Local authority tenants lack the right to fair hearing

IHRC calls for section 62 of the Housing Act 1966 to be amended to bring it into compliance with the European Convention on Human Rights

The Irish Human Rights Commission (IHRC) in a policy statement published today expresses grave concern that the present law relating to the eviction of local authority tenants is not compliant with the European Convention on Human Rights because it does not give tenants the right to a fair hearing. The IHRC accordingly calls on the Government to amend Section 62 of the Housing Act 1966.

In the policy statement, the IHRC recommends to Government measures the State should take to strengthen, protect and uphold the human rights of local authority tenants under Irish law, in line with the State’s obligations under Article 8 (right to respect for private life and the home), Article 6 (right to a fair hearing) and Article 14 (protection from discrimination) of the European Convention on Human Rights (ECHR).

Dr Maurice Manning, President of the IHRC stated:

"The IHRC is highlighting to Government that Section 62 of the Housing Act 1966, which allows local authorities to evict tenants without any requirement to give reasons for the eviction which would be liable to be examined on their merits by a court or independent tribunal, is not in compliance with the minimum procedural protections against eviction required by the ECHR."

Dr Manning went on to state that:

"The IHRC understands that local authorities have a difficult job to do in dealing with anti social behaviour in some housing estates, but this should not mean that local authority tenants as a whole have less protection from being rendered homeless than tenants in the private sector. Everyone has a right to a fair hearing if a decision is made that will fundamentally interfere with a person’s entitlement to occupy their home. This legislation allows a situation where a local authority tenant could be evicted for no reason at all. It has consequent implications for local authority tenants’ current and future entitlements to social housing and eligibility for supplementary welfare in the form of assistance to pay rent in the private sector."

There have been a number of cases taken to the European Court of Human Rights against the United Kingdom challenging the eviction of local authority tenants. The European Court has found that every local authority tenant faced with eviction must know the reasons why they are being evicted, and if there is a dispute as to the facts, the tenant has the minimum right to have the matter determined in a full hearing before a court or independent and impartial tribunal. In addition any such court or tribunal should be in a position to assess the proportionality of the eviction against the objective of the local authority in seeking the eviction, considered in light of the particular circumstances of the case.

Recently there have also been a number of decisions of the High Court indicating that Irish law in relation to the eviction of local authority tenants is not compliant with the ECHR, and that local authorities should seek to invoke an alternative legal mechanism available that affords the tenant a fair hearing if it is proposed to evict them in order to avoid a breach of the European Convention on Human Rights Act 2003.

Éamonn MacAodha, Chief Executive of the IHRC stated that:

"This policy statement is a timely intervention as the Housing (Miscellaneous Provisions) Bill 2008 is being currently debated in the Oireachtas, and because it hopefully can provide assistance to the Government in addressing the apparent disparity between the protections that should be available to local authority tenants under the European Convention on Human Rights (ECHR) and the absence of such protections in the State. It is important that families are not being rendered homeless without just cause. The IHRC hopes that both the Government and local authorities will engage with us in relation to this issue and give our recommendations meaningful consideration."

The Submission makes the following recommendations:

• That the Government take steps, in the form of amending legislation, to remedy the current lack of protection of the rights of local authority tenants under the ECHR, with particular regard to the lack of procedural safeguards for local authority tenants who are subject to possession proceedings.
• That any proposed amendment of the law should extend similar protection to local authority tenants as to tenants in the private sector.
• That all local authorities in the State be advised by Government of their statutory obligations under section 3 of the ECHR Act 2003, with particular regard to ensuring procedural safeguards are in place when it is proposed to evict a local authority tenant from their home.
• That in the absence of appropriate amending legislation, local authorities are advised of the alternative legal mechanisms available to them in terms of possession proceedings.
• That in drafting amending legislation, the Government consider referring the draft legislation to the IHRC pursuant to its statutory functions.

ENDS /

Notes to Editor:

As Ireland’s national human rights institution, the IHRC has a statutory remit to endeavour to ensure that the human rights of all persons in the State are fully realised and protected, in law, in policy, and in practice. Its functions include keeping under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights, and making such recommendations to the Government as it deems appropriate in relation to the measures which the IHRC considers should be taken to strengthen, protect and uphold human rights in the State under Section 8(d) of the Human Rights Commission Act 2000 including with reference to the State’s obligations under the ECHR.

Section 62 of the Housing Act 1966 requires a local authority to serve a Notice to Quit on a tenant before seeking repossession of a local authority dwelling. If the tenant does not give up possession of the dwelling then the local authority must bring an application to the District Court to seek a warrant for possession, which then allows them to have the tenant forcibly removed from the dwelling if they do not leave voluntarily. To date the Irish Courts have found that there is no requirement for an adversarial hearing in the District Court, and the warrant for possession will issue on proof from the local authority that it has followed the procedural formalities under section 62.

The European Court of Human Rights has considered the procedural protections that should be available to local authority tenants facing eviction. The Court has found that Article 8 (right to respect for private and family life and the home) and Article 6(1) (right to a fair hearing) of the Convention require as a minimum that there should be a full hearing as to the merits of the decision to evict the local authority tenant before a an independent and impartial court or tribunal. The cases are:

• Cosic v Croatia, (Application No 28261/06) European Court of Human Rights, Judgment, 15 January 2009.
• Tsfayo v the United Kingdom (Application No. 60860/00) Judgment of 14 November 2006.
• McCann v the United Kingdom [2008] European Court of Human Rights, Judgment, 13 May 2008.
• Connors v the United Kingdom [2004] European Court of Human Rights, Judgment, 24 May 2004.

The High Court has made a declaration pursuant to section 5 of the European Convention on Human Rights Act 2003, that section 62 of the Housing Act 1966 is incompatible with Article 8 of the European Convention on Human Rights in:

• Anthony Donegan v Dublin City Council, Ireland and the Attorney General (2008), Unreported, High Court, 8 May 2008.

The High Court further found that section 62 of the Housing Act 1966 is incompatible with Article 6 of the ECHR in:

• Dublin City Council v Gallagher, (2008) Unreported, High Court, 11 November 2008.

In Pullen v Dublin City Council (Unreported, High Court, 13 December 2008), Ms Justice Irvine found that in invoking section 62 of the Housing Act 1966, a local authority had not acted compatibly with its obligations under the European Convention on Human Rights Act 2003, as to do so was a breach of Articles 8 and 6(1) of the Convention. The Court found that there was an alternative legal mechanism open to the local authority under section 14 of the Conveyancing Acts 1881, by which it could seek to evict the Plaintiffs while giving them a full opportunity to challenge the reasons for the eviction in a court hearing.

It should be noted that some of these High Court decisions are under appeal or may be under appeal to the Supreme Court. The IHRC’s recommendation to Government is based on its assessment of the European Court’s jurisprudence.