High Court dismisses applicants' claim for emergency housing, finding statutory duties discharged and no arguable grounds for relief.

THE HIGH COURT

[2025] IEHC 427

[Record No. HJR 2025/390]

BETWEEN

MSM, BS, BS (MINOR), KS (MINOR), MS (MINOR), MS (MINOR), JS (MINOR), ES (MINOR) AND MS (MINOR) SUING THROUGH THEIR NEXT FRIEND AND MOTHER MSM APPLICANTS AND CLARE COUNTY COUNCIL FIRST NAMED RESPONDENT AND THE MINISTER FOR HOUSING SECOND NAMED RESPONDENT AND IRELAND AND THE ATTORNEY GENERAL THIRD AND FOURTH NAMED RESPONDENTS JUDGMENT of Ms. Justice Marguerite Bolger delivered on the 25th day of July 2025

1. The first named applicant is a lay litigant who, on her own behalf and on behalf of her husband and seven minor children, seek reliefs against Clare County Council and the Minister for Housing arising from their current living arrangements.

Pleadings

2. The applicants seek a number of reliefs, at least some of which are not open to the Court to grant, including an injunction that the Court would instruct the Law Reform Commission to amend the Housing Act. The other 16 separate reliefs that are sought can be grouped broadly as follows:-

• Requiring the Council to provide the family with emergency accommodation.

• Challenging the legality of the offers of accommodation made to them which they consider to be unsuitable.

• Requiring the Council to allow them access to the Choice Based Letting System operated by the Council for social housing properties.

• Requiring the Council to comply with their obligations pursuant to section 42 of the Irish Human Rights and Equality Commission Act 2014.

• A claim that the Council's policy of allocating housing to members of the Traveller community is discriminatory and contrary to the Equal Status Act.

• A complaint that the Council does not operate an online booking system which the applicants claim is discriminatory.

3. The grounds set out by the applicants’ pleadings are very broad, both in terms of the asserted legal basis and the facts and do not clearly link to the relief they sought. The applicants make a number of wide-ranging claims in relation to what they say is the unsafe and unsuitable nature of some of the houses previously offered to the family but provides very little in the way of independent evidence to support these allegations. The first named applicant and her McKenzie friend have put extensive historic details on affidavit about the difficulties she says she and her family of origin experienced many years ago when they were forced to move to a location that she says was unsafe and unsuitable for them. The relevance of events alleged to have occurred almost

20 years ago is unclear. This Court must look to the present day and the circumstances that apply now in assessing whether the applicants have identified legal entitlements and obligations that have been breached or have been exercised in an unlawful manner.

Factual background

4. The applicants were evicted from their rented Council house in Lahinch, County Clare, in July 2024, which the first named applicant fairly accepts was the fault of her and her husband. Thereafter the family were deemed by the Council to be homeless, and hotel accommodation was arranged for them for a number of weeks from 31 July 2024. In availing of this emergency accommodation, the applicants were required to sign a document which confirmed that a refusal of offers of accommodation would result in the withdrawal of homeless services and accommodation.

5. Since August 2024, six different own door accommodations have been offered to the applicants as emergency accommodation. The applicants have refused each of those for various reasons, relating primarily to their concerns around the houses’ safety, suitability and the distance from the children’s schools. The first named applicant is particularly concerned about one of her children, E, who has significant additional needs and is currently attending a special school in Doolin, reasonably close to their previous home in Lahinch. The Court accepts that if E is removed from his current school, it will be difficult to secure a suitable alternative school place for him. The Court also accepts that if the first named applicant chooses to leave E in his school in Doolin, that there is support and assistance available from various State bodies including the provision of transport for E to and from school.

6. No evidence was put before the Court of any enquiries having been made about the availability of alternative school places for any of the children in the areas in which offers of own door accommodation have been made.

7. The applicants have concerns about the safety of a number of the locations in which the Council have offered the family own door accommodation, in particular Ballymacraven, which is the same location to which the first named applicant’s family of origin was moved in 2005. The first named applicant’s concerns seem to be sourced around historic events. She also says everywhere in Ennis and the housing estate in which the most recent offer of a house in Shannon was made are also unsafe for her family. Those allegations are denied by the Council in reliance on an affidavit sworn by Superintendent John Ryan in which he averred to having no evidence that any of the locations that had been offered to the family was unsafe for them.

8. The most recent own door accommodation offered to the applicants was a three-bedroom house in Shannon, which remained available to the family during the hearing of this application and continued to be declined. The applicants refused this offer of accommodation because the first named applicant was concerned about what she believes is antisocial behaviour in the estate and avers in her affidavit to when she first went to the house that she heard loud music, saw youngsters hanging around and experienced men stopping in their car to look at them viewing the house. The Council’s deponent has averred to An Garda Síochána being unaware of any antisocial behaviour in the area and says the Council has been advised by An Garda Síochána that there was no reported antisocial behaviour at this location which An Garda Síochána describe as a quiet location.

9. The first named applicant also said the house in Shannon was very dirty and that the bedrooms are too small for her seven male and female children. She expressed concern about an open access area from the front yard to the footpath that she describes as a flight risk for E. She was also concerned about a loose patio slab on which she said one of her children had tripped.

10. Copies of photographs of the house in Shannon, taken by the first applicant and by the Council’s deponent, were shown to the Court. Most of them show a clean house with some examples of normal wear and tear. One of the applicants’ photographs was of the inside of a cupboard with what the applicants claimed were rat droppings. It was not possible to understand exactly what that photograph showed as it was of poor quality. The Council’s deponent averred to having inspected the house, confirmed it was clean and averred as to its suitability for the family.

11. The house in Shannon was, like the other five own door accommodations, offered to the applicants as emergency accommodation and is not and never was intended by the Council as permanent accommodation for them. The Council’s policy on good estate management requires them to take account of the size of a family in determining the type of accommodation to be provided to that family. That policy means that whenever an offer of social housing is made to applicants, it will be a four-bedroom house because of the size of the family. There is no such limit placed on the provision of emergency accommodation.

12. The issue of social housing does not arise at this point in time and the applicants’ claims are solely around the Council's obligation to provide them with emergency accommodation. The applicants assert an entitlement to a three-bedroom house in Ennistymon that the first named applicant located on the Council’s Choice Based Letting System. The Council says this forms part of their social housing stock rather than emergency accommodation and would not, in any event, be offered as social housing to such a large family.

13. Because the applicants have refused what the Council considers to be reasonable emergency accommodation, they are no longer given access to the hotel accommodation that was made available to the family in July and August 2024. The entire family currently resides together in a single room in the house of a relation. It is surprising that this entirely unsatisfactory arrangement prevails in preference to the six houses offered to the family, but perhaps this is indicative of how strongly the applicants feel about the condition and location of each of those houses.

14. The applicants also claim to have suffered discrimination by virtue of the Council refusing to allow them to book accommodation online, in circumstances where it seems to be common case that many accommodation providers have declined to provide accommodation to the applicants upon finding out that the Council will be paying for the accommodation and on discovering the size of their family. The applicants say those refusals arise from the Council’s discriminatory treatment of them on grounds of their membership of the Traveller community which they say is identified to a prospective accommodation provider by the fact the Council is paying for the accommodation, the number of children and their surname. They submit that the Council should allow them to book the accommodation online and then seek reimbursement from them once the bill is vouched. The Council say this is not the system they now operate because they had difficulties with operating it in that way in the past as inaccurate information about family size was sometimes given to the accommodation provider.

The applicants’ pleadings

15. The applicants’ pleadings fall well short of what is required in an application for judicial review, which cannot be excused by the applicants’ status as litigants in person. Barniville J. (as he was then) in Rushe & anor v. An Bord Pleanála [2020] IEHC 122, in reliance on the Supreme Court

decision in AP v. DPP [2011] 1 IR 729, stated at para. 108:-

“An applicant who seeks judicial review to set out clearly and precisely each ground upon which each relief is sought in the proceedings… These requirements, which are now reflected in O. 84, r. 20(3), are intended to ensure not only procedural fairness for the opposing parties in the judicial review proceedings, but also to avoid ambiguity or confusion as to the issues before the High Court, both for that Court itself and in the context of any appeal from the judgment of the High Court.”

The case against the State respondents

16. The applicants have failed to identify a justiciable matter against the second, third and fourth respondents (hereinafter referred to as “the State”). Those respondents have no statutory responsibility for the provision of emergency or social housing, as both are statutory responsibilities that are placed on a local authority by the 1988 Housing Act. The applicants have failed to identify any legal obligations that the State has breached and/or legal duties that this Court could compel the State to discharge. The first named applicant identified section 111 of the 1966 Housing Act in her oral argument (although it was not pleaded but was cited in a number of letters to the Minister) but this is irrelevant here as that section only gives the State a role in relation to the duties of a local authority pursuant to that Act, which do not currently include the provision of social or emergency housing.

17. The first applicant did repeatedly write to the Minister, seeking intervention in her quest for emergency accommodation for her and her family. She was, correctly, advised to take matters up directly with the Council as the statutory housing authority. The applicant’s contact with the Minister cannot create legal obligations or duties where none exist in law.

18. In those circumstances, the applicants have not established any cause of action or grounds for leave against the State. The applicants’ case against the first named respondent, Clare County Council Sections 2 and 10 of the Housing Act 1988

19. Despite the frailties in the clarity of the pleadings as referred to above, the applicants have identified statutory duties of the Council which they claim have been breached by it. The first named applicant confirmed to the Court that the proceedings relate to their application for emergency accommodation as homeless persons and do not relate to the family’s application for social housing. Issues around the Council’s statutory responsibility for the provision of social housing only arose in relation to the applicants’ arguments about their asserted right to access properties available via the Council’s Choice Letting System, which are addressed below.

20. The relevant statutory provisions in relation to emergency accommodation are sections 2 and 10 of the Housing Act 1988 which provide: “Homeless persons” for the purposes of this Act. 2.—A person shall be regarded by a housing authority as being homeless for the purposes of this Act if—

(a) there is no accommodation available which, in the opinion of the authority, he, together with any other person who normally resides with him or who might reasonably be expected to reside with him, can reasonably occupy or remain in occupation of, or

(b) he is living in a hospital, county home, night shelter or other such institution, and is so living because he has no accommodation of the kind referred to in paragraph (a), and he is, in the opinion of the authority, unable to provide accommodation from his own resources.

…

Additional provisions regarding accommodation for homeless persons. 10.—(1) A housing authority may, subject to such regulations as may be made by the Minister under this section—

(a) make arrangements, including financial arrangements, with a body approved of by the Minister for the purposes of section 5 5 for the provision by that body of accommodation for a homeless person,

(b) provide a homeless person with such assistance, including financial assistance, as the authority consider appropriate, or

(c) rent accommodation, arrange lodgings or contribute to the cost of such accommodation or lodgings for a homeless person.

(2) A request for accommodation may be made to a housing authority by or on behalf of a homeless person.

(3) Where accommodation or lodgings are made available to a person by virtue of subsection (1), the housing authority may at any time specify a period for which the accommodation or lodgings are to be so made available to that person…”

21. In effect, once a person is deemed to be homeless within the meaning of section 2, the Council may be obliged to provide them with emergency accommodation. There is ample jurisprudence confirming the role of the court in relation to the rights of persons seeking emergency accommodation. The court can only interfere with a housing authority’s exercise of its discretion in relation to section 2 where it was done “in an arbitrary or capricious manner or in a manner that flies in the face of fundamental reason and common sense. Absence that however, the court cannot interfere with the Council’s determination” (as per Noonan J. in Tee v. Wicklow County Council [2017] IEHC 194 at para. 24). Noonan J. went on to say, at para. 25, that the Council is entitled to deference in how it deals with the problem of homelessness.

22. The applicants wanted to be accommodated in either Ennistymon or in Lahinch, largely because of E’s educational needs. The applicants’ disagreement with the Council’s decisions to offer them emergency accommodation in other locations does not, in itself, allow this Court to interfere. As stated by Smyth J. in McDonagh v. The County Council of Clare & anor, HC 184/04 at p. 23: "The obligation of a Housing Authority is to respond to be (sic) a need not a want". The applicants have particular needs, arising primarily from the number of children in the family and from E’s educational requirements, both of which are matters for the Council to consider in addressing the applicants’ emergency accommodation needs. I am satisfied that the Council assessed those needs in a manner that was reasonable, rational and lawful in offering the applicants each of the six own door emergency accommodations set out above. The applicants have failed to establish any evidence of arbitrary, capricious, irrational or unreasonable behaviour or unreasonable treatment or assessment of them by the Council, its servants or agents who at all times have sought to treat the applicants with courtesy and compassion.

23. The applicants clearly came within section 2 and were homeless persons when they were evicted from their previous home in Lahinch in July 2024. However, once the Council made available emergency accommodation which the Council reasonably considered they could reasonably occupy, the applicants no longer satisfied the section 2 definition of homelessness and the Council's obligations pursuant section 10 no longer applied. This is both consistent with and required by the established jurisprudence in this area, going back many years. In Fingal County Council v. Gavin & ors [2007] IEHC 444, Peart J. stated at para. 38: “By reason of the fact that in my view reasonable offers in all the circumstances of this case were made by the plaintiff council, I cannot regard the defendants as coming within the meaning of homeless appearing in this section, as to do so would amount to giving the family a right of veto over accommodation offered. I note in particular that the section specifically provides that it is the authority’s view of the reasonableness of the accommodation, which is relevant, and that the persons concerned are not conferred with any veto or power of approval. Obviously the ‘opinion’ of the council must be rationally based, otherwise a

decision may be open to challenge, but that does not arise in the present case, where I am satisfied from the evidence which I have heard that the plaintiff council have considered what possible accommodation can be provided in the difficult situation which exists for them, given the numbers of families involved, and that they have come up with a suggested provision which is as much as can be reasonably expected in all the circumstances. Since they are not homeless persons therefore within the meaning of this Act, the suggestion by Mr Rogers that s. 10 of the Act is engaged in respect of the defendants is incorrect.” A similar conclusion was reached by Charleton J. in Doherty v. South Dublin County Council [2007]

2 IR 696 where he held at para. 25:-

“It is impossible to ignore that to be homeless, under the Acts, one is required to have not just no accommodation but none that one could reasonably occupy.… Once, however, a reasonable offer has been made by the housing authority which the applicants choose not to take up, their state of homelessness has ended.”

Access to the Choice Based Letting System

24. The applicants contend that section 25A of the Social Housing Assistance (Amendment) (No. 2) Regulations 2011 imposed an obligation on the Council to allow the applicants to apply for, and be offered, a social housing option made available on the Council’s social housing Choice Based Letting System. Subsection 2 provides:- "A housing authority may consider a household referred to in paragraph (1) for the provision of social housing support, without restriction, where the authority is satisfied that such consideration is warranted by exceptional circumstances and does not conflict with good estate management."

25. In effect, the applicants assert a right to emergency accommodation in a house that the Council has earmarked for social housing because of the exceptional circumstances in which they are currently living. Undoubtedly, the situation in which the applicants are currently living in one room in a relation’s house is appalling. However, where I have found that the Council acted reasonably and lawfully in the six separate offers of emergency accommodation made to them, I cannot find their circumstances to be so exceptional as to merit a departure from the normal rules or an interference by this Court in the exercise of the Council’s discretion. The manner in which the Council fulfils its statutory obligation is a matter for the Council, as long as it is done in a lawful manner. As stated by Laffoy J. in Ward v. South Dublin County Council [1996] 3 IR 195 at p. 203:- “It is not the function of this Court to direct a local authority as to how it should deploy its resources or as to the manner in which it should prioritise the performance of its various statutory functions. These are matters of policy which are outside the ambit of judicial review. Moreover, in relation to the function at issue here, the provision of accommodation in the form of halting sites for members of the travelling community to whom a housing authority owes a duty under s. 13, while there may be informed opinions as to how the function would be best performed, which differ from the approach being adopted by the housing authority, it is no function of this Court to adjudicate on the merits between the differing points of view.”

The Council’s Booking System

26. The applicants challenge the legality of the current booking system for emergency accommodation which involves the Council contacting the accommodation provider (sometimes including hotels identified by the applicant) to seek available accommodation. For the same reasons as set out above, in the absence of an arbitrary, irrational or unreasonable system, it would be inappropriate for the Court to intervene in how the Council discharges its statutory obligations.

27. An additional ground for my rejection of the applicants’ application for judicial review of the Council’s booking system is because there is a more appropriate remedy available on this point in the form of a claim pursuant to the Equal Status Acts that the applicants are obliged to comply with a condition with which substantially less members of the Traveller community can comply and which cannot be justified and reasonable in all the circumstances.

28. For the avoidance of doubt, I make no assessment on the strength or otherwise of any such Equal Status Act claim but I rely on the availability of this alternative remedy as an additional reason for rejecting the applicants’ application for judicial review in relation to the Council's booking system.

Section 42 of the Human Rights and Equality Commission Act 2014

29. The applicants sought to rely on section 42 of the Human Rights and Equality Commission Act 2014. Pursuant to section 42(11) the applicants have no cause of action in relation to a public body’s performance of their functions under section 42(1). Therefore, this plea does not give rise to a justiciable claim.

Decision

30. I have found that the Council has lawfully discharged its statutory duties in relation to the provision of emergency accommodation to the applicants. The applicants’ refusal of six separate offers of reasonable own door accommodation, even though they considered them to be unsuitable for their family’s needs, has the consequence that the applicants are no longer homeless within the meaning of section 2 of the 1988 Act. As a result, the Council is no longer obliged to comply with section 10.

31. The applicants are not entitled to require the Council to offer them emergency accommodation from housing stock earmarked for social housing and/or to disapply the Council's policy on good estate management in limiting the applicant to a four-bedroom house for the purpose of whatever entitlements the applicants may have to social housing. The availability of social housing does not require the Council to offer those houses to the applicant as emergency accommodation in the particular circumstances in which they now find themselves.

32. The applicants are living in extremely difficult circumstances and no one could be anything but sympathetic and concerned at that. However, they do not have rights over and above what is provided for in legislation or any enhanced rights to determine subjectively what is or is not reasonable accommodation for them.

33. The needs of the applicants have been reasonably and lawfully provided for in the offers of emergency accommodation made to them. It is not ideal for a family to be accommodated a distance from their additional needs children’s special school, but given the availability of State agency support including school transport, the Council has satisfied the low-level requirements of what is reasonable in the emergency circumstances of homelessness. Those circumstances include the significant claims being made on the Council's resources for providing emergency accommodation for all homeless people within their area.

34. The applicants have failed to establish arguable grounds for the relief sought. I therefore refuse the application for leave and the substantial application for reliefs.

Final orders

35. I will put the matter in before me at 10.00am on 30 July 2025 for the purpose of making final orders and in an attempt to avoid any delay in lodging any appeal which the applicants may wish to bring. The first named applicant appeared for herself. Counsel for the first named respondent: Luán Ó Braonáin SC, Patricia Hill BL Counsel for the second, third and fourth named respondents: Lewis Mooney BL