On behalf of the select committee, I welcome the Minister of State, Deputy Noel Ahern, and his officials. I suggest that we continue with our deliberations until approximately 5 p.m. Is that agreed?
Residential Tenancies Bill 2003: Committee Stage (Resumed).
I apologise. What time will we conclude our deliberations?
At approximately 5 p.m. There are a number of matters which have to be dealt with in the Dáil at that stage.
So we will not reconvene after5 p.m.
No. We will resume our consideration of the Bill at 10 a.m. tomorrow.
Excellent.
The committee adjourned last Thursday following the agreement of section 85.
Section 86 agreed to.
SECTION 87.
Minister of State at the Department of the Environment, Heritage and Local Government (Mr. N. Ahern)
I move amendment No. 151:
In page 51, between lines 3 and 4, to insert the following subsections:
"(4) An appeal shall lie to the Circuit Court (by the applicant for the extension or, as the case may be, any other party to the dispute concerned) against a decision of the Board under this section to, as appropriate—
(a) refuse to extend the time concerned, or
(b) extend the time concerned,
and, on the hearing of such an appeal, the Circuit Court may, as it thinks fit, confirm, vary or cancel the decision of the Board.
(5) An appeal under this section shall be heard by the judge of the Circuit Court for the circuit in which the tenancy or dwelling concerned is or was situated.".
This amendment inserts two new subsections into the section to provide for an appeal to the circuit court against a decision of the tenancies board to either grant or refuse an application to extend the time limit within which a dispute may be referred to the board. It is required in the context of the implementation of the European Convention on Human Rights.
Subsequent to the circulation of the amendment a technical flaw as regards subsections (1) and (3) was detected. I will bring forward an amendment on Report Stage to correct this. The subsections refer to time limits imposed by Part 6, but there is a time limit in Part 3 that relates to the referral of a dispute by the rent review amount and a reference to time limits in Part 5 that relates to the content of the notice of termination.
Is the Minister of State taking personal credit for detecting the error?
No.
Amendment agreed to.
Section 87, as amended, agreed to.
Sections 88 to 93, inclusive, agreed to.
SECTION 94.
I move amendment No. 152:
In page 53, subsection (6), lines 27 to 32, to delete paragraphs (a) and (b) and substitute the following:
"(a) if a report contains a document of the kind mentioned in subsection (4)(b), a copy of that document (but not any other part of the report), or
(b) if the report does not contain such a document, a statement that no matters have been agreed to by the parties which resolve in whole or part the dispute (but not any part of the report).”.
This is a technical amendment, restating subsection (6) so as to provide greater clarity on what document is to be furnished to the tenancies board by its director on foot of receipt of a mediator's report. That document is either the portion of the mediator's report summarising the agreement reached between the parties or else a statement that the dispute has not been resolved by agreement between them.
Amendment agreed to.
Section 94, as amended, agreed to.
Sections 95 to 99, inclusive, agreed to.
SECTION 100.
I move amendment No. 153:
In page 56, subsection (1)(a), line 32, after “any” to insert “significant”.
The purpose of the amendment is to insert the word "significant" after "any" on line 32, which would enable the section to work more efficiently. As it stands the mediator or adjudicator shall declare to the parties at the outset of dealing with the matter "any" potential conflict of interest of which he or she ought to be aware. Any potential conflict of interest is a rather wide sweep. The proposal is to add the word "significant" to make it more reasonable.
Will the Minister of State say if it is more reasonable?
I do not think so. It may cause confusion. People may differ on what constitutes a significant conflict of interest. It might cause more confusion than the opposite. One has to declare a conflict of interest. It is dangerous to insert the word "significant" as it might be argued that a conflict of interest was not declared because it was not considered significant. This amendment might inappropriately weaken the provision. If there is any conflict of interest on the part of a mediator or an adjudicator in dealing with a particular case, this is potentially significant and should be declared. Further, it is for the parties to the dispute to decide on the significance of any conflict rather than the mediator or adjudicator. It would not, therefore, be appropriate to restrict the requirement by inserting the word "significant". Can the Deputy give an example of what he is thinking of?
One is required to declare any potential conflict of interest with the emphasis on the word "potential". Most of us would understand there to be a conflict of interest if, for example, an adjudicator had some beneficial interest in a dwelling where a tenancy was being referred to him or her. There would be a conflict of interest where a family relationship existed. However, what for one person may be a conflict of interest may be understandable for someone else. If they were playing on the same football team, would there be a conflict of interest?
What is a potential conflict of interest? Is it that people might be seen coming out of the same pub? They might drink in the same place. Is that a potential conflict of interest? The amendment should help to make the section more workable. As it stands, a mediator or adjudicator should declare a conflict of interest where it exists. Where there is a conflict of interest, he or she should not be involved anyway. However, what does one have to declare as regards a potential conflict of interest? If one thinks one of the parties is a first cousin once removed, is that a potential conflict of interest?
The Deputy's argument appears reasonable. However, if the word "significant" is included there is a danger that people will say, in effect: "I did not declare it because I did not consider it significant." It might be safer to mention it and let the parties involved decide whether they have a problem. A first cousin three times removed might not be regarded as an impediment. However, it could be debated either way.
This has relevance where someone ends up in court over the process — where a decision made by the adjudicator or the tribunal is being reviewed. The question is whether the process was correctly followed. Somebody could find that there was a remote connection between the adjudicator and one of the parties — and that the adjudicator had not declared it. The term "any potential conflict of interest" puts the onus on the adjudicator or mediator to tell his or her life story to the parties beforehand lest there be one. I will not press the amendment even though I believe acceptance of it would strengthen the legislation.
I accept what the Deputy says but equally, it could dilute the legislation. It is safer to include the provision and hope people will not concentrate on trivia.
Amendment, by leave, withdrawn.
Section 100 agreed to.
Section 101 agreed to.
SECTION 102.
I move amendment No. 154:
In page 57, subsection (2), lines 22 and 23, to delete paragraph (b).
The manner in which the tribunal is currently structured will place an enormous burden on the four members of the board who are members of the disputes resolution committee. The amendment proposes to remove the requirement that a member of the board must also be on the tribunal at all times.
The tribunal will deal with cases appealed following adjudication or where no agreement was reached at mediation. As a general principle, it is appropriate at least in the early stages of the board's operations that one of the three members of a tribunal be a board member. The resolution of disputes is probably the most significant function of the board. Board membership involvement in at least one stage of the resolution process will be beneficial and will build expertise. Having one board member participate in each tribunal hearing will ensure members have expert knowledge about the type, features and severity of disputes arising in the private rented sector. However, there is merit in the Deputy's proposal and I will reconsider the matter further if he withdraws the amendment.
The composition of tenancy tribunals as provided for in the Bill accords with the recommendation of the commission. However, the amendment highlights a valid point as to whether the presence of a board member should be a mandatory legal requirement. While I would like that board members take part in the tribunal to build up their knowledge and expertise, it may not be necessary to legislation that this be mandatory. I will reconsider the matter for Report Stage.
Amendment, by leave, withdrawn.
Section 102 agreed to.
SECTION 103.
Question proposed: "That section 103 stand part of the Bill."
I wish to signal my intention to introduce other amendments on Report Stage involving the substitution of the word "may" for "will" in paragraphs (e) and (f) of subsection (4). The Attorney General’s office is currently examining an issue on which we may introduce further amendments. In addition, following consultation with the Attorney General’s office there may be further amendments to section 104 on the summonsing of witnesses by tribunals.
Question put and agreed to.
SECTION 104.
Amendments Nos. 155 to 157, inclusive, are related and may be discussed together by agreement.
I move amendment No. 155:
In page 59, subsection (1), line 4, after "oath" to insert "or affirmation".
This section provides that the tribunal may require that a witness's evidence be given on oath. The amendment seeks to include the option of such evidence being given on affirmation. Not everybody appearing before the tribunal may wish to give evidence on oath. It is now common practice, for example in the courts, for non-religious people to give evidence by way of affirmation. That provision should be included in the legislation.
It is my understanding that the entitlement to give evidence on affirmation applies only in the case of legal proceedings in the courts. Currently, no statutory entitlement exists whereby a person may give evidence in administrative proceedings by way of affirmation.
The Deputy's final point is interesting. Legal advice is that "oath" is the appropriate word according to the provisions of the Interpretation Act and, as such, what the Deputy is seeking is not necessary. The word "oath" under the 1937 Act covers other forms of affirmation that might be appropriate in particular cases. The Deputy has raised a surprising point regarding whether that applies only to the courts or to administrative proceedings.
According to my note, the Minister may reply that the matter is covered by the Interpretation Act 1937 — which he has done. However, the Act does not say what everybody seems to think it says. The Act simply says that oath includes affirmation in the case of a person entitled to affirm. There must, however, be a pre-existing entitlement before the Act can operate and the only statutory entitlement is in the case of legal proceedings as opposed to administrative proceedings of this kind.
This issue was raised with the Attorney General's office which was happy this provision covered all circumstances.
May I suggest that the Minister of State consult with the office again before Report Stage?
Yes.
It is not an onerous change to include the words "or affirmation".
No, but if under the 1937 Act the definition is not required, then there is no reason to include it. The Deputy is saying that the current definition is correct in a court setting but is not necessarily correct in administrative proceedings.
It is allowed in legal proceedings because a statutory provision exists in that regard. I presume that in practice the chair of the tribunal would allow a person to affirm rather than insist on him or her taking an oath. I cannot imagine a chairperson forcing a person who has a difficulty with giving evidence on oath to do so. The right to affirm rather than to give evidence on oath, with which a person is uncomfortable, should be made clear.
We will clarify the matter.
Amendment, by leave, withdrawn.
Amendment Nos. 156 and 157 not moved.
Section 104 agreed to.
SECTION 105.
I move amendment No. 158:
In page 60, subsection (2), line 6, after "of" to insert "all or one or more of".
This is a technical amendment to subsection (2) clarifying that the board's power to direct that the identities of parties to a dispute not be disclosed applies to one or other of the parties. This will, for example, allow the board to direct that the identity of a tenant not be disclosed and to make no such direction in the case of a landlord. One or other name could be kept confidential.
Amendment agreed to.
Section 105, as amended, agreed to.
SECTION 106.
I move amendment No. 159:
In page 60, line 10, to delete "Tenancy".
This is a technical amendment which deletes the word "Tenancy" from before the word "tribunal". An earlier section provides for the use of the word "tribunal" to mean tenancy tribunal throughout the legislation.
Amendment agreed to.
Section 106, as amended, agreed to.
Section 107 agreed to.
SECTION 108.
I move amendment No. 160:
In page 60, subsection (2)(d), after line 42, to insert the following:
"(vi) the Board must, from the date of receipt by it of a determination of an adjudicator under section 96(4)(a) (contained in a report made to it under section 98), make a determination order on foot of that determination,”.
This amendment inserts a new sub-paragraph (vi) into subsection (2)(d) so that the specification in rules by the board of time limits applying to various aspects of the dispute resolution process will include the issue of a determination order reflecting the adjudicator’s determination of the dispute as supplied to the board. There was a gap in that no time limit for determination orders was previously specified.
Amendment agreed to.
Section 108, as amended, agreed to.
Sections 109 to 112, inclusive, agreed to.
NEW SECTION.
I move amendment No. 161:
In page 62, before section 113, but in Chapter 7, to insert the following new section:
"113.—(1) Proceedings under this Part dealt with by or before the Board, the Tribunal, a mediator or an adjudicator and any report or other document prepared, or communication made, by it or him or her for the purposes of, or in connection with, such proceedings shall, for the purposes of the law of defamation, enjoy absolute privilege.
(2) Any report or other document prepared, or communication made, by the Board, the Tribunal, a mediator or an adjudicator that does not fall within subsection (1) but which is prepared or made for the purposes of, or in connection with, the performance by it or him or her of functions under this or any other Part of this Act shall, for the purposes of the law of defamation, enjoy qualified privilege.”.
This amendment inserts a new section to provide for dispute resolution proceedings enjoying privilege. The new section was not drafted in sufficient time for inclusion in the Bill. Privilege provisions such as this are quite commonplace in legislation providing for the conduct of hearings. I refer here to the Medical Practitioners Act, the Nurses Act, the Ombudsman Act, etc. It is a fairly standard clause in Bills of this nature and provides for the conduct of hearings.
I have some reservations about this amendment. Perhaps the Minister of State will correct me if I am wrong, but I do not believe it is the case that proceedings before, for example, the Employment Appeals Tribunal and bodies of that nature enjoy absolute privilege. I am somewhat concerned about how this might operate in practice. For example, take the case of a tenant who brings a case against a landlord which goes the distance. It may be a straightforward dispute about the payment of rent but the landlord might arrive before the tribunal or board of the adjudicator and begin making allegations about the tenant, for example, in respect of aspects of his or her private life. Under this formula, the proceedings would enjoy absolute privilege. I can foresee situations where tenants would be discouraged from bringing their cases before the tribunal or the board because of a fear that a landlord might act vindictively at a hearing. The saucier the story, the greater the likelihood that it might appear in the Connaught Telegraph or some other newspaper. The reputation of the individual concerned could be placed at serious risk as a result.
To give, as the Minister of State proposes, absolute privilege provides a level of protection which could be abused in the circumstances. I appreciate that witnesses who give evidence must be protected and that people must be enabled to tell their stories in their own way and give their version of the events in a dispute. I would be concerned about opening up the possibility of things being said at a hearing. For example, a tenant might be involved in proceedings regarding a dispute about market rent or the failure of a landlord to carry out repairs and they might emerge with their personal reputation in tatters, something about which they could do nothing.
I presume that the chairperson would protect them to some extent. As already stated, this is a standard procedure in legislation of this nature. I do not know whether the other items of legislation are the same as that before us.
We are talking about where people live and the potential for mischief is much greater.
I am not disputing that. However, the principle is that we do not want somebody to be sued for what they might say and we want people to be free to provide the facts. The question is how tightly we should control it.
People can say what they like in court or at a tribunal.
Okay.
It is about the behaviour of a tenant or a landlord, for that matter. I accept that the allegation could equally be made by the tenant. Let us consider the case of a landlord trying to recover his rent and his tenant appears before the tribunal and says that he made a lunge at her or did something else. The potential for somebody using the cover of absolute privilege to say what they like about the other party is enormous.
That can happen in any court of law and the judge might tell the jury "Perhaps that is not an equal comparison" or "That evidence should be stricken out".
The context here is different. In the case to which I refer, the landlord may have called on a Friday evening to collect the rent and it is his word against that of his tenant, or vice versa. The landlord could make any kind of statement about the tenant’s behaviour and nobody would have redress, although the tribunal might not accept or believe it, or might see through the tenant’s version of events. However, the point is that paper will not refuse ink. If a statement is made, a person in the press gallery can transcribe it and report it, and nobody can do anything about it. The more salacious the story at the tribunal, the more likely it, rather than the amount of rent owed or in dispute, will be covered.
It is a problem but, at the same time, we need to introduce some measure because we want people to give their side of the story. We do not want them to go in with their hands tied or to feel that they are restricted. However, with regard to the chairpersons of tribunals, if a judge in a court of law were to order that evidence be struck out, a media person would not rush to report it.
An example would be a situation where the landlord seeks recovery or repossession and the tenant disputes that, or where the landlord has made allegations regarding the behaviour of the tenant. Irrespective of the finding the tribunal makes, it can be reported if there is absolute privilege. We are dealing with matters arising from the regulation of where people live, and, therefore, in proceedings of this kind, a person's private life is exposed to a greater extent.
We are both of the view that some form of protection or privilege is required. Can I pick the Deputy's brains? Has he any legal view that can put this right with one word?
The Minister of State has bigger, better and better rewarded brains than mine with which to answer these questions.
I am not sure they are better rewarded.
Amendment put and declared carried.
SECTION 113.
Amendment No. 162 is out of order as it would involve a potential charge on Revenue and would require the board to pay possible expenses incurred. I could give the Deputy the full breakdown if he wishes.
It is all right.
Amendment No. 162 not moved.
Turning to amendment No. 163, amendment No. 204a is related and Nos. 205 to 209, inclusive, are alternatives to No. 204a. Therefore, amendments Nos. 163, 204a and 205 to 209, inclusive, may be taken together by agreement.
I move amendment No. 163:
In page 63, subsection (3), lines 30 to 37, to delete all words from and including "of" where it firstly occurs in line 30 down to and including "damages." in line 37 and substitute the following:
"that an adjudicator or the Tribunal may direct to be paid to a party in respect of the matter (or, as appropriate, all of the matters) the subject of a dispute referred to the Board for resolution shall not exceed—
(a) if the amount or amounts consist solely of damages — €20,000,
(b) if the amount or amounts consist solely of an amount or amounts by way of arrears of rent or other charges — €20,000,
(c) — if the amount or amounts consist of both damages and an amount or amounts referred to in paragraph (b)—
(i) in so far as the amount or amounts consist of damages — €20,000,
(ii) in so far as the amount or amounts consist of such other amount or amounts — €20,000.".
These amendments deal with the issue of the maximum levels of damages that the board may award and also set the limit below which cases may not be taken to the courts. The Bill as published limits the amount that the board can award in any case to a maximum of €20,000 to cover all rent arrears, charges and damages combined. Any dispute where the person referring the case requires redress exceeding that sum would need to be dealt with through the courts rather than the board.
It is proposed to amend this provision to allow a limit of €20,000 to apply to damages only, with a separate limit of €20,000 for damages involving arrears of rent and other charges. This could effectively raise the potential limit to €40,000 in a case involving a combination of damages together with arrears of rent and other charges.
My constituency colleague, Deputy O'Malley, is not present. As a colleague, I should refer to her amendment.
That is generous.
The Minister is saying that the tribunal can award damages of up to €20,000 in a case where, for example, there is damage to property. In addition, up to €20,000 can be awarded in regard to recovery of rent. Is the Minister of State also saying that recovery of such damages cannot be sought in the courts if the amount sought is under €20,000? If, for example, a tenant does damage to a property, is he saying that the landlord cannot take that matter to court but must go to the tribunal?
If a person wants to claim more than that amount, he or she must go to a court.
If a person wants to claim less he or she must go to the tribunal. Is that correct?
Yes.
What if the landlord has not registered and is prevented from going to the tribunal?
Would that be to beg the case of the tenant?
No. What if a tenant owes a landlord €10,000 and the landlord wishes to take a case but has not registered? He cannot go to the tribunal if he is not registered and cannot go to court because he is prevented under the legislation.
First, he is supposed to be registered.
I am aware of that.
It is the law that he must be registered. Coming from the Deputy's perspective, such a landlord would be a law breaker.
I am trying to tease out what is in store for such a landlord.
If he wants to use the board, such a landlord should register. The Deputy asks whether a landlord who wants to ignore the existence of the board can still use the courts as he might have done up to now. That is not the way we are thinking. We are introducing a new system for the benefit of all and it will be law. This is not like electronic voting in that we do not want parallel systems, although that might be a bad comparison. Nonetheless, we do not want parallel systems. In future, people should——
What does this law mean? My understanding, from what the Minister said, is that if the amount of damages being sought is less than €20,000, the case cannot be taken to the courts but must be taken to the tribunal. If the landlord has not registered with the board, he is not entitled to go to the tribunal. That would mean a landlord seeking recovery of rent or damages where the amount involved is less than €20,000 has recourse neither to the courts nor to the tribunal if he or she has not registered with the board.
Yes, but we are talking about a potential law breaker who is ignoring the law of the land wanting access to the courts of the land. He could use the board but he would first have to get his act in order. He could register late and pay the appropriate fee, after which he could use the facilities. He is not being deprived of all access to the laws of the land. He would just have to conform to the regulations whereby he should be registered and pay his fee.
Amendment agreed to.
Section 113, as amended, agreed to.
Sections 114 and 115 agreed to.
SECTION 116.
I move amendment No. 164:
In page 64, between lines 44 and 45, to insert the following subsection:
"(3) Where a tenant is seeking to be permitted to resume possession of a dwelling, the landlord shall notify the Tribunal as to whether or not any other person is in possession of the dwelling and the Tribunal shall afford any such person an opportunity to be heard in the proceedings.".
Under section 116, the tribunal could allow a tenant back into possession, even though someone else had been allowed possession. This could create an anomaly, therefore the second mentioned person should be heard before the tenant is allowed back into possession.
Presumably in some of these cases there will be a time lapse between the issue arising and the tribunal making a finding. If, for example, one has been thrown out of his or her rented dwelling by the landlord, by the time he or she complains to the board and goes to the tribunal to have the case heard, the landlord could have relet the dwelling to another tenant. This would mean that a third party is involved. I imagine the tribunal would look at these issues pragmatically. In those circumstances, it might not look at the reinstatement of the tenant as the appropriate remedy. The amendment seeks to make doubly sure that where there is an interested third party, they should at least have the right to be heard at the proceedings.
I do not think it is necessary to insert a specific requirement that where a former tenant is seeking reinstatement the landlord must notify the tenancy tribunal if another person is in occupation of the dwelling. This provision only comes into play if there is another person in occupation. This information is already known by all the parties and by the board.
Equally the section envisages hearing from the other person in occupation. It would not be possible to decide if reinstatement of the previous tenant would cause hardship or injustice to the current tenant without consulting with the current tenant. What the Deputy is seeking is already covered.
The tribunal must be notified if there is another tenant?
The provision only comes into play if there is another tenant.
How does one know? What about the other tenant? The other tenant could have taken up a tenancy completely oblivious of the fact that there was a dispute involving a previous tenant. The only obligation under the legislation is that the landlord must notify the tribunal that there is another tenant. I imagine the tribunal would use its common sense and not reinstate where there is another tenant. There should be some provision where there is another tenant. The issue of reinstatement, which would compromise the rights of the other tenant, would come into play whereby at least the other tenant should be notified of that by the tribunal and be given an opportunity to respond. I know it is a theoretical possibility.
I could look at it from another perspective. It might be of interest to the tribunal to know the circumstances in which the other tenant became the tenant of the dwelling. It might have some relevance to the case being heard. If, for example, the other tenant was given the tenancy of the dwelling at considerably higher rent than the previous tenant, the tribunal might want to draw some conclusions from that, or it might want to hear what the landlord had to say to the new tenant about the nature of the tenancy.
It appears to be covered. This is what the whole section is about. The tribunal must look at whether reinstating the original tenant caused injustice to the new tenant. Obviously the new tenant must be protected as it is not their fault. The section as I read it envisages them hearing from the new tenant.
Suppose one had a case before the tribunal, the landlord came to the conclusion that he would lose the case, the tribunal started to wonder aloud about reinstating the tenant, he or she indicated there was no objection and led the tribunal to believe that the new tenant was only staying there for a couple of weeks, the new tenant should have some right to be heard by the tribunal. The new tenant might have an entirely different view of their status. The landlord might think he is losing the case and decide to shore himself up and dump the new tenant who, given the timeframe, might be on probation anyway. It would leave the new tenant very exposed. I am seeking that the new tenant should have a right to be heard.
Basically, I agree with the Deputy's concern for the new tenant. However, we differ on reading what the section is about. We feel the duty is on the tribunal to establish whether the decision would cause the new tenant an injustice.
The tenant should have a right to be heard by the tribunal where his or her tenancy is at risk.
I am not disagreeing with Deputy Gilmore but this is, more or less, envisaged in the Bill.
Where does it say that the new tenant can be heard by the tribunal?
It is implicit in what is being said. They have a duty and responsibility. We will look at this if the Deputy wishes. We both want the same thing. I believe the tribunal has the responsibility and the Bill refers to its responsibility to see if it would cause injustice to the second mentioned person.
Does Deputy Gilmore want it written into the Bill that the second tenant has a right to be heard if needs be?
That is right.
I think it is covered but I will look at it if that is what the Deputy wishes.
Amendment, by leave, withdrawn.
Section 116 agreed to.
SECTION 117.
I move amendment No. 165:
In page 65, subsection (1), lines 16 and 17, to delete paragraph (i).
This relates to my earlier amendment dealing with the issue of costs, which was ruled out of order. This section allows the tribunal to award the landlord's costs against the tenant where arrears of rent are being pursued. It is unfair to have a provision in the Bill which would allow a landlord to recover his or her costs from a tenant while there is no provision for a tenant to recover his or her costs from a landlord.
The other amendment, which was ruled out of order, dealt with the provision whereby the tribunal could recover its own costs from either party to a dispute, whereas there is no provision, apart from this one, for the parties to a dispute to recover their costs from each other.
Either we have a regime where either party to a dispute can recover costs or one where neither party can do so. We now appear to have a regime where everyone except the tenant can recover costs. The tribunal can recover its costs from either party, the landlord can recover his or her costs from the tenant but the tenant cannot recover costs from anybody.
It depends what the dispute is about. The landlord does not have that protection in all disputes. This section refers to the payment of rent. The basic responsibility of a tenant is to comply with the obligation to pay rent. This obligation is kept separate from everything else. That is why this right is not found in other sections of the Bill. We are saying that this is a most basic obligation. The tenant is provided with accommodation and pays rent. Only if a landlord incurs costs in pursuing rent arrears, and rent arrears only, is it appropriate to award reasonable costs against a tenant. We base this provision on the fundamental and basic obligation of the tenant to pay rent. We are not extending any unfair rights to the landlord. This right is given to the landlord in no other regard because the fundamental obligation on a tenant is to pay his or her rent.
The fundamental principle of equality before the law is in danger of being broken. There is the obvious inequity that only one side will be allowed to recover costs. Suppose, for example, a landlord brought a claim against a tenant for recovery of rent and the tribunal found that the rent was not recoverable because the tenant did not owe it to the landlord, should the tenant not be entitled to costs? If the landlord wins a case he or she can get costs from the tenant but if the tenant wins he or she cannot get costs from the landlord, which is inequitable. It will lead to a landlord being able to hire the best of legal assistance, safe in the knowledge that even if the tenant wins the case he or she cannot recover costs against the landlord.
I do not agree that the recovery of rent should be given a status over and above every other right and entitlement being provided for in the legislation. If, for example, a tenant finds that a landlord has failed to comply with his obligation to maintain the property or to provide electricity, running water or another essential service and a tenant decides to take a case of that nature to the tribunal, the tenant is not entitled to recover costs at all. What is being prescribed here is one law for the landlord and another for the tenant. It is utterly unacceptable. We should either have a regime where all parties or no party can recover costs. It is not acceptable that only one party is entitled to recover costs and only where money is owed. Where a landlord has failed to comply with his or her responsibility to maintain a dwelling in proper order the aggrieved party would not be entitled to recover his or her costs, which is unfair.
I am not convinced by Deputy Gilmore's argument. We are putting the payment of rent in a different category from other disputes which might arise. When a tenant does not pay the basic rent, it is reasonable to award to the landlord the costs incurred in pursuing the rent arrears rightfully owed to him or her.
I would agree to that if the Bill contained a provision allowing a tenant who successfully took a case against a landlord to recover costs and a provision that a landlord who unsuccessfully brought a case against a tenant for recovery of rent would be obliged to pay costs to the tenant. I will not agree to a regime where only the landlord, and only in one set of circumstances, can recover costs and where nobody else can do so.
Suppose a landlord took a case against a tenant for recovery of rent and the defence said there was a deposit which was retained by the landlord, that there were repairs the landlord should have carried out, and that the tribunal came to the conclusion, when it totted up all of the issues, that there was no money owed to the landlord and if a landlord brought in the legal guns to represent him or her in the case a tenant might go to considerable expense in defending it. In that case, the tenant cannot recover the costs even though he or she ends up winning it.
In an earlier section we said damages can be awarded either way up to €20,000. Therefore, it is not a case of a tenant bringing other cases and not being able to win them or being able to get——
Damages do not include costs. One cannot go into the tribunal and say the landlord failed to fix the hole in the roof and that one's entire wardrobe of clothes was destroyed when the rain came. The tribunal can award the cost of the damage to the clothes but it cannot award the cost incurred in taking the case.
Is the Deputy confining his concerns to cases where the landlord might take a case for rent arrears and can get his costs although he loses the case?
I presume if he loses the case he will not get his costs. If he loses the case the tenant wins the case but the tenant does not get her costs.
In support of what Deputy Gilmore has said, there are occasions at the end of a tenancy where tenants have a difficulty in getting back the deposit. That would appear unfair. Even in his use of language over the past few days the Minister has mentioned poor or bad tenants on a number of occasions but never a bad landlord, which is unusual for him. It is important that the legislation be balanced and not tilted in favour of the landlord.
I will not start a row with the Chairman but I hope I have been balanced.
I have never seen this before, where one side would be allowed to claim costs but not the other. One cannot have that. Either there should be a position where neither side can claim costs — there is an argument for that as it might ensure the proceedings of the tribunal are kept less formal and less legalistic — or one where either side can claim costs.
We can look at it but they are not the costs of the case before the board, they are the costs incurred in pursuing the arrears. I do not know if that makes much of a difference. We will look at it again.
Listening to the arguments on both sides, there is a grave injustice here. It appears as if there is one law for the tenant and another law for the landlord. The Minister has said he will look at a number of amendments on Report Stage but if the Bill is guillotined as others have been there will not be an opportunity to debate this matter again in the House. In supporting Deputy Gilmore I would like a guarantee that there will be an opportunity to discuss his very worthy amendment.
I cannot see into the future. I hope the guillotine is used only in a minimum number of cases but I cannot deal with that now. If I say we will look at something, we will certainly do so. I am not giving any promises but certainly we will look at them. That is all I can say at this stage.
I will withdraw the amendment and resubmit it on Report Stage.
Amendment, by leave, withdrawn.
Section 117 agreed to.
Sections 118 to 120, inclusive, agreed to.
SECTION 121.
Amendments Nos. 166 and 167 are related and may be discussed together, by agreement.
I move amendment No. 166:
In page 67, lines 39 and 40, to delete subsection (4).
The provision in the Bill is that the High Court has determined an appeal from the tribunal. Section 121(4) states:
The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive.
I appreciate there will not be too many cases which would be likely to go to the Supreme Court. I do not understand why the right to the Supreme Court has been cut off. As I understand it, the High Court will be enabled only to consider points of law which arise from tribunal determinations; that is the only thing that can be appealed to the High Court. It is unusual that the Bill should state that it can go to the High Court only on a point of law. A person's access to the courts should not be restricted in this way. There may be some issues, for example, the awarding of costs, where somebody might decide there was a point of law, or a constitutional issue. It is unreasonable that the right to go to the Supreme Court is being cut off.
Amendment No. 167 seeks to extend the period provided for an appeal beyond the 21 days provided for in the Bill. That is very short given that if a person is considering an appeal he or she obviously needs to get legal advice. I suggest the period be extended to 35 days — five weeks as against three weeks. Three weeks is a short period within which somebody would have to make a decision on an appeal.
The commission recommended that appeals on its decisions should be to the High Court on points of law only and that the High Court decision should be final. The Deputy spoke earlier about landlords bringing out the big guns and so on. I thought we were trying to bring finality to these matters in not allowing every case continue up through the system where money would be the deciding factor. The Bills contains a provision for applications to the Circuit Court for enforcement orders where a determination order of the board is not complied with. That allows for aspects to be raised for the court's consideration such as an absence of procedural fairness, material considerations not being taken into account, manifestly erroneous decisions on legal issues, and determinations that are manifestly wrong. This makes appeals on points of law beyond the High Court even more unnecessary.
There are many examples of similar legislative provisions where appeals to the High Court on points of law are final. That is particularly so in the case of Labour Court and the Employment Appeals Tribunal decisions on various legislation such as the Protection of Employees (Part-Time Work) Act, the Organisation of Working Time Act 1997, the Protection of Young Persons (Employment) Act, the Payment of Wages Act and a number of other Acts. I will not say it is standard procedure but it applies to several legislative measures.
Amendment put and declared lost.
I move amendment No. 167:
In page 68, subsection (7), line 8, to delete "21" and substitute "35".
Three weeks is sufficient time within which to decide to refer an appeal to the High Court on a point of law. If there are extenuating circumstances whereby it was not possible to refer the appeal within that period, the High Court could exercise its discretion but three weeks is a fairly standard time period.
Amendment put and declared lost.
Section 121 agreed to.
SECTION 122.
Amendment No. 168 is in the name of the Minister. Amendments Nos. 170 and 171 are related and it is proposed to discuss amendments Nos. 168, 170 and 171 together, by agreement.
I move amendment No. 168:
In page 68, subsection (2), line 16, to delete "application being made to it in that behalf" and substitute the following:
"such an application and subject to section 123”.
Amendment No. 168 amends the first line in subsection (2) to make it subject to the new section 123 we are providing for in amendment No. 171. Amendment No. 170 amends subsection (8) to make the supply to the Circuit Court of a personal public service number subject to the court so authorising. I am bringing forward this amendment on foot of a consultation between my office and that of the Data Protection Commissioner.
Amendment No. 171 inserts the new section 123, which contains a procedure applicable where a party to a dispute who did not participate in the proceedings subsequently turns up and shows good cause for that non-participation. The board, or the Circuit Court where a determination order is the subject of an appeal, may set aside a determination order and direct a rehearing of the case but not without first affording the other parties an opportunity to be heard.
Amendment agreed to.
I move amendment No. 169:
In page 68, subsection (4), line 40, to delete "respondent will be unable to pay the costs of the applicant" and substitute "applicant will be unable to pay the costs of the respondent".
This is the same family of issues as the amendment I moved previously which concerns the issue of costs. Subsection (4) states: "If, on the hearing of an application under this section, it appears by credible testimony that there is reason to believe the respondent will be unable to pay the costs of the applicant of so much of the hearing as relates to the determination of whether any of the matters ... the court may require sufficient security to be given for those costs". My advice is that the provisions of section 122(4) reverse the entire law of security for costs. Security for costs is not a mechanism that can be used to oppress a defendant. It is a mechanism whereby a plaintiff has to prove that he or she is able to pay costs before being allowed to bring their claim. It should never be allowed to be a mechanism whereby a defendant or, in this case, a respondent could be prevented from defending a claim. This is almost unprecedented in legal terms.
As I understand it, if a landlord brought an application to the court, whatever may arise from the determination, and if the landlord presented credible testimony that there is reason to believe the respondent, in this case the tenant, was unable to pay the costs of the applicant, the court might require sufficient security to be given for these costs. Given the unequal relationship which exists between landlords and tenants, this will put a tenant, where the tenant is the respondent in proceedings of this kind, in an impossible situation.
For example, if a tenant is on social welfare rent allowance there might not be a chance in hell of him or her being able to defend the proceedings brought through the Circuit Court. My advice is that the idea of security for costs is something that is provided for where a plaintiff is bringing a case in that the plaintiff would have to show they were able to provide security for costs, but in this case we are talking about a respondent who might not have wished the case to go to court in the first place and a landlord with deep pockets and lots of property. The landlord could end up before the Circuit Court and could, effectively, browbeat them out of their defence of the case by insisting on security for costs.
I am not sure the Deputy is representing the position correctly. We are talking about somebody who has not complied with an order of the board but who is trying to take the case to the courts. The Deputy's amendment would require the board, or other applicant for the enforcement order, to offer security for the costs of the non-compliant party should that non-compliant party fail to establish any legal grounds for that non-compliance.
This amendment indicates a misunderstanding on the part of the Deputy. It is not normal to award costs to the party who fails to establish his or her case or to require security from the other party for those costs. The security for costs relates only to the portion of the hearing on the non-compliant person's claim that one of the matters listed in subsection (3) applies.
Amendment put and declared lost.
I move amendment No. 170:
In page 69, subsection (8), lines 20 to 22, to delete all words from and including "(including" in line 20 down to and including "(2)” in line 22 and substitute the following:
"derived from the register as, in its opinion, is likely to assist in the execution of an order made by the court under subsection (2) (including, if the court gives a direction authorising the Board to give that number to the registrar, the personal public service number of any party concerned)”.
I am seeking legal advice on whether a provision needs to be inserted in section 122 explicitly providing for the publication of the determination orders of the Private Residential Tenancies Board similar to that contained in the Employment Equality Act 1998 relating to the Employment Appeals Tribunal. It is the intention that all board determination orders will be published. If the advice is that an explicit provision to that effect is required, I will propose an amendment on Report Stage.
Amendment agreed to.
Section 122, as amended, agreed to.
NEW SECTION.
I move amendment No. 171:
In page 69, before section 123, to insert the following new section:
"123.—(1) A person who establishes to the satisfaction of—
(a) the Board, or
(b) if the determination order is the subject of an application under section 122, the Circuit Court, on the hearing of that application,
that, in relation to a determination order embodying the terms of a determination of the Tribunal or an adjudicator, there are good and substantial reasons for his or her having failed to appear at the relevant hearing conducted by the Tribunal or the adjudicator, the Board or the Circuit Court may, subject to subsection (3), exercise the powers referred to in subsection (2).
(2) The powers mentioned in subsection (1) are to cancel the determination order and direct that a fresh determination of the matter shall be made by the adjudicator or the Tribunal as appropriate (and the making of any such fresh determination shall be preceded by a re-hearing of the matter by the adjudicator or the Tribunal and the provisions of Chapters 4 to 7 shall apply accordingly).
(3) The Board or the Circuit Court, as the case may be, may direct that that cancellation shall not have effect unless specified conditions are, within a specified period, complied with by the person referred to in subsection (1) (being conditions analogous to the terms the High Court may impose under the Rules of the Superior Courts (S.I. No. 15 of 1986) for setting aside a judgment obtained in circumstances where one of the parties did not appear at the trial concerned).
(4) Without prejudice to subsection (3), if it is sought to oppose an application under section 122 on the grounds that the determination order ought to be cancelled under this section, subsections (4) and (5) of section 122 shall apply as if references to the determination of, or evidence in relation to, whether any of the matters specified in subsection (3) of that section have been established include references to the determination of, or evidence in relation to, the issue as to whether the grounds for the court’s exercising its powers under this section have been established.
(5) The Board, before deciding whether to exercise the powers under this section, shall afford the other party or parties concerned an opportunity to be heard.
(6) The reference in subsection (3) to the Rules of the Superior Courts is a reference to those Rules as amended for the time being; if those Rules should be revoked then the reference to them in that subsection shall be read as a reference to such rules corresponding to those Rules as may be for the time being in force.”.
Amendment agreed to.
Sections 123 to 128, inclusive, agreed to.
SECTION 129.
Amendments Nos. 179 and 191 are related to amendment No. 172 and they may be discussed together by agreement.
I move amendment No. 172:
In page 71, subsection (1), line 1, after "dwelling" to insert "or by an officer of the Revenue Commissioners".
We are dealing here with the register of private rented dwellings. One of the issues that arose following publication of the Bill, on which the Labour Party made public comment, was that the Bill would allow for a situation whereby the content of the register would not be available to the Revenue Commissioners. There has been considerable suspicion at least that there is some evasion of tax in the private rented sector. There is a belief that one of the reasons there is such a low level of compliance with the current requirements to register private rented dwellings with local authorities is that there may be evasion of tax.
This amendment would provide that the Revenue Commissioners could apply to the board to be provided with copies of the entries which have been registered in respect of particular dwellings. I do not see any reason that information should not be available to the Revenue Commissioners. The amendment I propose would allow the Revenue Commissioners to get access to it.
The insertion of the new section that my amendment proposes is to ensure the details of the tenancies must be formally notified to the Revenue Commissioners. I submit that the same level of information should be given to the Revenue Commissioners as has already been given to the board under the Bill as drafted. I see no reason that should not be acceptable to the Minister of State.
I propose in Amendment No. 191 to provide for data transfer in terms including provision for the furnishing of registration particulars to the Revenue Commissioners at their request. That seems to comply with what Deputy Gilmore is seeking.
Amendment No. 179 seeks to insert a new section dealing with notification of tenancy details by landlords to the Revenue Commissioners. The tax code specifies the notification obligations that apply in regard to liability to pay taxes. Therefore, the section proposed by this amendment is not appropriate to this Bill. Amendment No. 191 deals adequately with the transfer of registration data from the board to the Revenue Commissioners.
Amendment No. 191 together with amendments Nos. 188 to 190, inclusive, which will be discussed in a later grouping, propose the insertion of a new chapter into Part 7 consisting of four additional sections dealing with data exchange in regard to tenancies and the use of the personal public service number, as the unique identifier for landlords and tenants in registration applications and records. These provisions were not included in the published Bill, as they had not been drafted prior to publication and were left aside for inclusion on Committee Stage.
The new section 146 proposed to be inserted by amendment No. 191 deals with the supply of tenancy registration details to the Revenue Commissioners. It requires such data to be supplied at the request of the landlord or at the request of the Revenue Commissioners on furnishing the personal public service number. Such requests are likely to arise in connection with claims by landlords for refurbishment relief, eligibility for which is contingent on compliance with statutory requirements applying to the rented sector, although the Taxes Consolidation Act 1997 will require amendment to reflect the repeal of the 1996 registration regulations and their replacement with the registration requirement under Part 7, effected by the enactment of this Bill.
I hope that amendment takes on board what is proposed by the Deputies.
The formula I propose in dealing with this matter is that the Revenue Commissioners could ask the board to supply them with particular entries and in that way they would get the information they desire. What the Minister proposes in the amendments he has tabled is that the Revenue Commissioners can request that information but only if they can supply the personal public service number of the landlord concerned. That is putting up a barrier that may not always be appropriate. If the landlord is a tax evader, it is unlikely the Revenue Commissioners would have the personal public service number of the landlord and would be able to relate it easily to the particular dwelling for which they are seeking the entry on the register. I will give an example of such a case. I met a constituent in the past 24 hours who has a private tenancy related problem and it seems to be one about which she should talk to her landlord. I asked if she knew the identity of the landlord and she said that she had never met her landlord. She informed me that somebody came and collected the rent and that she thought the landlord was a German woman.
It is often the case that, on Friday evenings, someone calls to whom people pay their rent and from whom they have difficulty obtaining rent books. If they believe tax evasion is afoot, they may contact the Revenue Commissioners and provide details of the address at which they live. Under the formula proposed by the Minister of State, there is nothing the Revenue Commissioners can do in such circumstances. If they do not have the personal public service number, they cannot approach the board seeking the entry. That puts in place a hurdle which is too high. Once the Revenue Commissioners have an address, it should be sufficient to enable them to seek the entry.
Amendment No. 189 sets a different standard in respect of the exchange of information between the Department of Social and Family Affairs and local authorities. Under this amendment, local authorities will be required to give the Department of Social and Family Affairs full information about their tenancies. Similarly, the Department will be obliged to provide full information to the authorities about payments being made to their tenants or people on rent allowances. This is again a situation where there is a different set of rules for social welfare recipients who are on local authority lists or in local authority housing. Under the amendment, everything that is known about these people by the Department of Social and Family Affairs can be made known to local authorities and vice versa. However, when it comes to possible tax evasion by a landlord, that is a different matter. The Revenue Commissioners will not even be able to ask for the entry unless they possess the PPS number.
Different types of law are at play here. We must have consistency. Deputy Allen has tabled an amendment which states that the board should supply whatever information it possess to the Revenue Commissioners. The Minister of State has indicated that he is not in favour of that because of confidentiality issues, privacy regarding individuals' tax affairs, etc. That is fine up to a point. However, we cannot have one standard in respect of the exchange of public service data relating to local authority tenants on social welfare payments and a different standard for the exchange of such data relating to landlords. That is not acceptable.
I agree with Deputy Gilmore that this is another example of double standards. He made the point I was about to make, namely, that if a member of the public applies for one State benefit, a cross-check is carried out between the Revenue Commissioners and the Department of Social and Family Affairs. There is no difficulty in that regard but there is a reluctance to get at the truth vis-à-vis possible tax evasion. I see nothing wrong with my amendment in terms of its placing the onus of responsibility on landlords to notify the Revenue Commissioners on the commencement of tenancies where incomes are being earned. Why should that onus not be placed on landlords? What makes landlords different to the Minister of State, me or anyone else in the PAYE sector? If we earn a certain amount, tax is deducted at source. Why should landlords, who are obviously making profits, not have placed on them a responsibility to report to the Revenue Commissioners? What is the big deal in this regard?
I am in no way reluctant to give the Revenue Commissioners everything they want. However, it is a case of what they want and how they want it. This section was passed by the Department of Finance and, as far as I am concerned, that Department and the Revenue Commissioners are satisfied with the position. We are not reluctant at all. We want to facilitate the Revenue Commissioners and supply them with all the information they need. However, they have their own way of doing business. We can send them lorry loads of information or we can respond effectively and efficiently to requests that they make.
I presume that when the Revenue Commissioners are examining individual cases or files, they have the relevant PPS numbers in their possession. As far as I am concerned, the provision is sufficient for the Revenue Commissioners and the Department of Finance. The Revenue Commissioners want information to be made available to them, quickly and efficiently, when they require it.
Did the Minister of State inquire why they want the PPS numbers of landlords?
The PPS number is the recognised identifier.
If a person suspects their landlord of——
The Revenue Commissioners know everything.
They do not. If they knew everything, we would not be in the mess in which we find ourselves.
If a person suspects that his or her landlord is evading tax and he or she makes a telephone call to the Revenue Commissioners but does not have the landlord's PPS number, how will the Revenue Commissioners be able to request the entry from the board?
The person would have supplied the name of the landlord.
He or she might not know the name of his or her landlord or his or her PPS number. Under the Minister of State's formula, the Revenue Commissioners cannot ask for the entry in the residential tenancy board register unless they have the PPS number. Would he consider removing that requirement?
The Revenue Commissioners want PPS numbers to be used. That is the system and they are trying to get everyone to use it. We are not being reluctant to provide information. However, we are seeking to ensure that requests for information and the supply thereof take a structured form.
Let us consider the position vis-à-vis a block of flats in respect of which an issue arises. The Revenue Commissioners may have a suspicion that something is afoot and they may contact the board and request the entries for the relevant address. Under the Minister of State’s provision, the board would be obliged to request the PPS numbers of the landlord or landlords who own the flats. If the Revenue Commissioners cannot produce those numbers, they cannot obtain the entries. The information the Revenue Commissioners may seek might, in the first instance, be relevant to establishing the identities of the landlords. They might then match up whatever information they possess about such individuals.
The Minister of State's amendment would make it that, on the request of a landlord of a dwelling or the Revenue Commissioners, the board shall, at such time or times as are reasonably specified in the request, furnish to the Revenue Commissioners confirmation as to whether it is a registered tenancy and, in the event of there being one or more tenancies so registered, such of the particulars as the Revenue Commissioners may require. That is fine provided the caveat that the Revenue Commissioners must have the PPS number in the first instance is not included.
The Deputy is fighting the Revenue Commissioners' battle.
I am fighting a battle for equity. That type of attitude is why we have tax evasion. The Revenue Commissioners work on behalf of the public, collect tax and ensure there is equity. They have the details of everyone present because employers must supply them. They are entitled to investigate this area of business. Some of their inquiries are penetrative. Businesses that are subject to audits by Revenue will tell anyone how penetrative they are. Tenancies are registered, someone pays rent and someone receives a rental income. Therefore, it is not unreasonable that the Revenue Commissioners should have that information. The Minister of State has said they can only look for it if they have the landlord's PPS number.
The Deputy is debating in circles. I agree that Revenue can be very penetrating. They have the power to do everything they wish and with or without our assistance. The PPS number is also the Revenue number and that is why we use it. We all use it to have an efficient computer system. They tell us to use it but we do not need it.
What would happen if a garda called to the Minister of State and asked him if he had a dog licence? Will he confirm that he has one only after the garda quotes a licence number to him? That is a ridiculous situation.
Revenue seems quite happy with it.
We make the law.
Yes but it is Revenue's number.
I have explained why this is not adequate. In some cases a PPS number and the identity of the landlord is unknown.
I am astounded that the Minister of State has taken such a hard line. Some landlords do not have PPS numbers and it is a problem for the Revenue Commissioners.
Many tribunals and committees of inquiry showed that the commissioners were negligent in pursuing certain clients. Now we should insist on clear legislation that will enable them to follow tax evaders. My amendment asks for anyone that enters business to inform the Revenue Commissioners of their business activities. The responsibility is on the landlord or a consortium to inform Revenue of their business and to furnish details. I do not understand the soft attitude being adopted.
This legislation deals with tenancies and a new board. We are not writing a definitive document on taxation law. This legislation operates within the limits of all existing legislation on the matter. The amendments tabled by Deputies are more appropriate and are probably included in the Finance Bill scheduled for next week or later.
The Minister of State should show us the amendments that refer to this matter.
Not every Bill covers all eventualities. We work within the structure of what already exists. When we have a committee meeting, we do not build a new committee room. We take it as given. We work within the existing structure and conduct our business in the assumption that everything is already in place and is correct.
The Minister of State tabled amendment No. 191 which deals with links with the Revenue Commissioners. This proves that he believes it is appropriate to make an amendment in this regard. I would like the amendment to go all the way and deal with those who attempt to evade taxes. There is a reluctance to come to grips with this area that is open to tax avoidance. I want the gap sealed. An effective way to do so is to place a legal responsibility on the landlord to furnish the details. I do not understand the reluctance to do so.
The Revenue Commissioners have that. Why place a legal responsibility on the landlord?
My amendment No. 179 states: "The landlord of a dwelling shall formally notify the Revenue Commissioners on the commencement of a tenancy of a dwelling under this Part".
There is a legal obligation on us all to do that. We do not have to insert that clause in all legislation. We all fill in tax forms every year. Everyone must declare their income, including revenue from letting.
Why is the Minister of State tabling an amendment that is far less effective?
This is different. We are not doing what the Deputy suggests.
I know the Government is not. What is the rationale behind the ministerial amendment?
It facilitates the Revenue Commissioners and a flow of information. I am not trying to block information reaching the commissioners. However, they must ask for information and be supplied with it in a structured way. That is why we are trying to tie it to PPS numbers that officially identify people.
The Revenue Commissioners could simply contact the board requesting an entry for a specific address. Why can they not do that?
The Revenue Commissioners deal with individuals and their tax forms and applications. They do not chase the owners of buildings. They already know who they are. Where is the Deputy starting from in this matter?
Let us stick with that point. Every landlord will now be legally obliged to register their rented dwelling with the board. The Minister of State has said that he does not want the board to be legally obliged to give that information automatically to the Revenue Commissioners. They must seek the information from the board. The Minister of State is inserting a requirement that the Revenue Commissioners can only get information from the board when they have a landlord's PPS number. They may have a report that a dwelling is being rented out as private rented accommodation. They may suspect that the income generated is not being declared to them. However, they cannot look for the information unless they have a landlord's PPS number. The commissioners might not know who they are. Why must they establish the identity of a landlord? Why not ask the board for that information?
The board will not be the source of information for the Revenue Commissioners regarding who is the owner of a building.
The board has a register of tenants and all the Revenue Commissioners are looking for are the entries on it for specific buildings.
Where do they begin? If they receive a complaint or begin a case, they go to the Registry of Deeds first to establish who owns a property.
There is no need to go to the Registry of Deeds. All they need to know is that the board has details of the relationship between a landlord and a tenant. If it is registered with the board, it means somebody is paying rent and that somebody is in receipt of a rental income. Such income is a valid area of inquiry for the Revenue Commissioners. Why can they not simply contact the board and ask to be provided with a list of the entries for certain addresses without having to have the personal public service number?
There is no issue here. They have the information on who the landlord is. They can acquire it from the Registry of Deeds and the published register. Once they have the name of the landlord, the other information follows. We supply the information to them. They are asking us to use the personal public service number and we are asking them to make requests in the order in which they expect to receive information from everyone else.
This is our third day on the Bill and at every opportunity the Minister of State has been tilting the advantage in favour of the landlord. We have argued that and tabled a number of amendments in that respect. This is the final straw. The Minister of State is now protecting tax-avoiding and tax-evading landlords from identification by the Revenue Commissioners. He has, in theory, responded to what was said on Second Stage by making an amendment to provide that the Revenue Commissioners can seek the information. They can do so provided they know the right questions to ask. The Minister of State has made it so difficult for the Revenue Commissioners to seek the information in the first place that the provision is a non-starter.
This is an issue on which the committee will divide unless the Minister of State can respond positively. There are three options. The Minister of State can accept my amendment, which is simple and straightforward and allows the Revenue Commissioners to ask for the information with no strings attached, implement Deputy Allen's proposal and have the board pass the information to the Revenue Commissioners, or amend his own amendment which seeks to provide that they must have the personal public service number of the landlord before they can ask for the entry in the board's register.
Last night, I was approached at a meeting by a person who showed me a letter a community association in Cork received from the Revenue Commissioners because it had failed to make its return before the appropriate date. The association is a limited company and it is being fined and must pay interest on the amount owed. The Revenue Commissioners were ruthless in dealing with this group of people who did not know any better. No appeals process is available to them and if they do not pay up, interest will accrue on a weekly basis. On the other hand, we see the softly-softly approach being adopted to a minority who might seek to evade tax. Every instrument and step should be taken to catch these people. However, the Minister of State is side-stepping useful amendments which are designed to seal the holes in the sieve.
Like Deputy Gilmore, I intend to press my amendment. I do not understand how the Minister of State can refuse to accept that this is another weapon which can be offered to the Revenue Commissioners to catch tax avoiders.
I can see the way the argument is being presented, but I assure Deputies that there is no reluctance on my part to supply the Revenue Commissioners with the proper information. While I offer no comment on the quality of Deputy Allen's amendment, it is not appropriate to this Bill. It should be tabled to the Finance Bill. It is my understanding that the Department of Finance and the Revenue Commissioners are happy with this legislation. I have no problem with returning to the Revenue Commissioners to inform them that committee members suggest the information to be provided is inadequate, that the legislation will make life awkward for them and that we could be seen to be more co-operative. However, the provisions set out are what the Revenue Commissioners want.
I have no problem with asking the Revenue Commissioners to vouch for that or to indicate that the Bill's provisions will not assist them. If the Revenue Commissioners want additional information, I will not cover up for anybody. I am trying to provide the information in a structured manner within the confines of the law. The board must be fussy about the way in which it provides information. It has its own rules and statutory regulations. It can be sure of meeting requests by having the personal public service number. It can then feed the information back in a structured way without being in breach of any procedures on the provision of data. If addresses are confused and somebody makes the mistake of giving out the wrong information, thereby breaching some code, we will have the data protection officer down on top of us. The proper way to provide information is on foot of structured requests.
If necessary, I will undertake to ask the Department of Finance and the Revenue Commissioners if they are happy or if the Deputies' amendments would facilitate them in carrying out a more thorough job. If they want any improvements, we will make them. Deputy Allen's amendment, however, is not appropriate to this Bill.
I do not know about its appropriateness. Week after week, people attend my clinics looking for housing or to discuss the refusal of landlords to accept their tenancy because they are on rent subsidy. That tells me immediately that a tax avoidance issue is involved. How many times have we heard of such incidences at our clinics? There is a gap to be plugged which is why one of the amendments being discussed must be accepted. I am not concerned about what the Revenue Commissioners or the Department of Finance think. The Revenue Commissioners were before the Committee of Public Accounts recently to answer questions about why they were failing to follow up obvious targets in the past ten to 20 years. I will not wait to obtain the imprimatur of the Revenue Commissioners on this issue.
There is no need to return to the Revenue Commissioners on this. The issue is simple. This is not a question of whether the Revenue Commissioners consider this to be a good or bad one, it is an issue of whether they need to have the personal public service number in the first place. I see no need for that. That requirement was included in the Bill to make it difficult for the Revenue Commissioners to obtain the information. We started out with a Bill in respect of which the Minister of State's intention was that the Revenue Commissioners would not have access to the register. It was the State giving its blessing to tax evasion and the passing of money under the table, which it knows well exists in some areas of the private rented sector. Faced with the initial criticism of the Bill after it was published and the case made on Second Stage, the Minister of State has introduced an amendment that pretends to address it, but does not do so because it obliges the Revenue Commissioners to have the personal public service number in the first place before it can ask the question.
The Minister of State is only playing for time on this issue and, as Deputy Allen stated, there will be many issues to which the Minister will have to return on Report Stage. However, Report Stage will be guillotined and we will never get to address them.
Amendment put.
The Committee divided: Tá: 4, Níl, 8
Tá
- Allen, Bernard.
- Cuffe, Ciarán.
- Gilmore, Éamon.
- McCormack, Pádraig.
Níl
- Ahern, Noel.
- Cregan, John.
- Grealish, Noel.
- Haughey, Seán.
- Healy-Rae, Jackie.
- Kelleher, Billy.
- Moloney, John.
- Power, Seán.
Question proposed: "That section 129 stand part of the Bill."
On section 129, I have sought advice on the freedom of information legislation which will apply to the board as to whether there is a need for an explicit prohibition on the supply of registered data except where so authorised by the Bill. If there is, I will bring forward an amendment on Report Stage.
Question put and agreed to.
Section 130 agreed to.
SECTION 131.
Amendments Nos. 174 to 178, inclusive, amendments Nos. 1 and 2 to amendment No. 177 and amendments Nos. 183, 184, 184a, 186 and 187 are related to amendment No. 173. We will take amendments Nos. 173 to 178, inclusive, amendments Nos. 1 and 2 to amendment No. 177, and amendments Nos. 183, 184, 184a, 186 and 187 together by agreement.
I move amendment No. 173:
In page 71, subsection (2) (a), line 33, to delete “commencing” and substitute “that commences”.
These amendments relate to the period within which tenancies must be registered and the requirement for registration applications to be accompanied by a fee. Amendment No. 173 replaces the word "commencing" with the words "that commences". Amendment No. 174 substitutes "commencement of this Part" for "establishment day" in section 131(2)(a) to allow for the more appropriate linking of the time limits for registering and the statutory requirement to register which will be enforced.
Amendment No. 175 replaces section 131(2)(b) with a new paragraph to correct an anomaly in the time limits applicable to registering a tenancy that is created just before the provision has been in force for three months, which could have been as little as one day under the published section 131. The effect of paragraph (b), as amended, will be that tenancies that commence before the passing of the Bill must be registered within three months, and tenancies that commence during the first three months that Part 7 is in force must be registered within a month of commencing, or within three months of Part 7 coming into force, whichever is later.
Amendment No. 176 makes section 131(3), which deals with the requirement to pay a registration application fee, subject to a new section 131(4) being inserted by amendment No. 177. Amendment No. 177 inserts the new section 131(4) providing for an exemption from the requirement for a fee to accompany the application to register a tenancy where it is the third or further application to register a tenancy in respect of a particular dwelling in a 12 month period. It also provides for an exemption from the fee requirement where the application is in respect of a tenancy of a dwelling that was the subject of a registration application made in the previous 12 months where the composite fee was paid. The composite fee of €300 applies where tenancies of a number of dwellings all contained within a single building are being registered by the same landlord at the same time and on time. These exemptions from the requirement to pay a registration fee only apply where the tenancies are being registered in accordance with the time limit specified in section 131.
This amendment is being proposed in response to representations from landlords that the registration fee requirement imposes too great a burden, especially for those who experience a frequent turnover of tenants.
Deputies will note that the amendment does not limit the fee to one payment per dwelling per annum, as I am reluctant to advance an amendment that might facilitate the termination of tenancies before they have lasted six months to prevent tenants from gaining the protection of Part 4.
As these registration fees are a fully allowable expense for tax purposes, I hope landlords will appreciate the concession this amendment represents. Some further changes to the wording of section 131(4) are likely on Report Stage. It has been intended that a fee exemption would also apply to persons who had paid the registration fee to a local authority within the previous 12 months. Amendment No. 177 does not cater for this and its wording may need further work to achieve the intended outcome. Someone may have just registered his dwelling under the old system recently and be asked to pay both bodies in a short period.
I am not inclined to accept Deputy Allen's amendments to amendment No. 177 to replace "12 months" with "36 months". As I have already said, the concession represented by amendment No. 177 is more than generous and I am not prepared to accept an amendment that removes a major disincentive against terminating tenancies before they have lasted six months and preventing tenants from acquiring the protection of Part 4.
The concession I am prepared to make in response to the landlords' concerns about the cost of registration is to enable a maximum payment of two fees per unit per annum. If a tenancy lasts the full four years, only one payment of €70 will arise for that entire period. That is considerable improvement on the current requirement to pay the local authority €50 per annum, even if the tenancy is ongoing. Amendment No. 178 is a minor technical amendment to replace the word "property" in what will be section 131(5), previously section 131(4), with "dwelling" to ensure consistency with the rest of the Bill.
Amendments Nos. 183, 184, 184a, 186 and 187 provide for some changes to section 133 in the particulars to be specified in the tenancy registration applications. Amendment No. 183 replaces “personal public service number (if known)” with “unless it cannot be ascertained by reasonable inquiry, personal public service number” in section 133(f). The previous wording would have allowed a landlord to make no effort to ascertain the number, whereas the revised wording will require a reasonable attempt to be made.
Amendment No. 184 performs two functions. First, it deletes the text relating to the registration number issued by the local authority in respect of any registration application made under the 1996 registration regulations, which are being repealed by section 10 of this Bill, relating to the dwelling that is the subject of the tenancy. On reflection, the collection of this data would serve no useful purpose, and could delay the receipt of registration applications. The amendment also inserts a new paragraph (h) into the section, requiring in the case of a dwelling in an apartment complex the supply of any management company details, for example name, registered number and registered office.
The amendments to section 141, amendments Nos. 186 and 187, relate to enforcement of the tenancy registration requirements. Amendment No. 186 is a technical amendment clarifying that the subsection (3)notice requiring a landlord to register a tenancy within 14 days or be guilty of an offence is not to be issued where a landlord has responded to a subsection (2) notice by applying to register a tenancy under section 131. Amendment No. 187 inserts a new subsection (5)into the section, to clarify that where a landlord registers a tenancy on foot of a notice issued to him under subsection (2) or (3), the requirement to register contained in section 131 will then be regarded as satisfied. However, as in the case with all registration applications, a double fee must accompany such an application if it is made outside the time limit specified in section 131(2).
This is all very confusing. Quite significant amendments are being made to the registration procedure being proposed by the Minister, and he has indicated that he intends to further amend some of them on Report Stage. It will be necessary for us to see the final product before we can comprehend what is actually happening here. I would like to reserve my own position on some of these amendments until I see the fully amended text of the Bill, plus the amendments the Minister proposes to bring forward on Report Stage.
The only item we are considering for Report Stage is giving exemption for a period to somebody who might have just registered with the local authority under the old 1996 regulations. If this Bill were to come in on 1 July, and if someone had just paid to the local authority a short period before that, how would that person be treated? Would he or she be told to pay under the old regulations in the month of May, and then pay again, within a short period of time? It may be that we should give them some exemption and perhaps let them have the benefit of the year.
I am concerned about some of the practical implications. Amendment No. 174 for example proposes to delete "establishment day" and substitute "commencement of this Part". I would like to know what that means in practical time terms, or why that is being done. Similarly, regarding amendment No. 183, and the PPS numbers of tenants which the landlord has to list, what is meant by "unless it cannot be ascertained by reasonable inquiry"? It is not clear that it is the landlord who must make the inquiry, nor is it clear what is meant by ascertaining the PPS number by reasonable inquiry. I am concerned that there are very significant changes being made to the registration system. I do not think we can grasp the full implications until we see the final version, and marry that with the Fourth Stage amendments the Minister has referred to. Perhaps he might address those two points.
The registration system will be the first item to come in. There will be no delay with that. I assure the Deputy that it will arrive very speedily. Regarding "reasonable inquiry", that is just to place a certain compulsion on the landlord to find out the number. Landlords can be a little casual, and it is expected that they would at least ask for the number. There is nothing more sinister involved.
If the registration form arrives with no PPS number supplied for the tenant, would the board have to make inquiries?
It would. That is how we want to operate. That is the identifier we want to use. We would expect everyone, particularly landlords, to make reasonable efforts to get the information from tenants.
Let me see if I understand this. A form arrives from the landlord to register the tenancy, and obviously he supplies the dwelling address. That is fair enough. The name and address of the landlord are given. If a company is involved, that information is given. If there is an agent, his details are given. The number of occupants is given, as are the names and personal public service numbers of each tenant, unless they cannot be ascertained by reasonable inquiries. The details given must also include the name of the housing authority, the floor space, the number of bed spaces, the date the tenancy commenced, rent, period of tenancy, sub-letting and so on.
If the landlord does not know the PPS numbers of the tenants, he may send in the form without the numbers. Is that tenancy then registered? Can the board register the tenancy without having the PPS numbers of the tenants?
Basically, the application form should contain all the data, and if it does not, it will be returned. The tenancy will be registered, but the board will seek the information. We want the landlord to make every effort to present all the information. If a tenant absolutely refused to supply a landlord with his PPS number, the board might have to chase it. If an incomplete form is submitted, and then returned for completion, the tenancy is likely to be registered, but it may depend on how incomplete the form is.
What happens if it is just the PPS number that is missing?
The registration will go ahead but the landlord will be pursued first and then, perhaps, the tenant to try to get the data.
The obligation is on the landlord to produce the information and to make the inquiries.
Yes, the obligation is on the landlord to make a reasonable effort. We do not want the landlord to say, in effect, that he or she does not know the number. We want and expect the landlord to take formal steps or put it in writing that he or she has asked the tenant for a PPS number, whatever number of times, and the tenant had refused to supply it. We expect the landlord to make reasonable efforts in this regard to have the form correct. If the tenant is being that unhelpful and obstructionist he or she might give a wrong signal. It might be the right signal about the sort of a tenant he or she is.
Amendment agreed to.
I move amendment No. 174:
In page 71, subsection (2)(a), line 34, to delete “establishment day” and substitute “commencement of the Part”.
Amendment agreed to.
I move amendment No. 175:
In page 71, subsection (2), lines 36 to 38, to delete paragraph (b) and substitute the following:
"(b) in the case of a tenancy that has commenced on a date falling before or after the commencement of this Part (other than one to which paragraph (a) applies but including one that commenced before the passing of this Act)—
(i) in case it commenced before the passing of this Act — within 3 months from the commencement of this Part,
(ii) in any other case— within whichever of the following periods expires the later—
(I) the period of 3 months from the commencement of this Part, or
(II) the period of 1 month from the commencement of the tenancy.".
Amendment agreed to.
I move amendment No. 176:
In page 71, subsection (3), line 40, after "and" to insert ", subject to subsection (4)*,”.
Amendment agreed to.
I move amendment No. 177:
In page 71, between lines 40 and 41, to insert the following subsection:
"(4) The foregoing requirement with respect to the application being accompanied by a fee does not apply if either—
(a) the application concerned is the third or a subsequent application to be made, in a period of 12 months, under this section by the same person and in respect of the same dwelling (and each within the period specified in subsection (2)(a) or (b)), or
(b) as respects the application concerned it is made within the period specified in subsection (2)(a) or (b) and the following conditions are satisfied—
(i) the person making the application (the ‘first-mentioned application') has already, in the 12 months preceding the date of the first-mentioned application, paid, in respect of several applications falling within subsection (3) of section 134, the single fee referred to in subsection (2) of that section, and
(ii) the dwellings to which those several applications related included the dwelling to which the first-mentioned application relates.".
Amendment agreed to.
I move amendment No. 178:
In page 71, subsection (4), line 42, to delete "property" and substitute "dwelling"
Amendment agreed to.
Section 131, as amended, agreed to.
Progress Reported; Committee to sit again.
The Select Committee adjourned at 4.43 p.m. until 11a.m. on Wednesday, 18 February 2004.