Societal and Legislative Attitudes Toward Social Housing Tenants in Ireland: Critical Evaluation of Housing Law and Policies, Statistics, Case Law and Literature
Local Authority Guidelines and Policy
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.33 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.34 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.35
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.36 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 McCarthy37, 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 Corporation38 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.39 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,40 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.41 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 judiciary42 and academics.43 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.44Continued on Next Page »