1. As citizens of Ireland, members of the travelling community are entitled to equivalent levels of social protection as the settled community. One recurrent issue in the case law is the extent to which the level of social protection can be adjusted in order to respond to particular accommodation requirements. The need to address such requirements becomes more acute if families are living in substandard or overcrowded accommodation.
2. At the time of the proceedings, the fourth named applicant was living in very overcrowded accommodation. On 5th February, 2008 Edwards J., in the High Court, granted a declaration that the first named respondent, South Dublin County Council, had, by reason of its failure to provide adequate temporary accommodation, failed to respect the rights of the fourth named applicant, Ellen O’Donnell, under Article 8 of the European Convention on Human Rights (“the Convention”), and s.3 of the European Convention on Human Rights Act, 2003 (“the ECHR Act, 2003”). He dismissed claims brought by the applicants in the High Court.
3. Both the applicants and respondents have appealed that judgment. For ease of reference, the O’Donnell family, when appropriate, will be referred to collectively as “the applicants”. They contend that the judge erred in failing to hold that the duty to provide that the term “dwelling” under s.56 of the Housing Act, 1966, extended to the provision of what is termed a “temporary dwelling” as defined in s.10(14) of the Housing (Miscellaneous Provisions) Act, 1992. The applicants alternatively submit that the trial judge erred in failing to hold that the first named respondent, (“the County Council” or “the Council”), had a statutory duty to provide the entire O’Donnell family with adequate and suitable caravan accommodation, and submit that an order of mandamus should be made to give effect to that duty.
4. The County Council, in its cross appeal, contends that the claim, in its entirety, should have been dismissed in the High Court, and that no member of the O’Donnell family is entitled to relief.
Background
5. The O’Donnell family consisted of two adults and seven children. Mrs. Mary O’Donnell, the first named applicant, is a full-time carer for her seven children. Mr. Patrick O’Donnell, her husband, the second named applicant, is unemployed, and in receipt of disability allowance. At the time leave to seek judicial review was granted in the High Court (13th November, 2006), the applicants, who are members of the travelling community, were living in a two-bedroom adapted caravan/mobile home which the County Council had provided to the family.
6. By the time this appeal came on, a number of the older children, namely, Mary junior, Patrick junior and Michael, had moved out of the mobile home. Nonetheless, the issues which the O’Donnells seek to canvass remain live ones. They maintain that they are still living in an overcrowded situation, and have a right to have their situation remedied. The County Council submits that, in accordance with statute and the established case law, its legal duty was simply to provide the applicants with a halting site. The Council contends that, in fact, it had gone much further than its legal duty by providing two caravans (or mobile homes) for the family. It says that when it provided those two mobile homes, in the year 2003, it had complied with all its statutory duties.
7. Ellen O’Donnell is the fourth-named applicant. She is a citizen of Ireland. At the time of the High Court hearing, she was aged 15 years, and as a result of cerebral palsy, was constrained to use a wheelchair. She was educationally disadvantaged. Some measure of her situation can be gleaned from the fact that she did not have access to a toilet until she reached the age of 13 years.
A Chronology of the Interaction between the Parents and the County Council
8. The interaction between Mr. and Mrs. O’Donnell and the County Council goes back many years. In 1994 the family were provided with a house in Clondalkin under the County Council scheme of letting priorities. But less than one month later, they voluntarily vacated that house and surrendered the keys. There is a suggestion that there was garda harassment. But the correspondence also strongly suggests that, in fact, Mr. Patrick O’Donnell felt that he was unable to live in permanent settled housing accommodation. That Mr. O’Donnell has apparently long held this view is worthy of recall throughout the narrative of events which follows.
9. Having returned the keys of the house, Mr. and Mrs. O’Donnell moved to St. Maelruan’s halting site in Tallaght, which was owned and managed by the County Council. In May, 2001 the Council expended €5,625 resurfacing the caravan bay in order to facilitate Ellen’s wheelchair. Following a family bereavement, the family left St. Maelruan’s. They then moved to an un-serviced plot of land in Tallaght. There, the Council provided them with further temporary facilities.
10. December, 2003 is a key date. What the Council provided the O’Donnells then lies at the centre of the case. In addition to the temporary halting site, the family were provided with a second-hand Pemberton Sovereign mobile home, which was made wheelchair-accessible, and, additionally, a second-hand Lunar Eclipse caravan. (The terms mobile home and caravan will be used interchangeably in this judgment). The total cost of this provision came to €47,000, which was paid from State funds, by means of a disability grant made available for Ellen O’Donnell’s benefit under the Housing (Disabled Persons and Essential Repairs Grants) Regulations, 2001. To facilitate access to the Pemberton mobile home, the Council funded the installation of a wheelchair ramp at a cost of €11,293. It is not clear now whether this latter sum was in addition to, or part of, the grant of €47,000.
The Swap Arrangement
11. The two units which the O’Donnell family had available by December, 2003, taken together, might well have been sufficient to accommodate the family. Unfortunately, things did not turn out that way. Mr. and Mrs. O’Donnell gave away the Lunar Eclipse caravan to Mr. O’Donnell’s mother. They received Mrs. O’Donnell Senior’s own caravan in return. This older caravan was entirely unsatisfactory. It was infested with mice, and in such a state of dilapidation that, within a short time, it was uninhabitable. As a result of this swap arrangement, the entire O’Donnell family were left in the position that all of them, both parents and children, had to live in the very over crowded Pemberton Sovereign mobile home. The County Council took the view that this situation was entirely as result of Mr. and Mrs. O’Donnell’s own decision. There is no evidence that the children were involved in this arrangement which, obviously, was to their ultimate detriment.
12. The High Court judge felt that that the O’Donnells’ decision to make this swap was never adequately explained. Insofar as an explanation was given, through counsel in the High Court, it was to the effect that, even with the two caravans, the accommodation was insufficient, and that the Lunar Eclipse had been just a one-room caravan with no separate bedroom. It was said Mrs. O’Donnell senior’s caravan had two separate bedrooms, as well as some living space, and, therefore, it gave more sleeping accommodation. But this was little use when that caravan turned out to be so unfit for use. The adults never sought permission, sanction or advice from the County Council in relation to this swap arrangement. There is no information on where the Lunar Eclipse caravan went, or for how long it was used. The two original caravans were provided as part of an arrangement funded for Ellen’s benefit by reason of her disability.
Ellen O’Donnell’s Accommodation
13. It is now necessary to describe living conditions in the Pemberton mobile home. More than a year before the initiation of these judicial review proceedings, Ms. Dolores Murphy, a housing support worker with the Irish Wheelchair Association, wrote to a Senior Administrative Officer in the County Council’s housing department. This letter, written on the 19th October, 2005, specifically addressed Ellen O’Donnell’s accommodation needs, and set out how she could not manage to get into, or out of, the mobile home without assistance. Nine people, parents and children, were all living in the two-bedroom mobile home. Ellen shared a bedroom with four other family members. Her wheelchair did not fit into that bedroom, so she had no independent living space. She had to be carried to her bed from her wheelchair. An internal toilet was broken and un-repaired. To access an outside toilet at night time, Ellen O’Donnell had to be assisted out of bed, into her wheelchair, over a step in the mobile home, and then, bodily lifted up over a high door-step into the cubicle. The shower facility in an outside unit adjoining the mobile home was too small for her wheelchair. Its temperature control was defective. The water was “always scalding”. There was no air-heating in the shower unit. Ms. Murphy pointed out that this was not healthy or desirable for the fourth named applicant, because, having showered, she then had to go back outside getting to the relative heat of the mobile home. In fact, Ms. Murphy wrote, the heating in the mobile home did not work anyway. The fourth named applicant was prevented by the cramped conditions from engaging in normal teenage activities such as doing chores or preparing food. The family had told Ms. Murphy that the mobile home was infested with mice, which had built nests within the walls of the mobile home.
14. Ms. Murphy called on the Council to make an overall long-term accommodation plan for the O’Donnells. More immediately, she asked the Council to provide the family with the biggest possible mobile home with the greatest number of bedrooms available. This was to be vetted by an occupational therapist to ensure that it met Ellen’s needs. Ms. Murphy suggested buying a three-bedroom house as an alternative. She asked the Council to look at the outside shower facility to make it wheel chair accessible. She added, “whatever happened to the previous caravan, nine people sleeping in a two or even three bedroom space is just not workable.”
The Council’s Response
15. In response, the Council does not deny that these problems existed. The officials wrote that there was enough space in Whitestown Way to accommodate another small caravan. However, they took the view that, having provided two fully equipped caravans in good condition in 2003, it was now for Mr. and Mrs. O’Donnell to solve the problem they themselves had created, if necessary, by buying themselves another caravan to replace the Lunar Eclipse which they had given away. Mr. and Mrs. O’Donnell contended that they could not afford to repair the existing mobile home, and would certainly be unable to repay a loan to buy an extra one. The Council officials pointed out that an interest free loan, to a maximum value of €6,350, would be available under the Councils’ Caravan Loan Scheme. This loan would be re-payable over a five year period. The Council officials laid emphasis on the fact that the O’Donnell family had of a total income of €36,350 per annum, all from Social Welfare. If Mr. and Mrs. O’Donnell applied for a loan under the scheme the officials suggested the family could repay the loan by means of a household budget deduction involving payment of no more than €20 per week or less.
16. In fact, the O’Donnells did make a further application for grants under the Disabled Persons Grant Scheme, and the Essential Repairs Grant Scheme. They sought a loan under the Caravan Loan Repairs Scheme. The application under the Disabled Persons Grant Scheme was made in Ellen O’Donnell’s name. The other applications were made in the names of Mr. and Mrs. O’Donnell. What they requested is described below.
17. The Council wrote back saying that Ellen had already received a disabled persons grant. One Council official wrote, in a letter of 3rd June 2007 that a second grant was not normally payable to the same applicant under the Disabled Persons Grant Scheme, unless their medical circumstances had changed. However, Ellen’s O’Donnell’s medical condition had not changed. Furthermore, one official wrote, the O’Donnells were ineligible to avail of the Essential Repairs Grant Scheme because no family member had reached the age of 65 years.
The Applicant’s Requests
18. In a letter dated the 17th July, 2007, the applicants’ solicitors set out a series of requests under the various grant and loan schemes. Their clients were seeking a loan of in or around €56,000 to purchase a replacement two-bedroom disabled person’s caravan; or €20,000 to repair their current two-bedroom disabled person’s caravan; and €20,000 to purchase a second hand three-bedroom caravan. There was no mention of the family being amenable to any offer involving a house built of bricks and mortar. These were very substantial claims.
19. The Council responded on 20th July, 2007, to the effect that the sums being sought significantly exceeded the maximum loans available under the loan scheme, and that, in the circumstances, it had no power to pay out more than the €6,350 maximum available.
20. In September 2007, two members of the Council’s housing department inspected the applicants’ caravan. There is no indication that things had changed in the interim. A further letter from the applicants’ solicitors drew attention to black damp spores in the mobile home, and expressed concern that some of the children had chronic asthma while winter was approaching. The solicitors called on the local authority to invoke emergency powers, failing which they would seek relief from the courts. Matters then reached a stand off which, even now, seven years later has not been resolved. The O’Donnells made no further steps to process the loan application. The Council did, however, make a range of further counter offers, both around the time of the High Court hearing and later.
The Council’s Offers of Permanent Accommodation
21. The Council offered:
(i) on the 22nd January, 2008, a 4 bed wheelchair adapted two-storey house in Tallaght.
(ii) on the 22nd January, 2008, a four bedroom bungalow on a traveller specific site.
(iii) on the 1st August, 2008, a four bedroom house within a traveller specific development in Tallaght.
(iv) on the 22nd December, 2008, a bay for a caravan at Stocking Hill Residential Caravan Park.
(v) on the 8th June, 2009, a four bedroom house within an estate owned by a Housing Association.
(vi) at a meeting on the 29th July, 2013, a bay for a caravan at another caravan park in Tallaght.
(vii) on the 12th December, 2013, a house on its own lands at Steelstown, adapted specifically for Ellen’s needs.
(viii) on May, 2014, two four bedroom houses at Kimmage Manor in traveller specific accommodation.
22. The fact that these (housing) offers were made and not taken up is not disputed. The family have never fully answered why none of these offers was acceptable. It would appear that Mr. and Mrs. O’Donnell were insistent on additional new caravan accommodation, rather than moving into a house. Of course, to make such a choice was their entitlement. But it must be seen in the context of what had happened the Lunar Eclipse, and the fact that, as a result, the Pemberton mobile home was totally overcrowded and unfit for human habitation. But in the light of these offers it is not easy to see how the County Council had failed in its duties to the O’Donnell family as a whole, excepting Ellen.
The High Court Judgment
23. A number of the High Court judge’s findings must now be considered. He observed that a particularly regrettable feature of the overcrowding was that it effectively set at nought the custom-adaptations that had been made to the Pemberton mobile home to accommodate Ellen O’Donnell’s disability. He referred to the problems identified in Ms. Murphy’s letter. He was satisfied that both of the second-hand caravans provided in 2003 had been in good condition, when provided. The judge pointed out that the Council had engaged consultants to install the suitable access ramp to the mobile home. What had caused the disrepair within the short space of three years was not clear. This judicial review was heard on affidavit. In hindsight this was a case where a plenary hearing might have been more appropriate.
24. The judge found no evidence that either of the O’Donnell parents had made any effort either to find or employ a carpenter to fit a half-door to the shower, or to find a plumber to fix the hot water and the radiators. He thought this failure more remarkable in light of the fact that the O’Donnells were receiving such significant social welfare payments. He expressly rejected any explanation of impecuniosity. He held that there appeared to be a complete “abdication of responsibility” by the O’Donnell parents for the maintenance and upkeep of the caravan, and that the swap resulted in an “artificial” overcrowding situation.
25. As against this, however, he commented that, by 2005, the County Council were aware of, the fact, that the O’Donnell family were living in conditions which were not just substandard, but, as the officials themselves accepted, “unfit for human habitation”. In order to place other findings in some context, it is necessary now to briefly set out some elements of the County Council’s statutory powers and duties.
Section 13 Housing Act, 1988, as amended
26. Section 13 of the Housing Act, 1988, as amended by s.29 of the Housing (Traveller Accommodation) Act, 1998, provides:
“(1) This section applies to persons belonging to the class of persons who traditionally pursue or have pursued a nomadic way of life.
(2) A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, including sites with limited facilities for the use by such persons otherwise than as their normal place of residence or pending the provision of permanent accommodation under an accommodation programme within the meaning of section 7 of the Housing (Traveller Accommodation) Act, 1998, and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.
…
(7) In this section—
‘caravan’ means any structure designed or adapted for human habitation which is capable of being moved from one place to another, whether by towing or transport on a vehicle or trailer, and includes a motor vehicle so designed or adapted and a mobile home, but does not include a tent;
‘sites with limited facilities’ means sites which, having regard to the temporary nature of such sites or the short duration of periods of use, have sufficient water, facilities for solid and liquid waste disposal and hard surface parking area for caravans.”
27. To enable it to prepare its traveller accommodation programme for the period 2005 - 2008, the Council carried out an assessment of the O’Donnells on 7th December 2004. The judge was satisfied that Mrs. O’Donnell had indicated the family would, in fact, accept a group house as being their preferred choice of accommodation, having been told that the design of the individual group house would be modified to suit Ellen O’Donnell’s needs. To that extent, therefore, the judge considered that the Council had complied with its statutory duty identified in s. 13 of the 1988 Act.
28. The judge pointed out that the cost of repairing the broken or missing items in a mobile home would have been modest compared with the cost of replacing the mobile home, even on a second-hand basis. This finding is to be seen in the context of the sums of money sought in Mr. and Mrs. O’Donnell’s grant and loan applications, described earlier. The judge held that the necessity for repairs arose entirely as a result of Mr. and Mrs. O’Donnell’s actions; he pointed out that, rather than repairing the indoor toilet, the parents had actually removed it from the caravan altogether. He was satisfied that the Council had not received any complaint in relation to the lack of hot water. He concluded that, although the O’Donnell parents had allowed the condition of the mobile home to deteriorate, it could nonetheless be made fit for habitation, provided repair work was carried out.
29. Against this, however, the judge considered that there was no evidence that any County Council official had thought to ask the O’Donnells why they were not getting on with repairs, once they had been told that the Council itself would not be carrying out the work. He made findings adverse both to the Council, and to Mr. and Mrs. O’Donnell, in these terms:
“There may well have been a genuine difficulty but nobody enquired if that was the case. By the same token, the applicants have not provided the court with any evidence as to why they have not attempted to carry out necessary maintenance, save for asserting that they could not afford to do so. I expressly reject the explanation of impecuniosity. There is not even a scintilla of evidence that any attempt was made to even enquire about getting repairs done, much less the obtaining of an estimate”.
30. He found there was:
“also a corresponding duty on the first named respondent (the County Council) to engage with (the O’Donnells) so as to provide them with assistance, if they require(d) it, to access the necessary services. Further, the County Council should provide the (O’Donnells) with all necessary assistance to access loan finance for the purpose of effecting repairs within the parameters of the Caravan Loan Scheme.”
31. He concluded that:
“The present overcrowding situation is exceptional in the circumstances of the present case. It is exceptional because, in this particular case, it goes beyond creating the sort of discomfort that is only to be expected in an overcrowding situation … [A] particularly regrettable feature of the present overcrowding situation is that effectively it sets at nought the custom adaptations that were made to the mobile home to accommodate Ellen’s disability. What is the point in having a wheelchair adapted mobile home if it is so crowded with people that the wheelchair bound occupant who it was intended to benefit cannot move around? The first named respondent has been aware of this problem since 2005 and has allowed it to continue. They should not have done so.”
32. He said:
“I believe that Ellen’s rights under article 8 are not currently being vindicated in so far as the overcrowding situation is concerned, and I so hold. I am therefore prepared to make a declaration to that effect and I am prepared to order the first named respondent to exercise its statutory powers under the Housing Acts 1966-2004 requiring it to provide the applicants, with whom the fourth named applicant dwells as part of a family unit, with adequate temporary accommodation pending their placement in permanent accommodation under the Traveller Accommodation Programme 2005-2008. I am not prepared to specifically order the provision of another caravan.”
33. But, despite this apparent finding in favour of the entire family, the High Court held that any relief should be confined to Ellen O’Donnell:
“As the breach of rights that I have found relates only to the fourth named applicant, there is no question of an award of damages to anybody except her. Moreover, although her rights have been breached and she is entitled to some damages for that, that breach has not, to date, continued long enough to have caused her lasting physical or psychological prejudice. The damages which she will receive are therefore likely to be modest …”
34. At first sight it might be thought there is some inconsistency between some of the passages of the judgment quoted earlier, and the declaration actually granted. There is no doubt that the declaration granted only concerns Ellen O’Donnell. While the Court may have indicated it was prepared to order the County Council to exercise its statutory powers requiring it to provide all the O’Donnells with adequate temporary accommodation pending their placement in permanent accommodation, the final quotation, and the order, is confined to finding a breach of Ellen O’Donnell’s ECHR rights.
The Appeal
35. The first part of this appeal involves a relatively simple task of statutory construction. The applicants say that the High Court failed to interpret the term “dwelling” contained in the Housing Act 1966, in accordance with the ECHR Act, 2003.
36. S. 2 and s.3 of the ECHR Act, 2003, insofar as relevant, provide:
“2(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.
(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”
3(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions. …”
37. Article 3 of the Convention itself provides:
“3. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
38. Article 8 of the Convention addresses private and family life in the following terms:
“8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
39. Clearly, s.2(1) provides that “statutory provisions” or “a rule of law” are subject to the general rules of law governing interpretation. Even accepting that the statute here may be remedial in nature and entails a purposive interpretation, a court is not entitled to interpret in such a manner so as to legislate. A statute can be interpreted only in a manner consistent with clear and constant ECtHR jurisprudence. It is not open to a Court to engage in a “free-standing” process of interpretation, or application, by simply comparing the statute with the provisions of the Convention.
40. Section 56(1) of the Housing Act, 1966 enables a housing authority to “provide dwellings (including houses, flats, maisonettes and hostels). Such dwellings may be temporary or permanent”.
41. A “temporary dwelling” is defined in the Housing (Miscellaneous Provisions) Act, 1992 as:
“any tent, caravan, mobile home, vehicle or other structure … which is capable of being moved from one place to another, and …was used for human habitation …”
42. A caravan is in terms defined in s.13(6) of the 1988 Act:
“In this section “caravan” means any structure designed or adapted for human habitation which is capable of being moved from one place to another, whether by towing or transport on a vehicle or trailer, and includes a motor vehicle so designed or adapted and a mobile home, but does not include a tent.”
43. The O’Donnells contend that the trial judge erred in failing to hold that the power to provide a “dwelling”, under s.56 of the Housing Act, 1966, should, by application of s.2 ECHR Act, 2003, have the same meaning as what is termed “a temporary dwelling” as defined in s.10(14) of the Housing (Miscellaneous Provisions) Act, 1992.
44. I do not think there is substance to this point. While, s.56 of the Housing Act, 166 falls to be interpreted in accordance with s.2 of the ECHR Act, 2003, in a manner consistent with the State’s convention obligations, in fact, the provisions of s.56(1) are explicit and unambiguous. The power provided therein is to provide permanent accommodation, although the duration of such accommodation may be temporary or permanent. However the definition contained in s.10 of the 1992 Act arises in the entirely different context of local authorities’ powers to remove unauthorised temporary dwellings from certain locations. Both the context and nature of the definitions are entirely distinct and arise in quite different situations. To interpret the term “dwelling” in s.56 of the 1966 Act so as to include caravans or mobile homes, would be to impermissibly legislate. It would radically alter the nature of the duty, in a way not consistent with any ECtHR jurisprudence. It would not be consistent, either, with the manner in which statutes fall to be interpreted in accordance with national law. The interpretation urged would, in fact, have a far reaching effect, entitling an applicant to a caravan on the same basis as an applicant would be entitled to a dwelling house. As citizens they have the same level of entitlement to housing as any other citizen. No judgment of the ECtHR assists Mr. and Mrs. O’Donnell on this issue, and therefore it is not possible to engage in the process of interpretation which is urged (see generally the judgments of Murray C.J., Denham J. (as she then was) and Fennelly J. in JMcD v. EL [2009] IESC 81). In fact, in Chapman v. UK (Application no. 27238/95) (2001) 33 E.H.R.R. 442, the ECtHR expressly states that member states of the Council of Europe are not under a duty to provide accommodation of a claimant’s own choosing.
45. Insofar as special provision exists, a local authority’s duty is to provide travelling people with halting sites, but not caravans. Both the case law and the statutory provisions in this regard, are explicit. As long ago as University of Limerick v. Ryan (Unreported, High Court, 21st February, 1991), Barron J. pointed out that, absent a wish to live in permanent accommodation, a local authority’s duty to a traveller family was to provide halting sites. This duty is now embodied in statute. In s.13 of the Housing Act, 1988, as substituted by s.29 of the Housing (Traveller Accommodation) Act, 1998 provides that the duty of a local authority towards persons pursuing “a nomadic way of life” is expressed in the following terms:
“…(2) A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, including sites with limited facilities for the use by such persons otherwise than as their normal place of residence or pending the provision of permanent accommodation under an accommodation programme within the meaning of section 7 of the Housing (Traveller Accommodation) Act, 1998, and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.” (emphasis added)
46. Sub-section (3) provides:
“(3) Section 56(2) of the Principal Act shall apply in connection with the provision of sites under this section as it applies in connection with the provision of dwellings under that section.”
47. The emphasised words “may provide” in s.13(2) are significant. It is now well settled that those words in the 1988 Act, as in its 1998 successor, are to be construed in a mandatory way; and, that in the particular context of the statute, the natural and ordinary meaning of the word “may provide” implies a duty, not a discretion, which, in the absence of any countervailing reason or principle, is to be interpreted as giving rise to a right. That duty, then, is to provide halting sites for travelling people (see Ryan case above).
48. The history of the enactment is relevant. Prior to its amendment, s.13 of the 1988 Act, in its un-amended form, specifically recognised that travellers might require housing in the form of serviced halting sites, rather than permanent dwellings. Section 13(2) in its original form provided:
“(2) A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.” (emphasis added)
49. On this provision, Barron J. stated in Ryan’s Case:
“The position of a traveller family which becomes entitled to be provided with a dwelling must be considered. It is uncontested that such a family must be offered a dwelling. If this is refused because the family belongs to the class of persons who traditionally pursue, or have pursued, a nomadic way of life, does this mean that the Council now has a discretion whether or not to provide that family with a caravan site? The answer to the question is no. It would not be a proper construction to be placed upon the relevant provisions of the Act. Section 13 must be taken to intend that the obligation of the Council to provide for housing needs extends in the case of those to whom s.13 applies to the provision not of dwellings but of caravan sites”.
50. He confirmed:
“In my view, s.13 imposes on the local authority an obligation to provide serviced halting sites to those who require them instead of conventional dwellings, in the same way as s.56(1) requires them to provide the latter.”
51. Barron J., therefore, treated the term “may” contained in s.13 of the 1988 Act, as imposing a statutory duty to provide a caravan site for travellers, just as there was a statutory obligation to provide dwellings for those in the settled community. The only difference in the obligation lay in the nature of the facility to be provided in the case of those who wished to live in caravans. This was not judicial legislation. As a matter of natural construction, the meaning flowed from the context of the section itself.
