Any revisions of the Housing (Miscellaneous Provisions) Act 2009 and the Housing Act 1988 must be lawful and proportionate.
MLRC is currently chairing a subgroup of the Irish Homelessness Policy Group (IHPG), which is a coalition of organisations working at the frontline of the housing and homelessness crisis. The group works on various policy issues relating to homelessness and housing.
A subgroup of the IHPG was previously formed to discuss responses to a Heads of Bill for the Housing (Miscellaneous Provisions) Bill 2024. MLRC made a submission to the Joint Oireachtas Committee on Housing, Local Government and Heritage on this Bill, which is available to read here. The Committee accepted most of the concerns raised by MLRC and our partners in the IHPG, publishing their report on the bill which is available here.
An IHPG subgroup was recently formed to discuss the idea of creating an independent appeal mechanism for decisions made by local authorities related to housing or homelessness. This group, chaired by MLRC, has become very concerned with media reports that the Department of Housing intends to bring forward legislation to introduce a Habitual Residency Criteria to both social housing supports and emergency homeless accommodation. This would presumably involve an amendment to the Housing (Miscellaneous Provisions) Act 2009 (the “2009 Act”) in a manner similar to that contained in the earlier Heads of Bill. MLRC have not been provided a copy of this new draft legislation but hope that the recommendations of the Joint Oireachtas Committee were taken on board by the Department of Housing, Local Government and Heritage. In particular, MLRC hope that elements of the earlier draft legislation which did not appear to be compliant with EU Free Movement Rights have been removed.
Initial media reports also mention the creation of an appeal structure, which would be a very welcome development to introduce consistency to decisions made related to housing and homeless supports. Currently there is no means of reviewing a decision of a local authority in this area, such as a refusal to provide emergency accommodation or a rejection of a social housing application, other than by means of judicial review to the High Court.
However, these media reports also made note of the intention of the Department of Housing to apply this Habitual Residency Criteria to eligibility to access homeless services, presumably by way of amending the Housing Act 1988 (the “1988 Act”). MLRC remains concerned about whether this draft legislation is fully compliant with European Law. In addition, MLRC notes that the opinions of the Joint Oireachtas Committee in 2024, which called for clarification that such amendments would not restrict access to homeless services, do not appear to have been taken on board by the Department of Housing. MLRC, along with a large number of colleagues from organisations working with people affected by homelessness, previously wrote to the Department in 2023 regarding earlier mooted plans. Concern was expressed that the requirement for a family experiencing homelessness to be able to demonstrate compliance with a Habitual Residency Criteria – a criteria which applies in some social welfare contexts and is notoriously complicated and subject to regular reviews and appeals – at the point of seeking access to urgent, emergency homeless accommodation would do nothing to meaningfully reduce homelessness. Instead, it was expressed that this may do little more than force households into hidden homelessness and potentially rough sleeping.
The IHPG group is currently working together on responding to this potential government position and has arranged to receive a briefing from the Department of Housing on their plans for this legislation.
Although it has not been confirmed and no heads of Bill have been provided, we remain concerned that the communications so far suggest that the Department may not be fully aware of the totality of the breadth and complexity of EU free movement rights.
While we remain cautiously optimistic regarding the mention of an independent appeals mechanism being implemented in regard to social housing, we are still concerned about what this may look like. MLRC are strongly in support of a centralised appeal system. However, such a system should not restrict itself to assessments of Habitual Residence, and should follow similar existing systems in this jurisdiction and others – being empowered to review the legality of all decisions made by a Local Authority related to access to social housing supports or homeless services.
MLRC will continue to urge that any law reform to the 1988 Act or the 2009 Act must be both lawful and proportionate. We are deeply concerned that amendments, as reported in the media, would perpetrate a disproportionate infringement on people’s rights and potentially unlawfully interfere with EU free movement rights. Further, there is potential that lawful residents in Ireland could be refused the most basic level of homelessness supports should this extend to emergency accommodation eligibility. This would be a harmful infringement on these households’ fundamental rights. It also runs the risk of having an outsized negative impact on households from the Traveller Community, migrants residing in Ireland, and Irish emigrant nationals returning from living abroad.
MLRC continues to chair this IHPG Subgroup and is prepared to meet with the Department of Housing. We have written to the Joint Oireachtas Committee on Housing expressing our desire to discuss this issue, and welcome any further opportunities to share learnings from our casework.