Ms Clare Naughton:

The Law Society invited me to come here but I am expressing my own views on this matter. I am a solicitor working in community law and mediation, primarily in the area of social housing law. Most of my clients would either be trying to access social housing support or deal with evictions.

The legislation is structured in such a way that now a person applies for social housing support rather than for local authority housing. That is one sea-change that has happened since the Housing Act 1966. It came in with the Housing Act 2009. An applicant for social housing support is a household, usually one or more persons who, in the opinion of the council, have a reasonable requirement to live together. The application process is the means by which the local authority assesses the eligibility for social housing support, identifies the person’s need and makes the allocation.

There are a few issues we see when dealing with people in our service in the context of accessing the housing list. I am not dealing with the homeless or emergency list but with the social housing support list. I deal mainly with Dublin City Council and in my experience it operates two separate lists: the emergency list and the housing list.

That is my experience of the local authorities through Dublin City Council.

I expect that the primary concern of this committee has to be the current emergency. Some of the measures I raise would, however, prevent future homelessness and assist applicants for social housing support. The first issue I would like to address which I did not raise in the presentation is the difficulty in accessing legal aid. It is a huge issue. We try to deal with the gaps in the legal aid system which is structured in such a way that a person cannot access legal aid in a dispute relating to a right or interest in land. Quite often the Legal Aid Board determines that an issue concerning access to social housing support or an eviction from a local authority home is the subject of such a dispute. That means that there is a huge number of people who do not have the resources to fund legal representation and are not accessing such representation.

There have certainly been recent attempts to deal with some of these barriers, one of which is the scheme available within the county courts where the Legal Aid Board has private solicitors to assist people in cases involving mortgage repossessions. However, in general, if it is a local authority issue, the person concerned will not have access to legal representation as a matter of course. He or she may qualify under an exclusion, namely, where they are subject to fraud, subject to undue influence or that they are subject to "an infirmity of mind or age". On the last condition, the legislation is archaic, but I imagine it means somebody with a capacity issue or who is older. In general, a family accessing our services will not receive legal aid.

When a person applies for social housing support, the first test involves the eligibility criteria. One of the difficulties with the criteria is that while the housing Acts do not require an applicant for social housing support to prove his or her nationality, local authorities are relying on a circular from the Department of the Environment, Community and Local Government - obviously, this will now be the responsibility of the Department of Housing, Planning and Local Government - which asks them to consider the nationality of an applicant. The regulations are extremely complicated and concern the free movement of persons. Quite often my experience is that the regulations are misinterpreted and people are refused access to basic social housing support, as well as to the homeless priority application process owing to their nationality.

A second major concern, particularly in the context of the crisis, is the difficulty for those in mortgage arrears who want to surrender their homes. Generally, if a home has not been dealt with by the courts, the household is deemed to have alternative accommodation available. There have been a number of attempts to address this anomaly in legislation. The first was a statutory instrument in 2011 which stated that if a homeowner in arrears could prove that his or her mortgage was unsustainable, he or she should be able to access the social housing support list. The difficulty with this is that the appendix to the code of conduct on mortgage arrears includes a definition of "not co-operating" which is extremely broad. Quite often we find that mortgages are not being deemed unsustainable and instead people are being deemed not to have co-operated. This poses a major problem. It is not possible to deal with the application for social housing support until after the property has been dealt with.

There was a further attempt to solve the problem in the 2014 legislation. The Housing (Miscellaneous Provisions) Act 2014 contains an amendment to allow families or households in these circumstances to access limited social housing support, namely, through the housing assistance payment, HAP, and rental availability agreements, the statutory format of the RAS. These supports are, however, heavily reliant on the private rental market and not a real solution for the moment.

There are alternative options available for people in these circumstances. However, I imagine the first solution would be a personal insolvency arrangement. If this would apply, it would generally be in a situation where the personal insolvency practitioner, PIP, should be trying to keep the family within the home. It is really not an answer to the problem. Another option would be to await a court order for repossession. Once there is a determination on the property, the person concerned is allowed to access the social housing support list.

It will then allow the person to access the social housing support list, but at that point, because the property is no longer within his or her possession, it is an emergency situation and he or she falls within the net of homelessness.

A further area with which we see problems are separating couples. This is all set out in legislation. If a final decision or court order regarding the family home has not been made, this can pose a barrier to the person who is leaving the family home and the arrangement to apply for social housing support. People accessing social housing support may be reliant on legal aid, and the Legal Aid Board is heavily oversubscribed and experiencing extensive delays. Quite often, family law proceedings can be delayed. If a property is not dealt with, the person cannot apply for social housing support and the greater range of services available.

The 2014 Act tries in some ways to address this problem in that, as I already mentioned, it allows local authorities to approve a household for certain types of social housing support. Those types of social housing support are the housing assistance payment, HAP, rental availability agreements or the rental accommodation scheme, RAS. They are not viable options in the current climate.

A potential solution to these barriers is a reconsideration of the definition of "homelessness". If local authorities were required not only to assess the eligibility of persons who are homeless but also to consider the eligibility of persons who are at risk of homelessness, that could be a way to overcome this barrier. Homeless organisations have written about that.

Assuming a person has met the eligibility criteria, which also involves other requirements such as financial income, his or her need for social housing support is then addressed. We regularly come across issues around separated parents. A separated parent who is heavily involved in his or her child's life and wants to co-parent him or her will have difficulty accessing accommodation of a suitable size for a family. Some local authorities have no difficulty addressing this problem, but others do.

A father of three teenage daughters, for example, may be approved for an allocation of a one-bedroom unit, which is not a viable option in terms of the make-up of the family. A local authority may deem that the children are already adequately housed and, therefore, will not allocate such a father a two-bedroom unit. A father may wish to have his children stay overnight with him for two, three or four nights a week, as the arrangement may be, but he cannot do so because he does not have suitable accommodation.

The determination of whether a person is entitled to a one-bedroom or two-bedroom allocation is much more significant now that we are moving into HAP because the scheme is administered by local authorities. If a local authority has determined that a person is entitled to a one-bedroom allocation, that is what he or she will get and how he or she will have to house his or her family. There are potential equal status issues. The decisions of local authorities on the administration of the housing stock are policy issues, but the implications are legal and it is for that reason I have addressed them.

A major concern and something I frequently see in community law mediation are issues around medical priority. Local authorities are given guidance on what they should consider in allocating medical priorities, that is, people who have a particular need, such as new accommodation or a change in their accommodation due to their medical situation. However, the only guidance they are given concerns cases where the management of the course of the illness can only be greatly improved by a change in housing.

I have dealt with a number of situations around this issue. My concern is that the decision on medical priority is generally made by a medical practitioner, which is very helpful and important, but such a person is not usually a staff member within the local authority. The service is quite often contracted out. Depending on the local authority concerned, more than one medical practitioner may perform the role.

There are no assessment criteria or guidelines from local authorities or the Department, and none have been prescribed in law. While some local authorities operate an ad hocreview process, there is no statutory appeals mechanisms. No information is provided to an applicant on why his or her application for medical priority has been refused.

To put that in context, I apply for medical priority and I send in my medical reports. I am told I do not qualify because the management of the course of my illness cannot be greatly improved by a change in housing. However, I am not told on what basis that decision has been made. I could make that application to a different medical practitioner within the local authority who may have a different view. I could decide to appeal. I may be, and usually would be, given an appeal by the local authority. That would be dealt with by the same medical officer or a more senior one who has a contract with the local authority but I would not be told why my original application was refused. I would not be told whether I had not given enough medical evidence or whether it did not see how my situation could be improved. That is a huge anomaly in the legislation. It is a complete lack of fair procedure. There is an inequality of arms because I cannot deal with the issue at hand. There are also potential equal status issues.

On the one hand, all of this is really important. It may, and hopefully will, resolve the crisis that we are in. However, unless these issues are addressed, they will become future problems for people dealing with the process.