Public interest law in action – using the law to face current challenges

Housing Issues 16th April 2010

Clare NaughtonSolicitor

Northside Community Law Centre

Where do Local Authorities get Powers and Obligations?

• EU Legislation • Constitution • European Convention on Human Rights • Legislation • Case Law• Policy • Procedure • Protocols

Issues for Tenants• Homelessness• Right to shelter• Application Procedure –

Requirement to be ‘in need of housing’; Assessment procedure now needed for Rent Supplement under SWA; Affidavits; Anti-Social Behaviour ‘check’; Scheme; List; Points; Priority; succession

• Signing a Tenancy – Contract; Terms of the Contract; Obligations on Tenants and Landlords; quiet enjoyment

of your home

• Type of housing relationship – Shared Ownership; tenancy agreement; RAS

• Type of housing • Standards– implied terms • Facilities – lifts working etc• Rent and rent arrears• Family law • Home• Family home • Transfers• Legal Aid • Anti – Social Behaviour • Evictions – Possession

proceedings • Excluding Orders

Reasons for Evicting a Tenant

• Alleged breaches of tenancy – Examples:• Rent arrears • Anti – social behaviour • Lodgers without notice and/or

permission• Leaving home unoccupied for long

periods of time

Rent Arrears

• General Practice – Agreement – MABs?– Notice to Quit – Summons for Court – Warrant – Cycle

ASB: Definitions

• Estate Management:• “the securing or promotion of the interests of any

tenants, lessees, owners or occupiers, whether individually or generally, in the enjoyment of any house, building or land provided by a housing authority under the Housing Acts, 1966 to 1997,

• the avoidance, prevention or abatement of anti – social behaviour in any housing estate in which is situate a house provided by a housing authority under the Housing Acts, 1966 to 1997

ASB: Definitions cont’d:• “the manufacture, production, preparation, importation,

exportation, sale, supply, possession for the purposes of sale or supply, or distribution of a controlled drug (within the meaning of the Misuse of Drugs Acts, 1977 and 1984),

• any behaviour which causes or is likely to cause any significant or persistent danger, injury, damage, alarm, loss or fear to any person living, working or otherwise lawful in or in the vicinity of a house provided by a housing authority under the Housing Acts, 1966 to 1997, or a housing estate in which the house is situate and, without prejudice to the foregoing, includes– (i) violence, threats, intimidation, coercion, harassment or serious

obstruction of any person,– (ii) behaviour which causes any significant or persistent impairment of

a person’s use or enjoyment of his or her home, or– (iii) damage to or defacement by writing or other marks of any

property, including a person’s home;”.;

Anti – Social Behaviour• General Practice

– Gardaí– Peaceful and quiet enjoyment of your home– Letters – Meetings / Interview? – Access to Information / Allegations? – Investigation?– Excluding Order– Notice to Quit– Section 62 – possession proceedings– Warrant for possession – Refusal or deferral to let– Social Welfare – Supplementary Welfare Allowance

• Anti - Social Behaviour Strategy

Section 62 Proceedings – Proofs – no hearing???

• Byrne v. Scally, unreported, High Court, 12 October 2000 at pg. 11– (1) The proof of the tenancy agreement – (2) The due issue of the Notice to Quit – (3) The due service of the Notice to Quit – (4) The form of the Notice to Quit – (5) The form of the summons – (6) That under the Notice to Quit the Tenant was

given the appropriate Notice

Caselaw• State (O’Rourke) V. Kelly [1983] IR 58State (O’Rourke) V. Kelly [1983] IR 58• Dublin Corporation v. Hamilton [1998] ILRM 542Dublin Corporation v. Hamilton [1998] ILRM 542• Wynne v. Dublin Corporation (unreported, High Court, Shanley J, 22nd July Wynne v. Dublin Corporation (unreported, High Court, Shanley J, 22nd July

1998)1998)• Byrne v. Judge Scally and Dublin Corporation [2000] IEHC 72 Byrne v. Judge Scally and Dublin Corporation [2000] IEHC 72 • Connors v. The United Kingdom (Application No. 66746/01Connors v. The United Kingdom (Application No. 66746/01 • Dublin City Council v. Fennell [2005] IESC 33Dublin City Council v. Fennell [2005] IESC 33• McConnell v. Dublin City Council and Ors [2005] IEHC 7McConnell v. Dublin City Council and Ors [2005] IEHC 7• Gifford v. Dublin City Council [2007] IEHC 387Gifford v. Dublin City Council [2007] IEHC 387 • Leonard v. Dublin City Council (unreported High Court, 31st March 2008)Leonard v. Dublin City Council (unreported High Court, 31st March 2008)• Donegan v. Dublin City Council (unreported High Court, 8th May 2008) Donegan v. Dublin City Council (unreported High Court, 8th May 2008) • McCann v. United Kingdom (Application No.: 19009/04)McCann v. United Kingdom (Application No.: 19009/04)• Dublin City Council v. Gallagher (unreported High Court, 11Dublin City Council v. Gallagher (unreported High Court, 11thth November November

2008) 2008) • Pullen v. Dublin City Council (unreported High Court, 12Pullen v. Dublin City Council (unreported High Court, 12thth December 2008) December 2008)

European Convention on Human Rights Act 2003

• Article 8: Respect for Private and Family Life:

• Everyone has the right to respect for his private and family life, his home and his correspondence.

• There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

European Convention on Human Rights Act 2003

• Article 6• Right to a fair trial– 1 In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicity but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice

Excluding Orders

• ( a ) direct the respondent, if residing at the house in respect of which the application was made, to leave that house, and

• ( b ) whether the respondent is or is not residing at the house, prohibit the respondent for the period during which the order is in force from entering or being in the vicinity of that house or any other specified house or being in or in the vicinity of any specified housing estate.

• Length of order: up to three years

Grounds for an Excluding Order

• When an application is made for an excluding order, the court must be of the opinion that there are reasonable grounds for believing that the respondent has been engaging in anti-social behaviour

Interim Excluding Orders

• reasonable grounds for believing that there is an immediate risk of significant harm to the tenant / relevant purchaser / RAS

• EX PARTE – only the applicant present• Short term order

Who can apply for an excluding order

• Tenant • Local Authority • Relevant Purchaser• RAS

Local Authority• A local authority may apply to the District Court for, and be

granted an excluding order in the following situation: – If they believe that a respondent is engaging in anti-social

behaviour, and– They have consulted the tenant, or relevant purchaser, and – They have consulted with the Health Board or Health

Authority in the local area and– The tenant is not going to apply for an excluding order as

they are deterred or prevented from doing so because of • Violence• Threat• Fear

– The local authority consider that in all the circumstances it is necessary in the interests of good estate management

Social Welfare Legislation – SWA• CWO may refuse to give rent supplement or mortgage

supplement or may terminate or suspend the payment if:– the person has been required to deliver up possession of

their home and the reason for such a requirement includes anti-social behaviour and/or good estate management

– the person has had an application for tenancy or an application for purchasing of local authority property refused or deferred due to anti – social behaviour and/or due to failure to provide information which the local authority considers necessary

– the person is a respondent to an excluding order or interim excluding order

– the person is illegal occupier and has been asked to leave the property under section 20 of the Housing (MP) Act

2007

Issues for Discussion• Right to Legal Aid?• Hearing?• Who decides whether the behaviour is

ASB? • Eviction of whole family?• Excluding one or some members of the

family?• Long term consequences of ASB label?