In 2019, Ireland saw yet another increase in individuals and families facing the crisis of homelessness. The housing crisis has been ever growing since early 2014, showing little sign of abating. In October 2019, the number of homeless people in Ireland reached 10,514 including 3,826 children, which constituted the highest number since the Department started recording figures. Recent figures show a slight decrease in these figures: as of December 2019, 9,731 people were recorded as homeless by the Department of Housing, Planning and Local Government. Of this figure 3,422 are children. Despite this slight fall, MLRC remains alarmed at the number of people in particular children who remain homeless and the failure of current policy to meet the needs of homeless families.
As of 2018, MLRC has provided free legal advice and representation to approximately 800 families. In 2019, our solicitors engaged with 1,611 individuals and families during the course of the year. To see a further increase in engagement with MLRC’s legal service from the previous year is remarkable given our small team and limited capacity; it is indicative of the huge unmet legal need in respect of housing and homeless matters.
In 2019, we worked with a number of families in very upsetting situations, caught in the chaos of homelessness and struggling to access the most basic shelter. Several of these distressing cases are starkly detailed in our report on “Lived Experiences of Family Homelessness” which was launched on 11 December 2019.
Here we include some details of the cases we worked on in 2019 setting out the relevant legal issues arising and the legal arguments we relied on in order to resolve these housing issues for our clients.
Unlawful Refusal to Provide Emergency Accommodation
Regrettably again this year, many homeless families and individuals who presented to our services were refused emergency accommodation by local authorities. Some of these clients were faced with the prospect of sleeping rough, while others were forced out of necessity to live in cars or rundown caravans without any access to basic facilities.
The reasons proffered by housing authorities to justify the refusals included the lack of suitable emergency accommodation, assertions of intentional homeless, and the inability to establish a local connection in the relevant local authority area.
Although housing authorities enjoy a degree of discretion when assessing homelessness and providing emergency accommodation under the Housing Act 1988, this discretion must be exercised on a case by case basis having regard to all relevant factors. Conversely, the authority cannot take into account irrelevant circumstances such as the circumstances surrounding how an individual became homeless.
Particularly egregious cases related to ethnic minority families, often one parent families with numerous young children, who were refused emergency provision due to a lack of “suitable” homeless accommodation.
In many of these cases our intervention brought about a successful outcome for the families and individuals involved. In some cases emergency accommodation was secured while in others the housing authorities made offers of social housing to the affected households.
Cases on Unlawful Barriers to Accessing the Housing List
Once again, many of the cases we worked on this year involved access to the housing list, including the strict application and misapplication of Circular 2012/41.
The Circular, a policy document issued by the Department of Housing, Community and Local Government dates back to December 2012 and is stated to provide guidance to local authorities regarding acceptance of applications for social housing support from non-Irish nationals. However the Circular, specifically in its treatment of EU nationals, refers to outdated regulations and is not in accordance with EU free movement rights. The strict application of the Circular to EU nationals is therefore often unlawful when applied in certain circumstances.
For example, in 2019 we successful challenged a refusal to allow an EU national access to the housing list in accordance with the Circular on the basis that she had not worked for longer than a year in the country. This client, who lived in Ireland for many years and raised her young child here, was faced with homelessness following a relationship breakdown as she could not afford to pay her rent without HAP.
Other cases concerning refusals of access to the housing list related to property ownership or other long-term property rights. These clients often had no access to the properties they technically had rights over, usually owing to relationship breakdowns. Our assistance ensured that many of these clients gained access to the list while other clients’ cases are ongoing into 2020.
Unlawful Deferrals or Withdrawals of Allocations
We encountered a number of clients whose housing allocations were deferred or withdrawn on dubious grounds.
Housing authorities are entitled to defer an allocation or withdraw an offer of accommodation, under section 14 of the Housing (Miscellaneous Provisions) Act, 1997 (as amended), where a member of the household has engaged in anti-social behaviour or fails to provide information requested by the housing authority.
However, in a number of cases we worked on this year, we discovered that this section appeared to have been unlawfully applied to defer housing allocations or to withdraw offers of accommodation. These decisions related to pending charges relating to minor offences or to failures to provide information which was not requested or within the applicant’s knowledge.
In one of these cases our client had been offered a much needed transfer to Approved Housing Body (“AHB”) accommodation. However, just before she was due to move in, the allocation was withdrawn on estate management grounds. Our intervention ensured that the attempted withdrawal was revoked and that our client could move into her new home. Further details on this case can be found on our blog post.
Failure of self-accommodation option to meet the needs of homeless families
In 2019, MLRC engaged with a high number of homeless families placed on the ‘self-accommodation option’ of homeless provision, such that they were obliged to source their own emergency accommodation. Many of the families who engaged with our services were simply unable to source their own hotel booking, due to a number of factors including lack of availability.
MLRC noted that ethnic minorities including Travellers faced particular barriers to accessing adequate homeless accommodation when placed on the ‘self-accommodation option’. These families were often large in size and many did not have sufficient language skills and resources to make a booking for their accommodation needs. Some reported that they felt they were being discriminated against when they sought to make hotel and B&B bookings.
In many instances, the intervention of MLRC and our engagement with the local authority on a family’s behalf ensured that they were moved to more suitable emergency accommodation, be it a family hub or transitional accommodation. In these cases, MLRC solicitors highlighted the broad scope afforded the local authorities under Section 10 of the Housing Act 1988 and insisted they fulfil their statutory obligations in compliance with human rights protections, particularly protections of children’s rights and family life.
Cases on completely inadequate and highly inappropriate emergency accommodation
Throughout 2019, MLRC continued to support many vulnerable individuals and families who were in completely inappropriate emergency accommodation. In many cases, these clients had spent excessive periods in unsuitable emergency accommodation and this in turn was evidenced to have an adverse and detrimental impact on their health and well-being.
MLRC assisted some single people who were experiencing homelessness, many of whom faced chronic insecurity in their emergency accommodation, frequently moving from B&B to B&B or hostel to hostel. Some reported dreadful conditions in some of the hostel placements, and felt unsafe accessing a bed for the night.
Several homeless families also accessed our services complaining of being ‘stuck’ in emergency accommodation and recounting the very adverse impact the homeless accommodation was having on the health, in particular, of their children. MLRC obtained medical reports in several cases that evidenced the negative impact on the health of the children, particularly in relation to mental health, nutrition and developmental progress. Relying on such reports, MLRC frequently argued that local authorities were not meeting the needs of homeless children, in the manner in which they were providing emergency accommodation. MLRC frequently highlighted the highly unsuitable nature of hotel accommodation for families and raised concerns about the negative impact of families living in congregated settings such as family hubs. In these representations made on behalf of clients, MLRC relied in particular on legal protections of family and private life and the protections against inhuman and degrading treatment. MLRC succeeded in securing more suitable long-term emergency accommodation for many of these vulnerable clients in individual cases.
During the year MLRC also began work on an alternative legal remedy of the collective complaints mechanism under the European Social Charter to complain of negative impact on children of the current provision of homeless accommodation.
Lack of transparency in relation to access to ‘family hubs’
During 2019, MLRC clients presented with a number of concerns in relation to ‘family hub’ emergency accommodation.
Firstly, MLRC was appraised of the problem of accessing such facilities. Many of the clients MLRC represented during the course of the year contacted our service because they were only able to access B&B and hotel emergency homeless accommodation, often on a very precarious and insecure basis. These clients were anxious to be placed in more suitable accommodation and sought a placement in a ‘family hub’. It became apparent in our representations on behalf of such clients that access to the ‘family hubs’ is not transparent and that there is no clear system for identifying particularly vulnerable or ‘in need’ families and matching them with appropriate placements, which may include a family hub. It was only following our intervention that families would be identified for such placements and potentially prioritised for a move into this more secure form of emergency homeless accommodation.
Secondly, we learnt that many ‘family hubs’ are not configured so as to accommodate larger families, thus precluding these families from accessing this better form of emergency accommodation.
Finally, MLRC also acted for families in 2019 who were being negatively impacted by the institutionalised setting of ‘family hubs’. MLRC brought concerns to the local authorities on behalf of our clients in relation to overly restrictive ‘house rules’ imposed in such settings and the lack of privacy and scope for dignified family life.
Issues arising from over-reliance on the ‘self-accommodation’ option of emergency accommodation
Throughout 2019, local authorities continued to use the ‘self-accommodation’ form of emergency accommodation, placing the burden on the homeless family to source their own hotel or B&B. Larger families, Traveller families, non-Irish national families and those families with limited English faced serious difficulties in securing bookings in hotels and B&Bs. This exposed them to the risk of being “street homeless” or resulted in them falling back on the local authorities’ wholly unsatisfactory provision of “one night only” emergency accommodation. This leads to chronic instability in a family’s accommodation. One ongoing example highlights unsuitability of this form of emergency accommodation:
In this case, the family had been on one night only emergency accommodation with five children for eight months, when the mother gave birth to a sixth child. The mother and her new born baby were discharged from the maternity hospital back into one night only emergency accommodation with the family. A public health nurse and a medical social worker from a maternity hospital each wrote to the local authority to highlight the unsuitability of one night only emergency accommodation and negative impact on the new born baby. The family were subsequently approved for self-accommodation by the local authority but this was totally unsuitable given that the family have very limited English, a large family and that the father is in employment. As they were unable to source self-accommodation they have remained in one night only emergency accommodation. MLRC were instructed to act on the family’s behalf at the end of 2019 and the matter resolved in early 2020 following our legal intervention and initiation of legal proceedings in behalf of the family.
Traveller Accommodation issues
In the second half of 2019 MLRC opened a new legal outreach clinic in partnership with Exchange House Ireland National Traveller Service, specifically to provide legal advice and representation to members of the Traveller Community who are facing housing difficulties. Through this clinic we have assisted numerous clients with their housing issues. Examples of the issues that clients presenting at that clinic included: difficulties securing access to a local authority’s social housing transfer list on the basis of overcrowding; requests for essential maintenance work to be carried out to dwellings and on halting sites that are not fit for habitation, and excessive length of time spent in emergency homeless accommodation.
Here is an example of an ongoing case that accessed our service through the new clinic:
This family was refused emergency accommodation by the local authority on the basis that the family could meet their immediate housing need by sourcing a private rented tenancy funded by the Housing Assistance Payment. The family had made extensive but unsuccessful efforts to source such a tenancy. In this case, the mother is a lone parent who has been the victim of domestic violence and one of the children has a disability. The family had been staying in a women’s refuge designed for 8-12 weeks but have now overstayed this temporary placement by almost one year. The refuge and a social worker have consistently engaged with the local authority over the period to assert the family’s urgent need for emergency homeless accommodation and to support the family in their efforts to source alternative accommodation. MLRC was advising the family in relation to potential legal proceedings in order to compel the local authority to complete another homeless assessment and determine the family’s immediate need for homeless accommodation.
Approved Housing Body tenancies and recourse to the High Court
Throughout 2019 MLRC has seen a number of termination notices issued by Approved Housing Bodies (AHBs) to tenants in the first six months of their tenancies. As MLRC have outlined previously, AHBs do this by seeking to rely on the provision of the Residential Tenancies Act which allows a landlord to terminate a tenancy without giving a reason within the first six months of the tenancy. MLRC has sought to challenge this position in the RTB and High Court and has provided other individuals with advice in their attempts to challenge same. MLRC has argued on behalf of clients that such a provision allowing an AHB to evict a tenant without giving a reason is disproportionate and may be in breach of the tenants’ private and family life rights, as protected by Article 8 of the European Convention of Human Rights, in circumstances where MLRC consider that the AHB is performing a function of the State in the provision of social housing.
One example concerns a former tenant of Dublin City Council who transferred to AHB-provided accommodation:
MLRC represented a client in an RTB Tribunal after appealing an RTB Adjudication. The client was a tenant of Dublin City Council for 25 years before transferring to an AHB tenancy due to overcrowding. She received a notice of termination within the first six months of her AHB tenancy. MLRC argued that the notice of termination was disproportionate. The client gave evidence that at the signing of her tenancy she understood that there would be a six year agreement signed after the six months and that if she was happy then she could stay in her new property as long as she wanted. The AHB did not attend the RTB Tribunal. The RTB Tribunal found that there was an implied term in the tenancy and that no written warnings were issued to the client or any evidence of any breach of the client’s obligations under the tenancy. The notice of termination was deemed to be invalid. The AHB did not appeal this decision and the client remains in the property.
We look forward to providing further updates on our ongoing cases and relevant legal issues in 2020.