Minister Darragh O’Brien, TD
Department of Housing, Local Government and Heritage
Custom House,
Dublin,
D01 W6X0
12 September 2024
Re: Submission to the Minister for Housing, Local Government & Heritage on the General Scheme of the Housing (Miscellaneous Provisions) Bill 2024.
Dear Minister O’Brien,
I refer to your correspondence received on 2 August 2024 regarding our submission on the General Scheme of the Housing (Miscellaneous Provisions) Bill 2024.
It is welcome that issues raised in our submission with regard to the interaction of provisions of the Bill with existing EU and International Law obligations and with regard to Ireland’s obligations under the EU Anti-Trafficking Directive1 are being given due consideration. We look forward to further communication with you on these matters when your advices and considerations are completed.
It is also welcome that consideration is being given to the need for an appeals mechanism relating to social housing eligibility decisions as raised in our submission and in the Report of the Joint Oireachtas Committee.2 I again stress the importance of a formal, standardised independent appeals mechanism in respect of social housing decisions being set out in the legislation.
I note your assertion that having policy and procedures with regard to residency requirements for eligibility for social housing support in primary legislation is considered necessary to underpin the current policy position and to meet Ireland’s EU and International Law obligations, and that the General Scheme is intended as a direct response to the weaknesses in the current regime highlighted by the Commission. However, your response does not indicate whether proper consideration has been given to the human rights and equality concerns raised by the proposed measures, nor demonstrate how the legislation will ensure that the mistakes associated with the application of Circular 41/20123 and the habitual residence condition under the social welfare regime will not be repeated in relation to the provision of social housing supports and that unlawful, discriminatory and disproportionate outcomes will be avoided. There is also no indication that consideration has been given to the Department’s obligations under the Public Sector Duty.
In addition, your response does not adequately address the Commission’s recommendation that, given the significant human rights and equality concerns raised by the legislative proposals, the State must first demonstrate the need for, and value of, the proposals and how it will ensure that the proposals will not have a discriminatory and disproportionate impact on structurally vulnerable groups.
I reiterate our recommendations that, before proceeding further with the legislative proposals, the State should consider the human rights and equality considerations raised by the proposed measures, and that any legislative proposals in relation to access to social housing supports must take account of the Department’s Public Sector Duty obligations under Section 42 of the Irish Human Rights and Equality Commission Act 2014.
I also note your indication that an assessment of the statutory legal and habitual residence criteria will be part of the assessment for eligibility for social housing support carried out by local authority officers, and will not be a condition of further assessment. We are concerned that this position is not currently reflected in the text of the General Scheme, which appears to outline that an assessment of lawful and habitual residency will be a preliminary step to the assessment of social housing eligibility, rather than an additional eligibility criteria.
Head 5(1) states that “in order to be eligible to be assessed for the social housing supports listed in section 19” all members of the applicant’s household must show lawful and habitual residence [emphasis added]. The notes to Heads 4 and 5 of the General Scheme state that the habitual residency criteria “will serve as a prerequisite to proceeding further in assessing a household’s eligibility for social housing support”. It should be made clear in the legislation that the lawful and habitual residence requirement forms part of the overall assessment of housing need and will not be a new preliminary criterion which an applicant must meet before they can be assessed for social housing.
I further note, with regard to local authority decision makers, your assertion that the Department will work to ensure local authorities are sufficiently supported in their decision making with regard to the determination of habitual residence for the purpose of social housing eligibility. However, your response does not adequately detail how the State will ensure that the disproportionate and discriminatory impact on minority and structurally vulnerable groups that has been seen with the application of the habitual residence condition under the social welfare regime, and in respect of which the State has received criticism from international treaty monitoring bodies, will not be repeated with regard to accessing social housing supports.
Finally, I note your view that, as the provision of emergency accommodation is governed separately to the provision of emergency accommodation, it would not be appropriate to set out in the legislation that the requirement to prove lawful and habitual residence does not apply to applications for emergency accommodation. However, as outlined in our submission, there is evidence that conflation between the two statutory regimes continues to occur in practice. We are, therefore, of the view that it is necessary to set out clearly in the legislation that the requirement to prove lawful and habitual residence does not apply to applications for emergency services under the Housing Act 1988 in order to prevent any issues for persons accessing emergency accommodation.
In accordance with our mandate, we will continue to analyse the Bill as it progresses through the legislative process. My team and I remain available for further communication with you on the matters raised in our submission.
In line with our publications policy, this letter will be published on our website. This policy only pertains to IHREC-issued communications, and not to correspondence received by us.
Yours sincerely,
Deirdre Malone
Director
Footnotes
1 Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims,
2 Joint Committee on Housing, Local Government and Heritage, Report on the Pre-Legislative Scrutiny of the General Scheme of the Housing (Miscellaneous Provisions) Bill, 2024, May 2024.
3 Circular Housing 41/2012 - Access to Social Housing Supports for non-Irish nationals.