We had an exceptionally busy year in 2018 and during the year we saw an increase on the number of individuals in distressing situations contacting us for free legal advice and representation. In 2018, we continued to provide legal advice and representation on a range of housing and homelessness matters and acted for clients in the District Court, the High Court and before the adjudicators and Tribunals of the Residential Tenancies Board. We also pursued remedies through the Office of the Ombudsman for Children, the Office of the Ombudsman and through internal complaints.
Our solicitors advised over 720 individuals in 2018 and supported the work of over 100 partner organisations.
Here we include some details of the cases we worked on, the legal issues arising and the legal arguments we relied on in order to resolve these issues.
Cases on unlawful refusal by housing authorities to provide emergency accommodation
It is with great alarm that we noted the continued rise of refusals by housing authorities to provide emergency accommodation.
The definition of homelessness is clearly set out in section 2 of the Housing Act 1998 and reads:
- there is no accommodation available which, in the opinion of the authority, he, together with any other person who normally resides with him or might reasonably be expected to reside with him, can reasonable occupy or remain in occupation or, or
- he is living in a hospital, county home, night shelter or other such institution, and is so living because he has no accommodation of the kind referred to in paragraph (a), and he is, in the opinion of the opinion of the authority, unable to provide accommodation from his own resources.
It is therefore unlawful for any housing authority to add additional criteria when assessing people as homeless. The Council does however enjoy a certain discretion in relation to the assessment.
Despite the clear definition of homelessness as set out in the legislation, nearly every week in our clinics, we meet families who are deeply distressed and in despair as they are roofless and are living in their cars, vans or tents. These include families with young children and babies who have been refused access to emergency accommodation. Some were told by the housing authority that there are simply no rooms available; some are told to return to their estranged extended families who have no space for them or who are not allowed to stay with them. It is well-established that family breakdown is one of the main reasons why individuals and families become homeless. Weekly, we strive to address these most urgent cases and support these vulnerable families where a child or children with their parents are at risk of sleeping rough or who are already sleeping in cars or vans.
One example from 2018 illustrates the distressing nature of these cases.
Our client was an Irish national and working full time and his non-Irish national wife was working part time. However both jobs were low paid. The couple lived in private rented accommodation with their two children and were eligible for social housing support. They had to move out of the home as the landlord intended to sell the property. They then moved to another home where they were privately renting. Within the first six months of the tenancy the landlord gave them 28 days’ notice to vacate; a landlord can lawfully terminate a tenancy giving just 28 days’ notice without the need for a reason. Our clients received this notice and had to move out after 28 days but could not find a suitably priced rental home within that short time frame. They did not have any extended family to stay with as our client’s wife was from abroad; the husband had only one brother who had severe medical issues and only had a one bedroom home.
The family then spent all of their saving over the next three months paying for hotel accommodation. When their savings were exhausted, they presented homeless to the housing authority and were refused emergency accommodation – they were told they were not eligible for homeless accommodation because they were working.
The family then came to Mercy Law Resource Centre for legal assistance and on their behalf we engaged in lengthy correspondence and communication with the housing authority, highlighting the definition of homelessness and the unlawful decision of the Council. After some debate, the local authority reviewed our clients’ homeless application and gave the family emergency accommodation.
We have had several cases involving single mothers with their new born babies being refused emergency accommodation. We have been referred these cases by medical social workers at maternity hospitals who have grave concerns for the welfare and health of these mothers and their new babies at risk of being discharged into rooflessness. In these cases, we have again found a misapplication of the definition of homelessness and an imposition of the housing authority of additional eligibility requirements not provided for by law. In these cases, the housing authority has sought confirmation that the mothers were on the social housing list, before permitting access to emergency accommodation.
Once we received the mother’s authority to act and full instructions we engaged with the housing authorities in order to highlight the differences between the social housing assessment and the homelessness assessment and the different legislation applying to each. They are distinct and separate applications and separate legal criteria apply. Fortunately, our swift engagement with the housing authorities secured swift and positive outcomes and the mothers and their new born babies we supported were allocated emergency accommodation and were safely discharged. The experience however caused deep distress on the new mothers – all of whom were single mothers and non-Irish nationals with a right to reside in Ireland.
The failure of the self-accommodation option
We continued to see the shortcomings of the ‘self-accommodation’ form of emergency accommodation in our casework in 2018. This form of emergency accommodation continues to be relied on by Dublin housing authorities and it places the burden on the homeless family to source their own hotel or B&B. We continued to see this placing impossible demands on larger families, traveller families and non-Irish national families who struggled to secure bookings in hotels, particularly during busy holiday periods. This exposed them to risk of rough sleeping and chronic instability in their accommodation.
During the course of the year, we dealt with a deeply distressing and complex case involving parents and their six children from the Travelling Community. The family were lawfully evicted from their private rented accommodation as the landlord intended to sell the property. The father had medical issues, was unable to work and was in receipt of disability allowance. The family were unable to find any alternative private rented accommodation that would accept the Housing Assistance Payment within the price range allowed.
The family presented homeless to the housing authority and were given emergency accommodation in the form of two rooms in a hotel. This was discontinued without reason and our clients were then roofless. Three of the youngest children were taken in by a relative and the three oldest children and their parents slept in the van. We engaged the housing authority in this case in lengthy legal correspondence and briefed a barrister who prepared the case for a High Court application. Finally the housing authority allowed this family to access the self-accommodate option of homeless assistance, where the family are eligible for homeless accommodation but must find and book their own hotel accommodation, which is then paid for by the housing authority.
Even with the assistance of the Simon Community, this family were unable to secure emergency accommodation and spent seven weeks living in their van and separating their children to stay with various family members. An internal complaint followed by a complaint to the Ombudsman for Children has been filed and the family await a decision.
Cases on completely inadequate and highly inappropriate emergency accommodation
We continued to meet with individuals and families who were accessing emergency homeless accommodation, but the provision was completely inappropriate. In many instances, the provision was having a direct and negative impact on the health and well-being of young children in particular.
One acute issue that continued to occur was the provision of emergency accommodation on a one night only basis to vulnerable families. Our casework indicated that non-Irish national families and ethnic minority families were disproportionately impacted.
Just before the end of the year, we acted for a single mother of two children aged four weeks and sixteen months. Our client was discharged from a maternity hospital with her four week premature baby on to only night to night accommodation. The young mother had nowhere to go with her very small children during the day and was unable to breast feed her infant in comfort or to safely sterilise bottles. It appeared that the client was afforded only night to night provision as her social housing application remained pending and further documents were required in order to process the application.
Fortunately, immediately after the intervention of MLRC, the client was put on in a secure and stable booking in a hotel. We argued that the provision of suitable emergency accommodation is not contingent on the completion of the social housing application, that under the regulations, the local authority has twelve weeks to determine. Our client had no prior need to submit a social housing application as she was in employment and had secure housing up until she presented as homeless. While many challenges remain for our client, the securing of stable emergency accommodation for her was a very positive outcome just before the Christmas break.
A continuing issue in our casework was the extremely prolonged stays of homeless individuals and families in hostels, B&Bs and hotels. MLRC approached these cases strategically, collating expert evidence on the impact of such long stays on the children in particular and making legal representations to local authorities pushing for adequate housing provision for such vulnerable groups. We noted that ethnic minorities including members of the Traveller community were a group who were particularly impacted, as they faced specific obstacles accessing the private rented market.
As well as exploring High Court legal remedies on behalf of our clients, MLRC increasingly explored alternative legal remedies during the course of 2018 including internal complaints, complaints to the Office of the Ombudsman for Children and complaints to the Workplace Relations Commission on equality issues.
Lack of transparency in relation to access to ‘family hubs’
MLRC also acted for several families residing in highly inappropriate hotel and B&B accommodation who were unable to access ‘family hub’ accommodation, which they believed would better suit their families’ needs. MLRC identified a complete lack of transparency in relation to access to family hubs: in working on these cases, we were informed by local authorities in the Dublin area that there is no official mechanism for families to access a family hub and that access depends on whether any relevant housing officer is aware of a family in need. Families on the so-called ‘self-accommodation’ form of homeless provision, where they have to book their own hotel and B&B accommodation, are not allocated key-workers, which made voicing their needs and linking in with the local authority particularly difficult. MLRC was able to document the impact on these families of the inappropriate homeless provision and expedite their allocation of family hub accommodation. Our experience with these families also informed our policy work on the issue of emergency accommodation provision to homeless families in particular and the urgent reforms needed to ensure provision is adequate, available and accessible.
Cases on unlawful barriers to getting on the housing list
The misapplication of Circular 2012/41 continued to be an issue in many cases we worked on in 2018. The Circular, which is essentially a policy document issued by the Department of Housing, Community and Local Government, purports to set out in what circumstances non-Irish nationals can access the social housing list.
The Circular however is outdated and unclear and provides poor guidance to local authorities on this important area. We saw the practical impact of the shortcomings of the Circular in the cases that presented at our clinics: we met several individuals and families who had been refused access to the social housing list on the basis of their immigration status. In many instances however, these refusals were unlawful as the applicants were settled migrants or EU workers, who are eligible for social housing support. In these cases, we made detailed written legal representations to the relevant local authority and where merited, sent pre-litigation correspondence.
Cases of termination notices issued by Approved Housing Bodies
Increasingly throughout 2018 we MLRC saw a number of termination notices issued by Approved Housing Bodies’ (AHB’s) to tenants in the first six months of their tenancy. AHB’s rely on the provision of the Residential Tenancies Act which allow a landlord terminate a tenancy without giving a reason in the first six months of tenancy. The provision which allows AHBs to terminate in this manner without giving a reason is of concern to MLRC. In many cases, tenants have been on housing authority social housing list for many years or have transferred from a housing authority tenancy to an AHB tenancy and the impact on their tenancy is not fully explained to the tenant.
MLRC have provided support on this matter to one family with children who were on the housing list for fourteen years, prior to becoming a tenant of an AHB. These clients found their tenancy terminated without a reason within 5 months. The family faced eviction and the loss of their place on the housing list. MLRC continues to act for the family in the proceedings before the RTB.
In another case, a mother with five children who had been on a Council housing list for more than seven years and had spent 19 months in emergency accommodation found her tenancy terminated without reason in the first month of occupancy.
MLRC argues that such a provision allowing an AHB eviction of a tenant without giving a reason is disproportionate and may be in breach of Article 8 of the European Convention of Human Right in circumstances where it is considered that the AHB is performing a function of the State in the provision of social housing. These cases are ongoing into 2019.
Cases in relation to termination of tenancies of voluntary housing associations tenants
Another issue that has emerged in the course of 2018 relates to AHB tenancies created in National Asset Management Agency (NAMA) properties through National Asset Residential Property Services (NARPS) contracts or tenancies in a dwelling provided to AHB’s by the Housing Agency through caretaker lease arrangements. It is the view of MLRC that the protections of the Residential Tenancies Act may not apply to tenants in such dwellings. There are currently more than 1,308 dwellings provided to AHB’s by NAMA through a NARPS lease, in which NAMA retain the title of the dwellings.
One interpretation of Section 3(2) (c) of the Residential Tenancies Act, 2004 (RTA) suggests that dwellings provided by a public authority to an AHB other than a Housing Authority (a county or city council) may not be covered by the provisions of the 2004 Act. Section 3(2) (c) provides that the RTA does not have application to a dwelling that is let by/or to a public authority including a dwelling provided by a public authority to an AHB other than a dwelling provided by a Housing Authority. MLRC have recently made submissions to the Residential Tenancies Board (RTB) in a matter involving a house let to an AHB in which a tenancy was created with a housing applicant and in which a dispute arose while the dwelling was being let from the Housing Agency. MLRC submit that the Housing Agency is not a Housing Authority for the purposes of the RTA. Therefore a tenancy created within it cannot come under the application of the RTA. We await a determination in the matter from the RTB.
Cases on succession to tenancy
Several individuals presented to our clinics who were residing in a Council tenancy, which was in the name of a relative recently deceased. The individuals who sought our advice had been refused permission by the local authority to succeed to the tenancy and were facing eviction by the local authority, through a relatively new District Court procedure.
MLRC was successful in securing suitable alternative accommodation in many of these cases. We noted the variation between local authorities of the rules that are applied to succession of tenancy. We also advised clients that in circumstances where they were over-accommodated, for example, residing in a three bedroom tenancy as a single person, the Council may only be obliged to make an offer of suitable alternative accommodation.
Towards the end of 2018, MLRC acted for a young single mother who had been residing in her late mother’s property for several years. The client lived in the property with her young children. The local authority refused an application by the client to succeed to the mother’s tenancy and we were contacted by the client when she faced eviction proceedings in the District Court. MLRC represented the client in court with the support of a pro bono barrister and negotiated a resolution of the case, such that the local authority agreed to provide alternative accommodation to the client in the local area. The client averted homelessness and was able to remain in her home area.
Access to elevated Housing Assistance Payment for separated fathers
During 2018 MLRC acted for several separated fathers who have overnight access to their children. They have been deemed eligible for the Housing Assistance Payment (HAP) but at the single rate only. They have been refused the rate that would enable them to rent a property big enough to have their children enjoy the overnight access with their parent.
In one particular case from 2018, our client lived with his son who has special needs, a diagnosis of Cerebral Palsy. He took his son to school every morning, made his dinner, took him to doctor’s appointments and occupational therapy and psychology appointments and any other activities his son was attending. This father worked, provided financially for his son, and provided parental love and support. When his relationship irrevocably broke down with the mother of his son, our client had to move out of the family home. As the family breakdown was acrimonious and he was not married, our client applied to the family law courts for access rights. He was granted overnight access for two or three nights each week.
Our client works part time and is also in college part time. Our client continues to provide and care for his son and has anchored his personal and professional life around the care of his son. Our client is eligible for social housing support and has applied to have his son included on his social housing household application however the allocation to include the son, that is an allocation of a two bedroom eligibility, has been refused by the housing authority. This means that our client cannot access an increased rate of the Housing Assistance Payment (HAP) which would allow him to seek a two bedroom apartment. He is now only eligible for a one bedroom allocation. A second bedroom is essential if our client is to enjoy overnight access as the court order stipulates that the son must have a separate bedroom for his specific needs.
We have engaged in lengthy correspondence with the housing authority and our requests to add his son to our client’s social housing household application and allow him to access an increase rate of HAP have been refused. The housing authority have refused this in light of the access to housing the son enjoys with the other parent, the limited resources available to the housing authority, citing the ongoing housing crisis and the competing needs of other households.
Two legal issues arise in relation to these cases. The eligibility criteria for HAP under the relevant statutory scheme and direct discrimination and indirect discrimination under the Equal Status Acts 2000 to 2015. We continue to work on this and other similar cases specifically in relation to discrimination complaints under family status and gender grounds of the Equal Status Acts.
We look forward to providing further updates on our ongoing cases and relevant legal issues in 2019.
