Monday, 29 March 2021
Residential Tenancies Bill 2021: Committee and Remaining Stages
I move amendment No. 3:
In page 4, between lines 6 and 7, to insert the following: “(b) in section 10, by—(i) the substitution of the following subsection for subsection (1):“(1) This Part applies in relation to a tenant in relation to the tenancy of a dwelling where—(ii) the deletion of subsection (2), and(a) he or she is a relevant person, andand references in this Part to tenant or tenancy of a dwelling shall be construed accordingly.”,
(b) as a consequence thereof, there is a significant risk that the tenancy of the dwelling will be terminated by the landlord,
(iii) the deletion of subsection (5),”.
I will speak to this set of amendments and to the section. I realise we are about to run out of time again, which is something that avoidable, even if it be another hour added to the day. For those who spoke about officials advising them about the urgency, of course it is urgent but that is no reason this legislation could not have been developed and put on the Order Paper in February. The Government sometimes acts as if it does not have control on time. It does have control on time and the Minister of State also has control. He could have chosen to address the 5 km and 20 km issue in this legislation. There are amendments that show he could have addressed it in this area, amendments which were ruled in order. We need to be very clear. Let us not have a washing of the hands. Government does have control on how it uses time, certainly more than we in the Opposition benches do.
I want to acknowledge one positive thing in this Bill, which is the 90-day notice period during the emergency. I acknowledge this is an issue I have raised repeatedly as a matter of great concern. I am glad that is addressed and I want to give credit where credit is due. It is a small but significant potential comfort that gives a period of time in which people may be able to address arrears. I acknowledge that. I know there are those within Government parties who pressed for that issue and who took in good faith the arguments I put forward in that regard. I wish there had also been a taking in good faith of the question on the definition of "emergency period", which was put forward by Senator Moynihan, and the extension from 5 km to 20 km, which is a proposal I made in the autumn. I was disappointed then and I am, frankly, perplexed we are not using this opportunity to deliver it.
Amendments Nos. 3 to 6, inclusive, relate to the core reason things are not working, which is the declaration. We need to be very clear on this. The Minister of State spoke about all of those who had lost out through Covid payments, all of those on illness payments, and all of the people who would be covered and who are still going to be protected, but there is a caveat in their protection. They are not automatically protected. They are only protected if they go through a process, which we in this House rightly described as elaborate, off-putting and chilling, to declare themselves to be a relevant person. We have seen very clearly that exactly what we warned about has happened. People have not declared themselves as relevant persons. Look at the chilling effect. Since July of last year, only 700 people have applied to be considered as a relevant person. That figure is in spite the fact that, as of last week, 449,500 individuals were in receipt of the pandemic unemployment payment, PUP. There is a huge gap between those who are potentially eligible for this protection and those who actually have this protection. The reality is that when the 5 km limit is removed, a large number of people will not be declared as relevant people and will not access the protection they need. This was entirely avoidable.
Amendments Nos. 3 to 6, inclusive, give the Minister of State the opportunity to address the problems we knew at the time would happen. If he accepts amendment No. 3, the speech he gave earlier will, in fact, be correct in a way it was not, unfortunately. He spoke about those who have protection and those who have an entitlement, but he left out the piece about the declaration and that is the issue here. My amendment No. 3 would mean the protections which will stand under this legislation during the emergency period would apply:
... in relation to the tenancy of a dwelling where— (a) he or she is a relevant person, and
(b) as a consequence thereof, there is a significant risk that the tenancy of the dwelling will be terminated by the landlord ...
I am not adding new people to qualifying list. I am trying to address problems in the process. The same language required to be put into the declaration but without the chilling effect currently there whereby people were told they would be committing an offence if the declaration was false or misleading in any sense. We warned that would have a chilling effect. People are nervous. They do not know their rights in that area. We said it should be made a requirement and we should seek to capture all those who qualify rather than requiring them to jump through hoops. It is very clear, given the tiny proportion of people who have declared themselves, that they have not fully activated.
I am concerned about the declaration. I am concerned about the false and misleading part. We will not get to my amendment No. 31, which addressed the standard in respect of "false and misleading". I am aware there have been some caveats to "false and misleading" and clarification on that but it is still has a chill affect. We put the standard on tenants in terms of declaring themselves to be a relevant person for protection but we do not put the same demand on landlords. My amendment No. 31, which we will not get to, raised the question of a landlord having false or misleading information in his or her notice of termination. Will he or she be committing an offence also? I recognise there is a variety of landlords but, generally, they will have more access to legal advice than many tenants. Will we hold them to the same standards?
We should bear in mind that of the hundreds of notices served as soon as the opportunity presented itself in August, 80 complaints were made to the Residential Tenancies Board in terms of illegal eviction notices. This points to another problem in section 2, which others have highlighted. The language of section 2 indicates that people will not be protected if arrears are cited in the notice. What if a landlord cites arrears as an issue but they prove not to be? Where does that leave us? We are using loose language in respect of the notices of termination of the landlords. I am aware we have a whole architecture in terms of the Residential Tenancies Board, thank goodness. However, I am concerned about this delicate situation in which many people will face insecurity that we do not give the same benefit of the doubt to tenants that we give to landlords.
My amendment would be very clear. Amendments Nos. 3 to 5, inclusive, all relate to the same issue and state that either a declaration is not be required, or, if a declaration is required, it would have to be put in good faith.
I ask the Minister of State whether somebody can apply to be a relevant person after the period of time. Can somebody apply after receiving a notice of termination? If somebody's application to be a relevant person is still in consideration, will the Minister of State ensure that the notice of termination would not proceed? Is it the case that a notice of termination might continue in respect of somebody who is eligible and has applied but is awaiting a determination?
I give credit where there is positive engagement and I recognise the 90-day extension which applies in respect of the emergency period. I tried to apply that in a wider sense. As others said, it is an attempt to capture the many people who will not fit under the cover in terms of the relevant person but will, nonetheless, have been indirectly affected by Covid-19.My amendment No. 6 looks to makes it clear that somebody can request an extension of the period for repayment where there is evidence that he or she is engaging with the tenancy protection services or the Money Advice & Budgeting Services, where there is a pending application for enhanced rent supplement payment, where there is a pending decision on an application for a housing assistance payment or where there is engagement in any process under the remit of the Residential Tenancies Board. Again, Minister-----