Mercy Law has seen a significant rise in the number of cases received related to local authorities refusing to provide emergency accommodation to persons experiencing homelessness. Local authorities have presented our clients with a myriad of reasons for these refusals, or, in many cases, no reason is being provided at all.
Refusals to provide access to emergency accommodation are extremely concerning. Persons receiving such refusals are left without security and are put at serious risk for rough sleeping or couch surfing. The negative impact of authorities’ decision-making on the rights of these individuals and families is substantial. Worryingly, where a person is refused access to emergency accommodation, they will not be recorded in official homeless statistics. This has allowed the issue of hidden homelessness to grow, and for homeless individuals seeking support to go unrecorded and unrecognised. Mercy Law understands that data on those experiencing hidden homelessness in these scenarios simply does not exist.
A recurring reason provided to our clients for refusals of access to emergency accommodation is that a person experiencing homelessness must first be registered on the social housing waiting list by the relevant local authority before they will be provided with emergency accommodation. This position has no basis in law.
Homeless Assessments
As defined in section 2 of the Housing Act 1988, for a person to be classified as homeless they must meet two criteria:
First, they must lack accommodation which they could reasonably occupy or remain in occupation of; and
Second, they must lack the resources to be able to provide their own accommodation.
Of these criteria, neither stipulates that a person must qualify for social housing supports to qualify for homeless services. Despite this, local authorities often conflate social housing eligibility with eligibility for homeless services.
Conflation of Regimes
In 2020, RTÉ Investigates released a documentary exposing the immense difficulties faced by homeless individuals in Dublin.[1] The documentary followed rough sleepers, some who were refused emergency accommodation despite beds being available.[2] Following the release of this documentary and RTÉ Investigates’ report[3], Housing Minister Darragh O’Brien publicly stated that Social Housing Assessment Regulations—specifically the requirement for applicants to apply to a local authority where they have a “local connection”— “should not be a barrier to anyone who needs emergency accommodation […].”[4] He added that he “made that clear to all Local Authorities.”[5]
Mr. David Kelly, an official within the Department of Housing, Local Government and Heritage’s division on homelessness, rental and social inclusion, made a similar statement during a recent Oireachtas debate. He clarified that legislation referring to long-term social housing support “does not impact on somebody’s right to access emergency accommodation.”[6] In fact, “an assessment for emergency accommodation is carried out under separate legislation, namely, section 2 of the Housing Act 1988. It is a matter for a local authority to determine if a person is homeless. That includes whether the person has alternative accommodation. It is a separate process and separate legislation, however.”[7]
The Department has strictly stated that social housing supports and homeless services are governed by separate and distinct regimes. This means that local councils cannot refuse access to emergency accommodation on the basis that a person is ineligible for social housing supports. Such refusals are especially dangerous because, unlike in the case of emergency homeless accommodation, the social housing application process is complex, can take up to 12 weeks or longer to process, and requires background documentation and information that take time to gather. While it is understood that people need to engage with social housing services so they can move on from homelessness, it would be wholly unjust and irrational to make engagement with the social housing application process a barrier at the point of entry to homeless services. Such a step would inevitably increase rough sleeping and would disproportionately impact vulnerable applicants, such as those previously resident in another country, those with complex child custody arrangements, and those who are unable to establish the availability of alternative accommodation due to recent separation.
Right to Reasons and Fair Procedures
It is important to note that while local authorities do have discretion in carrying out their homeless assessments, if you are refused homeless accommodation, you have the right to written reasons for their refusal of service. As elucidated in O’Keefe v. An Bord Pleanala alongside other cases, the discretion of local authorities “must not be exercised in an arbitrary of capricious manner or in a manner that flies in the face of fundamental reason and common sense.”[8] Where a person is imminently at risk of, or experiencing homelessness, it does not seem reasonable ,nor in line with fundamental reason and common sense, for that person to first be required to complete a social housing assessment. This would particularly be the case if a local authority required a person to provide an address in order to complete a social housing assessment, without first providing that person with access to emergency accommodation.
Conclusion
Despite what the law sets out and what the Department of Housing itself has affirmed; local authorities continue to conflate emergency accommodation with social housing. The websites of over a dozen local authorities explicitly state that individuals and families who do not meet the eligibility criteria for social housing will not be eligible for emergency accommodation, while others stipulate that a homeless assessment involves establishing eligibility for social housing supports.[9] Refusals of emergency accommodation on these bases are illegal, though not uncommon.
Mercy Law Resource Centre 01 453 7459, email info@mercylaw.ie.
[1] Noel Baker, ‘Local connection should not be barrier emergency accommodation – Housing Minister’ The Irish Examiner (Cork, 18 January 2021).
[2] Kieran Dineen, ‘Sleeping rough in Dublin: ‘All I need is a bit of security’’ RTÉ (Dublin, 3 February 2021).
[3] ibid.
[4] Baker (n 1).
[5] ibid.
[6] Joint Committee on Housing, Local Government and Heritage Deb 23 Apr 2024, 35.
[7] ibid.
[8] O’Keefe v An Bord Pleanála [1993] 1 I.R. 39 (SC).
[9] Mercy Law Resource Centre, ‘Submission to the Joint Oireachtas Committee on Housing, Local
Government and Heritage on the General Scheme of the Housing (Miscellaneous Provisions) Bill 2024’ (Mercy Law Resource Centre, 03 May 2024) <https://mercylaw.ie/wp-content/uploads/2024/05/MLRC-Submission-to-the-Joint-Oireachtas-Committee-on-Housing-Local-Government-and-Heritage-on-the-General-Scheme-of-the-Housing-Miscellaneous-Provisions-Bill-2024.pdf>
