High Court quashes housing priority refusal where council incorrectly excluded police incidents from harassment scheme scope.

Neutral Citation: [2013] IEHC 556

THE HIGH COURT

[2013 No. 436 J.R.]

BETWEEN

ION ZATREANU, CRISTINA STAVARACHE, CIPRIAN STAVARACHE, FRANCO STAVARACHE, LEO ZATREANU (A MINOR SUING BY

HIS FATHER AND NEXT FRIEND ION ZATREANU),MARIA ZATREANU

(A MINOR SUING BY HER FATHER AND NEXT FRIEND ION ZATREANU)

APPLICANTS

AND

DUBLIN CITY COUNCIL

RESPONDENT

JUDGMENT of Mr. Justice Hedigan delivered on the 4th day December of 2013

Application

1. The applicants seek to quash the refusal of the respondent made on 20th March, 2013, to grant them priority for housing transfer

under the Exceptional Social Grounds Scheme (hereinafter “ESG scheme”). They further seek an order compelling the respondent to

reconsider their application for same and to afford them safe and suitable alternative housing in an area other than that in which they

currently reside pending their permanent transfer.

Parties

2. The first named applicant is a tenant of the respondent, husband of the second named applicant and father of the third, fourth,

fifth and sixth named applicants. All applicants, apart from the second named applicant, are Irish citizens and are members of the

Roma community. The respondent is a local authority for the purposes of the Local Government Acts 1925-2012 and a housing

authority for the purposes of the Housing Act 1966 (as amended).

Factual Background

3.1 These proceedings arise from the refusal of the respondent to award a priority housing transfer under the ESG scheme to the

applicants who are local authority tenants of the respondent and who allege that they are victims of repeated racist abuse and

attacks in their neighbourhood.

3.2 The applicants have lived in Ireland since December 2002, and reside in a Dublin City Council tenancy at 128, Greencastle Road,

Coolock, Dublin which was let to them on 12th June 2008. The family were on the respondent’s housing list from 2003 and were

accorded medical priority in 2005, owing to the fact that the first named applicant suffers from a heart condition and has undergone

four heart bypass surgeries since 2004.

3.3 Prior to residing in their current property, the applicants lived in private rented accommodation in Artane for five years and did not

experience any problems with their neighbours there.

3.4 Since moving to their current address, they claim that they have been subjected to abuse, including physical attacks, in what

they describe as a prolonged and violent campaign of harassment and intimidation by certain local residents in and around the family

home. They allege that one of the perpetrators responsible for the majority of the abuse and attacks is their next door neighbour. The

applicants believe that the violence is directly related to their ethnic origin, as this has been explicitly stated on numerous occasions

when they have been threatened, and told to return to their own country because they are hated here. Damage has been caused to

the applicants’ house and car. Lives of individual members of the family have been threatened and the children are now missing school

as they are afraid to leave the house. Racially motivated murders have been reported in the area and the first named applicant

believes that the family is very vulnerable to a potentially fatal assault at the hands of criminal gangs.

3.5 The first named applicant had previously twice applied to the respondent for the family to be transferred from their current

accommodation, which applications were refused. He applied for priority transfer under the ESG scheme for the third time by

application dated 27th August, 2012, on the basis of further and additional information provided by him. On the application form, he

specified that he was seeking transfer due to attacks on his family home. This application was refused by letter of 20th March, 2013.

The applicants argue that this application was refused in identical terms to the previous refusals and that no reasons were elaborated

upon in respect of that refusal. The applicants do not understand on what basis their application for transfer has been refused and no

reasons have been offered for same.

Relevant Law

4.1 The Housing Act 1966, as amended by the Housing Act 1988 and the Housing (Miscellaneous Provisions) Act 2009, places a duty

on housing authorities such as the respondent to assess the need for the provision of adequate and suitable housing accommodation

for persons whom the authority has reason to believe require accommodation from it. The respondent is also required to establish a

scheme determining the order of priority to be accorded when allocating housing of which it is the owner. Moreover, the scheme must

determine the basis for prioritising transfer applications from the authority’s existing tenants. The respondent adopted such a scheme

on 9th May, 2011.

4.2 Section 22(7) of the 2009 Act, permits the respondent to disregard the order of priority where the household in question is being

provided with social housing support arising from exceptional circumstances which include displacement by emergency or on

exceptional medical or compassionate grounds. The scheme is supplemented by way of a notice on the respondent’s website entitled

“Move out of extremely difficult living circumstances”. The criteria for qualifying for priority on exceptional social grounds are set out

in the following terms therein:-

“1. Your circumstances must be exceptional;

2. Your circumstances must not already be covered by the “scheme of letting priorities . . .

3. Your difficulties can only be relieved by a change in your accommodation.”

The website also indicates that an application must be supported by third party evidence from professionals who are aware of the

applicant’s circumstances.

The application is to be made to the respondent’s Chief Welfare Officer (hereinafter “CWO”). The scheme provides that cases will only

be re-examined if there has been a change in circumstances and no-re examination will take place in cases where evidence already

notified is resubmitted. This is to prevent multiple applications from the same applicant.

Section 2.6 of the Council’s Allocations Scheme adopted by Dublin City Council on 9th May, 2011, provides as follows:

“Priority status for housing/transfer may be given on exceptional social grounds. This priority may cover a particular type of

accommodation and/or accommodation in a particular area. The City Council, in making lettings of dwellings where priority is

claimed on exceptional social grounds shall consider a recommendation from the Chief Welfare Officer.

All applications must be submitted in writing to the Chief Welfare Officer and must be accompanied by supporting third party evidence.

Cases will only be re-examined if there is a change in circumstances.

No re-examination will take place in cases where evidence already notified is re-submitted.

All applicants who allege that they are subject to harassment and/or intimidation must have their cases investigated by the Regional

Housing Manager in the first instance. Only when the Regional Housing Manager reports back that they are unable to deal with the

problem will cases of harassment and intimidation be considered for a transfer on exceptional social grounds. Decisions will be made by

the Chief Welfare Officer on the basis of:

the exceptional nature of the case;

the stated urgency and

the likelihood of a vacancy occurring in an area to relieve the stress and suffering of the applicant.”

4.3 The respondent is also required to develop an anti-social behaviour strategy under s. 35 of the 2009 Act.

Applicants’ Submissions

5.1 Failure to give reasons.

The decision to refuse of 20th March, 2013, confirmed that the application for consideration under the ESG scheme had been

examined and that the respondent was unable to award priority. The letter, it is contended, does not divulge factors taken into

account in reaching the decision and so the decision was not transparent.

The applicants contend that there is an obligation to give a reasoned decision which makes clear what was considered by the

respondent and why in light of those considerations the application was refused. They argue that failure to do so amounts to a

breach of the duty to give reasons in a decision and is at the core of the administrative failure in this matter.

A reasoned decision is of the utmost necessity to enabling the applicants to discern if the decision made is lawful. If the applicants

remain ignorant of the reasons underpinning the decision made then it impedes them in any further application they may make be it to

the respondent (in that they remain unaware of what they can do to bolster their application) or before a court of law.

The record of this decision made in this instance does not provide sufficient information to enable the applicants to consider:-

(a) whether they have a reasonable chance of succeeding in judicially reviewing the decision;

(b) whether the respondent has directed its mind adequately to the issues it had to consider and

(c) whether the decision gave sufficient information to enable the court to review the decision.

The applicants point to Mallak v. Minister for Justice Equality and Law Reform [2012] IESC 59, where Fennelly J. said:-

“[t]he overarching principle is that persons affected by administrative decisions should have access to justice, that they should

have the right to seek the protection of the courts in order to see that the rule of law has been observed, that fair procedures

have been applied and that their rights are not unfairly infringed . . .

More fundamentally and for the same reason, it is not possible for the appellant, without knowing the Minister’s reason for

refusal ,to ascertain whether he has a ground for applying for judicial review and, by extension, not possible for the courts to

effectively to exercise their power of judicial review.”

In R v. Westminster City Council, Ex parte Ermakov [1996] 2 All E.R. 302, the obligation to give reasons for a decision was described

by Hutchinson L.J. at p.309 as follows:-

“It is well established that an obligation, whether statutory or otherwise, to give reasons for a decision is imposed so that the

persons affected by the decision may know why they won or lost and, in particular, may be able to judge whether the decision

is valid and therefore unchallengeable, or invalid and therefore open to challenge.”

Moreover, in Westwood Club Ltd. v. An Bord Pleanála [2010] IEHC 16, this court stated at para. 59:-

“Sufficient reasons must be given so as to equip the applicant to appeal the decision or to judicially review it”.

The applicants argue that the letter of 20th March, 2013, does not conform to the requirements stipulated in those cases. They

contend that the respondent is well aware of this and notes that the respondent, in the affidavit of Ms. Anne Helferty CWO, has now

sought to explain the decision taken and to set out the matters considered. They argue that it would not be necessary for her to

attempt to do so, had the decision communicated in March 2013 included adequate justification for the refusal. They also argue that

as a matter of law, the reasons for deciding to refuse an application for transfer must be apparent solely from the decision made and

not by reference to any subsequent explanation of those reasons such as have been stated by the respondent in affidavits in these

judicial review proceedings. They contend that any elaboration of the reasons post-decision, when proceedings are already under way

comes too late to assist the applicants and should not be considered by this court. They point to R. v City of Westminster where it

was stated at paragraph 2 of the decision that:-

“(2) The court can ,and in appropriate cases should, admit evidence to elucidate or, exceptionally, correct or add to the

reasons given in the decision letter but should be very cautious about doing so; examples of cases where affidavit evidence

would be admitted where an error had been made in transcription or expression, in a word or words inadvertently omitted, or

where the language used may be in some way lacking in clarity; the purpose of the affidavit evidence should be elucidation and

not fundamental alternation –confirmation not contradiction- of the reasons given in the decision letter.”

It is asserted that the failure to give reasons renders the decision defective .The applicants rely on Meadows v. Minister for Justice

[2010] IESC 3, where Fennelly J. found at p.830 that:-

“The difficulty posed by the form of the first respondent’s decision is not merely his failure to provide reason for his decision,

though that is undoubtedly the case, but that the decision is defective as a result.”

5.2 The applicants argue that it is unclear what considerations or materials informed the respondent’s decision. Thus, the applicants

cannot ascertain if the decision was taken in the correct manner. A decision could be improperly taken if, for example, the respondent

asked itself the wrong questions or where it could be considered that the respondent was unreasonable in reaching the decision it did

based on the facts before it.

On two previous occasions, the applicants sought transfer on exceptional social grounds and were refused overall priority for such

transfer. Nothing documents the material considered by the decision maker in the applicants’ most recent application apart from the

ESG Scheme Assessment form completed by the CWO. It appears from this form that the respondent took into account only

information that had been previously put before it in the applicants’ earlier applications e.g. letters received on 20th June, 2011, from

the first named applicant and letters from An Garda Siochána and no reference is made to new information submitted. The document

also appears to be dated in error 16th January, 2012, albeit in respect of an application received in September 2012, which suggests

that the decision to refuse was made in January 2012 (based on the earlier applications), notwithstanding correspondence to

solicitors for the first named applicant on 21st February 2013, confirming that the third application remained under consideration.

Following submission of his application, the first named applicant supplemented it by providing a detailed account of further incidents

which had occurred by way of letter dated 29th October, 2012. The incidents occurred on 11th October, 2012, 22nd October, 2012

and 10th November, 2012. On the first occasion, a number of unknown youths had attempted to force the main door to the house at

about 5.20 am. On the second occasion, a neighbour had, without provocation, started an argument with his family and attempted to

smash his car window. On the third occasion, a number of people smashed his house window. Complaints were made to An Garda

Siochána regarding these incidents.

By further letter of 12th December, 2012, the first named applicant brought to the respondent’s attention the following:-

1. That since moving into the house the applicants had been subject to racially motivated attacks;

2. That since June 2011 the difficulties had escalated;

3. That his life and that of his family had become full of fear and stress;

4. That notwithstanding having made some 20 complaints to the Garda Siochána little had been done to protect them;

5. The incident of 22nd October, 2012;

6. That he would welcome an opportunity to meet with a servant/agent of the respondent to discuss the family’s difficulties and

fears.

No reference is made in the ESG assessment form to this more recent correspondence.

By letter of 20th November, 2012, the CWO wrote to the Anti-Social Policy Unit of the respondent explaining that the application

lodged by the first named applicant was being examined and seeking advice in this regard. On 22nd November, the respondent’s

project estate officer for its Darndale regional office wrote to Coolock Garda station requesting information pursuant to s. 15 of the

Housing (Miscellaneous Provisions) Act 1997.

By letter of 12th December, 2012, the Superintendent of Coolock Garda station furnished the respondent with details of five

complaints made by the applicant in respect of criminal damage between 4th June, 2011, and the 10th November, 2012, in respect of

which no arrests had been made.

By letter dated 31st January 2013, the Project Estate Officer replied to the CWO and confirmed that their records showed that the

first named applicant had first contacted the respondent on 8th June, 2011, complaining of having been assaulted by a neighbour. It

was noted that he had again written to the respondent on 12th June, 2011, 4th July, 2011, 27th July, 2012 and 20th September,

2012, complaining of harassment. There was a letter on file from the Garda Siochána dated 6th December 2012, regarding the

complaint made by the first named applicant to them.

The applicants argue however that, like the first named applicant’s correspondence none of this correspondence from the Garda

Siochána and the Project Estate Officer appears to have been taken into consideration by the CWO. The application was supported

by the family’s Primary Health Care Worker, the Non-Irish Nationals’ Liaison Officer with Threshold, Crosscare, the Home School

Community Liaison Teacher of St. David’s CBS and numerous TDs. No reference is made in the ESG assessment to the representations

made by any of these people and there is no evidence that they were considered in the decision making process. This, the applicants

contend, renders the respondent’s refusal to grant priority under exceptional social grounds is unreasonable. They rely on classic

Wednesbury principles which have long identified the duty of the decision maker to take relevant matters into account in the decision

making process. Where the relevant body has “taken into account matters which they ought not to have taken into account . . . or

conversely neglected to take into account matters which they ought to have taken into account”, then the decision is flawed as it is

unreasonable in law and therefore should be quashed.

The CWO suggests in her letter of the 10th June, 2013, that matters complained of were matters for the Garda Siochána but it

remains far from clear why such matters were not also considerations in the applicant’s application for transfer. The fact that criminal

activity was engaged in by third parties against the applicants appears to have been discounted by the respondent merely because

An Garda Siochána have a role in the investigation of crime. It is accepted that An Garda Siochána have policing functions in relation

to criminal activity, but this cannot detract from the separate duty of the respondent as housing authority to provide appropriate and

suitable accommodation for persons who are being victimised while living in a particular area especially in view of the fact that criminal

incidents are not excluded from the ESG scheme.

It is argued that the respondent improperly fettered its discretion if it failed to consider the application at issue because a previous

application comprising some of the same information had been refused.

Breach of Fundamental Rights

The scheme was introduced under statutory provisions and therefore constitutional rights derive therefrom. The applicants argue that

these rights as well as their fundamental freedoms have been breached.

They contend that failure to provide reasons for the refusal to grant priority is a breach of their right to a reasoned decision in

accordance with the requirements of constitutional justice as protected under art. 40.3 of the constitution. They argue that the lack

of reasons is also contrary to good administrative practice and contravenes their rights under art .41 of the Charter of Fundamental

Rights and Freedoms of the EU.

They rely on Rawson v Minister for Defence [2012] IESC 26 where, at para. 6.10, Clarke J. stated:-

“. . . [i]f a person affected does not have any sufficient information as to the question which the decision maker actually

addressed then it surely follows that that person’s constitutional right of access to the courts to have the legality of the

relevant administrative decision judicially reviewed is likely to be, in the words of Murray C.T. in Meadows ‘rendered either

pointless or so circumscribed as to be unacceptably ineffective’.”

There was a failure to properly apply the terms of the scheme, it is asserted, and this breaches the applicants’ right to procedural

fairness in decisions affecting their rights and obligations, which right is protected under Articles 6 and/or 8 and/or 13 of the European

Convention on Human Rights.

The respondent is obliged by Statute to make provision for persons wishing to transfer from local authority accommodation. The

scheme adopted makes express provision for victims of harassment or intimidation to be considered for transfer on exceptional social

grounds. On the facts presented on the applicants’ application they have been subjected to sustained, racially motivated harassment

and the council has been made aware of this.

They argue that apart from the flaws in the decision making procedure the result of same i.e. failure to accord them priority for

transfer and to transfer them to more appropriate accommodation has resulted in an unnecessary and disproportionate interference

with their fundamental rights including their rights to bodily integrity, protection of their lives, respect for their family and private

lives, and the right to receive an education which are rights variously protected under Articles 40.3 and 40.4 and/or 41 and/or 42 of

the Constitution.

Although the classic, more restrictive, position is that judicial review concerns the procedure for taking decisions, not the merits of

the decisions themselves (unless they clearly offend against fundamental reason and commonsense) the European Court of Human

Rights and the Supreme Court in cases such as Meadows postulate that consideration should be given to the proportionality of

measures that interfere with the fundamental rights of the applicant i.e. in assessing the reasonableness of such administrative

decisions the courts are entitled to consider the proportionality of the decision.

At p.703 of Meadows Denham J said:-

“The constitutional limitation of jurisdiction arises from the duty of the courts to protect constitutional rights. When a decision

maker makes a decision which affects rights the court could consider whether the effect on the rights of the applicant would be

so disproportionate as to justify the court in setting it aside on the ground of manifest unreasonableness.”

It is argued that in this instance that the respondent has not identified any basis for a conclusion that the interference with

fundamental rights affected by the refusal to accord priority is necessary or proportionate.

Respondent’s Submissions

6.1 No failure to give reasons.

In line with its obligations under the Housing Act 1966 (as amended), the respondent established an Allocations Scheme in 2011, the

purpose of which was to set out the basis for prioritising the allocation of all Dublin City Council rented dwellings to persons whose

needs for accommodation had been established and the basis for prioritising transfer applications from existing council tenants.

The scheme states at para. 2.6 that :-

“Decisions will be made by the Chief Welfare Officer on the basis of:

- The exceptional nature of the case

- The stated urgency and

- The likelihood of a vacancy occurring in an area to relieve the stress and suffering of the applicant.”

It is contended that the applicants’ application for transfer on exceptional social grounds was considered with all documentation

provided in support of same by the CWO who decided not to recommend overall priority.

The Supreme Court (Murray J.) in Meadows v The Minister for Justice, Equality and Law Reform [2010] 2 IR 701, stated at

para.93:-

“. . . An administrative decision affecting the rights and obligations of persons should at least disclose the rationale on foot of

which the decision is taken. The rationale should be patent from the terms of the decision or capable of being inferred from its

terms and its context.”

Context is important in a case such as this. The ESG scheme is based on compassionate grounds rather than being “points driven”.

Thus ipso facto all applicants will have suffered some type of hardship. The CWO must have wide discretion in her decision and when

providing reasons cannot go into the details of other people’s social problems, since to do so would be a breach of confidentiality.

Thus, there is no express obligation under the scheme to give reasons for a decision such as this one and usually a simple yes/no

answer is given.

Notwithstanding this, by letter dated 10th June, 2013, the CWO elaborated on the reasons for her decision following a request for

same made by the applicants on 6th June. In her letter, the CWO sought to reference aspects of the matter peculiar to the applicant

and which influenced her decision without mentioning the difficulties of other people. It is argued that the CWO’s reasons for refusal

were patent from this letter and therefore the decision fulfils the requirements set out in Meadows.

Despite this, the applicants sought leave to bring these proceedings - quite possibly before receipt of the respondent’s replying letter.

They should, in fact, have withdrawn their application at that stage.

The applicants argue that the reasons for the decisions were divulged after the decision letter of 20th March. They rely on R v Court

of Westminster [1996] 28 HLR 819, to suggest that the court cannot have regard to reasons given post decision. The respondents

contest this reasoning and assert that that case is merely authority for the proposition that the court cannot consider information put

before it following the initiation of proceedings. They rely on p.12 para. 5. where Hutchison L.J. stated:-

“(5) Nothing I have said is intended to call in question the propriety of the kind of exchanges sometimes leading to further

exposition of the authority’s reasons or even to an agreement on their part to reconsider the application, which frequently

follow the initial notification of rejection. These are in no way to be discouraged, occurring, as they do, before, not after the

commencement of proceedings.”

They further rely on Mishra v Minister for Justice [1996] IR 189, wherein Kelly J. stated at p.203:-

“However as a matter of fact, in this case it is clear that reasons for the ministerial decision have emerged by means of the

affidavit and the notice of opposition which have been filed. No obstacle was placed in the way of Dr. Mishra’s counsel in

analysing and commenting upon those reasons. Therefore, as a matter of fact Dr. Mishra has not been impeded in the

prosecution of this case by the refusal to give reasons.”

The respondent thus argues that there is nothing to prevent this Court from taking into consideration the reasons were given, albeit

they were given after the decision letter of 20th March.

Proportionality

The respondent refutes that allegation that the decision taken was disproportionate having regard to the applicants’ fundamental

rights. It points out that there is enormous pressure on the respondent’s housing stock and there is a limit on the number of vacant

premises to which the applicants could be relocated.

It contends that it is for this reason that the scheme of priorities has been adopted to ensure as far as possible that all applicants for

transfer are treated fairly. To allow for cases of particularly extenuating circumstances overall priority may be granted on exceptional

social grounds. It must, however, be borne in mind that there are hundreds of applications for priority transfer on those grounds each

year. The CWO stated in her letter that she was of the opinion that the matters complained of could appropriately be addressed by

the Gardai as opposed to urgent relocation and therefore declined to grant the priority requested.

6.3 The respondent denies that it restricted consideration of the application to material that had previously been submitted by the

applicant in respect of his earlier applications for priority. It asserts that the CWO had regard to all matters submitted and that the

application was considered in full, including consideration of the earlier documentation furnished by the applicants (which it argues

was in fact re-submitted), new correspondence received and the report from the Project Estate Officer.

According to that report, on 14th November, 2012, Portocala Mustata (a member of the applicants’ family) complained that she had

been attacked at the Northside shopping centre by her husband’s ex-girlfriend who she alleged had also twice smashed the windows

of the applicants’ home. The CWO was of the view that this was not a matter for the respondent to deal with and was best dealt

with by An Garda Siochána, as were many of the other incidents complained of, since they had occurred in public places. She felt

that allocating priority to the applicants would serve no purpose in addressing those issues and she advised them of this.

The respondent asserts that it does not appear that the first named applicant ever sought formal prosecution of his neighbour and

had he done so the Gardai would have dealt with the matter under the Non Fatal Offences against the Person Act.

In Rawson at para.6.2, Clarke J. outlined four guidelines which must be met to ensure that a decision reached by public person is

lawful.

“First, the decision must be within the power of the person or body concerned. Second, the process leading to the decision

must comply both with fair procedures and with whatever procedural rules may be laid down by law for the making of the

decision concerned. Third, the decision maker must address the correct question….and in so doing must have regard to any

necessary factors properly taken into account and must also exclude any considerations not permitted. Fourth, in answering the

proper questions raised and in assessing all matters properly taken into account the decision maker must come to a rational

decision….”

The CWO addressed the correct question and came to a rational decision that the granting of overall priority for transfer was not

warranted in the case. Therefore it is argued the respondent has met the test for lawful decision as set out by the Supreme Court in

the above cited case.

6.4 No breach of Constitutional Rights

The respondent denies that the applicant’s constitutional and convention rights to life, to bodily integrity, to respect for family life

and the rights of their children to education have been affected given that the applicants are housed by the respondent and that the

housing they receive is both appropriate to their needs and sufficient.

DECISION

7.1 The issues arising in this case are as follows:

(i) The obligation to give reasons;

(ii) Was account taken of the evidence?

(iii) Proportionality;

(iv) Were the right questions asked?

The obligation to give reasons

In the recent judgment of the Supreme Court in John Kelly v. Commissioner of An Garda Síochána [2013] IESC 47, delivered on 5th

November 2013, O’Donnell J. cited as a thorough survey of the law relating to the obligation of a decision maker to give reasons for

his or her decisions, the judgment of Fennelly J. in Mallak v. The Minister for Justice, Equality and Law Reform [2012] IESC 59, where

he states:

“67. Several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative

decisions have a right to know the reasons on which they are based, in short to understand them.”

Fennelly J. further stated that:

“66. In the present state of evolution of our law, it is not easy to conceive of a decision-maker being dispensed from giving an

explanation either of the decision or of the decision-making process at some stage. The most obvious means of achieving

fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying

objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has

been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are

obvious and that effective judicial review is not precluded.”

In applying this principle to the case in hand, O’Donnell J. concluded at paragraph 36:

“In my view, therefore, a proper interpretation of the Regulations requires that reasons be given for any determination made by

the board of inquiry unless it can be said that the issue is so self-evident and narrow that the mere fact of the decision

discloses the reason. That cannot be said to be the case here.”

Thus, the recipient of an administrative decision has a right to know the reasons upon which it is based so as to understand it.

Although the most obvious way for this to occur is for reasons to accompany the decision, this is not a formal rule. The test is one of

openness and fairness. There could be cases where the reason is obvious so that effective judicial review is not precluded.

7.3 Applying that principle here, the original decision made was not to grant priority over others. In the special circumstances herein,

any detailed reasoning would, I think, not be either appropriate or necessary in the first place. This is because such would involve a

measuring of the applicants’ needs against the needs of others. In those circumstances, I would think that the approach adopted by

the acting Chief Welfare Officer, Ms. Anne Helferty, was the correct one. First, she gave a decision simply refusing priority. Upon

being pressed, she gave reasons for this decision in her letter of 10th June 2013. I will deal with the adequacy of these reasons

below. What Ms. Helferty did was what Hutchinson L.J. contemplated as cited above at 6.1;

“(5) Nothing I have said is intended to call in question the propriety of the kind of exchanges sometimes leading to further

exposition of the authority’s reasons or even to an agreement on their part to reconsider the application, which frequently

follow the initial notification of rejection. These are in no way to be discouraged, occurring, as they do, before, not after the

commencement of proceedings.”

In the highly contentious and very delicate decision as to the granting of priority over others, it is very understandable that a

deciding officer would not wish to add insult to injury by explaining to an unsuccessful applicant why their need was not greater than

another’s. Thus, I think the approach adopted was an acceptable, and indeed, a good one. The deciding officer may give the bare

decision first. If an unsuccessful applicant asks for reasons, then a brief outline of those, setting out the gist of reasons for the

decision will be sufficient. The reasoning given need only explain why the decision was made so that the applicant understands the

reasons.

In the light of the above, it seems to me that the reasons given, firstly in bare form but further exposed in the letter of 10th June

2013 were sufficient for that purpose.

7.4 Was account taken of the evidence?

In her affidavit at paragraphs 8 to 15, Ms. Helferty sets out in detail what information and complaints she considered before making

her decision of 13th March 2013. It seems to me that all the essential complaints of the applicants upon which was grounded the

request for priority were considered by her i.e. a sustained history of harassment and intimidation against them in the vicinity of their

home and the general area nearby. Thus, I reject the argument that she did not take account of the evidence.

7.5 Proportionality

The Council manages a stock of 27,000 social housing units. There are 12 to 15 applications on exceptional social grounds made each

week by persons seeking priority over others. All of these cases involve serious individual social/personal problems. I cannot see how

proportionality arises in these circumstances. The Council considers and balances one person’s set of serious problems against

another’s. If the decision is made reasonably, then no question of disproportionality seems to me to arise.

Did the Deciding Officer address the question correctly?

In her letter of 10th June 2013, Ms. Helferty states:

“This decision was made on the basis of information contained in the reports and letters received including accounts of

incidents reported to estate management by members of the family. This available information indicates that many of the

incidents described appear to have arisen either as a result of actions on the part of an individual known to the family or

occurred in public places, e.g. Northside shopping centre and local parks. It is a matter for the gardaí to deal with incidents of

law and order and, in general, such incidents are not within the scope of the Exceptional Social Grounds Scheme.”

Is she correct to state that the kind of incidents described by the applicant do not fall within the scope of the scheme? The scope is

set out in paragraph 7 of her affidavit sworn on 20th September 2013. This is cited above at paragraph 4.2 and I refer here to the

latter part of the Allocations Scheme:

“All applicants who allege that they are subject to harassment and/or intimidation must have their cases investigated by the

Regional Housing Manager in the first instance. Only when the Regional Housing Manager reports back that they are unable to

deal with the problem will cases of harassment and intimidation be considered for a transfer on exceptional social grounds.

Decisions will be made by the Chief Welfare Officer on the basis of:

the exceptional nature of the case;

the stated urgency and

the likelihood of a vacancy occurring in an area to relieve the stress and suffering of the applicant.”

Thus, the scope of the scheme is, inter alia, “exceptional social grounds” in respect of applicants “who allege they are subject to

harassment and/or intimidation”. Decisions of the Chief Welfare Officer will be made on the basis of “the exceptional nature of the

case” and “the stated urgency”.

It is clear that the “incidents of law and order” referred to by Ms. Helferty are the incidents of harassment and intimidation of which

the applicants complain. Such incidents will almost always involve breaches of the law which the gardaí might well deal with. The

mere fact that the gardaí might be involved does not mean there has not been harassment or intimidation. Thus, it is clear that such

“incidents of law and order” which, in this case, are alleged to be harassment and intimidation, are not excluded from the scope of the

scheme. Thus, in adopting this view of the scope of the scheme, the acting Chief Welfare Officer applied a test that was too narrow.

The decision therefore cannot stand and must be quashed. There must also be an order remitting the application to the respondent

for reconsideration in the light of the judgment herein.