In addition to existing legislative provisions for social housing standards and, further barriers are raised for social housing applicants by a limited geographical choice of accommodation within a functional area of a particular Local Authority. Under the current Local Authorities Guidelines, it remains impossible for perspective tenants to select a particular estate with which they may have some connections. The choice is limited to three general areas only. Such approach can contribute further to social isolation, particularly for those who may have strong social connections within a particular area of their current residence and will be required to relocate unwillingly to a different neighborhood. If applicants are prepared to wait for housing in a particular estate, such option should be available to them among three. The choice is the defining feature if citizenship, but in this case it may be seen as unduly limited.
As a result, there is a visible pattern in declining Local Authorities offers by applicants in relation to at least some housing estates. Private tenants have an unlimited freedom of choice in most cases. But if the social housing applicant declines an offer without good reason, such as personal subjective influence for example, it may lead to the imposition of a year penalty before any other order will be made. Is there is a perception that such vulnerable category of citizens should take any offer and that they shall be punished for refusing to do so? Or does it simply indicate a resistance, by at least some tenants, towards segregation due to the fear of losing their current social status when moving into particular estates? Local Authorities should examine these actions by the applicants and review their guidelines from the latter point of view.
What all of the above suggests is that there is an apparent lack of rationale behind some of social housing provisions, from the moral point of view, in the country with strong moral themes arising from the Constitution, which suppose to guard fundamental human rights and uphold dignity and equality of all citizens.
Moving further into the legislative analysis, Section 62 of the Housing Act 1966, as amended by Section 13 of the Housing Act 1970, immediately display a warning sign for the reader. It was enacted to put in place a speedy and simplified procedure for recovery of possession of local authority dwellings. The rationale for this procedure was to allow local authorities manage their property efficiently and control their housing stock without undue restrictions.
Under this Section, upon the hearing of the application duly made by the local authority, the judge shall, in case he is satisfied that the demand has been made duly, issue a warrant. The reasonableness of the decision cannot be questioned by the judge. From the offset, it becomes clear that such measure can be problematic from the fairness point of view in respect of social housing tenants. The section provides for a summary ejectment procedure, similar to ex parte application for a barring order, freezing order or an injunction, with no voice given to the defendant, once the Notice to Quit has been served and the wheel is set in motion. The only required proofs are the tenancy proof and the Notice to Quit and no reason for the eviction is required. While it was clarified in Kerry County Council v McCarthy, that the hearing must take place before a judge, it may often be the case that the defendant will not have an automatic entitlement to legal aid. J O’Caoimh in Byrne v Judge Scally and Dublin Corporation noted that that due to the straightforward nature of the proceedings, legal aid representation was not necessary. The procedure constitutes the remaining vestiges of feudal approach to housing in modern Ireland. While such draconian measure as an ex parte application can be justified on various grounds, such as fear of intimidation in case of a barring order or fear of defendant disposing off his assets before the full hearing in case of a freeing order, no reasonable or fair justification for a summary hearing can support the eviction procedure. It should be further noted that upon a successful outcome of the eviction procedure for breaching the term of the agreement, the tenant would be deemed for the purposes of rehousing to have deliberately rendered himself homeless within the meaning of s. 11(2) (b) of the Act and no further accommodation will be provided until such a time as the local authority may consider the applicant as being in genuine housing need again. The reality is that during such a period the chances of long-term homelessness increase substantially, with many families being left sleeping in rough street conditions. There are no present alternatives to resolve disputes or a requirement of throughout investigations and issues such as addictions, violence can work against potential tenants for evictions.
The concept of “fairness” did not emerge in public housing law probably because of prevailing attitudes that the provision of public housing was a charitable act and, as a result, such tenants cannot have the same level of right. It will require a substantial amount of public education and legislative reviews to correct present perceptions and eliminate any further status degradation of social housing tenants.
In light of the European Convention on Human Rights 2003, this area of housing law attracted some controversial opinions among judiciary and academics. The initial obstacle is created in the wording of Section 2(1) of the Act which does not purport to incorporate the Convention directly into domestic law. Legislation can be declared incompatible but, for constitutional reason, this does not affect the continued operation of legislation.Continued on Next Page »
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Doyle O, Ryan D, “Judicial Interpretation of the European Convention on Human Rights Act 2003: Reflection and Analysis” (2011) 33 Dublin University Law Journal 369-391.
Drudy PJ, Punch M, Out of Reach: Inequalities in the Irish Housing System (Tasc at New Island 2005).
Fahey T (ed), Social Housing in Ireland: A Study of Success, Failure and Lessons Learned (Oak Tree Press 1999).
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Kenna P, “The Housing (Miscellaneous Provisions) Act 2009” (2010) 15(2) Conveyancing and Property Law Journal 26.
Kenna P, “Will the European Convention on Human Rights Act 2003 Affect Local Government in Ireland?” (2004) 11(2) Irish Journal of European Law 193.
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Maddox N, Housing Authority Law (Round Hall 2010).
McCombs M, Shaw D, “The Agenda-Setting Function of Mass Media” (1972) 36(2) Public Opinion Quarterly 176-187.
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O’Dea E, “Irish Housing Policy, Citizenship and Limerick Regeneration” (2012) 3(2) Limerick Student Journal of Sociology 23-39.
O’Sullivan E, Homelessness and Social Policy in the Republic of Ireland (Trinity College 1996).
Reily G, “Rachel Peavoy Inquest Returning Verdict of Death by Misadventure” The Journal (6 April, 2011), http://www.thejournal.ie/rachel-peavoy-dublin-city-council-coroner-heating-ballymun-hypothermia-116922-Apr2011/.
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Tighe R, “Public Opinion and Affordable Housing: A Review of Literature” (2010) 25(1) Journal of Planning Literature 3-17.
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Irish Legislation:
Housing (Miscellaneous Provisions) Act 2009.
Housing Act 1966.
Housing Act 1988.
Housing (Miscellaneous Provisions) Act 1992.
Irish Regulations:
Housing (Standards for Rented Houses) Regulations 2008, SI 2008/534.
Housing (Standards for Rented Houses) (Amended) Regulations 2009, SI 2009/462.
Social Housing Assessment (Amendment) (No 2) Regulations 2011, SI 2011/321.
Social Housing Allocation Regulations 2011, SI 2011/198.
Irish Case Law:
Siney v Dublin Corporation [1980] IR 400.
Burke (a minor) v Dublin Corporation [1991] 1 IR 341.
Dublin City Council v Fennell [2005] IR 604.
Donegan v Dublin City Council [2008] IEHC 288.
Kerry County Council v McCarthy (SC, 28 April 1997).
Byrne v Judge Scally and Dublin Corporation (HC, 12 October 2000).
Foy v An t-Ard Chlaraitheoir [2007] IEHC 470.
Gifford and Another v Dublin City Council [2007] IEHC 387.
Rock v Dublin City Council (SC, 8 February 2006).
Irish Reports:
Housing Agency, Housing Needs Assessment 2002.
Housing Agency, Housing Needs Assessment 2005.
Housing Agency, Housing Needs Assessment 2008.
Housing Agency, Housing Needs Assessment 2011.
Central Statistics Office, Special Census Report on Homelessness 2011.
Social Justice Ireland, Ireland and the Europe Strategy: Employment, Education and Poverty (14 January 2013).
The All-Party Oireachtas Committee on the Constitution, Ninth Progress Report: Private Property (Pn 2218-2004).
Department of the Environment, Heritage and Local Government, Quality Housing for Sustainable Communities (2007).
UK Cases:
Ghaidan v Godin-Mendoza [2007] UKHL 30.
Other Legislation:
European Convention on Human Rights Act 2003.
Footnotes
1.) The All-Party Oireachtas Committee on the Constitution, Ninth Progress Report: Private Property (Pn 2218-2004).
2.) Eideen O’Dea, “Irish Housing Policy, Citizenship and Limerick Regeneration” (2012) 3(2) Limerick Student Journal of Sociology 23.
3.) George Galster, “Consequences from the Redistribution of Urban Poverty During the 1990s: A Cautionary Tale” (2005) 19(2) Economic Development Quarterly 119.
4.) Xavier de Souza Briggs “Housing Opportunity, Desegregation Strategy, and Policy Research” (2003) 22(2) J Pol’y Analysis Mgmt 201.
5.) The All-Party Oireachtas Committee on the Constitution, Ninth Progress Report: Private Property (Pn 2218-2004).
6.) PJ Drudy and Michael Punch, Out of Reach: Inequalities in the Irish Housing System (Dublin: Tasc at New Island, 2005), 35.
7.) J. Rosie Tighe, “Public Opinion and Affordable Housing: A Review of Literature” (2010) 25 (1) Journal of Planning Literature 3.
8.) John Nixton and Caroline Hunter, “Disciplining Women: Anti-Social Behaviour and the Governance of Conduct” in Andrew Millie (ed), Securing Respect: Behavioural Expectations and Anti-Social Behaviour in the UK (Bristol: Policy Press, 2009).
9.) Maxwell McCombs and Donald Shaw, “The Agenda-Setting Function of Mass Media” (1972) 36(2) Public Opinion Quarterly 176.
10.) Ronald Akers, Criminological Theories: Introduction and Evaluation (2nd edn, Fitzroy Dearborn Publishers 1999), 99.
11.) Ibid., at 100.
12.) Rosie Tighe, “Public Opinion and Affordable Housing” (2012) 25(1) Journal of Planning Literature 3, 12.
13.) Joe Soss, “Lessons of Welfare: Policy Design, Political Learning and Political Action” (1999) 93(2) The American Political Science Review 363.
14.) 49% or 1,439 people aged between 15 and 59 had only education to a lower secondary level, compared to 25% of the general population. 22% were educated to a primary level compared to only 8% of the general population.
15.) Housing Agency, Housing Needs Assessment 2011.
16.) Every three years, in accordance with Section 9 of the Housing Act 1988, housing authorities are required to undertake an assessment of housing need in their functional areas.
17.) According to the Housing Needs Assessment 2011, 65,643 applicants out of 98,318 were on the waiting list because they could not meet the cost of accommodation. While 59,386 applicants were unemployed, the second largest category out of 98,318 applicants were in full or part-time employment with another 2,084 employed through Back to Work or FAS schemes.
18.) The largest category of applicants between 2002-2008 was the one where they were not able to meet the cost of accommodation. And while in the prevailing category there were unemployed applicants, the second largest category belonged to those in employment. See Housing Agency, Housing Need Assessments 2002, 2005 and 2008 for more detailed analysis.
19.) The study shows that Ireland is the fourth highest in EU according to unemployment figures and it is becoming long-term in nature and accounts for 60% of people who are unemployed. See Social Justice Ireland, Ireland and the Europe 2020 Strategy: Employment, Education and Poverty (14 January 2013).
20.) Section 85 of the Housing (Miscellaneous Provisions) Act 2009 sets out a manner in which a local authority is to put in place a scheme of priority. Particular regard is also to be given to certain categories of applicants, as defined in Section 9(2) of the Housing Act 1988.
21.) Daily Mail Reporter, “Prioritise “Hard-Working Families” over Unemployment on Social Housing Lists, Minister Urges” Daily Mail (London, 27 June 2012), http://www.dailymail.co.uk/news/article-2165280/Prioritise-hard-working-families-unemployed-social-housing-lists-ministers-urge-councils.html,assessed 10 January 2013.
22.) For example, in 2012, the minimum recommended income was €207.94, while the Job-Seekers allowance for those aged 22-24 was only €144 and €100 for those aged 18-21, leaving those people substantially below the poverty line. The largest category of applicants on social housing waiting lists, according to the Housing Needs Assessment 2011, aged 31-40 and unemployed also receive the standard rate of Jobseeker’s Allowance of only €188 since January 2012.
23.) Department of the Environment, Heritage and Local Government, Quality Housing for Sustainable Communities (2007).
24.) [1980] IR 400.
25.) [1991] 1 IR 341.
26.) CJ Finlay in Burke (a minor) v Dublin Corporation [1990] 1 IR 341, 349.
27.) Even though Mr. Farrell said the abandonment of other nearby flats during the regeneration meant the heating may not have been totally effective.
28.) Gavan Reilly, “Rachel Peavoy Inquest Returning Verdict of Death by Misadventure” The Journal (6 April, 2011), http://www.thejournal.ie/rachel-peavoy-dublin-city-council-coroner-heating-ballymun-hypothermia-116922-Apr2011/, accessed 10 February 2013.
29.) Burke (a minor) v Dublin Corporation [1990] 1 IR 341.
30.) Housing (Standards for Rented Houses) Regulations 2008, Art. 5.
31.) Housing (Standards for Rented Houses) Regulations 2008, SI 2008/534; Housing (Standards for Rented Houses) (Amendment) Regulations 2009, SI 2009/462.
32.) Padraic Kenna, Housing Law, Rights and Policy (Clarus Press 2011), 749.
33.) Social Housing Assessment (Amendment) (No. 2) Regulations 2011, SI 2011/321.
34.) Social Housing Allocation Regulations 2011, SI 2011/198.
35.) Dublin City Council v Rennell [2005] IR 604. However, it was also obiter noted in this case on page 605, that the position of the tenant of a housing authority compared unfavourably with that of a private tenant. It was further predicted, as it happened later in a number of cases, such as Donegan v Dublin City Counci [2008] IEHC 288, that such summary method might infringe certain articles of the European Convention on Human Rights Act 2003.
36.) Housing Act 1966, s 63(3).
37.) Unreported, Supreme Court, 28 April 1997.
38.) Unreported, High Court, 12 October 2000.
39.) Padraic Kenna, Housing Law, Rights and Policy, 2011 (Clarus Press 2011), 765.
40.) Dublin City Council v Fennell [2005] 1 IR 604.
41.) Padraic Kenna, Housing Law, Rights and Policy (Clarus Press 2011), 765.
42.) Donegan v Dublin City Council [2008] IEHC 288.
43.) Padraic Kenna, “Local Authorities and the European Convention on Human Rights Act 2003” in The Irish Human Rights Law Review (Clarus Press 2010); Oran Doyle and Desmond Ryan, “Judicial Interpretation of the European Convention on Human Rights Act 2003: Reflections and Analysis” (2011) 33 DULJ 369.
44.) Oran Doyle and Desmond Ryan, “Judicial Interpretation of the European Convention on Human Rights Act 2003: Reflections and Analysis” (2011) 33 DULJ 369, 370.
45.) Foy v An t-Ard Chlaraitheoir [2007] IEHC 470; Ghaidan v Godin-Mendoza [2004] UKHL 30.
46.) Gifford and Another v Dublin City Council [2007] IEHC 387.
47.) Rock v Dublin City Council, Unreported, Supreme Court, 8 February 2006.
48.) PJ Drudy and Michael Punch, Out of Reach: Inequalities in the Irish Housing Systems (TASC at New Island 2005) 27.
49.) Eideen O’Dea, “Irish Housing, Citizenship and Limerick Regeneration”, (2012) 3(2) Limerick Student Journal of Sociology 23, 24.
50.) Rosie Tighe, “Public Opinion and Affordable Housing: A Review of the Literature” (2010) 25(1) Journal of Planning Literature 3, 17.
