Our Casework in 2016 – A Year in Review

We had an exceptionally busy year in 2016 and during the year saw a very big increase in the number of people contacting us for advice and also an increase in High Court litigation brought on behalf of our clients.

Cases on unlawful refusal by housing authorities to provide emergency accommodation

One particularly common and acute issue that came up was the refusal by housing authorities to provide emergency accommodation to families and individuals who are homeless.  We litigated on two cases on this issue last year and were successful in both of them. This blog post gave an update on one of these cases. There were several other cases that we worked on, submitting detailed legal submissions to housing authorities arguing that such refusals of emergency accommodation were unlawful and these other cases were fortunately resolved before escalating to litigation.

The refusals were most often based on a decision of the housing authority that the homeless persons presenting had alternative accommodation available to them that they could occupy, and in some cases, the housing authorities determined that applicants had become intentionally homeless and therefore did not quality for emergency accommodation. These cases for the most part involved vulnerable non-national families and families who are members of the travelling community. The cases were acute and pressing and securing a positive outcome averted families with young children having to rough sleep. You can read about and listen to our piece on RTE’s Drivetime about one such case here.

Cases on completely inadequate and highly inappropriate emergency accommodation

We also dealt with several cases involving completely inadequate and highly inappropriate emergency accommodation and also cases involving placements of families in unsuitable emergency accommodation for a very long period. We prepared detailed submissions in these cases, and obtained medical reports and other supporting evidence, to argue that families should be moved to more suitable emergency accommodation or to long term stable accommodation. We have had some success in these cases and continue to work on the issue of long term homelessness and suitability of emergency B&B and hotel accommodation, seeking creative solutions both on the casework and policy side.

Cases on unlawful barriers to getting on the housing list

A recurring theme in our casework is barriers to getting on the housing list and through the year, we assisted many clients overcoming these barriers. Getting on the housing list can be a crucial step in moving out of homelessness and accessing support services, as well as ensuring access to rent supplement/HAP. We assisted one client for example who had been trying to get on the housing list for over a year and had been homeless throughout this period. He had been refused access to the housing list on the basis that he did not have a sufficient connection to Dublin.

We argued that accessing homeless services for in excess of one year established such a connection and that it would be wholly irrational for him to return to his original council area, where he had not resided since 1981. Further details on the case can be found in our blog post here.

In another case, we challenged by way of High Court litigation a refusal to put a non-national on the housing list on the basis that she did not satisfy the provisions of Circular 41/2012. Circular 41/2012 was issued by the Department of Environment, Community and Local Government (as it was then called) in December 2012 and is entitled “Access to social housing supports for non-Irish nationals – including clarification re Stamp 4 holders”.   Our client was married to an Irish national but was a victim of domestic violence. The housing authority said she would not be eligible to go on the housing list unless she made a joint application with her husband. It was only by recourse to High Court litigation that we secured a positive outcome for that client and secured her inclusion on the housing list. You can read more on issues arising in relation to the Circular here.

Cases in relation to termination of tenancies of voluntary housing association tenants

April 2016 saw a change in the law with respect of approved housing bodies and brought them under the remit of the Residential Tenancies Board. You can read our blog on the change in the law here. Towards the end of 2016, we acted in several cases before the Residential Tenancies Board Tribunal arguing that termination of a tenancy of a tenant in voluntary housing, constituted an interference in their right to home and violated their rights under Article 8 of the European Convention on Human Rights (ECHR) (the right to privacy and family life). We continue to work on several cases in this vein.  The core argument that runs through them is that the Residential Tenancies Board, as a public body, is obliged to act in a manner compatible with the Convention and must have due regard to Article 8 and the requirement that any person at risk of interference with the right to respect for the home must be able to have the proportionality of that measure decided on by an independent tribunal.

Cases in relation to the new evictions procedure for local authority tenants

Related to changes in the law, we advised on several cases during the year which concerned the new evictions procedure set out in the Housing (Miscellaneous Provisions) Act 2014. We have noted that housing authorities are become increasingly ready to rely on the new procedure. A summary of the procedure is available here.

Cases on succession to tenancy

We also acted in several succession cases, arguing successfully that occupants or tenants of a Council property enjoy a right to home that is protected by Article 8 of the ECHR and any decision to evict may only be lawful and proportionate if due regard is had to that right and in some circumstances, an offer of alterative accommodation is made.

 

This is a summary of the areas that the bulk of our work has been focused on but there are several other issues we have worked on. The queries we are encountering are becoming increasingly varied and complex.

We work with clients who are in an acutely vulnerable position and often come to us as a last resort having made extensive efforts to resolve the issues arising themselves. We are without exception in awe of the resilience of our clients and want to thank them for working with us. We look forward to a busy and productive 2017.

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Family refused emergency accommodation are accommodated following High Court proceedings

We recently acted for a family who were refused emergency accommodation by a Council on the basis, the Council said, that they were “intentionally homeless”.  The Council considered that the family should return to the United Kingdom, where they had lived for a short period immediately prior to presenting as homeless.   Following our issuing of High Court judicial review proceedings on behalf of the family, the Council agreed to provide emergency accommodation to the family and the family was accommodated.

Background of the case

The family of five were all naturalised Irish citizens and were living in a Council tenancy. In 2015, the family decided to move to the United Kingdom and surrendered the tenancy. The family informed the Council of their plans. The family lived in the United Kingdom for in or around a year and then decided to return to Ireland as the children had not settled in well and wanted to return to their community and friends in Ireland. Prior to returning, the family contacted the Council for advice on their housing matters. The Council advised the family to, when they came back, present to the homeless section, where they would be accommodated in emergency accommodation to give them time to source private rented accommodation to meet their long term housing need.

On return however, when the family presented to the homeless section, the Council refused to provide emergency accommodation to the family. The Council refused on the basis that the family could have renewed their tenancy in the United Kingdom and so that they had made themselves homeless and that they were, as a result, intentionally homeless. The Council advised the family to return to the United Kingdom.

The family presented at the Council several times over the course of ten days, explaining that they had nowhere to go and were at risk of rough sleeping.  They also explained and provided evidence that one of the children suffered from epilepsy, had suffered from a fit in recent days and was at risk of further fits on account of the exhaustion and stress caused by their homelessness. They explained that they were moving night to night to stay at different friends’ houses and were sleeping on living room floors in different houses. They explained that the goodwill of friends would soon be used up and they would face rough sleeping.

Legal arguments

MLRC met with the family and represented the family shortly after the initial refusals of emergency accommodation to the family.  All of the refusals were oral and not in writing. We immediately wrote to the Council and requested that they immediately reconsider the refusal of emergency accommodation and provide accommodation to the family, highlighting the particular needs of the family. We also requested that the Council give a written decision with reasons for the refusal of emergency accommodation.

In our correspondence with the local authority, we referred to the Housing Act 1988, particularly ss 2 and 10.  These sections govern the manner in which a housing authority must provide emergency accommodation where a person is homeless and seeks immediate accommodation.

Section 2 of that Act, states:

“A person shall be regards by a housing authority as being homeless for the purposes of this Act if –

  • There is no accommodation available which, in the opinion of the authority, he, together with any person who normally resides with him or who might reasonably be expected to reside with him can reasonably occupy or remain in occupation of, 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 authority, unable to provide accommodation from his own resources.”

In our legal submissions to the Council, we noted that:

  • the statutory definition of homelessness does not oblige an applicant to prove any prior residence in the administrative area of the Council;
  • does not provide for any assessment by the Council of the circumstances in which an applicant became homeless, intentionally or otherwise; and
  • there are no regulations which add to or expand on these requirements in relation to providing emergency accommodation to people who are homeless. We referred in particular to the High Court decision in Kinsella v Dun Laoghaire County Council, where the Court held a housing authority cannot introduce additional eligibility criteria over and above those provided for in relevant legislation.

In our submissions to the Council, we contended that:

  • the decision to refuse to provide emergency accommodation to the family was unlawful and in breach of its statutory duty.
  • the decision was irrational, was based on irrelevant factors and failed to have regard to relevant factors.

We relied on the fundamental rights of the family under the Constitution, citing in particular Article 42A of the Constitution which protects the rights of the child, and the European Convention on Human Rights.

Legal proceedings

We sought to resolve this case without recourse to litigation but unfortunately, despite our several letters, the Council did not change its position.  We sought the leave of the High Court to bring judicial review proceedings to challenge the decision to refuse emergency accommodation. We were granted leave and due to its urgency, the case was brought back into court the following week.

The Council initially defended its decision to refuse emergency accommodation. The Council set out its case on affidavit, arguing in essence that our client’s homelessness had come about on account of the choices she had made prior to becoming homeless and that she had made herself homeless. The Council stated that in such circumstances, the duties of the Council diminish and that it had no obligation to provide emergency accommodation to the family.

Notwithstanding the initial course taken by the Council that was to defend the case, the case was settled before going to full hearing. The Council provided the family with emergency accommodation to the family’s enormous relief.

Conclusion

The family in this case were profoundly affected by the decision to refuse them emergency accommodation and experienced a hellish two months while the legal proceedings were issued and in train and up until they ultimately secured a resolution. Unfortunately, this is not an isolated case and we have acted in several similar cases in the last twelve months. The majority have resolved prior to litigation, albeit often with threats of litigation. We have brought High Court litigation in several similar cases, which have all led to settlement and resolution of the cases fortunately in our clients’ favour.

The volume of refusals of emergency accommodation by housing authorities, in particular to families with young children, indicates a common misapplication of the law and shows up a potential need for training on proper application of the law, so that decision makers are equipped to make lawful and fair decisions in these most urgent of cases.

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All information provided on this Blog is provided for information purposes only and does not constitute legal advice or a legal contract between this Blog and any person or entity unless otherwise specified. Click here to read more.