High Court decision on housing allocation to separated fathers

On 19th November, 2018, Justice Barrett handed down a decision in Fagan & Ors v Dublin City Council. The case concerned a father, who although separated from the mother of his children, still had overnight access to his children during the week. This fact was known to the Council from 2017, however, upon reviewing Mr. Fagan’s application for social housing under s.20 (1) (c) of the Housing (Miscellaneous Provisions) Act 2009, the Council found Mr. Fagan’s housing need to constitute that of a single person. The issue considered in the written judgement was that of the appropriate housing allocation to Mr Fagan, in light of the access to his children.

In submissions, counsel for Mr. Fagan contended that there was a fettering of discretion by the Council and that his case should be considered given reference to the text instilled in s 20 (1) (c) – “2 or more persons who do not live together but who, in the opinion of the housing authority concerned, have a reasonable requirement to live together”.  When considering the Council’s decision not to regard Mr. Fagan’s housing need as more than that of a single person, the court held that there was “no legal deficiency to present in the Council’s decision/decision-making when it comes to Mr. Fagan’s application for social housing”.  Upon this, the court denied Mr. Fagan the reliefs sought in his application and found that the Council’s interpretation of s. 20 (1) (c) was permissible.

The decision in Fagan shows a continued trend of a deferential approach by the courts to decisions of the Council. MLRC notes that the Council’s interpretation of ‘reasonable requirement’ is quite restricted and does not have regard to the fact that Mr. Fagan is:

  • The father of the child;
  • That there was a voluntary overnight access agreement in place between the separated parents;
  • That the children had overnight access to their father;
  • That the family life of Mr. Fagan and his children is infringed upon by not allowing them to reside together as per the terms of the agreement.

It is clear that the refusal of the court to quash the decision of the Council will continue to have a direct impact on the ability of the children to enjoy a family life with their father, particularly in the current housing context. It is also noteworthy that any decision of the Dublin City Council to deny Mr. Fagan an elevated level of the Housing Assistance Payment (HAP) is at variance with practice in other housing authorities in the Dublin area. It appears that Mr. Fagan is receiving differential treatment as a separated father who has regular access to his children. The Council’s approach appears to be at variance with the Council’s equal treatment obligation under the Equal Status Acts 2000-2015, and its Public Sector Duty under S.42 of the Irish Human Rights and Equality Commission Act 2014, to eliminate discrimination and protection human rights in the performance of its functions.

Conclusion

MLRC did not act in this case but is currently advising four separated fathers on very similar matters. Mr Fagan’s case clearly shows the court’s clear reluctance to interfere or second guess the determination of Councils in the discharge of its functions relating to social housing. We note that solicitor for the applicant confirmed the applicant’s intention to appeal, and we will follow the progress of the case with interest.

 

 

 

 

For more information on Mercy Law Resource Centre’s work, please see www.mercylaw.ie.

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MLRC delivers training on housing law to volunteers of Inner City Outreach Network (ICON)

As part of MLRC’s work, we provide training in housing law to organisations and individuals working in the field of homelessness. In October, MLRC held a training session in housing law for volunteers working with the Inner City Outreach Network (ICON).

The training session focused in particular on giving an overview of housing law and the law relating to homelessness, and common legal issues arising with accessing legal entitlements in relation to housing. The session also focused on areas such as accessing information under the Freedom of Information legislation and access to the Housing Assistance Payment.

In their feedback, attendees described the session as:

“Clear and incredibly useful”

“Helpful and very informative”

“Found the training very useful and informative”

 

Attendees also gave feedback that they found the handouts excellent with very informative and relevant content which will be a useful resource in assisting those in their community suffering from or at risk of homelessness.  A number of those at the training said that the training session will make a tremendous difference in their work, particularly the training on the use of FOI requests, the clarity given on the Housing Assistance Payment, and the rules or legislation around social housing and how these should operate.

If you are interested in organising a training session by MLRC, please contact Shauna on 01 4537459 or at events@mercylaw.ie. We would be very happy to hear from you and discuss the training that would be most useful for you.

 

 

 

 

 

For more information on Mercy Law Resource Centre’s work, please see www.mercylaw.ie.

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MLRC Solicitor appointed to Traveller Accommodation Expert Working Group

Mercy Law Resource Centre is delighted to announce solicitor David Joyce’s appointment to the Traveller Accommodation Expert Working Group. The working group has been established as part of the Rebuilding Ireland initiative, the aim of which is to undertake an ‘independent review of capital and current funding for Traveller-specific accommodation.’ The expert group will be reviewing the Traveller Accommodation Act 1998 and legislation that relates to the provision and delivery of accommodation for travellers. The working group will be operating within the context of the Travelling community gaining recognition as an ethnic minority in 2017, and will be looking at national and international models of best practice for provision of accommodation for nomadic families.  David is joined by Professor Michelle Norris, Head of Social Policy at UCD and Dr Conor Norton, Head of School at DIT and has been appointed Chairperson of the group.

David has previously engaged in similar roles as a member of the European Roma Rights Centre, the National Consultative Committee on Racism and Inter-culturalism, the Bar Council of Ireland, as an executive of the Irish Council for Civil Liberties and with the National Economic and Social Forum. This is in addition to his work as a Commissioner with the Irish Human Rights and Equality Commission and as a member of the EU Fundamental Rights Agency.

David has been a solicitor with Mercy Law Resource Centre since July 2017. He was called to the Bar in 2005. David practiced as a barrister for 8 years and subsequently qualified as a solicitor. We wish David every success with his work on the expert group. We are delighted to be able to draw on David’s expertise, particularly in relation to Traveller accommodation issues, in his continued work here at Mercy Law Resource Centre.

 

 

 

 

 

For more information on Mercy Law Resource Centre’s work, please see www.mercylaw.ie.

 

 

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Vulnerable families still being placed in completely unsuitable night by night Emergency Accommodation

We are most concerned to see vulnerable families still being placed on night to night provision of homeless accommodation. We are seeing first-hand the very negative impact such provision is having on the health and well-being of young children and their distressed parents.

Just last week we met with a homeless family with four young children, who were being accommodated by the local authority on a night to night basis only. The family had been on the housing list for several years.

The family had been living in private rented accommodation but the landlord’s family member was due to move in and on that basis the family were served with a valid notice of termination of their tenancy. Unable to source alternative private rented accommodation, the family presented as homeless. Rather than being put into a rolling booking for accommodation and placed in a hotel or B&B or even better a hub or family-suitable accommodation, the family were told they could only access night to night provision.

For over six weeks, the family moved accommodation every day. The family, together with their four children ranging from 7 years to 23 months, have had to leave the B&B or hotel each morning, transport their older children to school from whichever location they had been placed in, and then pass the day and early evening with nowhere to go. The family spend long periods in libraries and shopping centres to avoid being out in the cold. The family had to ring after 4pm each day to confirm their need for accommodation that evening. They ordinarily did not receive confirmation of where they were staying each night until after 7pm and did not reach the accommodation until after 8pm. The family have had to rely on takeaways in the absence of cooking facilities and experienced difficulties washing and drying their clothes. A letter from their GP confirmed that the children were presenting frequently with chest injections and the doctor believed were brought on by the absence of excessive exposure to the outside.

After meeting with the family, we immediately telephoned the local authority to insist that the family be placed in stable and suitable emergency accommodation. We were advised by the housing section that there was a new policy in place that limited the access to the ‘self-accommodation option’ and prevented the family from booking themselves into a B&B or hotel for a week period or more. We asked that the case be immediately reviewed and followed up with written representations on behalf of the family.

Within two days, the local authority reviewed the case and confirmed the family were indeed eligible for Section 10 homeless accommodation and that they would be permitted to access a rolling booking. The local authority however stated that they had no availability in any family hub accommodation and stated that they do not operate a waiting list for their hubs, so were not able to give any indication as to when suitable family accommodation would be available.

While we are relieved that this matter resolved very quickly, a number of concerns arise.

Firstly, there was no apparent consideration by the local authority of the needs or best interests of the very young children in this case. There was no apparent consideration of the very serious difficulties night to night provision was causing for the family. This was despite excellent submissions made by an advocate who was assisting the family and who set out the difficulties very clearly in written correspondence to the local authority. The manner in which the emergency accommodation was provided failed to vindicate the best interests of the child and there appears to be no consideration of the Constitutional protection of children by the local authority, when exercising its statutory obligations.

Secondly, we are concerned at the absence of suitable family-type accommodation by way of a hub or other alternatives available to this family. There appear to be significant barriers to accessing family-suitable accommodation. We note that there appears to be a complete lack of transparency in relation to how families access hub or family-suitable accommodation; we are also concerned at the lack of any waiting list that would ensure there was some exit route for this and other families many of whom have been residing in hotels and B&Bs for extended periods.

 

 

 

 

For more information on Mercy Law Resource Centre’s work, please see www.mercylaw.ie.

 

 

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MLRC welcomes new Locum Solicitor

MLRC are delighted to welcome Sabrina Sullivan to the team as locum solicitor. Sabrina has wide-ranging experience on housing and social welfare matters.

Sabrina completed her LLB at the University of Essex, during which time she was the recipient of the Suffolk and North Essex Law Society Prize for best overall performance in her class. Further to this she received the Pearson Education Prize for outstanding performance in Administrative Law. Sabrina has trained as a barrister in the UK and in 2006 completed an LLM in Human Rights in Queens University, Belfast, being awarded the Stephen Livingstone Scholarship.

Sabrina’s extensive legal experience is very relevant to the work of MLRC. Most recently, Sabrina acted as a Constitutency Affairs Manager at the Houses of the Oireachtas. She has volunteered regularly with FLAC. Sabrina has a keen interest in the area of discrimination and disability rights, and is fluent in both Spanish and sign language. She was formerly a senior solicitor at the Plumstead Community Law Centre in the UK, and a trustee of the Discrimination Law Association.

We are very grateful to have Sabrina join us a locum solicitor and warmly welcome her to our team.

 

 

 

 

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MLRC Open Training in Housing Law, November 28th, 2018

Mercy Law Resource Centre Open Housing Law Training

MLRC is delighted to announce that we will be running

an open housing law training session 

Date: 28th of November, 2018

Time: 9.30am – 1pm

Venue: Wisdom Centre, Sophia Housing Complex, 25 Cork Street, Dublin 8.

This training is open to any individuals working in the field of housing

and homelessness.

How to book a place on this course:

The cost per participant is €60.

For more information on what will be covered in the training, please click here.

Other individuals and organisations who have attended the training previously,

have provided us with the following feedback:

 

“The training was excellent, very practical and I like hearing about all the case studies.

You are doing an excellent job. Keep it up!

 You are a great and a very well needed resource for people.”

It was very enjoyable, especially the case studies.

            “It will really help our understanding of housing and homelessness cases.”

The spaces for this training are limited so please do book early if you wish to attend.

If you are interested in booking a place(s) for this housing law training

please contact Shauna Curran, MLRC Administrator, at Mercy Law Resource Centre

on 01 4537459 or by email to events@mercylaw.ie by 5pm on 23rd of November.

 

Please note, due to high demand for places on this training,

bookings can only be secured by payment.

We would be very happy to hear from you!

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MLRC appoints new Managing Solicitor

 

MLRC is delighted to announce the appointment of its new Managing Solicitor, Ms Rebecca Keatinge. Rebecca was previously a Solicitor with the Centre.

Rebecca is a solicitor with extensive experience in immigration and human rights law. She worked briefly for the International Organisation for Migration (IOM). After this, she joined the legal aid charity Refugee and Migrant Justice in London as an appeals Caseworker and Team leader. Within this role, Rebecca provided legal advice and representation to vulnerable asylum seekers and refugees. She then worked for the United Nations Refugee Agency (UNHCR) in Cambodia.

In 2010, Rebecca joined Brophy Solicitors in Dublin as an apprentice. Ms. Keatinge excelled in her apprenticeship receiving the Law Society EU law prize for the highest mark in the First Examination EU law exam; she was a prize-winner in the Law Society Client Consultation competition. Ms. Keatinge qualified in 2013 and during her time at Brophy solicitors, worked predominantly in the areas of immigration and human rights.

Rebecca has been involved with several charities including the Medical Foundation for Victims of Torture, Legal Aid of Cambodia, mental health charity Aware, and Irish charity Ruhama. She was previously a member of the Anti-Trafficking Legal Group (ATLEP). Rebecca is currently a member of the Public Interest Law Alliance (PILA) and a board member of National Traveller MABS.

Rebecca is a regular speaker at conferences and seminars on housing and migration. She was recently a consultant to the Organization for Security and Co-operation in Europe (OSCE) in the area of housing, homelessness and migrant integration.

 

 

 

For more information on Mercy Law Resource Centre’s work, please see www.mercylaw.ie.

 

 

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Launch of Mercy Law Resource Centre Third Right to Housing Report: Children and Homelessness – A Gap in Legal Protection

Wednesday, 5th September 2018 saw the launch of Mercy Law Resource Centre’s third right to housing report, ‘Children and Homelessness: A Gap in Legal Protection’. The report was launched in the Irish Human Rights and Equality Commission offices on Green Street, Dublin. The report was launched by the Ombudsman for Children, Dr. Niall Muldoon. The report highlights the failure of the Irish State to provide adequate statutory or constitutional protection for children in homeless families.  Those in attendance included Mrs Sabina Higgins, Lord Mayor of Dublin, Nial Ring, as well as a broad spectrum of representatives from advocates of housing, politics, law and social justice.

Beginning the launch, acting managing solicitor of Mercy Law Resource Centre, Sinead Kerin, emphasised the gravity of the homeless crisis as a whole, with special consideration given to the children in homeless families. Sinead focused her speech on the unprecedented severity of homelessness in Ireland, sharing that, “As of July 2018, there were 3,867 children in emergency homeless accommodation with their families.” Further to this, Sinead endorsed the pertinence of the need for legal reform in housing legislation, with local authorities having “a discretion but no duty to provide emergency accommodation for children in families.” Sinead encapsulated the sentiment of Mercy Law Resource Centre that a right to housing would not give a key to a home for all, but would provide recognition that a home is central to the dignity of each and every person and a foundation of every person’s life.

Key speakers at the launch included Tanya Ward, CEO of the Children’s Rights Alliance, Mike Allen, Director of Advocacy, Communication and Research, Focus Ireland, Professor Ursula Kilkelly, Dean of Law University College Cork, Dr. Niall Muldoon, Ombudsman for Children, and MLRC board member, Niall Farrell, Solicitor.

 

 

Tanya Ward’s presentation focused on the Children Rights Alliance report ‘Home Work’ which explores the educational needs of children experiencing homelessness. Family homelessness is having a detrimental impact on children’s participation and development, and presents significant challenges for parents, teachers, educators and those who seek to respect, protect and fulfil children’s rights. It was noted by the Children’s Rights Alliance through talking to teachers that “children are arriving exhausted” and “becoming more withdrawn at school.”

Tanya Ward also echoed the sentiment of all present in saying that “it is not fair that the homeless crisis could change the trajectory of these children’s lives.”

 

Mike Allen led an impassioned response to the report, comparing the allowance of vacant properties to go uninhabited during a housing crisis to: “hoarding food during a famine.”  It was evident that the report resonated with the frustrations of several of the charities present, with Mike Allen extoling the sensibility and need for a right to housing in the constitution. Complementing this was Professor Ursula Kilkelly who focused not only on law reform, but a holistic approach to the housing crisis for children, seeing the solution not only one that requires housing rights, but focuses on the ‘survival and development rights of children.’ There was a call by Professor Kilkelly to create and maintain better international co-operation in creating a dialogue between countries for an array of perspectives and insights on how we could improve the law and crisis.

In officially launching the report,  Dr Niall Muldoon, The Ombudsman for Children, epitomised the gap in legal protection for families facing homelessness in Ireland, reiterating the multi-faceted impact of the problem: “it is not just the house, it’s the security… it’s the mental health.. it’s the ability to develop a family.” It was clear from Dr Muldoon that we will need to change our housing policies to fit the housing needs of our people, and refocus our emphasis on social housing as a long term solution rather than “a stepping stone to home ownership”.

The launch was rounded up with a question and answer session from those present, with Jan O’Sullivan TD, Eoin Ó Bhroin TD and Tony Geoghegan all contributing to the discussion. Niall Farrell, Mercy Law Resource Centre Board Member gave concluding marks on the session summarising that it is ‘not enough to aspire to have emergency accommodation, there has to be a surplus of accommodation.’

 

 

 

 

An e-copy of our latest report can be accessed here

For more photos of the event, please see here

 

 

 

For more information on Mercy Law Resource Centre’s work, please see www.mercylaw.ie.

 

 

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Launch of Mercy Law Resource Centre Third Right to Housing Report: Children and Homelessness – A Gap in Legal Protection

 

Mercy Law Resource Centre

cordially invites you to the

Launch of the Mercy Law Resource Centre

Third Right to Housing Report:

Children and Homelessness – A Gap in Legal Protection

Venue: IHREC, 16 – 22 Green Street, Rotunda, Dublin 7.
Date: Wednesday 5th of September 2018, 4 – 6pm.

Tea and coffee on arrival

The report will be formally launched by the Ombudsman for Children

Dr Niall Muldoon

 

Presentations will also be given by:

Tanya Ward, CEO of Childrens Rights Alliance

Joe Corr, President of Irish Planning Institute

Mike Allen, Director of Advocacy, Focus Ireland

Ursula Kilkenny, Director of the UCC Child Law Clinic and

Dean of the School of Law, UCC 

Please RSVP by Monday 3rd of September by email to

events@mercylaw.ie or 01 4537459

 

About Mercy Law Resource Centre’s Third Right to Housing Report: Children and Homelessness – A Gap in Legal Protection:

This report explores the reality in Ireland that there is no constitutional or statutory right to shelter for homeless children in families. Local Authorities have a discretion but no duty to provide emergency accommodation for children in families. This report considers potential legal protections available to children who are homeless. It outlines the attempts to rely on the courts to vindicate the rights of homeless children which have proven broadly ineffective due to the fact that there is no right to shelter in Irish law. The report also identifies the lack of legal aid for housing and homelessness matters, which ensures that accessing legal advice and representation for homeless families is extremely difficult in the first instance. The report also examines non-judicial forms of redress, and considers the role of The Children’s Ombudsman, and the Irish Human Rights and Equality Commission. The final section of the report considers best practices for legally protecting homeless children in other jurisdictions such as Scotland, England and France. This report outlines and proposes potential domestic legal reforms in light of the evidenced research and provides clear recommendations that could be used as a guideline to fill Ireland’s gap in legal protection for children experiencing homelessness.

 

For more information on Mercy Law Resource Centre’s work, please see www.mercylaw.ie.

 

 

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Mercy Law Resource Centre attends Joint Committee on Housing, Planning and Local Government

Mercy Law Resource Centre attended the Joint Committee on Housing, Planning and Local Government meeting on June 12th 2018 and were invited to give evidence on our published Second Right to Housing Report: The Right to Housing in Comparative Perspective (2018). The UN Rapporteur Leilani Farha gave evidence on the right to housing and encouraged the State to take

bold and swift measures to urgently address homelessness as an egregious human rights violation.’

MLRC’s presentation was followed by a lengthy and robust questions and answers session.

Outline of MLRC’s presentation

This report offers a comparative perspective on the right to housing through consideration of the legal systems of:

  1. Finland
  2. Scotland
  3. France
  4. South Africa.

There are a wide variety of structural and institutional means by which the right can be guaranteed – there is no one size that fits all model. The right to housing does not necessarily equate to a significantly increased constitutional role of the judiciary. A legally enforceable right to housing – while not a panacea – provides a valuable floor of protection.

The jurisdictions highlighted in this report show that the effectiveness of the right to housing relies heavily on the existence of sufficient and enduring political will and the allocation of resources.  A right to housing in the Constitution would not mean the right to a key to a home for all.  A Constitutional right to housing would however put in place a basic floor of protection. It would require the State in its decisions and policies to protect the right to housing in balance with other rights.

A national priority in Finland is to eradicate homelessness and as a result it has been in steady decline for a number of years. Finland adopts a Housing First approach and they currently have approximately 7,000 people who are homeless and this includes 214 families. Finland has a Constitutional Right to housing where both the democratically elected legislature and an independent judiciary are entrusted with a shared duty to protect constitutional rights. This is a combination of ex ante review (before a draft law is passed) by a Constitutional Law Committee of Parliament and a limited form of ex post judicial review (after a law is passed) by the Courts. The work of the Committee is to scrutinize proposed legislation to ensure it results in the better implementation of socio-economic constitutional rights.

Scotland has a broad legal protection for those who are homeless and at risk of homelessness and is regarded as one of the strongest in the world. Scotland’s statutory right to housing makes local authorities responsible for the long term rehousing of homeless people and has an interim duty to provide temporary accommodation. Scotland also has a broad definition of those who are homeless. They also have an Order that limits the use of B&Bs as emergency accommodation to 7 days for families. There is currently no limit for the use of B&Bs in Ireland and MLRC regularly meet families in our clinics who are in B&Bs for over 2 and half years before they are appropriately socially housed. Scotland also has a statutory effort to prevent homelessness: there is a duty on all registered social landlords, private landlords, and creditors, to notify the relevant local authority when proceedings are raised for the possession of a dwelling house so that the local authority may be able to respond on an individual basis to prevent homelessness occurring.

France has a statutory right to housing known as the DALO Act 2007 and this was a complete overhaul of the French system. The right to decent and independent housing is guaranteed by the State to all people who reside in France, exercised through mediation and if necessary through an adversarial process. Patterned after the Scottish model and includes both an entitlement to emergency shelter and a legal cause of action for individuals who have been denied the right to secure long-term housing thereby helping to ensure security of tenure and accessibility. Protection is given to those who have a priority housing need and the qualifying person may file a petition with a local housing mediation committee for urgent rehousing. This committee comprises of state representatives, local county and municipal representatives, representatives of social housing organization and individuals from tenant rights organizations and they refer to a local authority Prefect who then must find a suitable social housing for the applicant within a time period and if not rehoused within that time frame, the decision can be judicially reviewed and enforced.

 South Africa has a constitutional right to housing which demonstrates that a justiciable right to housing offers a floor of legal protection, and does relatively little to alter the institutional balance of power over decisions concerning the allocation of public monies and resources.

Issues for consideration

The right to housing is recognised in Europe in the Constitutions of Belgium, Finland, Greece, the Netherlands, Portugal, Spain and Sweden and in the legislation of Austria, France, Germany, Luxembourg, and the United Kingdom.  Around the world, the right to housing is included in eighty-one Constitutions. The right to adequate housing is provided for in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the European Social Charter.  As an economic and social right, in accordance with international human rights law, the State’s obligation would be to ‘progressively realise’ the right to housing to the maximum of its available resources and to do this by all appropriate means, including particularly the adoption of legislative measures.

How would the Right to Housing help alleviate and protect against a crisis in homelessness?

  • Legislation and policy would have to be “proofed” to ensure they reasonably protect the right to housing, in the same way as this must be done for any substantive right.
  • If the State decided to cut funding for hostels for people who are homeless, this could be challenged as a breach of the right to housing.
  • The failure of rent supplement and HAP payments to meet market rent could be challenged as a breach of the right to housing.
  • The fact that there is no legal aid for evictions could be challenged as a breach of the right to housing.

A right to housing would require the State in its decisions and policies to protect the right to housing in balance with other rights and would mean that the courts could look at the State decision or policy as to whether it was ‘proportionate’ by reference to the right. It would mean that Government and State policies and actions would have to respect the right.  As shown clearly in our three recent high court cases, there is no right to housing in Irish law nor is there a right to shelter. There is no clear legal right to rely on and the fundamental failure by the State to provide adequate emergency accommodation to a family with young children cannot be challenged directly in the Courts. 

 

 

 

 

 

 

 

 

 

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No Right to Emergency Accommodation for Homeless Families in Ireland

This note will briefly examine a string of recent High Court decisions concerning local authorities and their statutory responsibilities to provide emergency accommodation to homeless families.

The cases concerned are:

  • Mulhare v Cork County Council [2017] IEHC 288
  • Middleton v Carlow County Council [2017] IEHC 528
  • Tee v Wicklow County Council [2017] IEHC 623
  • C v Galway County Council [2017] IEHC 784

Despite their different facts, when considered together the cases display a very clear trend:

the courts appear extremely reluctant to interfere or second guess the determinations of local authorities in the discharge of its functions relating to social housing and in particularly in the provision or refusal of emergency accommodation to families who present homeless and roofless.

Middleton v Carlow County Council, Tee v Wicklow County Council and C v Galway County Council were high court judicial review cases brought by Mercy Law Resource Centre, and each case involved the Councils refusal of emergency accommodation to families. This reluctance of the Court to interfere with the Council is exemplified by the Court’s consistent use of the O’Keefe deferential standard of review. This is significant as it has typically been reserved for decisions implicating “areas of special skill and knowledge, such as planning and development.” This trend might make successful challenges to exercises of statutory discretion considerably difficult, unless a decision is manifestly unreasonable or taken in bad faith.

Deference to Housing Authorities in Discharge of Statutory Functions

Mulhare involved a challenge to the refusal of Cork County Council to provide for alternative accommodation more appropriate and accessible to the severe physical and medical needs of the applicant and her mother. The applicants also sought accommodation sufficiently proximate to the hospital they attended.  It was not disputed that the applicant’s current accommodation was deeply unsuitable for their needs. It was also accepted that the Council had offered to carry out refurbishment works to adapt the property to make it more accessible. The Court refused to grant an order of mandamus to provide housing to the applicants, or to order they be prioritised in the allocation of accommodation. In doing so, the Court strongly emphasised the expertise of the Council and the comparative lack of judicial competence over issues concerning the allocation of housing. Baker J. held that while the allocation of housing by a local authority must be done

“in accordance with the scheme of priorities and based on a reasonable and reasoned consideration of an application”, it was ultimately a matter within the “competence and expertise of the housing authority and it is not the function of the court to direct how that policy is to be applied in any particular case.”

A similarly deferential approach was taken in Middleton, which concerned a challenge to the local authority’s determination that the applicant was not homeless under s.2 of the Housing Act 1988. The applicant argued that they met the definition of being “homeless” as provided for in the Act and thus eligible for emergency accommodation pursuant to s. 10 of same. The Respondent in turn argued that the applicants were not homeless as they could reasonably be expected to use alternative accommodation, in this case a family members’ home. Expressly citing Mulhare, the Court emphasised the need for deference when reviewing decisions of the local authority. Noting that s.2 and s.10 of the 1988 Act provide the Council with statutory discretion, the Court stated its own role “is limited”.

The Court decided that the appropriate standard of review was that set out in O’Keefe v An Bord Pleanala and is a very deferential standard. Under this standard, decisions of a statutory body will not be quashed unless they are ”fundamentally at variance with reason and common sense”, “indefensible for being in the teeth of plain reason” or “flagrantly” disregarded common sense. This standard meant that the Courts jurisdiction was limited to reviewing “whether there was a rational basis for the decision of the respondent in the context of the provisions of the Act of 1988.”  The Court held the Respondent’s determination that the applicant was not homeless and that she could rely on family and friends for accommodation was not fundamentally irrational despite the applicant’s strenuous insistence that she could not do so and was living in a tent.

The Court in Tee v Wicklow County Council also applied the deferential O’Keefe standard, holding that the discretion of the Council could only be displaced where it was “arbitrary or capricious manner or in a manner that flies in the face of fundamental reason and common sense.” The Court added that in dealing with issues such as the homeless crisis the Council “dedicates particular officers to deal with this issue on a daily basis who clearly possess significant expertise in this area to which the court should extend considerable deference.” The Court held that the Respondent’s conclusion that the applicants were not homeless because their grandmother has a home in Malaysia was not at “variance with fundamental reason and common sense.” This case has been appealed to the Court of Appeal.

Similarly, in C v Galway County Council which involved a single mum with 5 children, including one child who has special needs and attending a specific school to meet his needs. This resulted in daily travel of 100km to access education. She was offered accommodation 100km away and she refused this offer. The Council then withdrew all offers of emergency accommodation. The Courts refused our application. The Court stated that it “should be slow to interfere with the decision of expert administrative tribunals”, implying that the Respondent was such a body.

Conclusion

These cases clearly show the gap of legal protection for families who are homeless as there is no right to emergency accommodation in Irish Law.

 

 

 

 

 

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MLRC Open Training in Housing Law, May 8th, 2018.

 

Mercy Law Resource Centre Open Housing Law Training

MLRC is delighted to announce that we will be running

an open housing law training session 

Date: 8th of May, 2018

Time: 9.30am – 1.30pm

Venue: Wisdom Centre, Sophia Housing Complex, 25 Cork Street

This training is open to any individuals working in the field of housing

and homelessness, particularly elected officials and their staff.

How to book a place on this course:

The cost per participant is €60.
For more information on what will be covered in the training, please click here.

Other individuals and organisations who have attended the training previously,

have provided us with the following feedback:

“The training was excellent, very practical and I like hearing about all the case studies.

You are doing an excellent job. Keep it up!

 You are a great and a very well needed resource for people.”

It was very enjoyable, especially the case studies.

            “It will really help our understanding of housing and homelessness cases.”

 

The spaces for this training are limited so please do book early if you wish to attend.

If you are interested in booking a place(s) for this housing law training

please contact Danielle Curtis, MLRC Administrator, at Mercy Law Resource Centre

on 01 4537459 or by email danielle@mercylaw.ie by 5pm on Friday 4th of May.

 

Please note, due to high demand for places on this training,

bookings can only be secured by payment.

We would be very happy to hear from you!

 

 

 

 

 

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Disclaimer

All information provided on this blog is provided for information purposes only and does not constitute legal advice. Click here to read more.

Launch of the Mercy Law Resource Centre Second Right to Housing Report: The Right to Housing in Comparative Perspective

 

Mercy Law Resource Centre

cordially invites you to the

Launch of the Mercy Law Resource Centre

Second Right to Housing Report:

The Right to Housing in Comparative Perspective

Venue: Georgian Suite, Buswells Hotel, Molesworth Street, Dublin 2

Date: Wednesday 28th March 2018, 2pm – 4pm

Tea and coffee on arrival

 

The report will be formally launched by Dr Carol Coulter,

Director of the Child Care Law Reporting Project (CCLRP),

honorary Adjunct Professor in the School of Law, NUI Galway.

Professor Paddy Gray, Emeritus Professor at the University of Ulster,

will give an address on best practice in relation to the provision

 of emergency accommodation in the UK.

The presentations will be followed by a Q&A discussion.

 

Please RSVP by Monday 26th of March by email to

Danielle Curtis: danielle@mercylaw.ie or 01 4537459

 

About Mercy Law Resource Centre’s Second Right to Housing Report: The Right to Housing in Comparative Perspective:

This report offers a comparative perspective on the right to housing. Through considering the legal systems of (i) Finland; (ii) Scotland; (iii) France; and (iv) South Africa, this report engages with well-ventilated arguments in Irish political discourse over legal protection of the right to housing. In doing so, we seek to offer a comparative perspective on the principled and practical concerns raised by proponents and opponents of a justiciable right to housing.

Our comparative analysis highlights that there are a wide variety of structural and institutional means by which the right can be guaranteed: there is no ‘one size fits all’ model. The variety of institutional means available to vindicate the right to housing demonstrates that concerns frequently expressed against economic and social rights – particularly separation of powers concerns – can be addressed. The simple fact is that guaranteeing the right to housing does not necessarily equate to a significantly increased constitutional role for the judiciary.

In terms of the efficacy of legal protection, our analysis suggests that a legally enforceable right to housing- while not a panacea- provides a valuable floor of protection. However, the experience of all the jurisdictions considered in this report also highlights that the effectiveness of the right to housing is heavily contingent on the existence of sufficient and enduring political will to vindicate such rights through difficult budgetary, policy, and legislative choices.

For more information on Mercy Law Resource Centre’s work, please see www.mercylaw.ie.

 

 

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Launch of Simon Communities’ Annual Report 2016

Mercy Law Resource Centre was delighted to attend the launch of Simon Communities’ Annual Report 2016 on 18th December 2017. The report was officially launched by Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission. The report is an impressive testament to Simon Communities’ tireless efforts to support the most vulnerable in our society to move and stay out of homelessness, both through the critical services they provide and through offering a much-needed critical voice in their thoughtful policy submissions.

 

Opening the event, Simon Communities’ national spokesperson Niamh Randall noted that around 11,000 people used their services this year, an increase of 33% on the previous year. Niamh noted that these figures reflected the deepening of Ireland’s homelessness crisis, as did the fact the numbers of those in emergency accommodation now stand at 8,000: 5,000 adults and 3,000 children. Niamh emphasized that a key requirement to address this crisis is the need to recognize that housing should not be treated as a commodity, but as a basic human right inextricably linked with the enjoyment of many other core rights, such as health, education, family life and privacy. Niamh observed that in order to prevent further deterioration or repetition of this crisis the State would have to start looking at the “housing and homeless crisis from a human rights based approach”. Simon called on the Government to give a clear decision on whether it will make a commitment on the constitutional right to housing, which would be a good start and would “provide a clear floor of protection in respect of access to basic adequate housing for all.”

 

In her remarks, Emily Logan commended the work of the Simon Communities and emphasized the complementarity between the activity of Simon and the Commission. Both organizations remained concerned at any attempts to normalize homelessness and both shared the view that the “primary policy response to family homelessness must be to ensure that every family has access to permanent suitable accommodation”.

Mercy too would like to commend the tireless work of the Simon Communities and firmly shares its view that any robust response to Ireland’s homelessness crisis must recognize that housing is not a commodity, but a basic human right integral to human well-being and dignified and secure living.

 

 

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MLRC Open Training in Housing Law, November 14th 2017

Mercy Law Resource Centre Open Housing Law Training

MLRC is delighted to announce that we will be running an open housing training session 

Date: 14th of November, 2017

Time: 9.30am – 1.30pm

Venue: Wisdom Centre, Sophia Housing, 25 Cork Street

This training is open to any individuals working in the field of housing and homelessness, particularly elected officials and their staff

How to book a place on this course:

The cost per participant is €60.
For more information on what will be covered in the training, please click here.

Other individuals and organisations who have attended the training previously, have provided us with the following feedback:

“The training was excellent, very practical and I like hearing about all the case studies. You are doing an excellent job. Keep it up. You are a great and a very well needed resource for people”

It was very enjoyable, especially the case studies“;

            “It will really help our understanding of housing and homelessness cases”

The spaces for this training are limited so please do book early if you wish to attend.

If you are interested in booking a place(s) for this housing law training please contact Danielle Curtis, MLRC Administrator, at Mercy Law Resource Centre on 01 4537459 or by email danielle@mercylaw.ie by 5pm on Friday 10th of November.

Please note, due to high demand for places on this training, bookings can only be secured by payment.

We would be very happy to hear from you!

MLRC open training in housing law, November 9th 2017

Please note that there are no longer spaces available for this course. Due to high demand, MLRC are running another training session on the 14th of November. For more information on this session, please click here

 

Mercy Law Resource Centre Open Housing Law Training

MLRC is delighted to announce that we will be running an open housing training session 

Date: 9th of November, 2017

Time: 9.30am – 1.30pm

Venue: MLRC, 25 Cork Street, Dublin 8

This training is open to any individuals working in the field of housing and homelessness

How to book a place on this course:

The cost per participant is €60.
For more information on what will be covered in the training, please click here.

Other individuals and organisations who have attended the training previously, have provided us with the following feedback:

“The training was excellent, very practical and I like hearing about all the case studies. You are doing an excellent job. Keep it up. You are a great and a very well needed resource for people”

It was very enjoyable, especially the case studies“;

            “It will really help our understanding of housing and homelessness cases”

The spaces for this training are limited so please do book early if you wish to attend.

If you are interested in booking a place(s) for this housing law training please contact Danielle Curtis, MLRC Administrator, at Mercy Law Resource Centre on 01 4537459 or by email danielle@mercylaw.ie by 5pm on Friday 3rd of November.

We would be very happy to hear from you!

 

 

Deferrals of Social Housing Applications of those in Emergency Accommodation

We have met several new clients at our legal advice clinics in recent months who report a concern that their social housing application has been deferred, but are unsure if this is correct, because they have not received any written notification of any decision from the local authority. All of the clients we have met recently have been in emergency accommodation, so the impact of any such decision can be very serious: it may mean they are stuck in emergency accommodation for the period of deferral.

To give further detail by way of example: We recently met with a family who have been in homeless emergency accommodation for over one year. The family have been on the housing list for this period and have had homeless priority on the housing list. During the course of the year, the family have stayed in regular contact with the local authority to check the status of their social housing application. At one such contact by telephone, the family was advised that their social housing application had been blocked. No further details were provided. That a decision to defer the social housing application for two years had in fact been made, was only established after their keyworker and subsequently Mercy Law took up correspondence with the local authority to clarify the position and seek an appeal of that decision.

We have dealt with several cases involving deferrals of social housing applications in recent years. It should be noted that local authorities have the power to defer social housing applications on the basis of estate management grounds, and ordinarily cite previous criminal convictions or anti-social behaviour as a basis for those deferrals. In our work on recent deferral cases, we have identified a worrying absence of fair procedures impacting particularly harshly on those applicants who are in emergency accommodation. While the local authority can defer an application for social housing for a period ordinarily in the region of two years, the way in which the decision to defer is arrived at must be in compliance with fair procedures and in line with standards of good administration.

We have identified two broad concerns in relation to the decision-making in recent deferral cases.

Firstly, we have identified shortcomings in the manner in which the decisions are reached and communicated. In the recent cases that have come into our clinics, social housing applicants have not been notified that a decision to defer is being considered and therefore they had no opportunity to respond to any allegations in relation to past behaviour or prospective behaviour and to explain their current circumstances which are relevant to the decision. In two cases, the applicants have not been informed that a decision to defer has been made, no decision has been provided in writing and related to this, no reasons have been provided for the decision.

Secondly, we have identified shortcomings in the decisions themselves. We note that in the recent cases we have advised on, the decisions are extremely harsh, with long periods of deferral being imposed despite there being little evidence of a future risk of anti-social behaviour. We note that the decisions fail in some cases to follow the local authority’s internal policy which sets out how such cases should be considered and assessed. In addition, and most notably in respect of the cases where applicants are in emergency accommodation, the decisions fail to take account of the impact of the decision on the family life of the applicants and fail to consider the circumstances of the family as a whole, instead relying wholly on a previous criminal conviction or past incident of anti-social behaviour.

We have assisted clients in appeals of the decisions to defer and in these appeals, have relied on the failure of the decision-makers to adhere to fair procedures and also their failure to properly apply the principle of proportionality. We have several active cases and will provide further updates as the cases progress.

 

 

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Alarming Upward Trend in the Number of families Facing Homelessness

Recent figures released by the Central Statistics Office and Focus Ireland give rise to serious concern over the scale of Ireland’s housing crisis. The figures reveal that 99 families, who have not previously experienced homelessness, became newly homeless in Dublin in July of this year alone. These figures mark the peak of an upward trend in the number of homeless families since November 2016.

Young families represent the changed demographic in Irish homelessness. Figures released by the Central Statistics Office following the 2016 Census reveal a startling two-fold increase in the number of homeless in Ireland since 2011.  Of the 6,906 homeless in Ireland, there are 896 families, with the majority (63%) being that a single parent, more specifically a single mother. The number of homeless children is perhaps the most chilling feature of these statistics. Of the record 2,895 homeless children in Ireland, 765 are below the age of 5. This makes such children the single largest group of homeless individuals in the country. It appears young children are the primary victim of our housing climate, a trend that that is all too apparent from our work at MLRC.

While young family are suffering, local authorities are also feeling the pressure. With more than 70% of Irish homeless being based in Dublin, the county’s four local authorities are struggling to deal with the influx, none more so than Fingal County Council. Paul Reid, its Chief Executive, recently commented on the Council’s capacity, or incapacity, to adequately address the crises. He says the reality is that homeless families are looking for emergency accommodation faster than families are being moved out of them and into permanent residences. This back log is at the heart of the crisis. Although the Government have committed to building more social housing (include a very welcome commitment to direct builds by local authorities), these houses will not become readily available until at the earliest, early 2018. As a result, more and more unsuitable means of emergency accommodation are being relied on to address the enormous back log of homeless families facing the council.

The sheer inadequacy of emergency accommodation is yet another dimension of the housing crises that MLRC has firsthand experience of. In our recent submission to the Minister for Housing and Planning, MLRC identified the systematic failures associated with our current emergency accommodation regime. Perhaps the most concerning failure noted in the submission, is the worrying number of unlawful refusals of emergency accommodation applications by housing authorities. Furthermore, should a family or individual be granted emergency accommodation, the over reliance on self-accommodation sees vulnerable families and individuals frequently unable to access emergency accommodation, or being placed in unsuitable hotels or B&B’s for indefinite periods of time. In our experience, the suffering of families in emergency accommodation continues to deepen. The state of limbo families find themselves in can be hugely distressing, particularly when young children are involved. Our submission calls for a number of actions to ensure that vulnerable families and individuals have their needs met at the earliest opportunity and are provided with suitable and appropriate emergency accommodation, without delay or issue.

The recent figures released by the Central Statistics Office and Focus Ireland reveal the changed demographic of homelessness in Ireland. Our own experiences at the MLRC confirm the stark reality of the housing crises. Young families and children are suffering, and while emergency accommodation measures do provide some respite, they remain a temporary and often inadequate solution to a more serious problem.  We welcome the commitments of government and local authorities to step up the response to the crisis, and hope that the acute issues we are encountering in our casework are addressed so as to alleviate the pressure on the most vulnerable of our homeless families and individuals.

 

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Thank you to all our MLRC Summer Interns, for your excellent work!

We would like to extend a huge thank you to all of our interns for their real and practical contribution with great energy and care to MLRC’s work in supporting, through our services, those who are homeless or at risk of becoming homeless.

 

Aoibheann Durkin

MLRC were delighted to welcome Aoibheann Durkin as an intern in June. Aoibheann is a law student in Trinity College Dublin. She is going into her third year of study.  Aoibheann was the winner of best speaker in the Trinity FLAC Public Interest Law Competition and was previously involved in Enactus social justice projects.  The competition centred on the question of how constitutional rights and international human rights law apply to the issue of emergency accommodation which is inappropriate for a family’s needs, particularly children with special needs. Aoibheann has a strong interest in social justice and human rights issues and a particular interest in constitutional and public interest law.

Mary Hastings

MLRC was delighted to welcome back Mary Hastings as intern in June.  Mary is a third year law student from Trinity College Dublin.  Last year, Mary was the joint winner with Blánaid Ní Bhraonáin of the Trinity FLAC Public Interest Law Moot competition and interned with MLRC for two weeks during the summer. MLRC was delighted to welcome Mary back. We are very grateful to Mary for her contribution to MLRC’s case work, policy work and research, all of which she did with great energy and diligence and care.

Kate Weedy

MLRC welcomed Kate Weedy for the months of July and August. Kate graduated in 2015 with a BA (Hons) in History, Politics, and International Relations from UCD. Kate is currently entering her second year of the Masters in Common Law programme in UCD and hopes to qualify as a Barrister and work in Public Interest Law with a focus on human rights, asylum and immigration law, and conflict of laws.

On reflecting on her time in MLRC, Kate said:

‘My time at MLRC was such a rewarding experience. I learned so much from the solicitors there and gained first-hand experience of human rights law in practice. I was astounded by the amount of work that is done before a case even goes to court and consider myself very lucky to have been able to contribute to the incredible work that MLRC do. Their ethos and work ethic has made me even more determined to pursue a career in human rights law.’

Diarmuid Hickey

MLRC welcomed Diarmuid Hickey for the month of August. Diarmuid is a legal graduate from Trinity College Dublin, currently completing an LL.M. He enjoys property law, and volunteers with a number of legal and charitable organisations. Prior to joining MLRC he completed internships with A&L Goodbody in New York, and Eugene F Collins in Dublin.

Diarmuid worked with MLRC for a number of weeks this summer having won the TCD Law Society BAM Debating Competition.

Fionn Ryan

In September, MLRC was delighted to welcome Fionn Ryan, who worked with us as part of his Clinical Legal Education Training Programme with Trinity College Dublin. Fionn is a final year law student in Trinity College Dublin. Fionns interest lies particularly with family law, constitutional law, medical negligence and criminal law. In Trinity, Fionn is heavily involved in college life. As an active member of TCD GAA and the Law Society, Fionn also chairs Trinity’s largest active member society, the VTP, or Voluntary Tuition Programme.

On reflecting on his time here Fionn found it invaluable. Noting that learning how a legal practice operates is essential for any budding student looking to get into the field.

‘The clinics offered first-hand experience in dealing with clients. The media frenzy about homelessness can sometimes dehumanize the crises. The clinics acted as a reminder that real people are the ones who suffer.’

 

 

 

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MLRC welcomes David Joyce as solicitor with MLRC

MLRC is delighted to welcome David Joyce as our new solicitor and colleague. David has been working with MLRC since the end of July 2017 as a locum solicitor.

David is a solicitor with extensive experience in housing law having worked as a Legal Officer for Threshold. David Joyce initially qualified as a Barrister at Law, having graduated from Kings Inns with a Barrister at Law Degree and a Diploma in Legal Studies. David was called to the Bar in 2005 and practiced as a Barrister for eight years. Prior to entering the legal profession he worked in community development with a number of local and national NGO’s and holds a Diploma in Community Development and Youth Work from NUI Maynooth. David was Interim Manager of LEAP (Legal Education for All Project).  He has served as a member of expert bodies such as the European Roma Rights Centre Budapest, National Consultative Committee on Racism and Interculturalism, Bar Council of Ireland, Executive of the Irish Council for Civil Liberties and the National Economic and Social Forum. David is currently a member of the Irish Human Rights and Equality Commission and the EU Fundamental Rights Agency.

We are delighted to welcome David to the MLRC team. There is no doubt that with David’s extensive experience he will help MLRC grow and build on our work providing free legal help for people at the margins of our society.

 

Photo Credit: Irish Human Rights and Equality Commission

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