Joint Committee on Housing, Local Government and Heritage debate

General Scheme of the Housing (Miscellaneous Provisions) Bill 2024: Discussion

An Cathaoirleach

Everybody is welcome to the committee, which will carry out pre-legislative scrutiny on the general scheme of the Housing (Miscellaneous Provisions) Bill 2024. I thank the witnesses, who have been in touch with us previously, for their attendance. We are joined to assist in pre-legislative scrutiny by from Focus Ireland Mr. Pat Dennigan, chief executive officer, and Mr. Mike Allen, director of advocacy, research and communications. We are joined from the Simon Communities of Ireland by Mr. Wayne Stanley, executive director. From Threshold, we are joined by Mr. John-Mark McCafferty, chief executive officer. From Community Law and Mediation, we are joined by Ms Rose Wall, chief executive officer, and Ms Mary Heavey, a housing solicitor. I thank them all for their attendance and for the written submissions they sent in advance.

Before we start, I will read a note on privilege. I remind members of the constitutional requirement that they must be physically present within the confines of the place in which the Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. The witnesses attending in the committee room are protected by absolute privilege in respect of their contributions to today's meeting. This means they have an absolute defence against any defamation action for anything they say at the meeting. Members and witnesses are expected not to abuse the privilege they enjoy and it is my duty, as Chair, to ensure the privilege is not abused. Therefore, if their statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks and it is imperative they comply with any such direction.

Members and witnesses are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against either a person or entity outside the Houses or an official either by name or in such a way as to make him or her identifiable. The opening statements the witnesses have submitted to us in advance will be published on the committee website after the meeting.

We will start opening statements with the representative of Threshold, following by the representatives of Focus Ireland and the Simon Communities of Ireland, who will deliver a joint statement. Finally, we will hear from Community Law and Mediation.

For anybody watching and for the benefit of witnesses also, this is pre-legislative scrutiny, PLS, and the general scheme of the Bill has been published. The committee will put together a PLS report based on these submissions after we hear from witnesses today. This is a split meeting. We will do one and a half hours with our current set of witnesses and then we will have the Department present before the committee for the second hour and a half. We will put that report together as quickly as we can. We were asked to carry out PLS on this quite a while ago but we were quite busy for the past couple of weeks in the committee with a planning Bill. We are delighted to get back to joint Oireachtas committee operations now.

We will limit the questioning and answering to six-minute slots for each member but we may have time to do for a second round of questioning. If a witness did not get a chance to answer a question that was asked, there will still be an opportunity to answer it even if the member runs out of his or her six minutes. I invite Mr. John-Mark McCafferty to make his opening statement, please.

Mr. Zak Murtagh

Mr. McCafferty is not here today and Ms Ann-Marie O'Reilly will speak. She has slightly longer hair than John-Mark McCafferty.

Ms Ann-Marie O'Reilly

I am the national advocacy manager of Threshold. I am joined by Zak Murtagh, our legal officer. We wish to thank the Cathaoirleach and members of the committee for the opportunity to present today. As the committee will be aware, Threshold is a national housing charity providing front-line advice and support services to people experiencing difficulties in their rental tenancies.

Threshold is concerned with a number of aspects of Part 2 of the general scheme. In setting out these concerns, we put forward recommendations to overcome potential difficulties and hardships for those in most need of housing. I will speak about the application of the habitual residence condition, HRC, the assessment of reckonable residency, potential blocks to accessing emergency accommodation and possible restrictions to making an application for housing support. Time is short, so this will be a brief synopsis and we have provided further detail in our written submission.

If the HRC is to be adopted from the Social Welfare Consolidation Act 2005, the legislation must also make provision for an appeals process and set out the designated person who will make the determination as to whether an applicant is habitually resident, as is the case for social welfare applicants. We wish to have it noted also that the requirement for all members of an applicant household to be habitually resident to be eligible for social housing supports may exclude some from such supports. This potentially includes those Irish citizens as well as those who have the right to reside in Ireland with their families and are enjoying this right. For example, critical skills workers from a non-EEA country, for example, can bring their family to live with them. By doing so, however, they might exclude themselves from social housing supports as their family members may not be considered habitually resident in the country. We have provided a case example of this in our written submission. Greater consideration must be given to whether there is a need for all members of the household to be habitually resident to be eligible for social housing.

We wish it to be also noted that a definition of "reckonable residency" has not been provided in the Bill, nor is there reference to the criteria for assessing such. It is essential that a clear definition of "reckonable residency" and assessment criteria be provided. It is not clear to us from the Bill who will make the determination as to whether a person has reckonable residency. It is our understanding that the Garda National Immigration Bureau and the Immigration Service Delivery do not issue such documents. Rather, the officials of these bodies make a determination on reviewing a person's residency criteria and issue a document that only states the nature of the stamp held by the person and how long that stamp is valid. We ask if it will be the staff of the local authority making these assessments and whether they are in a position to do so. We do not set out to critique the staff of the local authorities but rather to recognise the complexity and, in particular, the legal complexity of the matters in question. This leads to a need for the identification of a designated person to make such a determination, as in the case of habitually residence.

Unfortunately, there have been instances in which people have been denied access to emergency accommodation on the grounds that they do not have an open application for social housing. It is essential that those ineligible for social housing, who are some of the most vulnerable and isolated in our society, are not adversely impacted by the proposed changes.

We recommend the inclusion of an additional amendment that sets out clearly that the existing section 20 and the proposed section 20(A) in no way place restrictions on a person's access to, or the local authority's role in providing him or her with, emergency accommodation.

The proposed section 20(A)(1) sets out two criteria for a person to be eligible to be assessed for social housing supports. The phrasing "to be eligible to be assessed" is out of step with section 20 of the existing legislation and is a cause for concern. It suggests, or could be taken to suggest, that a person may not be eligible to submit an application for social housing support until he or she has proven that he or she is lawfully resident and habitually resident and, where specified, has reckonable residency. This could create a separate, more protracted application process for which no prescribed process exists. We recommend careful consideration of this wording to bring it into line with the Act in order to avoid the creation of a two-step application process.

Given the complex nature of the Irish immigration system, the amendments and all related provisions and the impact these changes would have on people's access to much-needed social housing supports, Threshold believes the Bill must be carefully crafted with due consideration of all potential consequences. We see the need for a further expert consultation process regarding the proposed legislation to ensure that all stakeholder voices are heard and that we get this right. We thank the committee and we would welcome members' questions.

An Cathaoirleach

Thank you, Ms O'Reilly. That is laid out very clearly, and thank you for sticking to the time limit. I move now to the Simon Communities of Ireland and Focus Ireland. They will make a joint statement. I call Mr. Dennigan and Mr. Stanely.

Mr. Wayne Stanley

Yes, we will split the time. I thank the committee for its time and for the opportunity to present on behalf of both the Simon Communities of Ireland and Focus Ireland. Given the shortage of time, I will make three points. I think there will be a lot of repetition in this room today because they are the three critical points.

First, the provisions, as set out, borrow from social protection legislation. There are so many differences between the administration of social protection and the administration of housing that there is a need for bespoke legislation if this legislation is to go forward. A consultation process by the Department is absolutely warranted too in developing this legislation.

Second, a stated aim of the proposed legislation is to establish consistency in how State entities access social entitlements. The lack of statutory provisions regarding decision-making and the appeals process within the heads of the housing Bill stand in contrast with such provisions outlined in the Social Welfare Consolidation Act, again reinforcing the need for bespoke legislation.

Finally, we need to emphasise that there is an experience of local authorities requiring eligibility to social housing to secure access to emergency accommodation for which there is no legal basis. We strongly submit to the committee that, at a minimum, there is a need to explicitly set out in the primary legislation that the habitual residency condition for the purposes of social housing does not and should not affect an individual's or a household's eligibility for access to emergency accommodation.

Mr. Pat Dennigan

I thank the committee for the opportunity to address it. There will be a lot of repetition, as Mr. Stanley mentioned. Focus Ireland and the Simon Communities of Ireland welcome the opportunity to contribute to the committee's pre-legislative scrutiny of this legislation, which we believe would have really harmful consequences. The proposed legislation is presented as merely bringing housing legislation into line with the existing welfare legislation and being therefore of no great consequence. However, the welfare and housing systems operate in very different ways, and introducing this approach to housing could do far-reaching harm. If enacted as proposed, it would result in many more people being denied shelter and so forced to sleep rough.

There are four main reasons for this conclusion. Unlike the social welfare system, the housing system has no effective appeals mechanism and the decisions of housing officials are effectively final. Second, the lack of accountability is particularly problematic because habitual residence is a legally complex area where local authority officials currently do not have expertise.

Under the proposed legislation, rather than deciding eligibility on the basis of an assessment, an official may decline to make any assessment at all. These proposals link directly to rough sleeping because local authorities regularly decide not to offer individuals and families emergency shelter on the basis that they are not eligible for social housing. This legislation does not deal with any of the really pressing issues. Whether intentionally or otherwise, this proposed legislation would result more vulnerable people having to sleep rough. In addition to ill-health and risk of death, this would have serious detrimental consequences for our towns and cities and deepen social divisions.

Our full submission proposes amendments to ameliorate these harmful consequences and I direct the committee to that.

Ms Rose Wall

Good morning Cathaoirleach and members. We are delighted to be here alongside our colleagues in Threshold, Simon Communities and Focus Ireland. We thank the committee for the opportunity to contribute. I am the CEO at Community Law and Mediation, CLM, and I am joined by my colleague Mary Heavey, a solicitor specialising in housing law. CLM is an independent community law centre. We have been working since 1975 with communities experiencing disadvantage and inequality. That has included advice and representation on housing and homelessness issues which makes up the majority of our work.

We are here to give our views on the general scheme, in particular the proposals to introduce right to reside and habitual residence conditions for access to social housing supports. As outlined in our letter to the committee last week, we have been working since 2022 collectively with our colleagues in other legal and advocacy organisations, such as the Free Legal Advice Centres, FLAC, the Mercy Law Resource Centre and Crosscare, to emphasise the need for caution and detailed consideration of any proposals to add residence criteria for access to social housing supports and-or emergency accommodation. We understand that Part 2 of the general scheme is being brought forward for the purposes of replacing the housing Circular 41/2012. As members of the committee will know, residence as an element of eligibility for social housing is not currently contemplated in the Housing (Miscellaneous Provisions) Act 2009 and the circular I just mentioned has the effect of acting as a barrier to individuals and families from disadvantaged and marginalised communities from accessing social housing supports.

We welcome in principle, the intention of the Oireachtas to bring clarity to this area through the introduction of primary legislation. However, we are concerned about both the manner in which the general scheme is being brought and what it proposes to do. From our preliminary review of the general scheme, we are gravely concerned that the proposals could trigger a significant rise in homelessness. The general scheme proposes to introduce major new criteria for access to social housing supports which could immediately disentitle a significant number of individuals and families from access to such supports. People who are already most at risk of homelessness, discrimination and disadvantage, in particular those from minority ethnic and migrant communities, would be disproportionately impacted.

In light of the significant implications of Part 2, it is troubling that no formal or structured process of consultation on the conditions for access to social housing was undertaken to inform the contents of the general scheme. We strongly submit that a comprehensive, structured and inclusive public and expert consultation process with all relevant stakeholders on the conditions for access to social housing supports should be undertaken, prior to any proposals being advanced. That would be consistent with obligations under section 42 the Irish Human Rights and Equality Commission Act 2014, which provides for the public sector duty. It would also bring in the functions of the Irish Human Rights and Equality Commission, IHREC, under section 10 of that Act, which has been doing a lot of work in this area. Such a consultation would provide the opportunity to address the myriad of issues and potential unintended consequences caused by the current proposals, some of which my colleague, Ms Heavey, will speak about now.

Ms Mary Heavey

On foot of our preliminary review of Part 2 of the general scheme, we find that the proposals are unworkable, unclear, unduly harsh and restrictive and may give rise to violations of EU law. Our general view, which is shared by many of our colleagues in other legal and advocacy groups who are not here today, is that these proposals should not proceed in their present form.

Our initial and non-exhaustive concerns about the general scheme are as follows: first, we are concerned that it is not compatible with EU law. The proposals do not fully reflect EU freedom of movement of law, in that they fail to distinguish between EEA citizens exercising free movement rights as workers, as against those exercising free movement rights generally. This is a potentially fatal flaw in the general scheme. Second, we have concerns about the legal and practical implications of the general scheme’s proposal to adopt the concept of the habitual residence condition from section 246 of the Social Welfare Consolidation Act 2005. The HRC in the social welfare context is highly complex.

That stated, expert decision-makers are experienced in dealing with the HRC and there is a formal appeals infrastructure through the social welfare appeals office. The general scheme does not provide for any equivalent appeals mechanism, so it appears that this complex determination will be made by local authority housing staff who have no expertise in this area and without any appeals infrastructure equivalent to that in the social welfare context.

I am conscious of time so I will just flag that we have identified other concerns in our opening statement, such as the requirement in the general scheme that this may be a precursor to the eligibility assessment generally and also that the mandatory application of eligibility criteria to all household members may have unduly harsh and restrictive consequences.

Finally, I would like to flag that we are gravely concerned about the potential impact on eligibility for homelessness services. Access to homeless services is governed by a separate legislative regime and while the general scheme is silent on its application to homelessness services, in our experience, local authorities often conflate the systems. We are particularly concerned about this in light of a memo from the Department of Housing, Local Government and Heritage to the national homeless action committee which came to our attention last year. That memo proposed to radically overhaul homelessness law, including legislating for a right to reside and habitual residence conditions for access to both social housing supports and emergency accommodation. We, along with many of our colleagues, some of whom are here today, made robust submissions to the Department on this memo but we have not yet received an update on those proposals.

These issues really highlight the complexity of introducing any residency condition into the social housing support framework. We urge the committee to undertake to engage in robust and comprehensive consultation and scrutiny with all relevant stakeholders to ensure that any appropriate legislative approach is fully informed. We are happy to address any questions the committee may have. I thank members for their attention.

An Cathaoirleach

I thank Ms Wall and Ms Heavey. We will have the Department officials before the committee after this meeting. Our current guests are very welcome to stay in the Public Gallery and listen to those interactions. We also had a briefing with the Department on 9 April, which committee members attended and which was very helpful for us, as are those statements and observations the witnesses raised.

I will go now to members. We will follow the usual rota and have six-minute slots. Senator Fitzpatrick will take the first slot.

Senator Mary Fitzpatrick

I thank the witnesses for being here today and for their submissions on this legislation.

The additional groups to be consulted are not a major part of what we are saying, but we agree with what people are saying, in particular with regard to the groups affected by the housing. Our main point is that everybody working on homelessness, including all of the groups here, knows that while the legislation defining access to emergency accommodation is distinct and in a separate clause from social housing, every local authority on every day of the year renders people shelterless on the basis that they do not have a housing right or have not even had time to do it. The Department first went to the national homeless action committee and said it wanted to deprive a whole group of people of shelter and to discuss that. It got a huge negative reaction. It then said it would put that to one side and came forward with this Bill, which everybody knows would in practice have the same effect. That is not a good basis for building the trust and collaboration we need to build to end homelessness, which should be our joint endeavour. Arguing that they are separate pieces of legislation is completely misleading in terms of the reality a person faces. One thing this really draws into clarity is that if you as individual were to lose your home and go to your local authority and it for some reason says it does not consider you to be homeless, there is no appeals process in the administrative system. You have to go to the law centres, Focus Ireland, Threshold or wherever. That in itself is wrong. Why not scrap this piece of legislation and introduce legislation that would create an appeals system within the housing and local authority system? That would be a real step forward in terms of social justice and ending homelessness.

Deputy Eoin Ó Broin

I thank the witnesses for their presentations, and for the longer documentation which is exceptionally helpful in our consideration of the general scheme. Will Community Law and Mediation give us some concrete instances where, under the operation of the circular as it currently stands, people it believes should have a right to access social housing supports have been denied? What is probably more important is that it is clearly setting out a strong concern that an even larger group of people will potentially be excluded if the proposed Bill, as currently outlined, were to proceed. Will they be more specific about the categories or types of people, beyond migrants or returning Irish, will be affected? That will give us a sense of the challenges.

To add to that, this disentitlement would apply to an entire household. As the general scheme is currently drafted, every person in the household would have to meet the specified conditions. Again, these apply not just to the individual but to the entire household.

Mr. Mike Allen

I will just outline the context. Over a year ago, through our contacts - all of us work very closely with the local authorities throughout the country - we heard rumours and talk about the Department being at an advanced stage of bringing forward amendments to the housing legislation relating to homelessness. Our CEO, Mr. Dennigan, along with Mr. Stanley and others on the national homelessness action committee, asked the Department for a regular briefing on this undertaking. In October, it produced a briefing on what was being considered. It has some very positive things in it that we had been looking for in respect of prevention and the best interests of the child.

The substance of the briefing was that groups of people who could not prove habitual residence, etc., would be not eligible for emergency accommodation. It also proposed that a new agency, in addition to IPAS and the local authorities, would be established to provide, on a humanitarian non-legal basis, emergency shelter for these people who become unsheltered and so on. We were asked to comment on that. I think that all the organisations on the national homelessness action committee, NHAC, and others who saw the documentation came in and said it was a very bad idea and goes against everything in all of the positive parts of the homeless policy over many years. The Department then said that it was putting that to one side. Two things follow on from that which are worth mentioning.

An Cathaoirleach

I am sorry but we are out of time in that slot.

Mr. Mike Allen

I may come back to it.

An Cathaoirleach

I will try to allow Mr. Allen back in to clarify those two things.

Mr. Mike Allen

Yes.

Senator John Cummins

I thank all of our guests who are here this morning to help us with our pre-legislative scrutiny.

I wish to take up Ms Wall on the last point she made about eligibility for HAP. To go back to the point made by Senator Fitzpatrick, we are trying to determine the emergency response versus the long-term response. There are discrepancies across the country in how some local authorities view HAP compared with others. In Waterford, for example, which is where I come from, HAP is not considered long-term housing. HAP is considered a short-term housing solution until a person gets a social housing allocation. I understand that is not the case in other areas. If we can come up with a system whereby short-term homeless needs are able to be met and we are looking at this legislation in terms of the longer term social housing needs then what is wrong with that once we are able to do both?

Ms Rose Wall

There certainly is not anything wrong with addressing the housing situation that we are in, whether that is the provision of emergency accommodation, which should only be emergency short-term accommodation, or the provision of long-term stable social housing. Probably everybody here recognises that it is a good thing to try and address it. The devil then is in the detail in terms of how one goes about that. What we are saying here today is that we have real concerns about the proposals in the proposed Bill, partly because it may disentitle a large number of people who are currently entitled to long-term social housing support and move them into emergency provision or, potentially, into rough sleeping. That is the first problem.

Senator John Cummins

That can be countered, of course. One can ensure that there is circular provision in place to ensure that those people are eligible for emergency accommodation. Does Ms Wall acknowledge that could be done equally at the same time as we are doing this?

Ms Rose Wall

First, there are massive problems with emergency accommodation and access to emergency accommodation, as we can see in the numbers. If you can be sure that you can address one and address the other, that is something to think about.

The second thing is that it would move people, and potentially families, from long-term stable accommodation into short-term emergency accommodation. As the Senator rightly pointed out, that should only be for short-term emergency needs and there is a real question over whether that will happen.

In terms of other concerns about the proposed Bill, there is a question about families' entitlement to social housing support and whether each member of a household needs to meet the eligibility criteria proposed, including the habitual residence, lawful residence and reckonable residence requirements, and what kind of consequences there would be to introducing those barriers.

Senator John Cummins

That is something we can take up with the Department later on. Last week, I attended the briefing with the Department and we had a good exchange across a number of areas. One of the key things the Department would say is that the lack of legislation in this area is potentially problematic for the State in that we are relying on circular and not legislation and that may create legal problems for the State. Does Ms Heavey or anyone else wish to comment on that? Obviously that is the reason this legislation is being brought forward, in terms of what the Department officials have said and the advice they have received from the Attorney General.

While I know statements have been made here, using words such as "unworkable", and all of that, it has been legally checked by the Attorney General. Perhaps Ms Wall might like to respond.

An Cathaoirleach

I want to bring in Mr. Stanley too.

Ms Rose Wall

We are not averse to the idea of this being placed into primary legislation as opposed to circulars, because there is a hierarchy of these things. It should be placed in primary legislation. We are saying that before the proposals are moved forward, there should be thorough consultation with bodies like those we have already mentioned, particularly the IHREC, which has done a great deal of work in this area.

Mr. Wayne Stanley

I will make a very similar point. The objections here are not to having legislation but, rather, to having bad legislation that is not bespoke. This is an attempt to move across social protection legislation to put in a framework that allows the circular to operate. We are talking about what is actually needed, which is bespoke legislation that deals with the issues created in the system by the circular now and will help us to move forward. There is an opportunity here for the committee to do that.

Senator John Cummins

Regarding the residency requirement in general and to go back to the point made by Senator Fitzpatrick, if people who do not intend to reside in the State for the long term are up against, for want of a better phrase, other people who are on the list and absolutely intend to remain in the State for their lifetime, surely it can be seen that this is what is trying to be captured in this proposal. At least, that is my reading of what I believe is trying to be captured here. We are trying to ensure that the people who are on social housing lists around the country are those who are going to be residing in our State for the long term, not the short term.

Ms Rose Wall

The proposals as they are drafted could exclude people who do intend to reside in the country long term but who may not have been here for the reckonable residence period. It could also be the case that other members of their household might not have been here for the reckonable residence period.

Senator John Cummins

The members of the household aspect is definitely something I will take up with the officials. I thank Ms Wall.

An Cathaoirleach

I call Ms O'Reilly, who wishes to make a short point.

Ms Ann-Marie O'Reilly

This is not about the existence of criteria per se. There are criteria to apply for any social good. What is in question here is what these criteria are, how they are defined, how they are applied, who is applying them and if there is a proper mechanism in place for those who wish to appeal a decision. As Mr. Stanley said, we want to have legislation that is practical, that is right and that works.

Senator John Cummins

If I could make one point, and perhaps it can be commented on after because I will have to excuse myself from the meeting, the problem with appeals, as we all know, is that a system is created that gets bogged down. There is one system and then the appeals system, and the appeals system then gets bogged down as well. We have people who are not being protected in this context, and then the question is what will happen in the intervening time while an appeal is being determined. The result is to create a whole set of other problems, and perhaps this is something the witnesses can comment on.

An Cathaoirleach

I thank Senator Cummins. I call Senator Boyhan next.

Senator Victor Boyhan

I welcome all our guests to this pre-legislative session, which is extremely important. Before I go into this in detail, I thank the witnesses because we owe a great debt of gratitude and thanks to them as advocates in this sector with extensive knowledge. I heard what Ms Heavey said earlier about one of CLM's successful cases, where it did not get support, but that when correspondence was issued, people suddenly started to engage with the group. This is fact. It is happening all the time. I know this myself in the context of advocacy and representations. When an Oireachtas Member writes and sends correspondence simply setting out some key points and asking the recipient to please advise, suddenly there is a call and solutions are found. Officialdom, therefore, seems to push a few doors open somewhere and I presume this is because officials, politicians and advocates, such as the witnesses, have a certain power to shine a light in dark spaces and places. That is a very valuable tool and I commend the witnesses for their work.

I will direct most of my questions to the CLM representatives. My questions are the same for all the organisations and I am directing them to the CLM because it is handy. The organisation has set its points out in a very clear format that I can grasp pretty quickly. Anyone who wishes to comment on my questions is welcome to do so.

What we are hearing loud and clear is that there needs to be voices from migrant communities and people who are in the family, in the broadest sense, and in connection with these people. I would fully support that. I share the concerns of the CLM representatives about the disproportionality they foresee and envisage in that regard, and they might comment on that point.

The issue of the circular is clearly creating problems. At the end of the day, local authorities are being asked to implement aspects of this circular. I am picking up that many local authorities do not have the necessary skill sets and that is not through their own fault when they are dealing with many issues. I would like the witnesses to share their experience because they work closely with local authorities on the ground. They will say things on the record and off the record but they clearly have concerns about this pending legislation and they might share that with us in a general way.

I will touch on some other issues, including the compatibility of the legislation with EU law. Ms Heavey said in her opening statement that CLM is concerned that, "The proposals do not fully reflect EU freedom of movement of law". It is important to ask about that. All of us here may know more because we do this business a lot. People may have tuned in. This meeting will be shown on Oireachtas TV tonight and I am always conscious that the messages are not for the witnesses or for me but for the people outside this room, those who are not in the meeting and will be listening back to it tonight or tomorrow. The witnesses might touch on their concerns about the compatibility of these proposals with EU law.

Ms Heavey also spoke about the importance of the habitual residence condition. She said, "The general scheme does not provide for any equivalent appeals mechanism", as we have touched on. Mr. Stanley, Mr. Allen and a few others have touched on that point. The witnesses might speak to that point because a fundamental aspect of our approach is that we have social justice. We must have an appeals process. It is outrageous that we do not have the mechanism of an appeals process.

Another point I am taking from our engagement today is that no one has a difficulty with the primary legislation. I was interested in previous comments about circulars because a hell of a lot of circulars are dictating many things in this country, as we in the Oireachtas know, and they work when people want them to and do not work when people do not want them to. I do not buy into the concept that it is one or the other. However, I am picking up that everyone is happy that these issues need to be addressed concretely through primary legislation. That is important.

I am conscious that the witnesses need time to reply. Ms Heavey also made reference to "the scope for unintended and unduly harsh consequences". She might spell out some of those consequences. Ms Wall and Ms Heavey might start before we go to the other witnesses. I know there has been a lot in my contribution but I would like a solid and concise reply. I am conscious that the audience is not me but is the people looking on and who do not quite fully understand the nuances of the legislation.

Ms Rose Wall

I thank the Senator for the questions and I hope I have them all. I will address a few and my colleague, Ms Heavey, can speak to some of the case studies we worked on in the area.

Disproportionality underlines the need for consultation with a broad range of groups. As we have said, CLM works in the areas of housing and homelessness but it does not focus its work on the area of, for example, international protection or migration, as other groups might. Other organisations, such as IHREC, FLAC, the Mercy Law Resource Centre and others, have worked in this area and can illustrate some of the negative side effects of the circular we mentioned. There are certainly possibilities for the lawful residence, reckonable residence and habitual residence conditions to disproportionately impact certain groups, particularly migrant and minority groups.

The Senator also mentioned the issue of introducing a complex decision-making system into local authorities and the difficulties for housing officials in navigating that system. Like anywhere, we see in our work that incorrect decisions are made on a daily basis by housing officials. Because there is no appeals mechanism, and I will talk about that in a moment, individuals and families must avail of the likes of our services and those of our colleagues to challenge those decisions. Sometimes that means going to court, which is totally unnecessary, and nobody, including State bodies, wants that. There is a question there about training and providing support to housing bodies in respect of complex areas, as well as providing an independent appeals mechanism.

My colleague will be able to speak a bit more to the Senator's question about EU law. I flag that there are concerns about the failure to distinguish between EU workers and EU non-workers. Does the legislation properly and inclusively cover all those who have a right to reside? There are various European directives and Court of Justice of the European Union, CJEU, decisions on this point.

Then there is also a question of proportionality on the issue of household members. If other household members are refused access to social housing support because they do not satisfy the criteria, there is a proportionality assessment there around infringement of the rights of that family under the various EU and human rights frameworks.

The general scheme as currently drafted effectively provides that EU citizens who are lawfully and habitually resident in the state are not eligible to be assessed for social housing support in the first three months of their residence here in the state regardless of the basis of their residence there. The EU citizenship directive effectively allows a host member state to not provide social housing assistance to any individuals exercising their free movement rights in the host member state during the first three months of their residence, aside from workers. Workers have a special category and that has been determined in a case called García by the Court of Justice of the European Union, CJEU. Effectively, it found that host member states can refuse to provide social assistance aside from individuals who are exercising their rights as workers within the first three months.

We believe that blanket restriction is not compatible with EU law. There are also a couple of points my colleague Ms Wall mentioned. We have concerns that the habitual residence condition as reflected in the general scheme does not actually reflect EU law. It is not an identical replica of the HRC as set out in the Social Welfare Consolidation Act. We believe that distinction may not also reflect EU law. That is a case called Swaddling. Again, as Ms Wall said, we also have concerns around the proportionality impact.

An Cathaoirleach

If we are talking about somebody from a member state coming to Ireland, do the same criteria apply to an Irish citizen going to France or Germany? Do they have different criteria there as well? Surely, because it is an EU state we should have standardisation of the criteria. How does that compare to going in the other direction?

Senator Rebecca Moynihan

I thank all the witnesses for their presentations. It is clear where all the experts in this area who deal with local authorities every day sit. This is a case of taking a hammer to crack an egg. It is unworkable and provides for bad assessment criteria.

I recall during the great snow of 2010 people were refused access to longer-term emergency accommodation over the two weeks because they did not meet the habitual residence criterion. That was a local interpretation of it. They could only stay in each shelter that was set up for that cold weather initiative for a couple of nights. We know that when there are local interpretations, people fall through the cracks.

I want to ask about the EU and the case law that was affected by it but with regard to who is missing from the list in the general scheme, if the witnesses could send on to us the full and complete list of potential people who are missing from the scheme after the meeting, knowing who might be falling through the cracks would be helpful for us in our dealings with the Department. I take the Chair’s point that if we are exhaustive with the list, some people might end up missing out and it might not being updated. However, it is worthwhile if there are specific groups.

I have a question for the CLM representatives. Could they give us examples of a scenario where people who are on HAP may end up becoming disentitled under the general scheme? It is worthwhile to have those real-life examples. I ask about, for example, when the main applicant meets the habitual residency requirement but has a child who ages out and comes back but does not meet the reckonable residency requirement. I am interested in those real-life examples.

I ask about EU law, the free movement of workers and the free movement people who are exercising their rights generally. Where might this impact on family members who are coming over with people? Could the witnesses please give a real-life example of that?

I will pass it over and I might come back in if I have more questions.

An Cathaoirleach

If anybody wishes to indicate to come in on those, please do so.

Ms Mary Heavey

I thank the Senator for those questions. Regarding her first question, we can provide a more complete list of certain categories that we believe are not excluded.

Before I turn to her second and third questions, as Community Law and Mediation, we do not specifically focus on migrants or the migrant communities. That is not an area of focus. We absolutely do deal with them, but it is not an area of focus in our work. Other legal and advocacy groups have greater expertise and experience than CLM on what those specific cases might look like. Those organisations include Crosscare, which was mentioned earlier, the Immigrant Council of Ireland and the Irish Refugee Council. Regarding the real-life implications of the general scheme, it would be helpful to hear from those communities and those organisations because they have the real expertise in this area. That again underpins the need for a wider consultation on the impacts of the general scheme.

Does Ms Wall have anything further to add to that?

Senator Rebecca Moynihan

Can Ms O’Reilly come back in? She just talked about returning Irish. Many people have been affected by the social welfare system, for example, and not meeting the HRC. How would that impact on returning Irish who may be impacted by low pay? Does she have any idea of the numbers of people who are currently applying for social housing when they return and going on the social housing list and how many are families? Does anybody have the type of information of how many people are applying directly to social housing if they do not meet the habitual residence requirement? Does that data exist and is it available?

Ms Ann-Marie O'Reilly

We do not have it in Threshold. I do not know if is collected by local authorities. Our colleagues in Crosscare could probably speak to it in a bit more detail. We checked in with our colleagues in Crosscare in advance of the meeting and they shared with us a case study from their work of an Irish citizen who was evacuated from a conflict zone with the assistance of the Department of Foreign Affairs. She came back to Ireland with her spouse and five children. Her husband is non-EEA. They did not have any accommodation when they came back and her application was refused because of her husband’s immigration status. They were left without access to any form of social housing support. Crosscare did step in and is working with them on that. The local authority has since accepted the application.

Crosscare said that if this Bill was passed in its current form, it is highly likely that the family in question would not receive any form of social housing support. As we mentioned, because local authorities are conflating eligibility for social housing with eligibility for emergency accommodation, the family could very well be left without any shelter at all.

Senator Rebecca Moynihan

I have some questions on HAP and the social housing list for Community Law and Mediation. As the witnesses will know, most local authorities will contact people and people may have to reapply for social housing to ensure they meet the current criteria. Does Community Law and Mediation see circumstances in which people who do not have social housing will be kicked off the social housing list should this proposed legislation is introduced?

Ms Mary Heavey

Yes, we would see that. Again, it is not clear from the general scheme exactly how it is intended to carry out those checks. If all members of a household have to establish that they are all are lawfully resident, habitually resident and meet the requisite reckonable residency, there is a real risk that many households will not be eligible for social housing support and will not be entitled to HAP. I am not quite sure what is envisaged as regards what will happen to those many households.

Deputy Cian O'Callaghan

I thank all the witnesses and organisations before us. We have heard very loud and clear the strong critique they have made of the Bill and the very serious points they have made about people being denied access to essential supports which they will then get if they are able to initiate legal action. That is, of course, a huge barrier for people to surmount. The general scheme, as it stands, will result in more people being made homeless and rough sleeping. What critical changes need to be made to the Bill?

Mr. Wayne Stanley

I will articulate one clear point. It is not uncommon in legislation to have a proviso that nothing in this section of the Act should impinge somebody's access to social housing. That is a very direction that could be inserted. The appeals process is an absolute must and would be very welcome but its design needs consideration. Those are two of the very critical things. Ideally, there would be another consultation process and the legislation would be redesigned to fit more closely with the needs of the housing system, as opposed to borrowing from the social welfare system.

Mr. Mike Allen

I would make exactly the same points. An appeals system needs to be in place.

To deal with the point made by Senator Cummins, a well administered system and clear legislation can have a good appeals system. The social welfare appeals system is an exemplar of that. Unfortunately, it is very often the case that the poorest and most marginalised people are those who are deprived of an appeals system. The only appeals system is the law and that requires a substantial income. An appeals system is very definitely needed. It would be very useful in itself to have a clear statement that eligibility to social housing is not a requirement for provision of emergency shelter, which can be a humanitarian response. We need to think about this. We do not want to have large numbers of people in our emergency homeless system with no route out of it. That is a genuine issue. By no means is it as extensive as the Department seems to believe but it is an issue. Everybody should sit down and talk at a practical level about how we can resolve that and provide solutions.

In the argument about the general scheme, a number of Deputies and Senators have asked us how many people this would affect. The people who propose legislation should be saying what the scale of the problem is and what impact it will have on us. I have seen no evidence that this is actually an issue. I accept that people are worried about it but nobody has actually said that significant numbers of people who have no long-term commitment to Ireland are getting on the social housing list. The Department need to dig into that and present that sort of data to inform the committee's decision-making.

Mr. Zak Murtagh

A lot of what has been said also reflects Threshold's position. We are calling for the primary legislation to be right from the get-go and everything that flows from that to be reflective of it. Obviously, the appeals mechanism is crucially important.

We are all relatively aware of how habitual residency is currently applied when applying for social housing in that the person has been living in the area for a certain period, he or she works a certain distance from the area and his or her children are in school. Habitual and long-term residency are not the same thing. Habitual residency is where my centre of interest is currently. There is no test for anybody applying for social housing as to what their long-term intentions are yet.

Ms Mary Heavey

No, there is not and the way in which the general scheme defines the HRC is different from the Social Welfare Consolidation Act and is narrower. The habitual residence condition in the social welfare Act looks at the overall circumstances of the individual whereas the manner in which the general scheme defines it just looks at the overall circumstances relating to the future intentions. It might seem like a purely semantic distinction but on the ground and from an EU law perspective, it is potentially quite important.

Reckonable residence is not defined in the general scheme but that speaks to looking at the residence of a person in the State and whether it builds up to entitlements to certain social assistance, for example. Again, as noted by Threshold, that is not actually defined in the general scheme as it currently stands. The Deputy is absolutely right that it is the interplay between all of them that is of concern and merits further consideration to ensure there are not unduly harsh or unintended consequences due to how they interact with each other.

The second point is that one of the major challenges we made to the proposals is the same as the one we just discussed here. There was an assumption this was a huge problem and that lots of people in the homeless system had no right to housing. We asked where the evidence for this was and various things were put forward. Then the Department asked the Dublin Regiona Homeless Executive to look at Pathway Accommodation and Support System, PASS, on a particular night and say how many people on that system do not have a right to housing. They came up with this figure of more than 40% for that particular night. That was presented in various forums as proof there was a large number of people but, of course, Dublin Region Homeless Executive, Focus Ireland and anybody know knows the PASS knows that is not the case. That was simply a measure of the number of people in the homeless system who, on that night, had not had their material filled out or been added to PASS, which is another issue. The context of this, and somewhere a lot more energy could go into, is it leads to a six-week to a couple of months delay for a person who goes in looking for a housing assessment to get that assessment done by local authorities right across the country. In many cases, the local authority refuses to provide that household with emergency accommodations until it has gotten round to the process of doing the housing application. That is a very serious day-to-day programme. It means the homeless figures are lower than the reality and huge numbers of people, who are often vulnerable or with children, are put in very risky situations or staying in situations that are unstable. That is what we should spend time trying to solve.

An Cathaoirleach

I thank Mr. Allen. I have only ten minutes left and I have a number of speakers so if people will be direct and save some time it might be helpful. Senator Fitzpatrick is next.

Senator Mary Fitzpatrick

Which of the 27 European member states do not require residency to access social housing?

Mr. Mike Allen

Portugal.

Senator Mary Fitzpatrick

Is that the only one?

We agree that it should be a requirement, there should be criteria and it should be in primary legislation. Moving on from that, I think we all agree that we should decouple social housing from the emergency accommodation situation. The emergency accommodation response should not be dependent on a person qualifying for permanent long-term social housing. I acknowledge that my experience is focused on Dublin city. Dublin City Council is the largest local authority and it responds to the greatest demand for emergency accommodation, so I suspect it is better at it. In terms of an appeals process, it is an informal appeal. Elected representatives like myself, as well as organisations such as Crosscare, Threshold and others, will advocate when there is a case but that needs to be fixed in the other local authorities where the staff may not have been trained or equipped to respond as effectively as they should.

On EU and human rights laws, I take the point made. We will ask the Department officials to ensure that what they are bringing forward has been sanity checked. In addition, we will put to them the points our guests have made.

An Cathaoirleach

I will take the next slot. Next to speak will be Senator Boyhan. I will be quite brief.

All our guests have stated that there should be an appeals system. Which body should deal with that appeals system? I really do not want us to have to set up another body to deal with it. Is there a ready-made body that could provide an appeals system in a quick, efficient and fair manner?

Mr. Wayne Stanley

I think Mr. Allen drew the comparison, given that the comparison has already been made, with the social welfare legislation. The benefit of having a designed body within the Department that has an administrative duty to look at these appeals is that a body of knowledge is built up. Deputy Ó Broin talked about long-term need. The fact that a person applies for social housing could contribute to the assessment of their intentions into the future. If the Department of Social Protection is making a determination and sees the person has applied for social housing, that would be a part of looking at the assessment. These things are semi-judicial processes. That is where the complexity in all of this comes from. It is very difficult for administrative systems to look at that level of complexity. Administrative systems like hard and fast rules. As there is a need to balance EU and other legislation around reckonable residency, right to reside and all of those things, particularly when one starts getting into the five factors, one is going to get good decisions and bad decisions. If that is to be introduced, an appeal mechanism must be provided. All of those decisions should to one body. In that way, a level of expertise is built up and, over time, there will be fewer poor decisions.

An Cathaoirleach

Did Mr. Stanley say that should reside within the Department?

Mr. Wayne Stanley

I am not being prescriptive about it because we have not had time to give it full consideration. It probably should be done in the Department. If they were to be set up in each local authority, that level of consistency of process would not be achieved, possibly with the exception of the Dublin region, and there would be disparate systems throughout the country.

An Cathaoirleach

It is a question we can put to the Department..

Does Senator Boyhan wish to come back in again?

Senator Victor Boyhan

Yes, although I do not have a question for Ms Wall who asked a very important question of us regarding what problem the Government is trying to fix. I will just hang on that for a moment. I ask Mr. Stanley, Mr. Allen and Ms O’Reilly to outline in two or three sentences what they believe the Government's motivation is for this legislation.

Deputy Eoin Ó Broin

Can I ask a quick supplementary question?

An Cathaoirleach

Yes.

Deputy Eoin Ó Broin

The more I listen to this, the more I ask, given that it takes between six and 14 years to get a social house, whether this is really about HAP eligibility. Is there somebody somewhere who thinks that there is a group of people who get HAP and who are not really interested in getting long-term social housing? Is it being suggested that they are the people we want to exclude from the system?

An Cathaoirleach

Does Senator Boyhan wish to ask a further question? No.

Ms Ann-Marie O'Reilly

It is possible that this is being done to give a legislative basis to the circular that has been in place for the last ten to 12 years and to clearly set out the eligibility criteria. That is a guess.

Mr. Mike Allen

I think that is definitely part of it. I think it is a response to the huge, genuine pressure that local authority staff and the Department are under. They are asking if there is something they can do to make these people go away and go somewhere else. That is one pressure, and it is understandable, but it is the committee’s job to shape that into something meaningful.

The second part of it is the changing nature of Irish society. There are people we do not know, and who do not necessarily look like me or the rest of the people in this room, but they are now Irish. They are now increasingly becoming eligible for social housing and that is making other people wary. They are talking about a certain person and asking where they came from, because now they are in social housing. As far as I know, every single one of them is entirely entitled to social housing but the change in our society is happening so quickly that it has made people anxious. Instead of telling people that they understand why they are anxious and instead of saying the system is working and that a certain person is not jumping the queue, public representatives are saying they had better change the system because people are worried. Some sort of explanation should be given that, as our society changes, we will see people who have come from different backgrounds, have different accents and all the rest of it, and they will be in social housing, have jobs and be part of our society. That is something all of us have to celebrate and get used to. Public representatives need to be much more comfortable to say that while some of our systems are collapsing, some of them are working okay, so let us just concentrate on the ones that are not working, for example, by building enough social housing, rather than concentrating on the issues I described. Let us not feed into the anxieties that people have. Let us try to address them and make people more confident. This is a great country and we are doing many things well. Some of our public representatives should be much more progressive and assertive about that with some of the people who are getting a bit worried.

Mr. Wayne Stanley

I am not clear about the motivation. What stands out for me are the questions “Why this?” and “Why now?” The circular is in place, for all the problems that it causes. We are talking here about solidifying the current circular as opposed to addressing the issues that we have all been raising here. The Simon Community proposed a Homeless Prevention Bill, which many of the people in this room supported. It could come forward now. Given the crisis we are in, I am not fully clear about why this issue is becoming so important and why the Bill is being brought forward so swiftly and, it appears, without the level of consultation we might often see. We work quite closely with the Department and there are very good people in there, as there are in local authorities. I would be slow to put negative connotations on this but I do not think the consequences have been thought through.

An Cathaoirleach

We can certainly ask the Department about its reasons for doing this, rather than its motivation. I will give the last word to Community Law and Mediation to respond to that question.

Ms Rose Wall

To echo the Cathaoirleach, it is very difficult for us to comment on the motivation of the Department but it does feel as though it is a solution in search of a problem. We need to be really clear and have data to back up the problem we are looking to fix. Obviously, having that data and clarity will shape the solution. That may be a subject for the committee’s later session.

An Cathaoirleach

We will suspend to allow for a changeover of witnesses. Officials from the Department are due before us. I thank the witnesses for taking time out of their very busy days to help us with this. They are very welcome to remain in the Public Gallery and listen to the next session.

Sitting suspended at 12.30 p.m. and resumed at 12.44 p.m.

An Cathaoirleach

I welcome everybody back to the Joint Committee on Housing, Local Government and Heritage. We are continuing pre-legislative scrutiny of the general scheme of the Housing (Miscellaneous Provisions) Bill 2024. I welcome the officials from the Department of Housing, Local Government and Heritage. We are joined by Mr. David Kelly, assistant secretary in the homelessness, rental and social inclusion division; Mr. Vincent Colgan and Mr. Liam Murray from approved housing body, AHB, policy and agency governance; Ms Sarah Neary and Mr. John Wickham from the building standards advisory unit; and Ms Dorothy Kellegher, social housing policy. They are all very welcome to the meeting.

I will read a short note on privilege for witnesses because I have already read it for members. Witnesses attending the committee room today are protected by absolute privilege in respect of their contributions to today's meeting. This means they have an absolute defence against any defamation action for anything said at the meeting. Both members and witnesses are expected not to abuse the privilege they enjoy. It is my duty as Chair to ensure that this privilege is not abused. I am sure nobody will do so.

I invite Mr. Kelly to make his opening statement on behalf of the Department. This meeting will run until 2 o'clock when we will have a hard stop because we have to be in the Dáil Chamber.

Mr. David Kelly

I thank the Chairman and committee members the opportunity to discuss with them today the general scheme of the housing (miscellaneous provisions) Bill 2024. The Bill deals with a number of policy areas in the Department. I am accompanied today by a number of colleagues. Ms Dorothy Kellegher of the social housing policy unit is dealing with Part 2 of the general scheme, Mr. Vincent Colgan and Mr. Liam Murray from AHB policy and regulation are dealing with Part 3 and Ms Sarah Neary and Mr. John Wickham from building standards are dealing with Part 4.

Before outlining the main provisions of the Bill, I wish to provide some background and context to the proposed Bill. On 30 January 2024, the Government approved to the priority legal drafting of the general scheme of the housing (miscellaneous provisions) Bill 2024. The general scheme consists of three main parts: proposed amendments to the Housing (Miscellaneous Provisions) Act 2009; proposed amendments to the Housing (Regulation of Approved Housing Bodies) Act 2019; and proposed amendments to the Building Control Acts 1990 to 2020. I will now briefly outline the approach to each of these parts.

Long-standing policy in respect of social housing is to provide housing to those with a long-term need. The fact that the supports themselves are provided indefinitely goes towards the need being long-term in nature. As housing legislation does not provide for the withdrawal of social housing support once granted other than for tenancy breaches, anti-social behaviour, etc., it is, in effect, a long–term benefit.

The proposed new statutory provisions will provide a statutory basis for the requirement that an applicant must be lawfully resident in the State and have a right to reside that is not temporary or short-term in nature. The legislation will clearly set out the residence requirements for Irish, UK, EU-EEA and non-EU-EEA applicants. It will also add a new requirement that applicants are habitually resident in the State, consistent with the provisions already in place for certain welfare supports in social protection legislation.

The habitual residence criteria are considered a necessary new addition to the eligibility criteria to ensure long-term social housing support recipients are resident in the State and have a long-term interest in remaining. Such an approach is consistent with social protection provisions laid out in primary legislation in the Social Welfare Act 2005, as amended. Decisions with regard to eligibility for social housing support are taken by local authority housing officers and the legal and habitual residence criteria will be part of that assessment.

The Government has agreed that further amendments to the general scheme that the Minister deems appropriate may be required on the advice of the Attorney General. The Department will be working closely with the advisory counsel and Office of the Parliamentary Counsel during the drafting. The considerations of this committee will also inform the drafting process and the relevant issues will be brought to the Attorney General's office for advice as part of that process.

Technical amendments to the Housing (Regulation of Approved Housing Bodies) Act 2019 are necessary as concerns were raised around the eligibility requirement in the legislation that required approved housing bodies, AHBs, to amend their constitutions to reflect that they solely spend their property on the provision of housing. This provision prevented the majority of AHBs, which provide services other than housing, from meeting the eligibility criteria. The amendments also update the definition of the “alleviation of housing need” to remove the extant definition of cost-rental properties and include a definition that reflects the definition in the Affordable Housing Act 2021. The amendments also provide that the Approved Housing Bodies Regulatory Authority can notify and take representations from the Housing Agency regarding cost-rental properties as the administrators of the scheme. An exception is made to ensure the Iveagh Trust can remain on the register as due to its unique statutory status, it does not have a constitution that can be amended to meet the eligibility criteria.

Part 4 of the general scheme includes amendments to the Building Control Acts 1990 to 2020. The amendments provide explicit powers for the Minister to prevent a building being used until such a time as the particulars of the relevant certificate of compliance on completion have been entered on the register maintained by the building control authority.

The amendments also provide a legal remedy for the uncommon situation whereby works have commenced or been completed on a building without submitting, by either act or omission, an appropriate valid notice to the building control authorities.

Finally, a number of other amendments to the Building Control Acts are proposed at this time to strengthen and support the building control system.

I hope this statement and the briefing note provided to members in advance of today’s session have been of help to the committee. We are happy to take any questions members may have.

An Cathaoirleach

I thank Mr. Kelly. I also thank his team for the briefing the committee received on 9 April. We will have six-minute slots. Members have agreed to let Senator Boyhan go first because he has an engagement in the Seanad.

Senator Victor Boyhan

I thank the Cathaoirleach. I may not be here to listen to Mr. Kelly's full response, but I will be back. I appeal to him to look at the recordings of our earlier sessions because we had a lot of really meaningful engagement from advocates who are at the coalface of this area. I would ask him to look at that. Ms Rose Wall from Community Law and Mediation really summed it up for me in the end when she asked what problem the Government was trying to fix. That is the kernel of this whole story. I want to hear what that problem is from the witnesses who are here to make a case for this legislation. It is important that we have as much data and facts to justify the Government's desire, through the Department, to bring forward this legislation. I have one simple question. What is the problem the Government has charged or challenged the Department to fix? I ask Mr. Kelly to set that out as concisely and succinctly as he can.

Mr. David Kelly

Data was provided by the DRHE, which showed quite a number of people in emergency accommodation did not have a social housing application, so I suppose that demonstrates to some extent at least that the DRHE provides people with emergency accommodation without them having been deemed eligible for social housing. I am not arguing that there may have been cases in the past where local authorities have done it but the proposed legislation does not impact on emergency accommodation.

In terms of European law and human rights law, this is a general scheme so it will evolve and be refined and changed as it goes through the drafting process. The Attorney General's office looked at this general scheme when it was being approved by the Government but the detailed examination happens at drafting so I would be fairly confident that the Bill that goes to the Oireachtas after the drafting process will be consistent.

I am not aware that it is consistent, but I did hear an assertion that maybe it was not consistent. I know from our own engagements with legal advisers that there is a growing and ever-changing body of EU case law relating to citizens accessing State supports. We will be very reliant on the Attorney General making sure that the legislation is consistent with the latest EU legislation in this area.

In terms of stakeholder consultation, there was quite a bit of consultation with NGOs. I know the Department also wrote to IHREC with details of the proposed legislation. I am not sure if a formal response has been received but there was consultation.

I cannot remember the Senator's last question.

Senator Mary Fitzpatrick

My last question was about the data.

Mr. David Kelly

Was it about the appeals?

Senator Mary Fitzpatrick

How many applicants are currently on the local authority housing lists? How many of them do not meet the residency requirement? My supplementary question was about the fact that there is no appeals process within local authorities if a person is refused an application for social housing.

Mr. David Kelly

In terms of the latest social housing list, there are 8,800 households on it from within EEA countries, and 5,600 from non-EEA countries. About 25% in total are from outside Ireland. Those people would have been assessed based on the current policy, so they have been assessed as being entitled to social housing. We only have data for the people on the list. We do not have data on the people who were assessed and not approved. It is a fairly substantial group. Some 25% of the overall list are non-Irish citizens. I think the total is about 58,000 or 59,000, with about 15,000 being non-EU.

In terms of the appeals, generally local authorities have an appeals mechanism where somebody is unhappy with the decision taken. We are a higher authority than the local authorities and people can take a case to the Ombudsman. We are looking at this, in particular when we get into habitual residence, in terms of whether we need a stronger appeals mechanism built in. That is something we will be looking at during the drafting.

Deputy Eoin Ó Broin

I thank Mr. Kelly for the presentation. I have questions on Parts 2 and 4. If I do not get to the Part 4 questions in the first round I will come back to them in the second round.

I will contribute again in the next round.

An Cathaoirleach

We are out of time in the slot, so I am going to move to the next. I am conscious some Senators are on duty elsewhere, so I will take the next one myself.

The witnesses outlined that there was consultation with groups. In previous sessions, consultation with migrant-community representatives was mentioned. What groups were consulted? Several were mentioned in our previous session. The committee should write and seek a written submission. I know we have received-----

Senator Mary Fitzpatrick

FLAC and Mercy Law Resource Centre.

An Cathaoirleach

I think we received submissions from Crosscare and FLAC. We will go through the list but we might seek further written submissions based on evidence. I am open to suggestions. Were any of the groups I have mentioned part of the consultations?

Mr. David Kelly

There were several NGOs. Of those, Crosscare and Mercy Law Resource Centre, in particular, do a lot of work with migrant groups. FLAC and IHREC-----

An Cathaoirleach

I think those were the groups that were mentioned, but we might still look for further submissions.

Considering the advice in 2012 that we should put what was proposed into primary legislation, would the Department be able to furnish the committee with information on cases that have been taken or challenges, particularly those that have been upheld? I appreciate that Mr. Kelly might not have it to hand. However, it would help to inform what we are trying to do here and decisions on how we can amend or improve what is proposed in the general scheme.

On the appeals process, Threshold stated in its submission that if the habitual residency condition from the Social Welfare Act were to be adopted, as has been suggested, there would be an appeals process within that. Does Mr. Kelly believe there should be an appeals process and what body would be best placed to be the appeals body? Has this been thought through yet?

Mr. David Kelly

It is not built into the general scheme at present; however, as I mentioned to Senator Fitzpatrick, we will consider it. As part of that examination, we would need to consider how it would operate, but also who would operate it. We will engage with the Attorney General on it. If more submissions come from the committee, we will certainly consider them in the drafting.

An Cathaoirleach

That is fine. There should always be an appeals process in any decision-making process. We have one in most walks of life. The appeals process should be quite speedy. We do not want people in an appeals process to have to spend 12 or 18 months not knowing what is going to happen regarding their housing needs or where they will end up. For the applicant and for the system to operate properly, the appeals process should be speedy and not long and drawn out.

Mr. Kelly might be able to expand on an issue about which I was quite confused earlier. Threshold highlighted it:

The legislation that is before us does not impact on somebody's right to access emergency accommodation. It refers specifically to the entitlement to long-term social housing support. An assessment for emergency accommodation is carried out under separate legislation, namely, section 2 of the Housing Act 1988. It is a matter for a local authority to determine if a person is homeless. That includes whether the person has alternative accommodation. It is a separate process and separate legislation, however. It is not impacted by the legislation that is before the committee today.

An Cathaoirleach

Does Senator Fitzpatrick wish to come back in?

Senator Mary Fitzpatrick

Yes, please. As we continue our work as a committee, it might be useful for us to have a separate briefing on the emergency accommodation legislation in order to complete this picture. We all share a general concern regarding the need to ensure that whatever we do with this legislation will not have the unintended consequence of a negative impact on the people who are trying to seek and secure emergency accommodation. Maybe we could schedule that for one of our future meetings.

The 31 local authorities are independent and have significant latitude to apply their schemes, etc. In Dublin city, a person’s ability to secure housing assistance payment and support to secure long-term accommodation is dependent on that person having a valid application for social housing from Dublin City Council.

Dublin City Council also operates the DRHE and the emergency accommodation there. In addition to emergency accommodation for people who are homeless and new arrivals who seek to make their home here, progress their life here, to work and contribute and to do so access social housing, there is another group that is being excluded from supports from housing. I refer to young indigenous adults who earn less than €40,000 net in Dublin city while living at home with their parents. Dublin City Council, in the criteria it uses to accept somebody on to its social housing list, will often reject an application for housing from that young adult because its officials will say that the family live in a three-bedroom house, that is, there are the parents and the young adult. However, the young adult himself or herself has an independent right to pursue his or her life. That young adult could be 25 or 26 years of age and earn €30,000 or whatever but he or she does not get to access either the social housing list, potentially, or housing assistance supports. Has the Department any intention to correct that anomaly in the social housing access process?

Mr. David Kelly

This Bill does not change that assessment. Under the legislation, it is a matter for the local authority to carry out an assessment to determine if somebody has a long-term social housing need. It is up to Dublin City Council to make that determination. This legislation does not change that process. There are no immediate plans to change that but I note the point made by the Senator.

An Cathaoirleach

Deputy Ó Broin wished to come back in.

Deputy Eoin Ó Broin

I thank our guests for their responses so far.

Let us look specifically at head 5, new section 20A(1) opens with the words "In order to be eligible to be assessed". That gives the impression there is now two phases to the assessment. The first one is a residency assessment. If one makes it through the residency assessment, depending on which category, of which there are more than five listed, then one will have one's social housing need assessed. Is it correct to say there will be a preliminary residency assessment first and if one passes then one will have one's social housing needs assessment?

Mr. David Kelly

Yes, I think that becomes the preliminary part of the assessment, to first determine if somebody has a legal entitlement.

Deputy Eoin Ó Broin

Deputy Eoin Ó Broin

That is why I said in and of itself not having an active social housing file would not be a ground to refuse. Obviously there may be other grounds such as income or access to alternative properties.

In case Ms Neary feels left out, I have two questions on Part 4 because this is really important, if that is okay Chair?

An Cathaoirleach

Go ahead.

Deputy Eoin Ó Broin

This question is for Ms Neary or Mr. Kelly, whoever is most appropriate. In terms of the explicit powers for the Minister to prevent a building from being used, it might be useful to articulate that to the committee in summary form. My second question concerns the following: "The amendments also provide a legal remedy for the uncommon situation whereby works have commenced or been completed on a building without submitting, by either act or omission, an appropriate valid notice to the building control authorities." Obviously, in some cases, this is like a building control retention where somebody has allowed a building to be occupied without a completion certificate to have a process. As the witnesses will know, because we corresponded on this particular case many years ago, there is a very high profile case in my constituency where this is a live matter right now. There are 48 apartments with no certification whatsoever and the local authority is trying to work a way out on that. How do we make sure where somebody has wilfully refused to engage with the building control section - it was not that they just forgot or that it was an accident but that they deliberately abused the system - that we do not give them a route to regularising something when in fact regularisation is not the solution and prosecution is. I know this is not the Department's intention but what I would hate to happen here is that we send out a signal. Larkfield House is a very good example. It has been fully occupied in flagrant breach of building control amendment regulations, BCAR, since 2018. No prosecution has taken place. That does not send a very strong signal to that section of the building industry, which I hope is small, that this system is really strong. I know it is not a matter for the witnesses. It is a matter for the planning authority and I am dealing with it separately. I would be a little nervous. I understand the logic of a regularisation procedure but how do we make sure that in doing that we do not invite more Larkfield Houses because planning retention is one thing?

In terms of building control retention, although I know that is not what the Department is calling this, how would we be really sure that, for example, fire stopping is adequately provided for? Will that require invasive inspections of random sections of the property? How do we make sure insulation, energy efficiency insulation, etc., has been installed properly? Again, will we allow for invasive inspections? It is fundamentally different from a retrospective grant or regularisation of a planning permission. I would be interested in the witnesses' thoughts in terms of not providing perverse incentive for people to break the rules and on how we retrospectively assess compliance, particularly with things such as fire safety and whatnot.

Ms Sarah Neary

I thank the Deputy. The first item relates to giving the Minister explicit powers for when a building can be used. The intention of this legislation is to underpin what is in the building control regulations at the moment.

There was a legal challenge to it, which was settled, but the Office of the Attorney General recommended this be addressed in primary legislation. This is the first item. A follow-on from this is, as Deputy Ó Broin calls it, the retention process or the regularisation process. We certainly do not want this to become an alternative route. A number of safeguards are in place that are set out in the heads of the Bill. The first thing to mention is that all of the same control procedures would apply in the regularisation procedures. There would be a regularisation notice, regularisation fire certificates, disability access certificates and a regularisation certificate of compliance on completion. All of this would be required at the earliest opportunity when this becomes a matter of fact or comes to the attention of the authorities. All of these procedures would have to be complied with.

The real principle here is that buildings comply with the building regulations and Deputy Ó Broin mentioned a couple of important ones. The legislation also provides distinct powers for the building control authority to direct the builder to open up works in order that they can demonstrate compliance. This process would only be available under certain circumstances in the first place. It would come with additional fees, which would be proportionate to the works but would be punitive and significantly bigger than in the normal process. There would also be opening up work where necessary, which is expensive, and undoing works that are already done.

Deputy Eoin Ó Broin

This is very helpful. On Ms Neary's final point, the briefing note speaks about there being no process of rectifying an oversight or error at present. The two words used are "oversight" and "error". The opening statement of the Department spoke about either "act" or "omission". I much prefer the language in the briefing note because it would mean, for example, if I was able to demonstrate a genuine oversight or an error that would be fine, as opposed to somebody wilfully and flagrantly not submitting any certification at any stage and not only on one development. I am sure Ms Neary knows Dublin City Council is involved in legal action with the same developer with regard to Larkfield House and another development off the Naas Road. Clearly there should not be a regularisation procedure where people have a track record of doing this and have shown themselves to be wilfully breaching the building control regulations and certification process. Will there be a way of capturing the differences between something that might be an error or oversight in one piece of documentation as opposed to simply not engaging with the system?

Ms Sarah Neary

The Affordable Housing Act defines cost rental, and the intention is that any property defined as cost rental and owned by an approved housing body would fall under this. The scheme is managed by the Housing Agency.

Joint Committee on Housing, Local Government and Heritage debate - Tuesday, 23 Apr 2024

General Scheme of the Housing (Miscellaneous Provisions) Bill 2024: Discussion

Mr. Zak Murtagh

Ms Ann-Marie O'Reilly

Mr. Wayne Stanley

Mr. Pat Dennigan

Ms Rose Wall

Ms Mary Heavey

Ms Ann-Marie O'Reilly

Ms Rose Wall

Ms Rose Wall

Mr. Mike Allen

Ms Rose Wall

Ms Mary Heavey

Ms Rose Wall

Ms Rose Wall

Ms Mary Heavey

Mr. Mike Allen

Mr. Mike Allen

Mr. Mike Allen

Ms Rose Wall

Ms Rose Wall

Ms Rose Wall

Mr. Wayne Stanley

Ms Rose Wall

Ms Ann-Marie O'Reilly

Ms Rose Wall

Ms Mary Heavey

Ms Mary Heavey

Ms Mary Heavey

Ms Mary Heavey

Ms Mary Heavey

Ms Mary Heavey

Ms Mary Heavey

Ms Mary Heavey

Ms Mary Heavey

Ms Mary Heavey

Ms Mary Heavey

Ms Mary Heavey

Ms Ann-Marie O'Reilly

Ms Mary Heavey

Mr. Wayne Stanley

Mr. Mike Allen

Mr. Zak Murtagh

Ms Rose Wall

Ms Mary Heavey

Ms Mary Heavey

Ms Mary Heavey

Ms Mary Heavey

Mr. Mike Allen

Mr. Mike Allen

Mr. Mike Allen

Mr. Mike Allen

Mr. Mike Allen

Mr. Mike Allen

Mr. Wayne Stanley

Mr. Wayne Stanley

Ms Ann-Marie O'Reilly

Mr. Mike Allen

Mr. Wayne Stanley

Ms Rose Wall

Mr. David Kelly

Mr. David Kelly

Mr. David Kelly

Mr. David Kelly

Mr. David Kelly

Mr. David Kelly

Mr. David Kelly

Mr. David Kelly

Mr. David Kelly

Joint Committee on Housing, Local Government and Heritage debate -
Tuesday, 23 Apr 2024