Residential Tenancies (Amendment) (No. 2) Bill 2012: Committee Stage

Cuirfimid tús leis an gcruinniú. Tá an cruinniú seo ar siúl chun breathnú ar an mBille um Thionóntachtaí Cónaithe (Leasú) (Uimh. 2) 2012. This meeting has been convened for the purpose of the consideration of the Residential Tenancies (Amendment) (No. 2) Bill 2012. Cuirim fáilte roimh an Aire Stáit agus a hoifigigh, Cian O Lionáin Uasal, principal officer; Ms Catherine Higgins, assistant principal officer; and Ms Paula O'Reilly, assistant principal officer, from the Department's housing regulation section. I call on the Minister of State to make her opening statement.

I am very pleased to be here to take Committee Stage of the Residential Tenancies (Amendment) (No. 2) Bill 2012. Any healthy society with a well run economy needs a balanced housing sector in order to address the needs of various types of household and their different needs. Among the many reforms required is more equitable treatment of tenures. The legislation before the select sub-committee is, therefore, another important step in the ongoing development of a strong, vibrant and well developed rented sector. Before we proceed to discuss the amendments, I wish to briefly outline the key issues we will be discussing.

The Residential Tenancies Act 2004 set out a framework of rights and responsibilities for landlords and tenants in the rented sector. The application of that framework to all tenants and landlords, regardless of the form of rented housing involved, is an important principle for the Government. The Bill will extend the framework to housing in the not-for-profit approved housing body sector and, thereafter, we will need to turn our attention to how best to legislatively provide for a similar extension to the local authority housing sector. I have previously referred to this as an evolutionary, rather than a revolutionary, approach to housing rights and I am confident that there is broad support for this strategy. Good and broad support for the Bill was voiced on Second Stage, for which I thank members.

On Second Stage I committed to extending the remit of the 2004 Act to as much of the approved housing body sector as possible. The impact of the amendments which have been tabled will lead to the entire sector coming under the 2004 Act, with the exception of those tenancies that would be exempt under its provisions. The Government's Committee Stage amendments to the Bill, as published, include a number designed to provide for the tenancy registration fee and timeframe that will apply to the approved housing body sector. Also included are further measures to assist the board in the performance of its functions, as well as amendments to clarify the scope of its legal powers in terms of enforcement.

The issue of over-holding, that is, where a tenant remains in situ without paying any rent, is a significant problem for landlords and I am pleased to be able to introduce amendments in this area. A core legal principle, one which bears restating, is that, no matter the circumstances, the correct rent must be paid. In an environment where many landlords are struggling to pay mortgages on buy-to-let properties, the creation of a mechanism that will allow the PRTB to deal with over-holding in a much quicker fashion than is often the case should greatly help matters.

An issue of equal concern to tenants is that of illegal retention of their deposits by a minority of landlords. I am absolutely determined to deliver on the commitment in the programme for Government to establish a deposit retention scheme to address this issue. My Department is engaged with the Office of the Attorney General on this matter and I look forward to introducing the relevant amendments when the Bill goes before the Seanad.

I will also introduce amendments in the Seanad to improve the mechanism by which anti-social behaviour is dealt with and, specifically, to make it easier for neighbours, residents' associations, etc., to take a case to the board on the grounds of such behaviour by tenants. I was very close to having amendments finalised in this area for today's discussion, but I am confident that they will be ready very soon. Without further ado and if it is acceptable, I would like to begin moving the amendments.

That is fine.

SECTION 1

Amendments Nos. 1 and 2 are related and will be discussed together.

I move amendment No. 1:

In page 5, subsection (2), line 33, to delete "sections 10 and 43" and substitute "sections 10, 43 and 45".

These are technical drafting amendments to provide for the amendment of the collective citations for the Housing Acts and the Residential Tenancies Act. They are a consequence of amendment No. 54 which amends the Housing (Miscellaneous Provisions) Act 1992 and which we will be discussing later.

Amendment agreed to.

I move amendment No. 2:

In page 6, subsection (3), line 1, to delete "sections 10 and 43" and substitute "sections 10, 43 and 45".

Amendment agreed to.
Section 1, as amended, agreed to.
Section 2 agreed to.
SECTION 3

Amendments Nos. 3, 6 and 8 to 13, inclusive, are related and will be discussed together.

I move amendment No. 3:

In page 6, to delete lines 21 to 40 and substitute the following:

" "(c) a dwelling that is let by or to a public authority,".".

On foot of detailed discussions with the approved housing bodies sector during the initial drafting of the Bill, it was decided to exclude approved housing body tenants in receipt of care support services from the application of the Residential Tenancies Act. This was done on the basis that the sector was of the view that these services could be more effectively delivered outside the confines of the Act. However, in the light of further consultation with the Irish Council for Social Housing and the sector in general following publication of the Bill, I decided that the 2004 Act should be applied to all approved housing body tenants, unless they came under one of the exclusions already provided for in that legislation. The amendments in this group provide for that policy change, which I signalled during the debate on Second Stage and which was supported by almost all Deputies who took part in that debate. In essence, this is a rights-based issue and the amendments will lead to the same rights, obligations and legal protections being extended to as many tenants as possible.

Amendment No. 3 provides for the inclusion of all approved housing body tenancies under the Residential Tenancies Act 2004 by completely removing the exemption in section 3(2)(c)(ii) of that Act.

The effect of this amendment will be to extend the rights and protections provided by the 2004 Act to a greater number of approved housing body tenants. This is a significant and far-reaching improvement and was raised by one of the members on Second Stage.

Amendments Nos. 6 and 13 are drafting amendments to clarify the wording used in the Bill, as published. I commend these provisions to members and I am happy to discuss the details further.

To clarify, several of our amendments have been ruled out of order on the grounds of cost. It is very frustrating, having taken the time to bring forward proposals, to have them ruled out in this way. Where costs arise, there is always the possibility of making them up in other ways.

In regard to the amendments, the Minister of State has indicated that she will consider a scheme to include local authorities at some future date. Excluding local authorities from the rigorous rules applying to other housing bodies does not make sense. However, I take on board the Minister of State's undertaking to review the matter in the future. It would be a very important step.

Amendment agreed to.

Amendments Nos. 4 and 5 in the name of Deputy Brian Stanley have been ruled out of order because they involve a potential charge on the Exchequer.

Amendments Nos. 4 and 5 not moved.

I move amendment No. 6:

In page 7, to delete lines 6 to 8 and substitute the following:

"(b) for the avoidance of doubt, this Act does apply to that dwelling where that dwelling is the subject of a sub-tenancy arising from that sub-letting, including any such sub-tenancy created before the commencement of this subsection.".".

Amendment agreed to.

Amendment No. 7 has been ruled out of order because it involves a potential charge on the Exchequer.

Amendment No. 7 not moved.

I move amendment No. 8:

In page 7, line 16, after "2009," to insert "and".

Amendment agreed to.

I move amendment No. 9:

In page 7, lines 19 to 22, to delete all words from and including "and" in line 19 down to and including "and" in line 22 and substitute the following:

"and".

Amendment agreed to.

I move amendment No. 10:

In page 7, line 28, after "2009," to insert "and".

Amendment agreed to.

I move amendment No. 11:

In page 7, lines 31 to 33, to delete all words from and including "and" in line 31 down to and including "section 3(2)(c)," in line 33.

Amendment agreed to.

I move amendment No. 12:

In page 7, line 45, to delete "and".

Amendment agreed to.

I move amendment No. 13:

In page 8, line 2, to delete "accordingly." and substitute the following:

"accordingly, and

(c) notwithstanding that the dwelling is the subject of a sub-tenancy, the subtenancy shall be treated as a tenancy under this Act and references to a tenancy in this Act shall, in so far as they concern that dwelling, be construed accordingly.".

Amendment agreed to.

Section 3, as amended, agreed to.
SECTION 4

Amendments Nos. 14 to 16, inclusive, are related and may be discussed together.

I move amendment No. 14:

In page 9, line 4, to delete "and".

These amendments provide that sections 19 to 22, inclusive, and section 139 of the Residential Tenancies Act 2004 will not apply to approved housing body tenancies. Approved housing bodies use the differential rent scheme applied by local authorities to determine the rent charged for their dwellings. Under this system, the amount of rent to be paid by a tenant is based on the income of the household and the provisions in the 2004 Act, including section 19 which deals with market rent, conflict with the scheme. As the differential rent scheme is more advantageous to approved housing body tenants than the provisions relating to rent in the 2004 Act, approved housing body tenancies are excluded from these sections.

The amendments also provide for the exclusion of approved housing bodies from section 139 of the 2004 Act which provides that a landlord must update the details of his or her registration with the Private Residential Tenancies Board whenever the rent changes. As the rent might change a number of times in a given year under the differential rent scheme, approved housing bodies are also exempt from this section owing to the potentially significant administrative burden it would impose.

Amendment agreed to.

I move amendment No. 15:

In page 9, to delete line 8 and substitute the following:

"a dwelling the subject of a tenancy referred to in section 3(4),".

Amendment agreed to.

I move amendment No. 16:

In page 9, between lines 8 and 9, to insert the following:

"(e) sections 19 to 22 shall not apply to a dwelling the subject of a tenancy referred to in section 3(4), and

(f) section 139 shall not apply in respect of a dwelling the subject of a tenancy referred to in section 3(4).".".

Amendment agreed to.

Amendments Nos. 17, 18 and 22 are related and may be discussed together.

I move amendment No. 17:

In page 9, subsection (2), line 13, to delete "section 3B(1)(b)" and substitute "section 3B(b)".

These are drafting amendments to correct errors in the numbering of the Bill, as published.

Amendment agreed to.

I move amendment No. 18:

In page 9, subsection (4), line 23, to delete "section 3B(1)(a)" and substitute "section 3B(a)".

Amendment agreed to.

Amendments Nos. 19 to 21, inclusive, are related and may be discussed together

I move amendment No. 19:

In page 9, subsection (5), line 26, to delete "paragraph" where it firstly occurs and substitute "paragraphs".

On foot of the amendments applying the 2004 Act to all relevant approved housing body tenancies, I am proposing to include a further ground of termination for Part 4 tenancies which will only apply to approved housing bodies. This new ground for termination will allow approved bodies to terminate a Part 4 tenancy in circumstances where the dwelling is no longer suitable to the needs of the household because a member of that household requires care support services which are not available.

The amendments are designed to allow approved housing bodies to terminate a tenancy in very limited circumstances where the care support services available are not sufficient to allow the tenant to continue to live in the dwelling. For example, termination of a tenancy may be necessary where an elderly tenant is no longer able to live alone and needs to move to accommodation with on-site support, or where a tenant with special needs is required to move to accommodation with a higher level of care. Amendment No. 21 provides for the definition of care support services to be included in the principal Act.

I accept the necessity of these provisions. The key issue is the safeguards in terms of who will make the call on the termination of a tenancy and what engagement there will be with the individual concerned. People will sometimes fight to stay in a particular property, even where it no longer meets their needs. If a tenant is happy with the alternative accommodation offered, there is no problem. My concern, however, is whether the mechanism whereby these decisions are made will be sufficiently robust to ensure that is the case. Will the Minister of State indicate how she envisages this playing out in practice?

We have to get the balance right in these proposals. Our concern is that if this measure is not in place, approved housing bodies might be slow to take tenants who are likely at some point in the future - people usually sign up to a tenancy for four years or more - to progress to needing the type of care services that simply are not available. We are anxious not to create a disincentive for housing bodies in taking on certain clients. They must cater for everybody, particularly elderly persons and people with disabilities. For this reason, we are including a mechanism for the termination of a tenancy where it is clearly not possible for a person to receive the supports he or she needs in the current dwelling.

As I said, we are eager to ensure there is a balance. A number of advocacy services will be available to tenants. Threshold is probably the most obvious, given that it already advocates generally for people in rented accommodation of one type or another. The organisation has represented people before the courts and, under these proposals, will be able to do the same with regard to the PRTB. Likewise, the Third Age national advocacy programme is ideally placed to advocate for elderly people. The national advocacy service for people with disabilities will take a similar role for the individuals it represents. Where a person requires advocacy, there are several bodies with a great deal of experience in the area.

I am very conscious that these provisions will have to be carefully monitored to ensure matters are handled in a sensitive manner. We do not want a situation where approved housing bodies would be reluctant to take people whose condition may deteriorate. We are striving to get the balance right in these amendments.

Will the Minister of State comment on the position of large families? I am dealing with a family of ten who are being accommodated in a hotel. Their housing needs are not being met because the local authority cannot deal with them.

This is a complicated case as there is a mother, a father and ten children. If they secure private rented accommodation which is what is being sought because they are not deemed to be homeless, will that mean that with the measures the Minister of State is including they will be scrutinised more and that they will have to be considered in a proper fashion by the approved housing bodies?

No. The intention is not to interfere in such a situation. This measure only applies to approved housing bodies. If the family were to move into private rented accommodation, this section would not apply in those circumstances. The intention is that it will only apply in circumstances where a person is demonstrably not able to stay in the accommodation because the supports are not appropriate. There are other mechanisms of the State available, including the fair deal scheme and health services, which provide care for people who need a greater level of care. The idea is that there will be engagement before it reaches that point in order that a suitable alternative place can be found for the person concerned.

The Minister of State referred to advocacy groups, some of which I know well and I would be very happy if they were the advocacy groups in this respect, but will they have a specific function in being advocates? The issue may not only be that the person concerned is wheelchair bound but often whether the person concerned can have soft supports, as it were, from his or her neighbours. We all know how traumatic it is to move house away from all the things with which one has got comfortable. An holistic approach is needed in terms of what the person sees as being in his or her best interests. As long as there is a function for the advocacy groups in making sure an holistic approach is taken, I can see it working. As the Minister of State will know, there is very little choice within the housing stock, whether it be small units in a supported living environment that are located downstairs as opposed to upstairs, or otherwise. She has inherited a serious problem in that respect. If people could be moved out of this sector, is there a possibility that they could be moved into units in the private rented sector in which they would cease to have the protections they have had? It is the possible loss of such safeguards that concerns me.

In engaging with the approved housing bodies I intend to ensure the dialogue will continue. As members will know, the approved housing bodies already have facilities for people in wheelchairs and people with considerable needs. There is no intention to change this. This measure will only apply in a situation where it is demonstrable that a person cannot manage anymore in the accommodation provided. The primary advocates will probably be the person concerned in the first instance and his or her family, neighbours, etc., but there are these other bodies also and they can play a role, if necessary.

I want to be clear in setting out that this is not something we expect to happen frequently. It will arise only in those unusual cases in which the approved housing body finds itself in a situation where it simply cannot cater for the needs of a person whose needs have advanced considerably during the period of the tenancy with the body in question and where it is clearly in his or her interests to be placed where he or she will receive more appropriate care. I expect that person will have engaged for a long time with the health service before that happens, for example, to ensure there is a place for him or her to go. There is no intention that he or she will be placed in the private rented sector. This measure will apply where the person goes to a place where he or she will have a greater level of care appropriate to his or her needs, not in any other circumstances.

Amendment agreed to.

I move amendment No. 20:

In page 9, line 38, to delete “renewed.”.” and substitute the following:

“renewed.

4B. In the case of a dwelling referred to in section 3(4), the dwelling is no longer suitable for the accommodation needs of the household referred to in that section, or any member of that household, because the requirements of that household, or any member of that household, for care support services, exceed the care support services that are available to that household or any member of that household.".".

Amendment agreed to.

I move amendment No. 21:

In page 9, lines 39 to 42, to delete subsection (6) and substitute the following:

"(6) Section 35 of the Principal Act is amended by inserting the following subsections after subsection (6):

"(7) Paragraph 4 of the Table is subject to section 3B(c) (inserted by section 4 of the Residential Tenancies (Amendment) Act 2013).

(8) In paragraph 4B of the Table, ‘care support services’ means—

(a) medical care,

(b) personal care services, the primary purpose of which is the provision of assistance to address a physical or mental requirement of the household concerned, or a member of that household, or

(c) a service, the provision of which is assisted by the Health Service Executive under section 39 of the Health Act 2004.".".

Sections 5 and 6 agreed to.

Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 7

I move amendment No. 22:

In page 10, line 21, to delete "section 3B(1)(d)" and substitute "section 3B(d)".

Section 7, as amended, agreed to.

Amendment agreed to.
Sections 8 to 10, inclusive, agreed to.
NEW SECTIONS

Amendment Nos. 23 to 25, inclusive are related and will be discussed together.

I move amendment No. 23:

In page 11, before section 11, but in Part 2, to insert the following new section:

11.—(1) Section 134 of the Principal Act is amended—

(a) in subsection (2), by substituting "Subject to subsection (2A), an application" for "An application",

(b) by inserting the following subsection after subsection (2):

"(2A) Where an application under this section is made in respect of a tenancy and the dwelling that is the subject of that tenancy is a dwelling referred to in section 3(4), an application under this section in respect of such tenancy shall be made—

(a) where the tenancy has commenced before the day on which section 3(4) comes into operation, within 12 months from the day on which section 3(4) comes into operation,

(b) where the tenancy commences within the period of 12 months from the day on which section 3(4) comes into operation—

(i) within 12 months from the day on which section 3(4) comes into operation, or

(ii) within 1 month from the commencement of the tenancy, whichever is the later, or

(c) where the tenancy commences on a day that falls 12 or more months from the day on which section 3(4) comes into operation, within 1 month from the commencement of the tenancy.",

(c) by substituting the following subsection for subsection (3):

"(3) An application under this section shall—

(a) be in the prescribed form,

(b) subject to subsections (4) and (7), be accompanied by—

(i) subject to subparagraph (ii), the fee referred to in section 137(1)(b)(ii), or

(ii) in the case of a tenancy referred to in subsection (2A), the fee specified in section 137A(1)(a) or as the case may be the fee prescribed under section 137A(1)(b),

and

(c) where a fee referred to in subsection (8) is required to be paid under that subsection, be accompanied by that fee.",

(d) in subsection (4)—

(i) by substituting "requirements" for "requirement",

(ii) by substituting "do" for "does", and

(iii) by substituting "subsections (2)(a), (2)(b), (2A)(a) or (2A)(b)" for "subsection (2)(a) or (b)",

(e) in subsection (5)—

(i) in paragraph (a), by inserting "or where the applications are made pursuant to subsection (2A), the fee specified in section 137A(1)(a) or as the case may be the fee prescribed under section 137A(1)(b)," after "section 137,",

(ii) in paragraph (a), by substituting "subsections (2)(a), (2)(b), (2A)(a) or (2A)(b)" for "subsection (2)(a) or (b)", and

(iii) by substituting the following paragraph for paragraph (b):

"(b) the applicant has paid—

(i) in respect of several applications falling within section 137(3), the single fee referred to in section 137(2) and the dwellings to which those several applications related included the relevant dwelling, or

(ii) in respect of several applications falling within section 137A(3) the single fee referred to in section 137A(2) and the dwellings to which those several applications related included the relevant dwelling,",

and

(f) by inserting the following subsections after subsection (6):

"(7) The requirement, in subsection (3), for an application to be accompanied by a fee shall not apply to an application to register a further Part 4 tenancy pursuant to section 135(1)(c) if the application to register a further Part 4 tenancy is made within the period specified—

(a) in subsection (2)(a) or (2)(b), or

(b) in subsection (2A)(a) or (2A)(b).

(8) Where an application under this section is not made in electronic form the applicant shall pay the prescribed fee.

(9) The fee prescribed for subsection (8) shall not exceed the reasonable costs of processing the application.".".

In summary, these amendments provide for the registration fees approved housing bodies will pay to register their tenancies with the PRTB and the timeframe within which these tenancies must be registered. They also provide for some other miscellaneous amendments in relation to fees.

Under the 2004 Act, a landlord must register a tenancy within one month of the commencement of the tenancy. Amendment No. 23 provides for the timeframe within which approved housing bodies must register their tenancies as follows. Where the tenancy was entered into before the commencement of the new provisions, it must be registered within 12 months from the commencement date. Where the tenancy is entered into 12 months or more after the commencement of the new provisions, it must be registered within one month of the commencement of the tenancy. This mirrors the current requirements for the private sector. Where the tenancy commences within the first year after the commencement of the new provisions, it must be registered either within 12 months from the commencement of the new provision or within one month of the tenancy, whichever is the later.

This registration timeframe takes into account the significant numbers of existing tenancies held by approved housing bodies and the significant administrative burden of registering these tenancies. Therefore, I have sought to give approved housing bodies as long a timeframe as possible within which to register, while having regard to the need to have finality in the process. As such, all approved housing bodies have a full year to register their existing tenancies. This can now be done quickly and easily on the PRTB's online system. There is also an interim period provided for tenancies created in the first year after commencement. After the first year of operation of the new system, all approved housing bodies' tenancies must be registered within one month, which mirrors the system in the private sector.

Provision is also made in amendment No. 23 for the PRTB to charge an administration fee for processing a hard copy application form. The amount of the fee must be prescribed by the Minister and must not exceed the reasonable cost of processing the application. In addition, the amendment provides for the abolition of the registration fee for reregistering a tenancy after four years as long as the reregistration is done within the specified timeframes. The removal of this fee will encourage stable long-term tenancies in the private sector. This will also remove a significant financial burden from approved housing bodies as the approved housing bodies sector is predominantly made up of long-term secure tenancies.

Amendments Nos. 24 and 25 provide for changes to the composite registration fee charged by the PRTB. Section 137 of the 2004 Act provides for what is known as the composite registration fee or the multiple registration fee. This allows a landlord to avail of a significant discount when registering at the same time multiple tenancies of dwellings in the same property. This amendment limits the number of tenancies that can be registered using the composite fee to ten.

Amendment No. 25 provides for the registration timeframe for approved housing bodies. Where the tenancy is registered within the first year after the commencement of these provisions, the fee to be paid by approved housing bodies will be €45 for a single tenancy and €187.50 for multiple registrations. This is equal to half of the registration fee currently paid by landlords in the private sector. The amendments further provide that the fee after the first 12 months is to be prescribed by the Minister. The intention is that approved housing bodies will pay the same fee as private landlords after the initial discount period. That fee is currently €90 per tenancy. A similar power is also given in relation to prescribed fees for late registration, which I intend to be the same as the fees charged in the private sector.

The amendments make provision for a graduated late fee. The 2004 Act provides that if a landlord is late in registering a tenancy, he or she must pay double the registration fee. The amendments provide for penalties for late registration on an ascending scale.

The purpose of the amendment is to incentivise early registration but also to make the system fairer, as under the current provision, a landlord who pays the fee a year late is subject to the same penalty as a landlord who pays it a day late. The late fee will be €20 for each month the landlord is late in registering the tenancy. I also intend to provide on Report Stage for a maximum total late fee that may be charged. These amendments achieve a fair balance and I ask members to support them.

I agree with much of what has been said. Regarding the fees, what penalty will be put in place if the approved housing bodies are not prepared to register properly? The Minister of State has laid out a number of timeframes, but as a new system is being introduced, how feasible are some of them in allowing people an opportunity to register properly?

I am broadly supportive of what is being provided for, but I ask about the definition of approved housing bodies and whether voluntary housing associations will be included in that category? Some of them are dysfunctional. I can give the Minister of State an example of where tenants inappropriately ended up in court because the process had been mishandled. I am sure she is aware of some of them and I could give her others, but I would be surprised if they had not been brought to her attention. I presume voluntary housing associations are included as approved housing bodies. Is there anything in this section that will bring them into line or is it likely that if there is a deficiency in that regard, it can be corrected on Report Stage?

In reply to Deputy Dessie Ellis, we have had extensive discussions with those involved in the sector while working on the Bill and they are aware of the timeframes proposed. They may not love them, but they accept them, as well as the fees to be charged, on which there were detailed discussions with them. We wanted them to be affordable. That is the reason they can pay half the fee rather than paying the full fee.

On the issue of late fees, it will be the same as for the private sector, that is, €20 a month on an ascending scale. As I said, on Report Stage I intend to put a cap on the figure. The sector is very much aware of the content of this amendment and I hope it is accepting of it. We have not received any indication that those involved in it are not accepting of it and we have had ongoing discussions with them.

With regard to the definition, "approved housing body" means a body standing approved for the purposes of section 6 of the Housing (Miscellaneous Provisions) Act 1992. We did a trawl of housing bodies, some of which have been deregistered, mainly because they are not active, but we are also working with them on a voluntary code which will take in governance issues and the concerns Deputy Dessie Ellis expressed. Some of the issues of concern arise in Deputy Catherine Murphy's constituency and have been brought to my attention. We will have a voluntary code. Eventually, we will have a regulatory code because we must have what is happening in this sector fully transparent and above board. It is not in the interests of any of those involved to have a few rogue operators among them. I accept that there are issues outstanding in regard to a few of them, but we are actively working to ensure they will be properly regulated.

Some of them are not disposed to taking on board anything that is of a voluntary nature. The tenants are not the problem; the people running the boards are the problem. I have come across situations where houses could not be insured. It would be a serious matter if we were to lose houses from the housing stock that could not be replaced because of this measure. The softly, softly approach may not work in this case and I ask the Minister of State to give a commitment that if it does not, there is the prospect of tabling an amendment that will be framed in the interests of protecting tenants' rights and making sure the housing stock is protected.

The point Deputy Dessie Ellis made on which the Minister of State replied is an issue. This year, for example, a large housing association such as the Iveagh Trust had to pay property tax and it will now have to pay this fee. Trying to function in an environment where one is operating a differential rent system and giving long-term security of tenure might be a challenge because of the extra obligations imposed. An issue could arise from that point of view.

I hope to publish the voluntary code in a month's time. When it is published, it will be a mechanism in terms of the bodies that are problematic.

Regarding the burden on AHBs, we had extensive discussions with them and are satisfied that they will be able to take this on. We have not received any indication that this will be a burden with which they will not be able to deal. They want to be properly governed and within this system. They want it to be clear that their operating systems are well governed and protect the rights of their tenants. It is something of which they want to be part.

Amendment agreed to.

I move amendment No. 24:

In page 11, before section 11, but in Part 2, to insert the following new section:

12.—Section 137 of the Principal Act is amended—

(a) in subsection (1) by inserting “and section 137A” after “subsections (2)and (6)”,

(b) in subsection (2) by substituting “section 134(3)(b)(i)” for “section 134(3)”,

(c) in subsection (3) by substituting “in respect of not more than 10 tenancies”for “in respect of tenancies”,

(d) by substituting the following subsection for subsection (6):

“(6) If an application under section 134(2) is not made within the period specified in section 134(2)(b)(ii), the fee to accompany that application shall be—

(a) the total of the amount of—

(i) the fee referred to in subsection (1)(b)(ii), and

(ii) an additional amount of €20 for—

(I) each month, or

(II) part of a month,

falling after the expiration of the period specified in section 134(2)(b)(ii),

or

(b) the fee prescribed for the purposes of this paragraph.”.”.

Amendment agreed to.

I move amendment No. 25:

In page 11, before section 11, but in Part 2, to insert the following new section:

13.—The Principal Act is amended by inserting the following section after section 137:

137A.—(1) The fee to accompany an application under section 134(2A) shall be—

(a) if the application is made in the period of 12 months beginning on commencement of section 3(4), a fee of €45, or

(b) if the application is made after the period referred to in paragraph (a), the prescribed fee.

(2) The requirement under section 134(3)(b)(ii) for a fee specified in this section to accompany an application under section 134 shall be regarded as satisfied, as respects the applications referred to in subsection (3), if the applicant referred to in subsection (3) opts to pay the Board a single fee of the amount specified in subsection (4) in respect of those applications.

(3) The applications referred to in subsection (2) are applications made by the same person at the same time in respect of not more than 10 tenancies of dwellings comprised in the same property.

(4) The amount of the single fee referred to in subsection (2) is—

(a) if the applications concerned are made in the period of 12 months beginning on the commencement of section 3(4), €187.50, or

(b) if the applications concerned are made after the period referred to in paragraph (a), the prescribed fee.

(5) The option of paying the single fee referred to in subsection (2) is not available to the person referred to in subsection (3) if the applications concerned are not made within the period specified in paragraph (a) or (b) of section 134(2A).

(6) If an application under section 134(2A) is not made within the period specified in paragraph (a) or (b) of section 134(2A), the application shall be accompanied by the prescribed fee.

(7) The Minister shall, before making regulations prescribing fees under this section, section 134(8) and section 137(6)(b), consult with the Board in respect of the amount of the fees to be prescribed.

(8) When prescribing a fee, or fees, for the purposes of subsection (6), the Minister may prescribe different fees having regard to the different periods of time elapsing between the making of the application and the expiration of the period specified in paragraphs (a) and (b) of section 134(2A).”.”.

Amendment agreed to.
Section 11 agreed to.
SECTION 12

Amendments Nos. 26 to 29, inclusive, are related and will be discussed together.

I move amendment No. 26:

In page 12, to delete lines 8 to 16 and substitute the following:

“ “1A. The tenant has failed to comply with the obligation, in relation to the tenancy, to pay an amount of rent due (whether arising under section 16 (a) or otherwise) and—

(a) the landlord has, in accordance with section 67(3), notified the tenant in writing that—

(i) an amount of rent due has not been paid, and

(ii) the landlord is entitled to terminate the tenancy if the failure to pay the rent is not remedied within 14 days from the date on which the notice is received,

(b) 14 days have elapsed from the receipt of the notification given in accordance with section 67(3), and

(c) the tenant has not paid the amount of rent due.”,”.

These amendments further clarify the amendment in section 11 which inserts a specific ground in the table to section 34 relating to termination of a tenancy for non-payment of rent. Under the 2004 Act, when a landlord wishes to terminate a Part 4 tenancy for non-payment of rent, he or she must serve a notice informing the tenant of the breach of obligation and give him or her a reasonable time to remedy that breach. However, he or she must also serve a 14 day warning letter under section 67 and, having served these two notices, can only then issue a notice of termination when the rent is not paid. The amendment simplifies the termination process for non-payment of rent. It provides that the landlord only needs to serve one 14 day warning letter to the tenant and that if the rent remains unpaid, he or she may then proceed to serve a notice of termination to terminate the tenancy.

My only concern about the 14 day warning notice, in terms of rent arrears, is that sometimes the welfare officer is late in giving the tenant the money required. I have experience of this happening. I am concerned that if there is a 14 day warning, the tenant will not have enough time to get the money required. The normal notice period is 28 days to quit the tenancy. Therefore, is a notice period of 14 days too short? That is my main worry in giving enough scope in that regard. My experience tells me otherwise.

To clarify, this does not affect the 28 day minimum notice termination period.

I understand that.

They get 14 days and then 28 days.

It would make a little more sense to allow a further period after the 28 days. Sometimes people tend not to heed a warning. In addition, the person must seek assistance from the welfare officer who may be slow in delivering the money. The tenants must respond to the written notification of their obligations to pay the rent before they know they have been given the supplementary payment.

This measure is to clarify and simplify the system. It is not to deny the tenants the rights they already have.

Amendment agreed to.

I move amendment No. 27:

In page 12, between lines 16 and 17, to insert the following: “(d) in paragraph 4(b)(ii) by inserting “1A,” after “paragraph 1,”.”.

Amendment agreed to.

I move amendment No. 28:

In page 12, paragraph (d), line 22, to delete “ “available for re-letting”.” and substitute the following:

“ “available for re-letting”,

(e) in paragraph 5(b)(ii), by inserting “1A,” after “paragraph 1,”,

(f) in paragraph 6(b)(ii), by inserting “1A,” after “paragraph 1,”.”.

Amendment agreed to.
Section 12, as amended, agreed to.
NEW SECTION

I move amendment No. 29:

In page 12, before section 13, to insert the following new section:

13.—Section 67 of the Principal Act is amended by substituting the following subsection for subsection (3):

“(3) The condition mentioned in subsection (2)(b)(ii) is that—

(a) the tenant has been notified in writing by the landlord that—

(i) an amount of rent due has not been paid, and

(ii) the landlord is entitled to terminate the tenancy if the failure to pay the rent is not remedied within 14 days from the date on which the notice is received,

and

(b) 14 days have elapsed from the receipt of that notice without the amount concerned having been paid to the landlord.”.”.

Amendment agreed to.
Section 13 agreed to.
NEW SECTION

Amendment No. 30 is in the name of the Minister. Amendments Nos. 30 to 33, inclusive, are related and may be discussed together.

I move amendment No. 30:

In page 12, before section 14, to insert the following new section:

14.—Section 82 of the Principal Act is amended—

(a) in subsection (5) by substituting “subject to subsection (6), any costs referred to in subsection (7)” for “such costs and expenses”, and

(b) by inserting the following subsections after subsection (5):

“(6) Any costs awarded under subsection (5) shall not exceed €1,000.

(7) In subsection (5), costs incurred by the other party includes costs or expenses—

(a) relating to travelling and attendance at any place required for the adjudication or determination of the matter concerned, and

(b) relating to the preparation of his or her case,

and, for the avoidance of doubt, such preparation costs do not include legal costs referred to in section 5(3)(a).”.”.

Amendments Nos. 30 to 33, inclusive, are related. They provide for limits to be placed on the awards of costs that may be made by the PRTB. Section 115(3) of the 2004 Act provides that the amount, other than costs or expenses of whatsoever kind that an adjudicator or tribunal may direct to be paid, shall not exceed €60,000 for arrears of rent and €20,000 in damages. While section 115(3) places a limit of €20,000 in terms of the level of damages which can be awarded, there is no limit on the amount of expenses and costs that may be awarded. This amendment provides for limits on all types of costs that can be awarded by the PRTB under the residential tenancies Act and is provided for on the basis of legal advice furnished to my Department.

The amendments place a limit of €1,000 on the costs that can be awarded under sections 82, 115, and 119 of the Principal Act. Amendment No. 55 which we will discuss later also provides for a limit of €5,000 on the amount of legal costs that may be awarded on the same basis.

Amendment agreed to.
Section 14 agreed to.
Sections 15 to 22, inclusive, agreed to.
SECTION 23

I move amendment No. 31:

In page 15, line 16, to delete “subsection” where it firstly occurs and substitute “subsections”.

Amendment agreed to.

I move amendment No. 32:

In page 15, line 21, to delete “subsection (3)(c)(i).”.” and substitute the following:

“subsection (3)(c)(i).

(5) The amount of costs or expenses that may be awarded to a party shall not exceed €1,000.”.”.

Amendment agreed to.
Section 23, as amended, agreed to.
NEW SECTION

Amendment No. 33 is in the name of the Minister. Acceptance of this amendment involves the deletion of section 24 of the Bill.

I move amendment No. 33:

In page 15, before section 24, to insert the following new section:

24.—Section 119 is amended—

(a) in subsection (1)—

(i) in paragraph (i) by substituting “subject to subsection (3), costs” for

“costs”, and

(ii) by deleting paragraph (iii),

and

(b) by inserting the following subsection after subsection (2):

“(3) The costs awarded under subsection (1)(i) shall not exceed

€1,000.”.”.

Amendment agreed to.
Section 24 deleted.
Section 25 agreed to.
NEW SECTION

I move amendment No. 34:

In page 15, before section 26, to insert the following new section:

26.—Section 123 of the Principal Act is amended—

(b) in subsection (4), by deleting “in relation to the point of law concerned”.”.

Amendment agreed to.
Section 26 deleted.
NEW SECTION

I move amendment No. 35:

In page 15, before section 27, to insert the following new section:

27.—Section 135 of the Principal Act is amended by substituting the following

subsection for subsection 5:

“(5) Where an application under section 134 is received by the Board and the application is—

(a) incomplete, or

(b) not accompanied by—

(i) the fee referred to in section 134(3)(b)(i) or as the case may be section 134(3)(b)(ii), and

(ii) the fee referred to in section 134(3)(c) where that fee is required to be paid,

the Board shall notify the applicant of the omission concerned and specify a date by which the application is to be completed or the fee is, or the fees are, to be paid.”.”.

Amendment agreed to.
Section 27 agreed to.
Sections 28 to 40, inclusive, agreed to.
NEW SECTION

Amendment No. 36 is in the name of the Minister. Acceptance of this amendment involves the deletion of section 41 of the Bill.

I move amendment No. 36:

In page 19, before section 41, to insert the following new section:

41.—The expenses incurred by the Minister in the administration of this Part shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of monies provided by the Oireachtas.”.

Amendment agreed to.
Section 41 deleted.
Section 42 agreed to.
NEW SECTIONS

Amendment No. 37 is a new section. Amendments Nos. 37 to 47, inclusive, are related and may be discussed together.

I move amendment No. 37:

In page 19, before section 43, but in Part 4, to insert the following new section:

“PART 5*

COMPLAINT RELATING TO FAILURE TO PAY RENT PAYABLE UNDER THE TENANCY PENDING

DETERMINATION OF DISPUTE

43.—Section 75 of the Principal Act is amended—

(a) in subsection (2) by inserting “76A,” after “76(4),”,

(b) in subsection (4)(d), by substituting “landlord,” for “landlord, and”, and

(c) in subsection (4) by inserting the following after paragraph (d):

“(da) in the case of a complaint mentioned in section 76A—

(i) the landlord, and

(ii) the tenant and, in the case of a sub-tenancy, the sub-tenant,and”.”.

The substantive amendments provide for the introduction of a new procedure which will enable the PRTB to deal effectively with tenants who do not pay rent during the dispute process. A dispute between a landlord and a tenant may be referred by either party to the PRTB for resolution under section 76 of the 2004 Act.

Under section 86 of the Act, rent continues to be payable pending the determination of the dispute and a termination of the tenancy may not be affected during the course of the dispute. However, the fact that a tenancy may not be terminated pending the determination of the dispute has led in practice to a small number of tenants withholding rent during the time their dispute is waiting to be dealt with by the PRTB. The landlord cannot evict the tenant during the dispute process and as such may not be paid any rent for considerable periods. This has led to hardship for some landlords who in many cases rely on rental payments to pay the mortgage on the dwelling. The purpose of these amendments is to provide for a new procedure to deal with tenants who do not comply with their statutory obligation to pay rent, pending the determination of their dispute. These amendments insert a new section 76A into the 2004 Act, which will provide that where there is a dispute before the board and the tenant does not pay the rent the landlord may bring a complaint before the PRTB. On the hearing of this complaint the PRTB can order the tenant to pay any rent due. The matter will then be adjourned for a period of no more than 14 days to allow the tenant to comply with this order. Where the tenant does not comply, the PRTB will now have the power to terminate the tenancy for breach of the statutory duty to pay rent, irrespective of whether a notice of termination has been served.

The PRTB do not have this power under the 2004 Act, as such. Even in cases in which a tenant has not paid rent for a number of months the PRTB do not have the power to terminate the tenancy unless the landlord has served a valid notice of termination. Where the notice of termination is invalid, the landlord has to reserve the notice and wait out the notice period before getting possession of the dwelling. If the tenant challenges the second notice, there is a further waiting period before the matter is finally resolved, with the landlord not receiving any rent during this time. In some cases this can result in a tenant remaining in situ for over a year without paying rent. While the PRTB endeavours to prioritise all cases where rent is not being paid, under the current law they have no power to terminate the tenancy regardless of the behaviour of the tenant. These new provisions will allow the PRTB to deal effectively and quickly with tenants who do not comply with their statutory obligation to pay rent during the dispute process.

Under this new procedure, a landlord may apply for relief only where a dispute has been referred-----

Has the Minister of State much more left because there is a vote in the Dáil?

Approximately another minute. Does the Chairman want to wait?

I must suspend the committee and we will come back after the vote. Tá vótáil ar siúl. Mar sin, cuirfimid an cruinniú ar fionraí ar feadh cúpla nóiméad.

Sitting suspended at 11.20 a.m. and resumed at 11.40 a.m.

I interrupted the Minister of State, Deputy O'Sullivan, before the vote in the Dáil. She may finish her contribution.

I will begin roughly where I left off. I was making the point that where the tenant has not paid the rent, the PRTB has not the power to terminate the tenancy unless the landlord has served notice of termination. Where the notice of termination is invalid, the landlord must re-serve the notice and wait out the notice period before getting possession of the dwelling. If the tenant challenges the second notice, there is a further waiting period before the matter is finally resolved, with the landlord not receiving any rent during this time, in some cases, as I stated already, if the tenant remains in situ, for over a year. While the PRTB endeavours to prioritise all cases where rent is not being paid under the current law, it has no power to terminate the tenancy regardless of the behaviour of the tenant.

These new provisions will allow the PRTB to deal effectively and quickly with tenants who do not comply with their statutory obligation to pay rent during the dispute process.

Under this new procedure, a landlord may apply for relief only where a dispute has been referred to the PRTB and the tenant has ceased to pay rent. This application will be fast-tracked and deal only with the non-payment of rent issue. The original dispute will be dealt with in the usual way at a later date. The amendments provide that the PRTB must endeavour to ensure a complaint under this new procedure is dealt with as soon as is reasonably practicable and notice periods for disputes and appeals have been shortened to allow complaints under this procedure to be dealt with as quickly as possible, while still giving due notice to the parties involved. However, the tenant will still be entitled to notice of the making of the application and, following this, will have a minimum of ten days notice of the hearing of the application. The mediation provisions under the Bill will not apply to this procedure, as this would introduce a further step in the process and result in further delay.

I have also provided that the PRTB must provide six monthly reports for me on the progress of this new procedure for the first year of its operation. Thereafter, reports on the procedure must be made in the PRTB's annual report which, as members know, is laid before the Houses of the Oireachtas every year. I am sure we have all been in receipt of correspondence from constituents who are at their wits' end trying to pay a mortgage on a rental property where the tenant will not pay the rent. I am confident this new procedure will give the PRTB the power and means to deal quickly and effectively with that small number of tenants who blatantly disregard their statutory obligation to pay rent during a dispute. This may require some discussion.

I welcome the amendment in general. We all have experience of tenants who have not paid rent for various reasons. Some may not be happy with the maintenance work carried out by the landlord and end up saying they will not pay rent until the matter is sorted out. I hope that if the board is given more powers to intervene and perhaps move against a tenant, all of these issues will be taken into account. This is a considerable problem. Most people end up in disputes with their landlords over maintenance. I assume this will be taken into account by the board. It is sometimes very hard to get through to people when they are very upset by various issues affecting them. If the PRTB is to have the ability to recommend that a tenant be put out, it will have been given a very big role and responsibility. I hope every avenue is exhausted if this is to occur.

There is no doubt that where there are rights, there ought to be responsibilities also. It is a question of finding a balance. I do not dispute the principle of the amendment, but I have some concerns about the responsibility of the State. As we know, there is a dual application process for rent assistance. If somebody out of work discovers he or she must put himself or herself on an approved housing waiting list, he or she applies and the local authority has 12 weeks in which to deal with it. There is sometimes correspondence between the various parties which results in a breaking of the 12 week deadline. I certainly have experience of this in the cases of some constituents. The next step for the applicant is to apply to a separate body. This issue may well resolve itself in that there may eventually be one application process. At present, there are two. The difficulty is that the second application can take another 12 weeks to process. The State has a responsibility in this regard. Some arrears and non-payments arise because the State does not deal with the application for rent support in a timely way. It is a complex system, as members know. The issue I describe could lead to a problem.

If a community welfare officer or the Department of Social Protection hears there is a dispute, rent assistance will be stopped. If a tenant complains that accommodation is of poor quality or that a landlord is not dealing with a matter, rent assistance could be stopped at that point. How would this be handled? Threshold produced a report last year that showed that 61% of tenants were topping up the rent assistance payment. The caps are way below market rents in their respective areas and people obviously face having to top up, mostly from social welfare payments, to try to ensure there is a roof over their heads. Such circumstances can result in homelessness. The State has a responsibility and it is undermining some tenancy rights by virtue of the fact that it is forcing tenants to negotiate reductions with landlords. These are not real reductions. What is occurring is that they are saying the landlord has agreed to a reduction, while, in reality, they are topping up. Inevitably, they will end up with the community welfare officer trying to seek help with an electricity bill or another bill because their income simply does not match their outgoings. I have concerns about these issues. While I do not dispute that there is a need for the legislation, I am concerned about how the tenants in the position I have described will be catered for.

As both Deputies implied and as I have been saying, we are trying to strike a balance between the rights and responsibilities of both the tenant and the landlord. That is essentially the purpose of the amendment.

To answer Deputy Dessie Ellis's question on a tenant who is not paying, where a landlord is not carrying out certain maintenance work, a tenant has a legitimate reason to go to the PRTB. The amendment does not affect the hearing on the main issue of complaint. The issue of the tenant having to pay the rent is being dealt with in the legislation. Irrespective of the duration of the dispute, one should be paying one's rent until the matter is resolved. That is the purpose of the provision.

The general issues raised by Deputy Catherine Murphy are of concern to us all. They have been raised many times in making reference to rent supplement, caps and the fact that people top up, although they should not or should not have to.

The Minister for Social Protection, Deputy Joan Burton, is carrying out a review of rent caps. This is not my area of responsibility. The review will probably be published very soon. One will be aware that we are planning to transfer the long-term rent supplement scheme to the local authorities through the housing assistance payment scheme. This will address the issue of affordability. There will be a much more satisfactory arrangement for the people concerned. In effect, they will be paying differential rent on the basis of their income and will not face all of the poverty traps and issues that arise with regard to rent supplement. There will still be rent supplement for those who need it urgently in the shorter term. Anyone who is on a housing list for a reasonable length of time and whose needs are more long term will be transferred to the local authority system in the next year and a half approximately. This is the time it will take to introduce the system gradually throughout the country. This issue is somewhat separate from the one we are discussing, namely, the time it takes to get on the local authority housing list and receive rent supplement. However, the matter certainly needs to be addressed.

The problem is that there is no provision for backdating. That is how some rent arrears will arise and there is no solution. The State is part of the problem in this regard.

Is the Deputy referring to backdating in people getting on the housing list?

One cannot apply for rent assistance until one gets on the waiting list, which may take three months. One must then apply for rent assistance, but it can take up to three months to receive it. It is only after this three month period that one qualifies for rent assistance. Therefore, the tenant may not have been able to pay rent for a period of six months. The State has a responsibility in this regard.

What does one do in that kind of situation? In general, tenants do not want to stop paying their rent because they know that if they are to continue renting, they will need a reference. Sometimes, however, these situations arise. It is all very well for us to talk about this in an academic sense, but in a practical sense a cohort of people will run into difficulty. If a community welfare officer or the Department of Social Protection even gets a whiff that there is a dispute, they will stop giving rent assistance. That happens, so these matters tie into this until we get to the point where the HAP system is in place.

One way or another, a landlord is entitled to get his or her rent.

This amendment is about ensuring a landlord has the right to have the rent paid. The issue the Deputy is raising is whether a tenant can afford to pay the rent for a variety of reasons, whether it is because they have not yet been approved on the housing list or whether a community welfare officer has not paid them rent supplement for one reason or another. That is a valid point but I do not think it negates the point that a landlord is entitled to have rent paid while there is an ongoing dispute. Other mechanisms may be necessary to ensure a tenant can afford to pay, but we should not persist in a situation where there is no mechanism for a landlord to have rent paid while a dispute is going on.

Amendment agreed to.

I move amendment No. 38:

In page 19, before section 43, but in Part 4, to insert the following new section:

44.—Section 76 of the Principal Act is amended by inserting the following subsection after subsection (4):

“(5) The landlord may refer to the Board for resolution a complaint under section 76A that a tenant or, as the case may be, a sub-tenant has failed to comply with section 86(1)(a).”.”.

Amendment agreed to.

I move amendment No. 39:

In page 19, before section 43, but in Part 4, to insert the following new section:

45.—The Principal Act is amended by inserting the following section after section 76:

76A.—(1) This section applies where a matter has been referred to the Board for resolution (the ‘original dispute’) and pending the determination of that dispute a tenant referred to in section 86(1)(a)(i), or a sub-tenant referred to in section 86(1)(a)(ii), has failed to comply with section 86(1)(a).

(2) A landlord may, on notice to the tenant, and the sub-tenant in the case of a sub-tenancy, refer to the Board for resolution a complaint that the tenant referred to in section 86(1)(a)(i), or a sub-tenant referred to in section 86(1)(a)(ii), has failed to comply with section 86(1)(a).

(3) A complaint under this section shall not be the subject of mediation under section 93.

(4) The Board shall as soon as practicable arrange for a complaint under subsection (2) to be the subject of an adjudication under section 97 by an adjudicator designated to hear and determine a complaint under this section.

(5) The adjudicator, or as the case may be the Tribunal on appeal, shall proceed to hear and determine, in accordance with this Part, the complaint that the tenant, or as the case may be the sub-tenant, has failed to comply with section 86(1)(a) and shall make all necessary findings and determinations for that purpose.

(6) Where an adjudicator on the hearing of a complaint under this section, or the Tribunal on appeal, is satisfied that there has been a failure to comply with section 86(1)(a) the adjudicator or Tribunal may—

(a) make a determination that there has been a failure to comply with section 86(1)(a),

(b) make a determination comprising a direction that the tenant or the sub-tenant shall pay to the landlord the amount of rent due and owing on or before a specified day which shall be not later than 14 days from the date on which the determination is made, and

(c) adjourn the matter for such period as is appropriate for the purpose of confirming that the amount of rent referred to in paragraph (b) has been paid by the specified date.

(7) Where at the end of the period of adjournment referred to in subsection (6)(c), the tenant or sub-tenant fails to comply with the determination referred to in subsection (6)(b), the adjudicator or the Tribunal may—

(a) make a determination that there has been a failure to comply with the direction under subsection (6)(b), and

(b) notwithstanding section 86(1)(c), make a determination that the tenancy stands terminated and direct that the dwelling the subject of the tenancy be quitted by a specified date.

(8) Where the dwelling the subject of the tenancy terminated under subsection (7) is one out of which a sub-tenancy has been created, a determination under subsection (7)(b) may include a determination that the sub-tenancy stands terminated and a direction that the dwelling concerned be quitted by a specified date.

(9) Subject to subsection (10), the original dispute may proceed to be determined in accordance with the provisions of this Act.

(10) Any relevant findings or determinations made in hearing or determination of a complaint under this section shall apply, as appropriate, to the original dispute.

(11) For the purposes of the determination of the original dispute, a copy of a determination made under this section shall be provided to—

(a) the adjudicator determining the original dispute, and

(b) in the case of an appeal against the determination of the original dispute, the Tribunal.

(12) Section 119 shall not apply to the determination of a complaint under this section.

(13) An amount of rent directed to be paid under this section shall count in the calculation of an amount of rent for the purposes of section 115(3).”.”.

Amendment agreed to.

I move amendment No. 40:

In page 19, before section 43, but in Part 4, to insert the following new section:

46.—Section 86 of the Principal Act is amended—

(a) in subsection (2) by inserting the following paragraph after paragraph (c):

“(ca) in the case of paragraph (c) of that subsection, the tenancy has been terminated pursuant to a determination under section 76A,”, and

(b) by inserting the following subsection after subsection (3):

“(4) Where a tenant or a sub-tenant fails to comply with subsection (1)(a), the landlord may make a complaint under section 76A.”.”.

Amendment agreed to.

I move amendment No. 41:

In page 19, before section 43, but in Part 4, to insert the following new section:

47.—Section 94 of the Principal Act is amended by inserting the following paragraph after paragraph (a):

“(aa) mediation of the kind mentioned in that section in respect of complaints under section 76A,”.”.

Amendment agreed to.

I move amendment No. 42:

In page 19, before section 43, but in Part 4, to insert the following new section:

48.—Section 97 of the Principal Act is amended—

(a) in subsection (1) by inserting “76A,” after “under section”,

(b) in subsection (2) by inserting “76A,” after “under section”.”.

Amendment agreed to.

I move amendment No. 43:

In page 19, before section 43, but in Part 4, to insert the following new section:

49.—Section 100 of the Principal Act is amended—

(a) in subsection (2) by substituting “Subject to subsection (3), such an appeal” for “Such an appeal”, and

(b) by inserting the following new subsection after subsection (2):

“(3) An appeal concerning the determination of a complaint referred to in section 76A shall be made within 10 days from the date the Board serves on the party the report and statement referred to in section 99(3).”.”.

Amendment agreed to.

I move amendment No. 44:

In page 19, before section 43, but in Part 4, to insert the following new section:

50.—Section 104 of the Principal Act is amended—

(a) in subsection (5) by substituting “Subject to subsection (5A), the duration of” for “The duration of”, and

(b) by inserting the following subsection after subsection (5):

“(5A) The duration of the notice under subsection (3), where the hearing concerns the determination of a complaint referred to in section 76A, shall be 10 days.”.”.

Amendment agreed to.

I move amendment No. 45:

In page 19, before section 43, but in Part 4, to insert the following new section:

51.—Section 109 of the Principal Act is amended by inserting the following subsection after subsection (1):

“(1A) For the purpose of the hearing and determination of a complaint under section 76A, without prejudice to the generality of subsection (1), the Board shall endeavour to ensure that a complaint under section 76A is determined as soon as is reasonably practicable and for that purpose rules under this section shall—

(a) establish procedures to provide for the hearing and determination of such complaint as soon as is reasonably practicable after the complaint has been referred to the Board,

(b) designate, from the panel of adjudicators referred to in section 164(4), a number of adjudicators to hear and determine complaints under section 76A that is appropriate for those complaints to be heard and determined as soon as is reasonably practicable, and

(c) cause to be constituted, under section 102, a number of tribunals, to hear and determine complaints referred under section 76A or appeals under section 100 of determinations of those complaints, that is appropriate for those complaints and appeals to be heard and determined as soon as is reasonably practicable,

and when designating an appropriate number of adjudicators or causing to be constituted an appropriate number of tribunals the Board shall have regard to the number of complaints under section 76A referred to it.”.”.

Amendment agreed to.

I move amendment No. 46:

In page 19, before section 43, but in Part 4, to insert the following new section:

52.—Section 124 of the Principal Act is amended by inserting the following new subsection after subsection (5):

“(5A) Where an application is made in respect of a determination order under section 76A(7) that requires the dwelling to be vacated, the court may, pending the hearing of the action, require the respondent to lodge in court or pay to the applicant, as it thinks appropriate, that amount of rent together with such amount as it specifies in respect of the dwelling’s continued occupation by the respondent after the service of that notice.”.”.

Amendment agreed to.

I move amendment No. 47:

In page 19, before section 43, but in Part 4, to insert the following new section:

53.—The Principal Act is amended by inserting the following new section after section 180:

180A.—(1) Without prejudice to section 180, the Board shall, not later than 6 months after the coming into operation of section 76A, make a report to the Minister in such form as the Minister may approve, on the performance of its functions under that subsection and in respect of the making and determining of complaints under section 76A and appeals against determinations of those complaints.

(2) The Board shall, not later than 6 months after the day on which the report under subsection (1) was made, make a further report to the Minister in respect of the same matters provided for in that subsection.

(3) Following the making of the report referred to in subsection (2), the Board shall include in its annual report under section 180 the matters provided for in subsection (1).”.”.

Amendment agreed to.

Amendments Nos. 48 to 51, inclusive, are related and may be discussed together. They form a composite proposal and therefore a decision in respect of amendment No. 48 will also apply to amendments Nos. 49, 50 and 51.

I move amendment No. 48:

In page 19, before section 43, but in Part 4, to insert the following new section:

“PART 5*

DEPOSIT RETENTION SCHEME

43.—In this Part, “deposit” means any money intended to be held (by the landlord or otherwise) as security for—

(a) the performance of any obligations of the tenant, or

(b) the discharge of any liability of the tenant,

arising under or in connection with a tenancy.”.

One of the problems we found concerned how the deposit retention issue is handled. The Minister of State has said that she will examine that issue, but we felt that the debate on this Bill would have been the appropriate time to examine it and bring forward such proposals. We know that some 72% of complaints relate to deposit retention, which shows how big this matter is. Because deposit retention is one of the main complaints, my colleagues and I felt that the matter should have been dealt with at this Stage of the Bill.

The Minister of State's colleagues, Deputy Patrick Nulty and Deputy Ciarán Lynch, have made similar suggestions to ours concerning deposit retention. It is also a big issue for welfare officers, some of whom will give deposits while others will not. Continuity and clear rules are required regarding deposits. Every landlord will seek a deposit, so guidelines are needed in this respect.

Those are the reasons my party has tabled these amendments. I am seeking support for them from my colleagues on this committee.

I agree with Deputy Ellis concerning the difficulties he has outlined. If a person cannot get their deposit back and the community welfare officer will not grant a deposit, they can very easily end up homeless. The average deposit is approximately €1,000, but for somebody on social welfare payments that is a fortune. There is no way they will be able to make that up if it is not refunded.

We are trying to change the culture because there are 100,000 people on the housing waiting list. Approximately 40% of rented properties are occupied by people in receipt of rent assistance. That group of tenants is very exposed in this situation. In attempting to create a balance of rights, I would have thought the deposit retention issue would have to have been a feature of this Bill.

There is a desire that the process concerning the Private Residential Tenancies Board would move more quickly. One of the issues that takes up most of the board's time is the return of deposits. How can one streamline the system if that one item continues to absorb all the PRTB staff's time? Will extra staff be put in to deal with it? This has to worked out on a practical level, so it should be a feature of the Bill before us.

I fully appreciate the intention behind Deputy Ellis's amendment. I wish to repeat what I said on Second Stage. I intend to bring forward an amendment in this regard in the Seanad. We were just not ready to do so here, as it has not been fully drafted. It is a priority and a commitment in the programme for Government to establish a deposit protection scheme. On foot of that commitment, I asked the PRTB to commission research on such a scheme. The research contract was awarded to Indecon Economic Consultants. I received the final report from Indecon in November 2012. The report presents a comprehensive analysis of the range of options for delivery of the programme for Government's commitment. I am currently engaging with the Office of the Attorney General on drafting proposals to establish a deposit protection scheme with a view to bringing proposals to Government shortly and introducing these provisions on Committee Stage in the Seanad.

I fully appreciate and share the concerns of Deputy Ellis and Deputy Catherine Murphy, but the issues are quite complex and we must ensure we draft the amendment properly. In giving a commitment that the matter will be brought forward in the Seanad, I would ask Deputy Ellis to withdraw the amendments.

Having tabled these amendments, I feel we should have debated whether they are sufficient to deal with the problem. I do not think we are being afforded an opportunity to do so. The Minister of State has said that she will look at this matter in the future, but I always worry when people say that because things tend to drag out for a long time. I know the issue is complex, but the Government had enough time to examine our amendments and draw up something that would satisfy all of us. There was enough time to do so in the period allowed. I will press the amendments, therefore, because I feel they should have been responded to.

We are dealing with amendments Nos. 48 to 51, inclusive. Deputy Ellis has the choice. It is entirely up to himself. I merely want to explain this. He can move and push the amendments to a vote, or he can move and withdraw which means he can return to them on Report Stage. In any event, the decision is up to himself. We are taking amendments Nos. 48 to 51, inclusive, and the resolution on amendment No. 48 will stand for amendments Nos. 49 to 51, inclusive.

Amendment put:
The Committee divided: Tá, 1; Níl, 6.

  • Ellis, Dessie.

Níl

  • Coffey, Paudie.
  • Coonan, Noel.
  • Humphreys, Kevin.
  • McCarthy, Michael.
  • McLoughlin, Tony.
  • O'Sullivan, Jan.
Amendment declared lost.
Amendments Nos. 49 to 51, inclusive, not moved.

I move amendment No. 52:

In page 19, before section 43, but in Part 4, to insert the following new section:

"47.—(1) The Department of Social Protection shall not make a payment of a supplement towards the amount of rent payable by a person in respect of his or her residence where the tenancy has not been registered in accordance with the provisions of Part 7 of the Principal Act.

(2) Subsection (1) does not prevent the payment by the Department of Social Protection—

(a) of such a supplement upon the creation of a tenancy, or

(b) of assistance in the form of a deposit prior to the registration of the tenancy.".

I raise this issue because the deposit is important. I want to push it. While the Minister of State provided me with a commitment that it would be examined, plenty of time was given. I will not say anymore other than that I am pressing the amendment.

Amendment put and declared lost.
Section 43 agreed to.
NEW SECTIONS

Amendments Nos. 53 and 55 are related and may be discussed together.

I move amendment No. 53:

In page 19, after line 39, to insert the following new section:

44.—(1) The Principal Act is amended in the manner specified in the Schedule*.

(2) The following provisions of the Principal Act are repealed:

(a) section 115(2)(i);

(b) section 126;

(c) section 190(2)(b).".

The amendment provides for the repeal of three sections of the Residential Tenancies Act 2004 and the insertion of a new Schedule to the Act. Section 115(2)(l) of the 2004 Act provides that the PRTB may direct a party to pay the costs or expenses of a PRTB adjudicator or tribunal to the PRTB in special circumstances. Legal advice furnished to me has indicated that the provision should be repealed on the basis that the PRTB should not be a judge in its own case. Similarly, the amendment provides for the repeal of section 126 of the 2004 Act which provides that non-compliance with a determination order is automatically a criminal offence. The amendment is proposed on the advice of the Office of the Attorney General arising from the judgment of the High Court in McCann v. The Judge of Monaghan District Court & Ors. The PRTB will continue to enforce its orders by means of the civil enforcement procedure in section 124. On foot of further legal advice, I propose to provide for the repeal of section 190(2)(b) which provides that the Circuit Court may authorise a PRTB adjudicator or tribunal to award costs to a party in an application to the Circuit Court for injunctive relief under section 189. I have been advised that it is not appropriate for the PRTB to make a direction in relation to the costs of a Circuit Court application.

Amendment No. 55 proposes to insert a new Schedule to the Act. The proposed new Schedule provides for three miscellaneous amendments. The proposed amendment to section 5(4) of the 2004 Act provides that where the board awards legal costs, such costs shall not exceed €5,000. I mentioned this amendment earlier in the context of amendments Nos. 30 to 33, inclusive. While legal costs may only be awarded by the PRTB in exceptional circumstances and with the permission of the board, there is currently no limit on the amount of any award. On foot of legal advice received by my Department, the amendment is proposed to provide for a limit of €5,000 on any award of costs made by the PRTB. The second amendment provided for in the new Schedule is to section 6(1) of the 2004 Act. This is a technical drafting amendment to clarify that the service provisions of the 2004 Act apply to all documents that must be served under the legislation. The new Schedule provides for an amendment to section 88(1) of the 2004 Act to clarify for the avoidance of doubt that the PRTB may extend time for a party to appeal to the tribunal against a determination of an adjudicator. I commend these somewhat complex amendments to the committee.

Amendment agreed to.

I move amendment No. 54:

In page 19, after line 39, to insert the following new section:

45.—Section 6 of the Housing (Miscellaneous Provisions) Act 1992 is amended in subsection (2) by inserting the following paragraph after paragraph (e):

"(ea) by letting a house (including a house provided under Part V of the Planning and Development Act 2000) to another housing authority referred to in subsection (1)(a) or a body referred to in subsection (1)(b);".".

Amendment No. 54 is a technical amendment to section 6(2) of the Housing (Miscellaneous Provisions) Act 1992 to clarify that a housing authority may give assistance to an approved housing body under that section by letting a house to that approved housing body. It is the advice of the Attorney General that we should insert this provision for certainty.

Amendment agreed to.
NEW SCHEDULE

I move amendment No. 55:

In page 19, after line 39, to insert the following new Schedule:

SCHEDULE

Provision affected(1)

Amendment(2)

Section 5(4)

Insert "and the amount of such costs shall not exceed €5,000" after "of that subsection".

Section 6(1)

Insert "or other document" after "notice".

Section 88(1)

Insert "or an appeal under section 100 to the Tribunal against a determination of an adjudicator under section 97(4)(a)" after "for resolution".

Amendment agreed to.
Title agreed to.
Bill reported with amendments.