LOCAL AUTHORITIES IN Ireland are still refusing to provide emergency accommodation to members of the Traveller community on ‘dubious grounds’, despite clear direction on the matter from the Minister for Housing last year, a solicitor who represents Travellers in civil matters has said.
Christopher McCann, solicitor with the Traveller Legal Service – which is part of the Free Legal Advice Centres (FLAC), has told Noteworthy that Travellers facing homelessness are reporting to him that local authorities are still using criteria to assess their need that have “no basis in law”.
This includes recent reports of Traveller families being told they need to be on the housing list before they can access emergency accommodation, he said.
A small number of local authorities told Noteworthy that they refer people who present as homeless to other local authorities for emergency accommodation if they establish there is a local connection elsewhere.
McCann said local authorities should not be applying the same criteria to the provision of emergency accommodation as they do to social housing – and the Housing Minister has made it clear that these types of policies should not be a barrier to getting a bed.
“In our experiences, there is often not an enormous amount of thought put into the consequences of a decision made by a local authority, say to evict or to refuse emergency accommodation,” McCann said.
“We have handled a lot of cases where people are in very, very dire circumstances.”
He said these kinds of issues highlight the need for Travellers and other vulnerable communities to have access to free legal advice and representation in civil matters, particularly when they are challenging decisions made by State bodies.
The local connection test
When local authorities are considering an application for social housing, they determine whether a household has a local connection with its functional area. This includes criteria such as employment, education, medical or residential services, long-term residency or relatives living in the area.
Following reports in late 2020 that homeless people, including those fleeing domestic abuse, were being turned away from emergency accommodation in Dublin because they had travelled from outside the capital and did not have a ‘local connection’, Housing Minister Darragh O’Brien said he issued “clear directions” to councils.
The minister told local authorities that the ‘local connection’ criteria, which applies to social housing applications, must not be a barrier to getting an emergency bed.
When Noteworthy asked the Department of Housing about this, a spokesperson said that this direction was “to ensure that the most vulnerable on the streets do not end up without shelter due to not being from the area”.
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Despite the minister’s intervention, the practice continued. In September last year, the Traveller Legal Service at Free Legal Advice Centres (FLAC) represented a young Traveller couple who had been sleeping in their car.
They had applied for emergency accommodation, but were being required to seek a bed in the area of the local authority from which they had most recently received social housing support.
Following lengthy correspondence with the council’s solicitors and the threat of judicial review proceedings, the local authority provided the couple with emergency accommodation.
However, this decision came almost three months after they had first sought assistance from the council.
The use of these kinds of criteria in assessments can particularly impact Travellers who may have moved a number of times and therefore received assistance from a number of different local authorities. McCann said FLAC’s Traveller-specific service has received several reports of it over the last two years.
“This is something we have seen on numerous occasions since the inception of the service [in July 2020] and it’s a test which has no existence in the law whatsoever,” McCann said.
“There’s nothing in the Housing Act 1988 which requires somebody who’s making an application for emergency accommodation to prove that they are somehow connected to the functional area of the local authority when they are making the application.”
We see related obstacles being imposed – and I have seen this recently – families being told that they need to be on the housing list before they can get emergency accommodation. Again, that just is not correct. There’s nothing in the law that says that.
The Housing Act 1988 states that a person will be regarded as homeless by a housing authority if they meet one of three criteria.
These include having no accommodation available in which they “can reasonably occupy”, living in a hospital, night shelter and similar institutions because they have no accommodation or being “unable to provide accommodation from their own resources”.
Some councils still using local criteria
Noteworthy asked each local authority across the country whether they used the ‘local connection’ test, or required inclusion on the social housing list, in their assessments for emergency accommodation.
A number of councils noted that they were aware of their obligations under Section 2 of the Housing Act 1988 and of the definition of a homeless need in that legislation, stating that they operated in line with the act. Some councils specifically referenced the minister’s direction and their compliance with it.
However, others were less clear about the way in which they operate within that legislation, or acknowledged that the local connection test is applied in assessments for emergency accommodation.
Clare County Council said in its role of conducting a housing needs assessment, it refers to the Social Housing Assessment Regulations 2011.
Part 2 of the regulations covers applications for social housing support and stipulates that a household may apply for social housing support to one housing authority only.
It states that this shall be either the housing authority [council]:
- (a) for the area in which the household normally resides, or
- (b) for the area with which the household has a local connection, or
- (c) that agrees – at its discretion – to conduct a social housing assessment on receipt of the household’s application
Clare County Council told Noteworthy that when there is a request from a homeless household for emergency accommodation, it is assessed separately by staff of the Homeless Action Team.
“Generally following assessment an applicant who does not meet requirements (a) or (b) would be advised to revert to their Local Authority of origin,” the council said.
The council said the team would consult with another local authority to establish whether there are “specific circumstances which may mean support would be more suitably offered in Clare” or whether it is “more prudent to return to their original local authority”.
It said, following consultation with other local authorities, it may “in exceptional circumstances” seek to provide emergency accommodation in this situations if it is available.
‘May be more favourable’ to refer to other council
Kildare County Council said when an individual or family first presents for homeless support, if local connection “is a concern”, they’re advised to contact their county of origin to seek support.
“If however, due to time constraints or if it is not feasible to get these supports on a given day – in compliance with the direction from the Minister – the after hours service operated by the Peter McVerry Trust is made available and arrangements for emergency accommodation are made,” the council said.
Although Tipperary County Council said it has “full regard to” Section 2 of the Housing Act 1988 when determining whether a person is homeless or not, it said it is “obliged to consider” – as part of the assessment of any homeless applicant – whether that person would qualify for social housing in accordance with the Housing (Miscellaneous Provisions) Act 2009, legislation which governs social housing assessments.
Both Fingal County Council and Dublin City Council, in similar responses, said in general a person who becomes homeless should apply to the local authority from which they became homeless.
A spokesperson for Fingal County Council said if a Dublin local authority is contacted by an applicant with no local connection to Dublin:
It may be more favourable to refer the applicant to the local authority where their housing need can be met or where they have already accrued time on the list.
“The relevant local authority assesses the household’s need and may request another local authority (including Dublin) to place on their behalf or pay for emergency accommodation in another local authority (including Dublin) if there are individual circumstances,” they said.
Dublin City Council said having regard to where or how the applicant’s long term housing need will be met is central to prevention, “i.e. you always consider the housing solution, even when a household is presenting at risk or in crisis”.
“Failure to do so can result in poor outcomes in the longer term,” the spokesperson said.
A spokesperson for the Department of Housing told Noteworthy that:
Any household assessed as homeless may be placed into temporary emergency accommodation without the requirement to undergo a social housing assessment, allowing local authorities the flexibility that is essential to respond quickly and effectively to the various needs of cases that may arise.
They added that the Department understands “that generally local authorities are providing accommodation on a nightly basis and offering support to people to return to their county of origin” and said they are liaising with councils to help provide solutions “to support those who may find themselves homeless”.
Access to legal representation
According to FLAC’s latest annual report, 42% of its case files in 2021 were opened on behalf of clients of the Traveller Legal Service. The majority of those files (62.2%) related to housing or accommodation, while 35% related to discrimination or equality.
McCann said the absence of a legal outlet for Travellers – or anyone who finds themselves in a precarious housing situation and is refused assistance – is an issue that needs to be addressed as it is a barrier to justice for vulnerable people.
Since legal aid isn’t available for housing, McCann explained that you need to make an application for it through the Law Centre in order to get it, “but if you look at the figures from the Legal Aid Board, the types of cases they principally do are family law”.
This is an essential service, he added, but said those statistics reflect the reality of what the Legal Aid Board “tends to do”.
That is a further barrier for Travellers. If you’re being informed of something by a local authority – say you’re told you’re in overcrowded conditions, but they don’t accept that constitutes homelessness – to challenge that you need a bit of knowledge of how homelessness is defined. That’s a legal test.
McCann felt it was important to have a lawyer there, “at least to review it and see if there’s anything that can be done” and added that “the absence of that is an enormous barrier.”
He also highlighted another key case taken by FLAC on behalf of two young Traveller mothers who had, for years, been living in overcrowded conditions on a halting site.
In March 2021, Waterford City Council had, following a vote by councillors, decided not to build a seven-bay halting site at Carrickphierish Road, intended to house these families.
The need for alternative accommodation for FLAC’s clients and others was recognised by the Local Traveller Accommodation Consultative Committee back in 2015, when it noted the severely overcrowded conditions they were living in at the existing Carrickphierish group housing scheme.
In court, it was argued that the council’s decision not to proceed with the site was a breach of its legal obligations under the Housing (Traveller Accommodation) Act 1998.
FLAC’s team also pointed out to the court that the Irish Human Rights and Equality Commission Act 2014 obliges local authorities to take any reasonable steps to implement their Traveller Accommodation Programmes.
Last year, the council agreed to an order quashing its decision not to proceed with the development of the site, but when the plan went back before a vote by councillors it was rejected again. The council executive has committed to reformulating plans and bringing them back for another vote.
Noteworthy asked the Department of Justice if it recognised the importance of access to representation in civil matters such as taking discrimination or housing-related cases.
A spokesperson said that “as committed to in Justice Plan 2022″, the Minister for Justice recently announced “a comprehensive review of the Civil Legal Aid Scheme, for the first time in its more than 40-year history”.
They added that membership of the review group includes the chief executive of FLAC and the director of the Irish Traveller Movement (ITM), that its work is “ongoing” and expected to take 12 months to complete and that this will “map out a future for the Civil Legal Aid Scheme”.
Capturing the views of those with unmet legal needs will be an important part of the Group’s consultation and engagement.
Changes around eviction needed
FLAC has also been calling for a number of changes to laws and processes around housing for Travellers, including reform to provisions that allow local authorities to evict families from an unauthorised site.
A number of the provisions that can be used to move individuals or a family from a site “do not require the local authority to put what is effectively an eviction… before a court, for the court to say this is a proportionate response to the difficulty the local authority says the family is creating,” McCann said.
“The idea that a local authority or the State effectively should have to justify the proportionality of an eviction is a well-established requirement of the European Court of Human Rights jurisprudence – and now potentially Irish Constitutional Law jurisprudence.”
He spoke about a case earlier this year, McDonagh v Clare County Council, in which a Traveller family challenged an attempt to move them from a vacant site owned by the council. The five Supreme Court justices ruled unanimously in favour of the family.
The Irish Human Rights and Equality Commission (IHREC) acted as amicus curiae – ‘friend of the court’ – in this case, as the family did not have access to free legal aid.
The ruling set out that under Article 40.5 of the Irish Constitution, a family home could not be interfered with without a proportionality assessment being carried out first. Mr Justice Hogan set out in the ruling that if an injunction allowing the eviction to occur was not lifted, the McDonaghs would have nowhere else to go without necessarily trespassing on someone else’s lands.
Director of ITM), Bernard Joyce, said these types of cases demonstrate the importance of access to legal representation for Travellers. He said challenges to State policies or legislation in the courts can set precedents that improve conditions for the entire community, not just the individuals who have taken the cases.
“At the moment, there is a significant gap, you either have to get a solicitor to do it pro-bono or seek advice from the likes of FLAC,” he explained. “What that means is you have some of the most vulnerable people in society trying to ensure their rights are upheld and they’re up against the full armour of the State.”
Joyce is a member of the Civil Legal Aid Review Group, which is tasked with assessing how well the civil legal aid scheme facilitates access to justice for people on low incomes. ITM, as part of its consultation for the review, has highlighted the need for access to legal aid for Travellers seeking redress on accommodation matters or in claims of discrimination.
“There have been some significant and fundamental cases taken over the years, test cases that laid foundations in relation to evictions, for example, that wouldn’t have been possible without legal representation,” Joyce said.
“Travellers who are taking these civil cases are not just doing it for themselves, they’re doing it for the whole community. They’re trying to create better conditions to better society and hold those who are failing to account.
“Travellers in Ireland for years have been championing equality, pushing for action on hate crime, change to policing and the judicial system, and the State should be making the courts more accessible to facilitate this.”
FULL SERIES IS OUT NOW
In part one, we report that the Policing Authority is ‘not satisfied’ with the Garda Commissioner’s comments on Traveller profiling. From unfair treatment to overuse of protection regimes, part two examines inequality in Ireland’s prison system.
Have a listen to The Explainer x Noteworthy podcast on the investigation’s findings.
This article – written and researched by Michelle Hennessy of The Journal - is part of our BLIND JUSTICE investigation. The project team – led by Hennessy – also includes Maria Delaney of Noteworthy and freelance journalist Martin Beanz Warde.
This Noteworthy investigation was done in collaboration with The Journal. It was funded by you, our readers, with support from The Journal as well as the Noteworthy general investigative fund to cover additional costs.