EM and CM (a minor) by EM, her Mother and Next Friend, EM for Judicial Review v The Northern Ireland Housing Executive
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Judgment Date | 10 November 2017 |
| Neutral Citation | [2017] NIQB 111 |
| Date | 10 November 2017 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2017] NIQB 111
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC10472
Delivered: 10/11/17
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY EM AND CM (A MINOR) BY EM,
HER MOTHER AND NEXT FRIEND, EM FOR JUDICIAL REVIEW
-v-
THE NORTHERN IRELAND HOUSING EXECUTIVE
________
MCCLOSKEY J
Introduction
[1] This is a challenge to certain aspects of the Housing Selection Scheme (“the
Scheme”) made by the respondent, the Northern Ireland Housing Executive
(“NIHE”) pursuant to Article 22 of the Housing (NI) Order 1981 (“the 1981 Order”)
and, as required by statute, approved by the Department of Social Development for
Northern Ireland (“DSD”). The applicants are daughter and mother respectively.
The daughter is now aged 14 years. The third member of the family unit is her
younger brother, aged 12. They complain that the terms of the Scheme have
deprived them of the allocation of appropriate housing. Their challenge is based
squarely on their rights under the private life dimension of Article 8 ECHR,
guaranteed by section 6 of the Human Rights Act 1998 (“HRA 1998”). The remedies
pursued are declarations that the Scheme is not in conformity with Article 8 ECHR
and an order of mandamus requiring NIHE to reconsider it and, further thereto, to
make a fresh decision in the applicants’ case.
Statutory Framework
[2] By virtue of Articles 3 and 6 of the 1981 Order NIHE is the public authority
with responsibility for specified functions in relation to public housing in Northern
Ireland. It operates in tandem with DSD and the Northern Ireland Housing Council.
The umbrella statutory provision is Article 6, which provides:
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“(1) The Executive shall –
(a) Regularly examine housing conditions and
need;
(b) Submit to the Department for approval its
programme for such years and in such form
as the Department may determine for
meeting housing needs; …. “
DSD has the function of approving any housing programme.
[3] The subject matter of Chapter IV of the 1981 Order is “Housing
Management”. Article 22 makes provision for the last of the specific “general
functions” of NIHE prescribed in Part II of the statutory measure. It provides, in
material part:
“22. – (1) The Executive shall submit to the Department a
scheme for the allocation of housing accommodation held by
the Executive to prospective tenants or occupiers.
(2) The Department may approve a scheme submitted
under paragraph (1) with or without modifications.
(3) The Executive shall comply with a scheme approved by
the Department under paragraph (2) and with the
provisions of Article 22A when allocating housing
accommodation held by it.
(4) The Executive may submit to the Department proposals
for amending a scheme approved under paragraph (2) or a
scheme amending a scheme and paragraphs (2) and (3)
shall have effect in relation to those proposals or a scheme
replacing an existing scheme as they have effect in relation
to a scheme.
…
(7) For the purposes of this Article and Article 22A the
Executive allocates housing accommodation when it selects
a person to be a secure or introductory tenant of housing
accommodation held by it.
(8) The reference in paragraph (7) to selecting a person to
be a secure tenant includes deciding to exercise any power
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...article 1 of the First Protocol ECHR, nor indeed his wife’s article 8 rights. As McCloskey J’s decision in Re EM and CM’s Application [2017] NIQB 111 notes at [60], the housing authority, in establishing a housing selection scheme and a system of prioritisation for housing needs, is entitle......