A woman with profound physical and mental disabilities living in a damp council house unsuitable to her needs has lost her High Court case aimed at being rehoused in more appropriate accommodation.
Ms Justice Marie Baker said it would be an “impermissible breach” of the constitutional separation of powers between the legislature and judiciary for the court to order Cork County Council to provide Elizabeth Mulhare and her mother Barbara, on whom Elizabeth is totally dependendent, with more suitable housing.
Nor could the court declare they should get greater priority on the council’s housing list of some 7,480 approved applicants, including 557 with needs based on physical disability.
The Mulhares essentially want to be considered outside the statutory scheme for housing allocation and there is no statutory basis entitling them to be housed in a particular house in a particular area, she held.
The council’s top two housing list priorities are those living in dangerous accommodation and the homeless and those with disabilities are the sixth priority, she noted.
It had offered to renovate their house in Fermoy to address Elizabeth’s needs but had said it had no other suitable accommocation and had to keep in mind the needs of all its tenants.
While the council can disregard its own order of priority for those who need accommodation due to “specified exceptional circumstances”, the court has no power to interfere with its choice or assess how it manages its housing stock.
She also rejected arguments the failure to provide a more appropriate house breached the Mulhares’ private and family life rights under Article 8 of the European Convention on Human Rights.
Article 8 does not create a positive obligation on the part of a local authority to provide a home, she held.
Elizabeth Mulhare, aged 28, has cerebral palsy and severe disabilities and has lived with her mother since 2011 in Fermoy. The two women brought judicial review proceedings aimed at getting alternative housing within a five-mile radius of Cork City.
An occupational therapist report stated their home is unsuitable for Elizabeth’s needs for reasons including it is affected by mould and dampness and there is no level access to a shower room, taps or to a bedroom with a door wide enough to enable access by a wheelchair. The report recommended it be renovated or the Mulhares be moved to more suitable accommodation.
The house is 43km from a clinic where Elizabeth, who suffers severe and persistent respiratory infections, receives treatment and it was stated a house closer to Cork City would be more suitable as she has difficulty travelling in cars.
In her judgment, Ms Justice Baker said the proceedings were triggered after the council told the Mulhares in November 2015 that it has no suitable alternative accommodation for them in the hinterland of Cork City or elsewhere.
The council offered to carry out renovations to the Fermoy house in line with the occupational therapist’s report but the Mulhares wanted a house near Cork City and feared, if they accepted the offer, they would not be considered for housing elsewhere.
The council had not said they would not be considered for other housing and the court could not get involved in that.
The Mulhares had a right to have their housing application considered in the context of the statutory scheme and the council had a corresponding duty to reasonably consider their request and come to a decision soundly and rationally based.
A practical difficulty arose because the Mulhares wanted orders against Cork County Council to provide them with a house in the functional area of Cork City Council, she noted. Before Fermoy, they lived in a Cork City Council house and that council in October 2015 refused to consider their application for housing within its area until outstanding arrears on the previous tenancy which, it alleged, Barbara Mulhare had “abandoned”, were paid.
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