Homelessness & Rights
Emergency Assistance
Housing Authorities may provide emergency housing assistance . It may make arrangements including financial arrangements with a body approved by the Minister for the provision of accommodation for homeless persons.
It may provide a homeless person with such assistance including financial assistance as the authority considers appropriate. It may rent accommodation, arranged lodgings, contribute to the cost of accommodation and lodgings for a homeless person.
A person is regarded as homeless for the purpose of the legislation, if there is no accommodation available which in the opinion of the authority together with other persons who normally reside with him or who might reasonably be expected to, can reasonably occupy or remain in occupation or he is living in a hostel, night shelter or another institution and is so living because he has no accommodation of the type referred to above.
Rights
In a number of test cases taken, the courts have decided that the provisions in the Housing Act 1988 do not create a specifically enforceable obligation to provide housing for homeless persons. It is possible in principle to challenge a decision by way of judicial review.
However judicial review is a challenge to the legality of the decision or the procedures by which it is was adapted. It is only if the decision is wholly unreasonable and irrational that no decision-maker could take it, that it may be invalidated on substantive grounds. It must be fundamentally at variance with reason and common sense.
The courts have indicated that is as not the function of the to court to direct a local authority as to how to deploy its resources in accordance with its statutory functions . These are matters of policy outside the scope of judicial review. The courts have held they have no function in directing the allocation of resources by public bodies which deal with competing claims.
The courts have refused to imply a right to housing in the Constitution in this context. The modern approach is not readily to identify new rights. Even subsequent to modern approaches of the Supreme Court to require individual assessment in relation to matters affecting fundamental rights, the courts have continued not to intervene.
Possible Exceptional Duty to Act
If the circumstances of homelessness are extreme then the courts may find that the housing authority has a duty to act. In the case of O’Donnell v South County Dublin County Council, the powers as to emergency accommodation were considered by the Supreme Court. It was acknowledged that the accommodation of the family was unfit so that they were homeless for the purpose of the 1988 Act.
The Supreme Court held that a traveller family was not entitled to be provided with a caravan. The phrase “dwelling”, interpreted in light of the ECHR Act 2003, could not be interpreted as including caravan/mobile home provision. While another statutory enactment referred to caravans/mobile homes as a “temporary dwelling”, the ECHR Act could not be used so as to read these separate statutory provisions as one. To do so, would have in MacMenamin J’s view constituted “judicial legislation”.
MacMenamin J, relying on pre-ECHR Act 2003 case law, noted that there was a statutory obligation on the local authority to provide a halting site. While this legislative obligation is seemingly discretionary, in that the local authority “may provide” such sites, The court stated that this was a mandatory obligation upon the local authority to provide halting sites.
Unfit Accommodation
The court considered the duties of the local authority under the Housing Act 1988. The plaintiff was living in accommodation that was “unfit for human habitation”, living in “overcrowded accommodation”, had a reasonable requirement for separate accommodation, was in need of accommodation for “medical or compassionate reasons” and was unable to meet the cost of the accommodation or to obtain other suitable accommodation. The court stated that the obligations on SDCC had to be considered in light of constitutionally protected rights “and values” and the exceptional circumstances of this case, known to SDCC since 2005.
The Supreme Court accepted that the plaintiff was subjected to inhuman and degrading accommodation conditions, infringing on her private and family life compromising her rights to “autonomy, bodily integrity and privacy”. The court noted that while her parents could be viewed as having some responsibility for this, SDCC “when faced with clear evidence of inhuman and degrading conditions, [had] to ensure it carried out its statutory duty” in order to vindicate
The plaintiff’s constitutional rights under Article 40 and Article 40.3 of the Constitution. SDCC’s powers under Section 10 of the Housing Act 1988, “could have” been exercised and executed by making offers of financial assistance, had repairs carried out at SDCC expense and/or “contemplated lending a second caravan so as to make temporary accommodation space for the plaintiff, her brothers and sisters.” The court did not find that other family members constitutional rights or rights under the ECHR Act 2003 had been violated.
If in an exceptional case, statutory powers are given to assist in the realisation of constitutionally protected rights or powers given to relieve from the effects of deprivation of such constitutionally protected rights and if there are no reasons constitutional or otherwise why such statutory powers should not be exercised then, such powers may be seen as mandatory. The court indicated that council has failed in its duty to their disabled daughter because of the overcrowding. Because of the truly exceptional nature of her position the council had a duty to act.
Emergency Accommodation
The housing authority has a wide discretion in relation to the provision of emergency accommodation . The Dublin area authorities provide an increased level of homelessness housing assistance payments.
The Housing Authority may increase the applicable payments by up to 50% for qualified applicants . The applicant must qualify and be regarded as homeless within the meaning of the Housing Act 1988. Outside of Dublin there is a general power for local authorities to increase HAP payments up to 35%, where necessary to source a suitable dwelling
International Protection
Persons seeking international protection are subject to the European Communities Reception Conditions Regulation, made pursuant to Council Directive 2013/33/EU of the European Parliament and of the Council of 26 June 20131 , laying down standards for the reception of applicants for international protection (recast)
They provide for certain conditions relating to housing, food and associated benefits provided in kind, daily expense allowances and clothing allowances.
These regulations have been held to impose mandatory obligations of the state for person seeking international protection. The Court of Justice of the European Union has indicated that under the directive that even if accommodation facilities are overloaded, alternative steps should be taken by the Minister which may include giving financial allowances to bodies within the general public assistance system.
It was held in Ireland that giving a voucher for less than €30 and the address of private charities did not suffice in the circumstances. It was held to be a breach of the EU Charter of fundamental rights. In a subsequent case the question was raised whether the failure to implement EU law would give rise to a right to damages. This matter has been referred to the European Court of Justice of the European Union.