2004 tenancy act constitutional, court finds
The Supreme Court has dismissed an appeal in a case that centred on the constitutionality of tenancy legislation as applied to a child.
In a majority judgment, the court upheld an earlier High Court decision that section 39 of the Residential Tenancies Act 2004 was not unconstitutional.
The case was brought by ZG and EW (a child who brought the case with the assistance of his aunt). The child lived with his mother as a one-parent family, in an apartment rented from an approved housing body, Clúid Housing.
After the child’s mother died suddenly in July 2023, the child, who was not yet 18, was told that he did not come within the list of eligible people who could inherit a tenancy under the 2004 act.
In September 2023, Clúid Housing sought to end the tenancy, and the child has lived with his grandparents ever since.
Distinction ‘rational’
In the majority judgment, Chief Justice Donal O’Donnell said that the central question was not specific to the young boy or his circumstances.
“It is instead whether the law, by permitting children over 18 and who lived in the premises to succeed to the statutory tenancy without extending the same or similar entitlement to children under 18, is in breach of the Constitution,” he stated.
The judgment found that the distinction in the 2004 act was rational, and that a distinction between adults and minors was “a rational one”, which was commonplace in the law, in the field of tenancies, and in the Constitution itself.
Dissenting judgments
Mr Justice Hogan and Ms Justice Donnelly both issued separate dissenting judgments.
Mr Justice Hogan considered that the Constitution provided strong protection for the inviolability of the home.
As the legislation did not provide for any possibility for the continued tenancy and occupation by the child, his judgment stated that this compromised the essence of the constitutional guarantees.
Ms Justice Donnelly said that the legislation was inconsistent with the constitutional protections of the rights of the child and the equality guarantees.
Chief commissioner of the Irish Human Rights and Equality Commission (IHREC) Liam Herrick said that the body, which acted as amicus curiae (friend of the court) in the case, would consider the ruling in detail.
“These judgments address important issues – including equality guarantees, the rights of the child, and the inviolability of the dwelling in the Constitution,” he stated.