Guest piece by Rebecca Keatinge of MLRC: Family unlawfully refused emergency accommodation accommodated following High Court proceedings

Rebecca Keatinge is a Solicitor with Mercy Law Resource Centre.

Mercy Law Resource Centre (MLRC) is an independent law centre which provides free legal advice and representation in the areas of housing and related social welfare law to those who are homeless or at risk of becoming homeless.  MLRC provides five key services: free legal advice clinics; legal representation in the areas of housing and social welfare law; legal support and training to organisations working in the field of homelessness; policy work; and a befriending service. 

We recently acted for a family who were refused emergency accommodation by a Council on the basis, the Council said, that they were “intentionally homeless”.  The Council considered that the family should return to the United Kingdom, where they had lived for a short period immediately prior to presenting to the Council as being homeless.   Following our issuing of High Court judicial review proceedings on behalf of the family, the Council agreed to provide emergency accommodation to the family and the family was accommodated.

Background to the case

The family of five were all naturalised Irish citizens and were living in a Council tenancy. In 2015, the family decided to move to the United Kingdom and surrendered the tenancy. The family informed the Council of their plans. The family lived in the United Kingdom for about a year and then decided to return to Ireland as the children had not settled in well and wanted to return to their community and friends in Ireland. Prior to returning, the family contacted the Council for advice on their housing matters. The Council advised the family, when they came back, to present to the homeless section, where they would be accommodated in emergency accommodation to give them time to source private rented accommodation.

On return however, when the family presented to the homeless section, the Council refused to provide emergency accommodation to the family. The Council refused on the basis that the family could have renewed their tenancy in the United Kingdom and had therefore made themselves homeless and that they were, as a result, intentionally homeless. The Council advised the family to return to the United Kingdom.

The family presented at the Council several times over the course of ten days, explaining that they had nowhere to go and were at risk of rough sleeping.  They also explained and provided evidence that one of the children suffered from epilepsy, had suffered from a fit in recent days and was at risk of further fits on account of the exhaustion and stress caused by their homelessness. They explained that they were moving night to night to stay at different friends’ houses and were sleeping on living room floors in different houses. They explained that the goodwill of friends would soon be used up and they would face rough sleeping.

Legal arguments – Council decision to refuse emergency accommodation was unlawful

MLRC met with the family shortly after the initial refusals of emergency accommodation to the family and opened a file. We noted that all of the refusals were oral and not in writing. We immediately wrote to the Council and requested that they reconsider the refusal to provide emergency homeless accommodation and provide such accommodation to the family, highlighting the particular needs of the family. We also requested that the Council give a written decision with reasons for the refusal of emergency accommodation.

In our correspondence with the local authority, we referred to the Housing Act 1988, particularly ss 2 and 10.  These sections govern the manner in which a housing authority must provide emergency accommodation where a person is homeless and seeks immediate accommodation.

Section 2 of that Act, states:

“A person shall be regards by a housing authority as being homeless for the purposes of this Act if –

• There is no accommodation available which, in the opinion of the authority, he, together with any person who normally resides with him or who might reasonably be expected to reside with him can reasonably occupy or remain in occupation of, or
• He is living in a hospital, county home, night shelter or other such institution, and is so living because he has no accommodation of the kind referred to in paragraph (a), and he is, in the opinion of the authority, unable to provide accommodation from his own resources.”

In our legal submissions to the Council, we noted that:

• the statutory definition of homelessness does not oblige an applicant to prove any prior residence in the administrative area of the Council;
• does not provide for any assessment by the Council of the circumstances in which an applicant became homeless, intentionally or otherwise; and
• there are no regulations which add to or expand on the statutory requirements in relation to providing emergency accommodation to people who are homeless. We referred in particular to the High Court decision in Kinsella v Dun Laoghaire County Council [2012 IEHC 344], where the Court held a housing authority cannot introduce additional eligibility criteria over and above those provided for in relevant legislation.

In our submissions to the Council, we contended that:

• the decision to refuse to provide emergency accommodation to the family was unlawful and in breach of its statutory duty;
• the decision was irrational, was based on irrelevant factors and failed to have regard to relevant factors.

We relied on the fundamental rights of the family under the Constitution, citing in particular Article 42A of the Constitution which protects the rights of the child, and the European Convention on Human Rights.

Legal proceedings – High Court judicial review

We sought to resolve this case without recourse to litigation but unfortunately, despite our several letters, the Council did not change its position. We then sought the leave of the High Court to bring judicial review proceedings to challenge the decision to refuse emergency accommodation. We were granted leave and due to its urgency, the case was brought back into court the following week. Alan D.P. Brady BL was counsel for the family, instructed by MLRC.

The Council initially defended its decision to refuse emergency accommodation. The Council set out its case on affidavit, arguing in essence that our client’s homelessness had come about on account of the choices she had made prior to becoming homeless and that she had made herself homeless. The Council stated that in such circumstances, the duties of the Council diminish and that it had no obligation to provide emergency accommodation to the family.

Notwithstanding the initial course taken by the Council that was to defend the case, the case was settled before going to full hearing. The Council provided the family with emergency accommodation to the family’s enormous relief.

Conclusion

The family in this case were profoundly affected by the decision to refuse them emergency accommodation and experienced a hellish two months while the legal proceedings were issued and in train and up until they ultimately secured a resolution. Unfortunately, this is not an isolated case and we have acted in several similar cases in the last twelve months. The majority have resolved prior to litigation, albeit often with threats of litigation. We have brought High Court litigation in several similar cases, which have all led to settlement and resolution of the cases fortunately in our clients’ favour.

The volume of refusals of emergency accommodation by housing authorities, in particular to families with young children, indicates a common misapplication of the law, and a confusion and blurring of the assessment of an individual’s eligibility for emergency homeless accommodation and the assessment in relation to social housing need. It also shows up a potential need for training on proper application of the law, so that decision makers are equipped to make lawful and fair decisions in these most urgent of cases.