 2 (hereinafter “McDonagh”), when making an order for vacant possession. In the alternative, it is argued that if no proportionality assessment applies there is a difficulty with the constitutionality of the section. Counsel for the applicant outlined that that issue has not been determined and it is for this Court to make its own decision. Should this Court decide that the determination order ought not to be enforced this would render the judicial review proceedings moot. In the alternate, this Court may decide that the determination order should be enforced and in those circumstances the respondent would continue with her judicial review proceedings.

3. Counsel outlined the chronology of relevant facts and procedural history in accordance with practice direction HC97.

4. It is apparent that the applicant arranged an initial interview with the respondent and her husband on 11 February 2013. The parties attended a pre-tenancy course and a letting agreement between Clúid, the respondent and her husband were signed by the parties. Three children were also named as persons who would be residing at the dwelling. On 11 December 2020 Clúid made its first application to the Residential Tenancies Board (hereinafter “RTB”). An adjudication hearing of the complaint went ahead with no appearance by the respondent on 28 May 2021. There was further correspondence between Clúid and the respondent. On 11 August 2021 a determination order was made by the RTB which determined that the respondent had caused damage to the dwelling above ordinary wear and tear. On 13 August 2021 notice of termination was served on the respondent.

Various attempts were made by the applicant’s representatives to contact the respondent by telephone. On 14 September 2021 Clúid makes a second application to the RTB for dispute resolution services alleging overholding by the respondent. Attempts were again made to contact the respondent by telephone. Subsequently the RTB notified the respondent that an adjudication would take place on 23 November 2021. The adjudication hearing proceeded on that date and no appearance was made on behalf of the respondent. The adjudicator made a finding that there was compelling evidence that the respondent had breached her tenancy obligations, found the notice of termination to be valid, and made a consequent order for vacant possession. On 5 January 2022 the RTB issued the adjudication report to the parties and outlined that there was a right of appeal to the Residential Tenancy Tribunal. No appeal was filed. Subsequently the RTB issued the determination order to the parties on 16 February 2022. On 26 April 2022 the RTB wrote to the respondent advising her of the consequences should she not comply with the determination order. A further letter was written on 12 May 2022. On 15 June 2022 Clúid’s solicitors wrote advising that if the respondent failed to comply with the determination order, enforcement proceedings would issue in the District Court.

5. In July 2022, Clúid issued a notice of application seeking an enforcement order of the determination order and a grounding affidavit is sworn by Tracey Boyle on 27 June 2022.

The first return date is 4 November 2022 at which point the applicant is represented by a solicitor and an adjournment is sought so that grounds of opposition can be filed on behalf of the respondent. An affidavit sworn by the applicant is filed on 16 March 2023. There are further affidavits filed by the respondent’s daughter and son following which Ms Tracey Boyle files a further supplemental affidavit followed by a second affidavit of the respondent sworn on 12 May 2023. Under cover of letter dated 13 April 2021 the applicant’s solicitors furnished a copy of the x-ray disk received from University Hospital Waterford to the Board.

6. On 23 June 2021 an ex-tempore judgment is handed down by Cronin J for the purpose of enforcing the determination order. On 25 September 2023 leave is granted for judicial review proceedings by Hyland J in the High Court. Having heard the matter over a number of days in May 2024 Simons J directed that the respondent exhaust her appeal remedy to the Circuit Court prior to any further progress in the Judicial Review proceedings.

7. Counsel for the applicant brought the Court through the relevant legislation and in particular referred to s.124 Residential Tenancies Act 2004 as amended. That section provides, inter alia:

“Enforcement of determination orders.

124.— (1) If the Board or a party mentioned in a determination order is satisfied that another party has failed to comply with one or more terms of that order, the Board or the first-mentioned party may make an application under this section to the District Court for an order under subsection (2).

(2) On such an application and subject to section 125, the District Court shall make an order directing the party concerned (the “respondent”) to comply with the term or terms concerned if it is satisfied that the respondent has failed to comply with that term or those terms, unless—

(a) it considers there are substantial reasons (related to one or more of the matters mentioned in subsection (3)) for not making an order under this subsection, or

(b) the respondent shows to the satisfaction of the court that one of the matters specified in subsection (3) applies in relation to the determination order.

(3) The matters mentioned in subsection (2) are—

(a) a requirement of procedural fairness was not complied with in the relevant proceedings under this Part,

(b) a material consideration was not taken account of in those proceedings or account was taken in those proceedings of a consideration that was not material,

(c) a manifestly erroneous decision in relation to a legal issue was made in those proceedings,

(d) the determination made by the adjudicator or the Tribunal, as the case may be, on the evidence before the adjudicator or Tribunal, was manifestly erroneous.

(4) If, on the hearing of an application under this section, it appears by credible testimony that there is reason to believe the respondent will be unable to pay the costs of the applicant of so much of the hearing as relates to the determination of whether any of the matters specified in subsection (3) have been established by the respondent (in the event that none of them is established) the court may require sufficient security to be given for those costs.

….”

8. It is agreed by both counsel in this case that the only matters arising here relate to parts (a)

and (b) of s.124(3) above and also subsection (7) which provides :

“(7) The court may make such ancillary or other orders, including an order for possession of a dwelling the subject of a determination order, as it considers just on the hearing of an application under this section.”

9. Counsel submits that her opponent argues that ‘proportionality’ must also be inserted in addition to the four grounds provided for in s.124(3) even though there is no explicit reference to this concept in the legislation. It is submitted that it will be argued that there is a lack of procedural fairness in that the respondent did not attend the initial hearing because of her literacy issues and on her evidence she only became aware of the proceedings in August 2022 after many of the important decisions had already been taken.

10. While correspondence was sent to her current address, the respondent did not take steps to deal with the correspondence. It is submitted that the respondent has not pointed to anything that the RTB should have done. With regard to the material consideration ground the respondent seeks to rely on her literacy issues, her health issues, and the health issues of her daughter and also on the fact that she would have defended the case on the grounds that her son had caused the damage and that he has now left the property.

11. Counsel submitted that it is Clúid’s position that the venue for these arguments was the RTB and not the District Court.

12. It is further submitted on behalf of the applicant that in addition to the numerous letters that were sent to the respondent notifying her of the process that was ongoing, numerous attempts were also made to contact the respondent by telephone and these are outlined in a detailed telephone log. It is not apparent from the logs that the seriousness of the situation was in fact outlined to the respondent prior to the process of unfolding. The grounds of opposition relied on include that procedural fairness was not complied with and that the vulnerable position of the respondent was not outlined to the RTB prior to taking its

decision. It was submitted for the respondent that reasonable accommodations were required given the respondent’s vulnerable position to put her in a position to defend the application. It is further submitted that the RTB was not put on notice of the fact that the respondent is a recovering drug addict who is dealing with grave literacy issues. It is submitted that the onus was on the applicant to inform the RTB of these issues to ensure fair procedures in circumstances where the respondent had received no legal advice and was not aware of the gravity of the situation. The acute medical condition of the respondent is not referred to and there is no reference to the cause of the damage to the property and there is no reference to the presence of her younger daughter at the dwelling. So, in essence it is argued that there were a number of factors of material significance not taken into account by the RTB prior to reaching its decision. The Court notes that there was little opportunity given to the respondent to address or fix the damage. Counsel explained that following the two determination orders in this case a breach of obligation notice issued albeit those papers are not before this Court as they were dealt with in the previous proceedings.

13. With regard to the question of whether procedural fairness was adopted by the RTB, counsel submitted that attempts were made to contact the respondent on three occasions prior to the adjudication hearing. It is submitted that the telephone log is significant in that there were

122 separate occasions of contact with the respondent, 20 of which where she made contact with Clúid.

14. With regard to material considerations and whether the literacy and health issues and the potential defence to the case it is acknowledged that these matters were not ventilated before the adjudicator. Counsel refers to s.125 of the Act which provides: - “Cancellation of determination order in cases of nonappearance 125.— (1) A person who establishes to the satisfaction of—

(a) the Board, or

(b) if the determination order is the subject of an application under section 124, the District Court, on the hearing of that application, that, in relation to a determination order embodying the terms of a determination of the Tribunal or an adjudicator, there are good and substantial reasons for his or her having failed to appear at the relevant hearing conducted by the Tribunal or the adjudicator, the Board or the District Court may, subject to subsection (3), exercise the powers referred to in subsection (2).

(2) The powers mentioned in subsection (1) are to cancel the determination order and direct that a fresh determination of the matter shall be made by the adjudicator or the Tribunal as appropriate (and the making of any such fresh determination shall be preceded by a re-hearing of the matter by the adjudicator or the Tribunal and the provisions of Chapters 4 to 7 shall apply accordingly).”

15. As such counsel for the respondent must satisfy the Court that there are good and substantial reasons for the respondent’s failure to attend the RTB hearing. Counsel submitted that there is no individualised proportionality assessment and that the Court can only consider the matters that are set out in s.124 with regard to procedural unfairness and absence of a material consideration. As such it is submitted that it is not open to the Court to enter into a proportionality exercise and the Court has limited jurisdiction in this regard to review these cases. Reference is made to the decision of Ní Raifeartaigh in Foley v Johnson [2017] IEHC 424 paragraph 16 which, having set out s.124 of the Act with the words “shall make an order” in subsection (2) italicised, states: - “The italicized text makes it clear that enforcement of a determination is and that a determination can only be departed from if one of the conditions in (a) or (b) is satisfied, and not for any other reason. These grounds on which an order can be challenged are extremely narrow and would, to lawyers, be broadly familiar as essentially a paraphrase of the tests which would apply in judicial review proceedings.”

16. Reference is also made to the decision of Noonan J in Aditya Sharma v Residential Tenancies Board and Kevin Diskin [2018] IEHC 549 which sets out at paragraph 7:- “It is important to note that the enforcement procedure provided for in the Act of 2014 is not an appeal from an order of the board nor is it a de novo hearing of the matter. In fact, it is simply an enforcement mechanism by which the Circuit Court is very limited in what it can do in terms of the grounds that are available to the court for refusing an enforcement order but as I say it is most emphatically not a de novo hearing of the matter on the merits.”

17. Counsel for the applicant also referred the Court to the decision of Burns J in Residential Tenancies Board v Mary Duniyva and Barbara Gibson and Patrick Gibson [2018] IEHC

470 which states at paragraph 47:

“47. On a number of occasions, in the course of her argument to me, the Respondent raised the issue that the Notice of Termination was now spent, as the time period referred to therein in respect of when the Landlord’s grandson was to reside at the premises, had now passed. This is an issue which I cannot engage in. I have no jurisdiction in relation to same having regard to the s. 124 application presently before me. My sole determination in this matter is whether the Determination Order should be enforced or not and the only issues which I can consider in determining this question are those set out in s. 124(3) of the Act of 2004 which I have already considered.”

18. The Court was also referred to the decision of Baker J in Teniola v Brady and others [2014] IEHC 604 where the tenant attended but did not engage a solicitor and as such their attendance at the hearing before the RTB was not meaningful. They were not denied a right to a hearing they simply chose not to engage with the first hearing. The Court found that while there were literacy issues there were other avenues available to the litigant. It is submitted in the instant case that there were a number of opportunities available to the respondent to take advice in relation to the process that was pending against her.

19. Counsel for the respondent confirmed that they have challenged the District Court order in the judicial review proceedings that are currently before the High Court. The appeal to this Court was live and owing to an administrative error the case had not been listed for hearing until now. It is submitted that s.124 requires the Court to enforce the order of the RTB that this must include an assessment as to whether it would be disproportionate to do so in the circumstances. However, in the alternative it is argued that if there is no proportionality test that the section is repugnant to Article 40.5 of the Constitution which protects the inviolability of the respondent’s dwelling. It was submitted that Mr Justice Simons wants this Court to express a view on it first. He has operated the principle of judicial restraint that the respondent would exhaust all avenues available to her prior to proceeding with judicial review proceedings. We have heard counsel for the applicant argue that there is no proportionality test, and the grounds are those set out in the legislation.

20. Counsel referred the Court to the decision of the Supreme Court in Clare County Council v Bernard McDonagh and Helen McDonagh and the Irish Human Rights and Equality Commission [2022] IESC 2; [2022] 2 IR 122. The process of analysing legislative language such that one follows the plain meaning of the language whereas the constructive reading requires that the legislation is consistent with the Constitution and only where that can’t be done is the legislation set aside. McDonagh involved an attempt by the County Council to evict members of the travelling community from land owned by the council. A mandatory injunction was sought, and the Supreme Court analysed in depth Article 8 of the European Convention of Human Rights and Article 40.5 of the Constitution which provides for the inviolability of the dwelling. It is submitted that the principles are best summarised in paragraph 125 of the Supreme Court decision which provides:

“…Even though as this court's judgment in Meath County Council v. Murray [2017] IESC 25, [2018] 1 I.R. 189 makes clear, the force of that constitutional protection is diluted where the occupier of the dwelling is in illegal occupation of that site, the substance of that constitutional guarantee of inviolability would nonetheless be compromised if the making of such an order was not subject in these circumstances to an appropriate proportionality analysis.”

21. As such it is submitted that in making an order to vacate the property the Tribunal or Court must consider the effects on marginalised and vulnerable people. At paragraph 70 of the McDonagh decision it is stated:

“[70] The European Court of Human Rights (“the ECtHR”) has adopted a broadly similar position, saying in Winterstein v. France CE:ECHR:2013: 1017JUD002701307 that:

“148. … Since the loss of one's home is a most extreme form of interference with the right under Article 8 to respect for one's home, any person at risk of being a victim thereof should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, he has no right of occupation…. This means, among other things, that where relevant arguments concerning the proportionality of the interference have been raised by the applicant in domestic judicial proceedings, the domestic courts should examine them in detail and provide adequate reasons…””

22. Counsel submits that this is the case made here that Ms Reilly’s position must be considered and that the Court is charged with enforcing or not the decision of the RTB and so must have regard to the proportionality of that decision. As we know the applicant submits that there is no such test, and the District Court was of the view that there is no such test.

Counsel further submitted that the position adopted on behalf of the applicant is somewhat stark and that once the notice of termination issues for breach of obligation by the tenant and same were not remedied by the tenant, thereafter, only notice requirements must be fulfilled and there is no room for the RTB to consider the proportionality of removing the respondent and her family from their home. It is submitted that such an interpretation of s.124 involves alienation by the Court from its obligation under Article 40.5 of the Constitution. Counsel acknowledged that the respondent is not blameless, that she should have dealt with matters on receipt of the various correspondence, however he refers to her educational difficulties and the early demise of her husband together with her health issues and her literacy and the situation regarding the behaviour of her children. He also refers to the fact that it is her son that caused the damage to the property in this case. It is submitted that all of these aspects form part of the assessment of proportionality in this case. Counsel refer to the housing situation generally as forming part of the Court’s considerations and the fact that the respondent is a vulnerable person in our society.

23. With regard to s.125 it was submitted that duplicate reasons apply for making an application under this section. Reference was made again to the respondent’s literacy issues which are not contradicted and while an application form was filled out there is no evidence that this was in fact filled out by the respondent other than applying her signature to same. It is submitted that the respondent did not comprehend the letters that she received although as they became thicker, she did become concerned however she was not aware that her tenancy was at risk. There was no evidence in the call logs that she was informed of this fact verbally in advance of the process taking place. As such, it is submitted that there is valid and good reasons why the respondent did not turn up to the hearing before the RTB.

Material considerations not taken into account include the respondent’s literacy, her health, her family situation, the fact that she’s a vulnerable person and the actions taken by her son.

These matters were not aired at the time of the RTB taking its decision.

24. As we know, counsel for the applicant submits that these issues cannot be taken into account at all.

25. It is submitted that the Court must first decide whether s.125, then move on to consider s.124 and then move on to consider the proportionality piece.

26. Decision: The Court has heard the submissions in this case and has considered the case law and in particular the Court has considered the provisions of s.125 of the Residential Tenancies Act 2004 which provide:

“125. —

(1) A person who establishes to the satisfaction of—

(a) the Board, or

(b) if the determination order is the subject of an application under section 124, the District Court, on the hearing of that application, that, in relation to a determination order embodying the terms of a determination of the Tribunal or an adjudicator, there are good and substantial reasons for his or her having failed to appear at the relevant hearing conducted by the Tribunal or the adjudicator, the Board or the District Court may, subject to subsection (3), exercise the powers referred to in subsection (2).

(2) The powers mentioned in subsection (1) are to direct the Director to cancel the determination order and direct that a fresh determination of the matter shall be made by the adjudicator or the Tribunal as appropriate (and the making of any such fresh determination shall be preceded by a re-hearing of the matter by the adjudicator or the Tribunal and the provisions of Chapters 4 to 7 shall apply accordingly).”

27. The Court is satisfied that there are good and substantial reasons for the respondent having failed to appear at the relevant hearing conducted by the RTB. On account of the respondent’s literacy and health issues, her family situation, the fact that she is a vulnerable person and a recovering addict and the actions taken by her son such the Court makes an order pursuant to s.125(2) cancelling the determination order made on 9 February 2022 and this Court directs that a fresh determination of the matter should be made by the RTB as appropriate. The making of any such fresh determination shall be preceded by a rehearing of the matter by the RTB and the provisions of Chapters 4 to 7 should apply accordingly.

28. In making this decision, and while not making any determinations on the matter, this Court is of the view that the concepts of fairness and proportionality are embedded in the judicial process, and as such form an integral part of any just adjudication process. It is the view of this Court that the provisions of the Residential Tenancies Act 2004 do not exist in isolation and same are subject to the provisions of the Constitution and in this instance the protections afforded to the dwelling as set out in Article 40.5. However, the provisions of Article 40.5 must in turn be balanced against the constitutional provisions which protect the property rights of the landlord. Given the decision I have made under s.125 I do not propose to make any further determinations for the purpose of s.124.

Appearances Úna Cassidy BL for the applicant instructed by Killeen Solicitors LLP. Michael Kinsley BL for respondent instructed by Daly Khurshid Solicitors.