Courts, Public Interest Litigation, and Homelessness: A Commentary on Recent Case Law

Abstract

This note examines a series of relatively recent High Court judgments concerning local authorities and their statutory responsibilities toward those who are homeless. The cases concerned are Middleton v. Carlow County Council , Tee v. Wicklow County Council and C v. Galway County Council. When considered together, these judgments demonstrate several notable trends of importance to scholars and practitioners of administrative and constitutional law. First, they strongly suggest several judges of the High Court have adopted the view there is no implied constitutional right to adequate shelter for children and adults in Irish law. In doing so, the High Court did not engage with earlier Supreme Court dicta suggesting that, in appropriate instances, vindicating constitutional rights of bodily integrity may effectively convert a local authority’s statutory discretion to provide housing into a mandatory duty. Second, they highlight that the highly deferential rationality standard of review is alive and well, even when the interests and rights of vulnerable persons are engaged. Third, the cases vividly encapsulate some of the risks of public interest litigation. In these scenarios, helping transform a potentially constructive legally ambiguous situation, into one with several clear pro-respondent precedents. Public interest litigation can thus have perverse consequences, meaning an action actually produces a state of affairs contrary to what was intended. Here, an attempt to gain judicial recognition local authorities must use their statutory discretion in a manner which vindicates constitutional and convention rights ends up producing a state of affairs that eventually resulted in expanded local authority discretion. Part I of this note provides an outline of the relevant cases. Part II offers a critical commentary of the judgments and discusses their significance. Part III concludes.