Damien English (Meath West, Fine Gael) | Oireachtas source

I wish to thank Senators Ó Donnghaile, Gavan and Warfield for bringing forward this Bill which provides us with an opportunity to discuss the advertising of unfit lettings. Some rental properties are of such poor quality they should not be on the market, let alone advertised. No Member would condone that.

The Government has no problem with the Bill’s principle. We would be happy to work with Sinn Féin on introducing legislation in this area. It is a priority area for the Government. However, we have issues with how the Bill is drafted. We do not have the luxury of working on it on Committee Stage when there has not been the chance of engaging on it to tease it out.

Senator Ó Donnghaile said it is a case of once bitten, twice shy. However, the Government has a good record of working with Senators on legislation. I have offered many times to work through issues with Members. I would rather we would work together for a positive outcome on a matter on which we all agree instead of having political rows. We will have political arguments and ideological differences on many issues. That is the nature of politics. However, that should not be the case on matters on which we all agree. There is an onus on us all to work through matters. The Department is willing to do that but it needs more time to tease this particular issue out. This particular issue does not just come under our Department’s remit but that of others, such as the Department of Justice and Equality. We have not had the time to work through this Bill with the other Departments and agencies. This may require six months or less but we will work on it. It is not a case of ducking, diving or hiding. That is not what the Minister, Deputy Eoghan Murphy, or I are into.

Senator Grace O’Sullivan brought forward a Bill on microbeads a year ago. A similar Bill was introduced in the Dáil by Deputy Sherlock of the Labour Party. At the time, I explained to Senator Grace O’Sullivan that, while the Bill had its merits, it was not at the level we needed. I gave a commitment, however, that we would deal with it. We went through the whole procedures and we got it done. It was back on the floor of the Dáil in autumn. When we say we will follow up on a Bill, we are genuinely committed and it is not a cover-up or a lie. The Minister , Deputy Eoghan Murphy, would like time to work on this legislation. We put forward the amendment because we need more time on it. Sinn Féin has said it cannot and that is its prerogative. However, co-operation for a positive outcome works both ways. This is an issue on which we could get a result. I would prefer to work on this positively to get a good result rather than going in the opposite direction and bringing it through Committee Stage when there are issues with it. The latter action may end up with us not getting the result we want. Will the Senators park this for several months to give us a chance to work on it?

The Government agrees that platforms have responsibility for what they are advertising. We accept the spirt of the Bill and its genuine attempt to improve the situation for tenants by ensuring that properties available to let are deemed fully compliant with minimum standards before they are advertised. The Minister has stated he wants to work on this.

Recognising the importance of the Bill and notwithstanding the challenging issues it presents, we have tabled an amendment to see how best we can consider and address the challenges presented in this area. We are proposing that this Bill be read in six months’ time to give us the opportunity, in conjunction with the Department of Justice and Equality, to explore further the extent to which the underlying issue the Bill seeks to address is already addressed, or capable of being addressed, under existing housing legislation. It would also allow for further consideration of associated issues with the Bill, in particular those related to the impact on and compliance with EU law, such as the e-commerce directive and possibly the services directive, as well as other elements which may be legally problematic.We have not had a chance to examine all of those matters because when we bring forward legislation, we must carry out various procedures to ensure it is correct and will work. There is no point in passing legislation that might not stand up in law or work. While I accept that it sends out a good, strong message, it might not be enforceable thereafter. The Senator addressed the importance of being able to enforce what legislation we enact and I am a firm believer in that. There is a duty on us all, therefore, to ensure that the wording is correct, which is why we asked to park the Bill to allow for further consideration of issues associated with it. The law must be evidence based and when we legislate in this area, we generally try to gather evidence. We have all seen the advertisements but we must carry out some more in-depth evidence gathering, although it will not have to take months. We must also carry out some research with other Departments. While that may take a little time, it will not necessarily take the full six months and we could bring forward an alternative sooner if we committed to that.

I acknowledge that the Senator is not proposing the Bill for the credit of any particular party. Nevertheless, when we bring forward Private Members' Bills to which we have made changes, we always acknowledge that they were created in co-operation with, or started by, others and that we only had to tweak or change them. In the case of the Prohibition of Certain Products Containing Plastic Microbeads Bill 2018, for example, we were clear in that regard. We emphasised that it had originally been brought forward by the House and that individual Members had pushed for it. There is no issue with that. If something has to be fixed, we will try to fix it for people.

We are committed to exploring the issues further and on that basis, we seek Senators' support for our approach and their approval of our amendment. While that is up to Senators to decide, it is a genuine effort on the part of the Government because we want to see some progress. The Bill concerns the advertising of unfit properties but we wish to prevent unfit properties in the first place. That is where our focus has been in recent years as we try to improve the standards of property. As has been acknowledged, standards have come a long way over the years. Nevertheless, that does not mean we are getting everything perfectly right and that all properties are acceptable. Work is ongoing and we must deal with unfit properties. They are a more fundamental problem than advertisements for properties. If we could prevent properties from being unfit in the first place, the advertising would not be the concern because they would not exist. I understand, however, that until we catch up on all those properties, there will remain rogue individuals who will try to advertise them and dupe people into renting them or handing over money.

As Senators will appreciate, the Bill raises and revisits some issues that have been considered and are being implemented in the Government’s strategy for the rental sector, published in December 2016. I accept that the majority of landlords can be said to be earning good money. Some are good landlords, some are poor landlords, while others have no respect. There is diversity in the rental sector. It is hard to have this conversation and find some way to endorse the good landlords while addressing the issue of poor landlords. Regulations and new laws are a way of doing that and we are trying to do that as much as possible. Some landlords make exorbitant profits while others do not. The Bill relates to the standards of properties. We are trying to bring everyone with us on this journey and improve standards. State-owned housing stock was mentioned, in which much money has been invested over the years, but we are still playing catch-up. While we try to build more high-quality stock, the quality of some of the existing stock must be upgraded. We are investing taxpayers' money in doing that every year.

It is worthwhile outlining to the House some of the issues the Bill, as initiated, presents and which will need to be addressed in our further consideration of the issues. As it stands, the Bill would have significant resourcing implications for the Property Services Regulatory Authority, PSRA, and local authorities. It also presents some legal challenges, given that the lead authority role for the legislation referenced is vested in the local authorities and not the PSRA. Those challenges, while not insurmountable, will need some time to be teased out to determine the best way to advance the legislation. While we agree with the proposals in principle, there may be a different way to provide for them and we will need to work with Senators in that regard. The new section 56A(3) would provide that any person could refer a complaint to the PSRA in respect of an advertisement of a rental letting which the complainant considers to be in breach of the regulations, that is, the provisions under the Housing (Miscellaneous Provisions) Act 1992, the Housing Act 1996 or the Fire Services Act 1981. It is difficult to see how the PSRA would be in a position to adjudicate on whether any such property is substandard because under the Housing Acts, this is the responsibility of local authorities. A mechanism would need to be developed to ensure that where a complaint is made to the PSRA in respect of advertisement of an allegedly substandard rental property, the PSRA would be able to check with the relevant local authority to confirm whether a particular rental property is substandard. In fairness to Senator Warfield, he acknowledged that when he indicated it could be dealt with by amendments on Committee Stage. We are both, therefore, flagging the same issue that needs to be resolved. While there might be various ways to address it, we have identified the same issue.

This is likely to give rise to challenging legal and procedural issues, as well as a requirement for additional resources in the responsible bodies. As I stated, we must ensure that the Bill is usable. While we want to agree with its aims, we have to ensure that the legislation is workable in order that it will not be defeated in places outside of the House. Given our heightened awareness of data protection issues due to the general data protection regulation, possible solutions will need to be assessed with data protection in mind. This is a complication for the various bodies with different responsibilities. It is red tape and hassle but we must nonetheless deal with it because data protection is a major issue of which we must all be aware. It has complicated all our lives but when drafting legislation, we must follow the procedure and address it. Again, it is not as easy as saying we support legislation and should, therefore, plough on with it. While we would like to do that in many cases, we must examine the various issues that arise.

Section 19 of the Fire Services Acts 1981 and 2003 defines a potentially dangerous building and supports enforcement action by fire authorities where warranted. The section contains an exclusion, however, for “premises consisting of a dwelling house occupied as a single dwelling”, which is interpreted as including individual apartments and flats within multi-unit buildings, as distinct from the common areas, etc. This throws up a specific challenge that will need to be addressed, as the Bill would introduce an avenue of complaint for non-compliance by rental properties with section 19 of the 1981 Act, even though that section of the Fire Services Acts does not apply to individual dwellings. I am just highlighting issues. I do not mean to make a big deal out of them but wish to point out the matters we must address in one way or another if we are to make progress. We must also be conscious of potential unintended consequences that may arise, including, for example, the potential of a reduction in the number of units being advertised on online platforms and the knock-on effect for prospective tenants. As Senator Black stated, there is no problem if that eliminates all the poor properties, but we wish to ensure there are no unintended consequences either. Sometimes there is a sense of fear when changes are brought in because people might hear different interpretations. Our intention is to address that and put it to bed. Today we launched a document about bringing homes back to market and tackling vacancy, and all the related rules and regulations. From speaking to people who own properties that are not in use, we know they do not even engage with the system because they have a fear of red tape and of getting involved with the State, even though we want to work with them to bring their properties back into use. There is a communication issue, therefore, in ensuring there are no unintended consequences. The legislation must be tight, proper and clear.

On the existing minimum standards and regulation, I will outline initiatives undertaken to date, such as the minimum standard regulation, and some of the important work that is ongoing in this area. We all agree that the regulation does not address everything and that some properties continue to slip through the system. I do not deny that but instead I want to show that we are trying to tackle the issue and that improving the whole situation is a priority. The regulations setting out minimum standards for private rented accommodation generally were first set out in the Housing (Standards for Rented Houses) Regulations 1993. A number of changes, however, have been made to the regulatory framework since then to reflect the requirements of the modern rental sector. The current minimum standards for rental accommodation are prescribed in the Housing (Standards for Rented Houses) Regulations 2019. The purpose of the regulations is to provide residential rental accommodation that is safe, efficient, durable and comfortable. These regulations specify minimum health and safety requirements for a range of matters, including fire safety, structural repair, sanitary facilities, heating, and gas and electrical supply. With limited exemptions, these regulations apply to local authority and voluntary housing units, as well as private rented residential accommodation. All landlords have a legal obligation to ensure that their rented properties comply with the regulations. Responsibility for enforcement rests with the relevant local authority. Where someone believes that a property is being made available to rent in breach of the standards, the matter should be referred to the relevant housing authority. Any person who neglects or refuses to comply with the requirements under the Act is guilty of an offence. Fines for non-compliance with the regulations include a fine whose maximum has been increased from €3,000 to €5,000, while the daily fine for a continuing offence has been increased from €250 to €400.

The strategy for the rental sector recognises that high-quality rental accommodation is critical to the success and sustainability of the residential rental sector and its attractiveness as a long-term accommodation option for households. It sets out a number of important actions to ensure the safety and quality of rented accommodation by bringing rental standards up to date and strengthening processes for inspection and compliance. A major review of the standards was conducted in 2016. The aim was to ensure that the applicable standards reflect requirements of the modern rental market, contribute to delivery of high-quality housing and provide increased protection for tenants by addressing critical health and safety concerns, with particular focus on three main areas.First, changes to existing provisions are being introduced to reinforce them and, where appropriate, to include additional provisions that are not already covered. Second, local authority implementation is being strengthened through closer collaboration, co-operation and the dissemination of best practice. Third, there is a focus on increasing awareness of the minimum standards. The Department published comprehensive guidelines in August 2017 to assist and support local authorities in implementing the regulations. Those guidelines are currently being updated.

The sector faces a number of serious challenges with regard to minimum standards. We are not hiding issues like the low rates of inspection, the high numbers of non-compliant properties, the inconsistencies in interpreting and applying the standards and guidelines, and the lack of follow-up and enforcement action. We are putting those issues out there. We are saying we have to lift the sector to be able to deal with all of this. The working group on rental standards was established in 2017 to develop proposals and make recommendations to give effect to the actions on standards set out in the rental strategy. Three specialist subgroups of the working group have been established. The IT subgroup is focusing on the development and roll-out of a national standardised IT system over the long term, as well as the development and purchase of software solutions to upgrade from current spreadsheet work systems, etc. The training subgroup is focusing on the development and implementation of a training programme for enforcement officers. Two such programmes have been run to date. The housing subgroup hosts an annual seminar to share knowledge and best practice and to support continuous professional development. We are trying to upskill the local authorities by giving them the people they need to be able to do this work. The human resources subgroup focuses on examining and making recommendations and securing agreement on all other human resources aspects, including annual inspection targets, staff numbers, grading structures, funding, qualifications and legal services. We are committed to this space. We are trying to upgrade the system to be able to deal with demand. We are not hiding from it. We are not denying it. The figures for inspections are there. No one is hiding those figures. We know where they need to go.

Specific ring-fenced funding for inspection and compliance activity has been identified from 2018 onwards to increase the number of properties inspected. Annual targets for inspection and compliance have been agreed with the local authorities. Between 2005 and 2017, over €36 million was allocated to local authorities to assist them in performing their functions under the Housing Acts, including the inspection of rented accommodation. Over 229,000 inspections were carried out during this period. Additional resources need to be provided to local authorities to facilitate increased inspections of properties and to ensure greater compliance. Everyone in the House wants this to happen. I think we all support it. That is the space we are in. Provision has been made for €4.5 million of Exchequer funding to be made available to local authorities in 2019 for these inspections. It is intended that there will be further increases each year up to 2021 to facilitate a targeted inspection coverage of 25% of rental properties annually at that stage. By 2021, one in four properties - at a minimum - will be inspected every year. From then on, one's property will be inspected every four years.

I wish we could get there straightaway or tomorrow. We have to build up the team of people, the resources, the skills and the allocation of money. The money is committed and allocated for this year and subsequent years to get us to that level. The number of inspections conducted across the local authority sector in 2018 was 28,692, which represented an increase of over 9,000 on the 2017 figure. These data were a little wrong earlier. This is in line with the target for that year, which was to inspect up to 10% of tenancies. I accept that this is not enough. It is at 10%. Some local authorities are very close to 100%. The average across the country is approximately 10%. The high non-compliance rates in those inspections were mentioned earlier in the debate. We discussed this matter a number of months ago. When one goes behind the details of such cases, one finds that many of these investigations and inspections were targeted. They had a plan for where they were going in the first place. I am glad they are finding high levels of non-compliance because that means they are doing their job right. We want to increase the 10% to 25% as soon as we can.

It is important to look at the current responsibilities of the PSRA because this will help us to identify the changes needed to deliver on the intent of the Bill. A key responsibility of the PSRA is to control, supervise and regulate licensed property services providers such as auctioneers, estate agents, letting agents and management agents. The Act which established the PSRA sets out a number of standards. It provides that where such standards are breached, the authority may - following an investigation - make a finding of improper conduct against the licensee for a breach of the Act. A minor administrative sanction, or a major sanction up to and including the revocation of a licence, which must be confirmed in the High Court, may be imposed on the agent in such circumstances. Areas of improper conduct impacting on a letting agent may include failure to complete a service-level agreement with the client or landlord, or failure to pass on rental income to the client or landlord. If a minor sanction is imposed, the licensee has a right to appeal the sanction to the Property Services Appeal Board. If a major sanction is imposed, the licensee has a right have it confirmed by the High Court.

The Act provides for a number of offences which must be investigated and prosecuted in the District Court. As it stands, the PSRA has no power to direct a licensee to undertake any specified course of action. Furthermore, it does not have the power to direct any other party - in this instance, the proposed online advertising platform - to undertake a specific action. The potential role for the PSRA that is envisaged in the Bill before the House is well considered and innovative. A motion to defer has been proposed to enable the Government to give further consideration to the matter. We want to see how we can make it really workable. We also want to tease out whether the PSRA is the right authority to perform this function. Perhaps a different body would be more appropriate for these purposes. We agree that an effort should be made to do this. That is not what we are against at all.

I thank the Senators for bringing this Bill before the House and thereby giving us an opportunity to have this conversation. This debate will inform our approach to continuing to advance this key area of priority for the Government. Therefore, I ask the House to support our amendment. I stress that the Minister, Deputy Eoghan Murphy, and I have been through this. We would really like the House to support us as we work on this Bill in the months ahead. I give the House my word that if Senators want to take this approach, we can sit down to work on this in the weeks ahead. I am giving a commitment that we will try to reduce the timeline. That is a choice for the Seanad to make. I am making an offer on my own behalf and on behalf of the Minister, Deputy Eoghan Murphy, and the Department of Housing, Planning and Local Government. This is a space we would like to work on. We believe we can make a change in this regard. It can probably be done quite quickly as well.