Homelessness due to relationship breakdown or domestic violence
Many of MLRC’s clients are homeless as a result of having to leave the family home that they jointly own, due to relationship breakdown or domestic violence. The Census in 2011 revealed that of the 3,808 people in accommodation for the homeless, 16.7% were either separated or divorced, significantly higher than the general population for which the equivalent figure was 6%.
Regulation 22 of the Social Housing Regulations 2011, made pursuant to section 20 of the Housing Act 2009, provides that a household is ineligible for social housing support if it has “alternative accommodation that the household could reasonably be expected to use to meet its housing need” unless such accommodation is occupied by the applicant’s spouse or civil partner, from whom he or she is formally separated (either by Judicial Separation or Separation agreement) or divorced.
The 2011 Regulations are secondary legislation and have been made pursuant to primary legislation i.e. the Housing (Miscellaneous Provisions) Act 2009 and must be read in light of that Act. Section 20 of the 2009 Act defines a household as “a reference to two or more persons, who, in the opinion of the housing authority, have a reasonable requirement to live together”. It follows that deemed alternative accommodation pursuant to Regulation 22 of the 2011 Regulations is not accommodation that both parties could be reasonably expected to use once the housing authority is of the view that the couple could not be reasonably expected to live together.
In practice, many people who are joint owners of property that they cannot access are not entitled to be placed on the housing list. The reason they may not be able to access the property can be e.g. because of relationship breakdown, where that breakdown has not been formalized by court order or separation agreement or where the couple were never married or civil partners or because of domestic violence. In many cases the property is mortgaged and the bank will not allow the person to relinquish ownership and be released from the mortgage.
This results in a situation where a person cannot access local authority accommodation and cannot access rent supplement unless they satisfy the other criteria for rent supplement i.e. be resident in emergency accommodation for 183 days out of the previous 12 months OR be in rented accommodation for 183 days out of the previous 12 months where the applicant could pay the rent at the start of the tenancy but has since experienced a substantial change in circumstances. In practice, it is only the former option that is open to people in this situation i.e. they must go into emergency accommodation for 183 days in order to access rent supplement.
While some local authorities, following advocacy or the threat of legal proceedings, will accept an undertaking from an applicant confirming that they will provide the local authority with a percentage of the net proceeds they receive from any sale of the property, not all local authorities do so and in any event, this requires the social housing applicant to challenge the rule themselves or arrange for an advocate or solicitor to assist.
On the 16th January 2013, the following parliamentary question was put to the Minister for Housing, Jan O Sullivan:
“if she will review the Social Housing Assessment Regulations 2011 whereby separated persons who are the joint owners of properties are currently deemed ineligible for social housing support unless they are separated under an order of a court of competent jurisdiction or by a deed of separation in view of the fact that this regulation is too restrictive and makes it very difficult for certain separated persons with a housing need to access social housing supports; and if he will make a statement on the matter.”
Minister O Sullivan replied as follows:
“Regulation 22 (1) of the Social Housing Assessment Regulations 2011 provides that a household with alternative accommodation that would meet its housing need is ineligible for social housing support. Paragraph (2) of the Regulation clarifies that paragraph (1) does not operate to exclude from eligibility for social housing support an applicant who owns accommodation that is occupied by his or her spouse, from whom he or she is formally separated or divorced. Under the enactment, a deed of separation is sufficient to set aside this ineligibility ground and it is not necessary to await judicial separation or divorce to get a decision on social housing support in these cases. This provision is reasonable in most cases. I acknowledge, however, that situations relating to household members who have separated may exceptionally arise that may not easily be dealt with under the current Regulations. My Department is keeping the social housing assessment provisions under review and will consider what wider discretion might be given to housing authorities by way of Regulations to address the individually difficult and complex cases which may present to them.”
MLRC calls on the Department to either review the Social Housing Regulations 2011 or clarify to local authorities that pursuant to the Housing Act 2009, deemed alternative accommodation pursuant to Regulation 22 of the 2011 Regulations is not accommodation that both parties could be reasonably expected to use once the housing authority is of the view that the couple could not be reasonably expected to live together.
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