In 2020, FLAC opened two new case files on behalf of Roma families who were excluded from accessing social housing supports on the basis of a Department of Housing Circular which purports to provide guidance to local authorities in “considering whether to accept an application for social housing support from a non-Irish national”. FLAC also continued to act for three further Roma families who were prevented from accessing housing supports on the basis of the Circular. In each of these cases, the families concerned were able to access social housing supports following representations and/or legal action from FLAC.
The outcomes in these cases were noted in FLAC’s 2020 Annual Report, “Remote Justice”. The Roma Legal Clinic has repeatedly illustrated the barriers Roma face in accessing public services, including social welfare and housing. Housing Circular 41/2012 acts as such a barrier and there are serious questions as to its compliance with national and EU law.
Housing Circular 41/2012
Housing Circular 41/2012 was introduced in December 2012. Paragraphs 5 and 6 of the Circular states that local authorities should only assess housing applications from non-Irish EU/EEA nationals where: they are in employment in the State; they are unable to work due to accident or injury, or; they are a jobseeker with a record of 52 weeks employment in the State.
There is no clear legal basis for the Circular in Irish law, and it is contrary to EU law, however it is rigidly applied by local authorities as if legally bound to apply to its provisions.
The Circular, National Law & EU Law
The Circular states that only those EU/EEA nationals with a right to reside in Ireland under Directive 2004/38/EC are eligible to be assessed for social housing supports. However, no such criteria arises from the Housing Act 2009 which does not stipulate that having a right to reside in the State under EU Law is required in order to access social housing supports. The 2009 Act provides that local authorities may provide social housing supports subject to an eligibility assessment. The details of that assessment are set out in the Social Housing Assessment Regulations 2011.
The Directive is transposed into Irish law by the European Communities (Free Movement of Persons) Regulations (Statutory Instrument No. 548 of 2015). However, the Circular does not accurately reflect the Directive or the 2015 Regulations. Indeed, the Circular refers to the predecessor regulations to the 2015 Regulations which have since been repealed.
While being currently employed in the State or having a work history of over 52 weeks in the State may afford an EU/EEA national a right of residence in the State, the Directive and the 2015 Regulations provide for several wholly separate bases on which a right of residence may be established. They also provide for equal treatment for all EU citizens in access to public services such as housing.
In 2020 alone, FLAC advocated for five Roma families who were unable to access social housing on the basis of the Circular despite being lawfully resident in the State under EU law (see, for example, Case Study 1 below).
Case Study 1
FLAC’s clients in this matter were a Roma couple who had resided in Ireland since 1998. One client was undergoing treatment for cancer and they were in receipt of Disability Allowance and Carer’s Allowance respectively. They first applied for social housing to South Dublin County Council in December 2015. However, the Council sent them a letter indicating that they could not carry out a full assessment of their application as they did not have 52 weeks employment in the State. They submitted subsequent applications in 2016 and again in 2018. The latter application resulted in another letter issuing to the clients stating that the Council could not carry out a full assessment at that time and that the application would be considered when they could provide a record of 52 weeks employment in the State.
The couple had cared for their granddaughter since she was a young child and so wished to have her formally considered on their housing application. A further letter issued to the clients in October 2018 referring again to 52 weeks employment requirement and also indicating that their granddaughter could not be listed on their application. FLAC wrote to the Council in October 2019 seeking clarity as to the status of the couple’s application in circumstances where it appeared no formal decisions had issued in relation to any of their applications to date. The Council responded in March 2020 and stated that, on foot of a “review” of their application, it had decided that they were ineligible for social housing supports on the basis of the Circular. It also stated that their granddaughter could not be listed on their application.
Judicial review proceedings were initiated against the Minister for Housing, Local Government and Heritage on 8 June 2020 in relation to the Circular, and against the Council in relation to their refusal to consider the couple’s granddaughter as part of their household. The proceedings were settled in July 2020 after the Council agreed to add the couple to the housing list and agreed to consider their granddaughter as a member of their household.
Application of the Circular by Local Authorities
In FLAC’s experience, many local authorities adopt a rigid and formulaic approach in applying the Circular when dealing with applications for social housing supports from non-Irish EU/EEA nationals. Local authorities treat the Circular as it if was legally binding on them and that they have no discretion regarding its application. Such an approach is reflected in Case Study 2 below.
In that case, the local authority would not even proceed to assess an application for social housing supports on the basis that the applicants did not come within the categories listed in paragraphs 5 and 6 of the Circular. FLAC has opened two other case files where local authorities have refused to even determine a household’s eligibility for social housing supports on the basis that the applicants failed to come within the categories listed in paragraph 5 and 6 of the Circular.
Case Study 2: H & H v South Dublin County Council  IEHC 250
FLAC’s clients in this matter were an elderly Roma couple who had resided in Ireland for over 12 years. They became homeless in April 2018 after their landlord terminated their tenancy and they began to access night-to-night emergency accommodation. They both had significant medical conditions and night-to-night accommodation proved manifestly unsuitable for them. They then began to reside with a relative in Portlaoise in overcrowded accommodation. FLAC made representations to South Dublin County Council on their behalves in December 2018 seeking “family hub” emergency accommodation for the couple. The couple had previously made an application for social housing supports to the Council, but the Council had written to the couple stating that their application could not be assessed on the basis that they did not have a history of 52 weeks employment in the State.
FLAC assisted them in submitting a fresh application in January 2019. A cover letter with the fresh application noted the couple had a right of permanent residence in the State under EU law, and their employment history was wholly irrelevant to their entitlement to social housing supports.
No response was received to the fresh application for social housing supports within the statutory 12-week time limit for such an application to be assessed. Judicial Review proceedings were initiated in July 2019 in relation to the Council’s failure to assess the application. At the hearing of that case, the Council maintained that the couples’ earlier application was still under consideration and that the law did not allow them to submit a second application.
Mr Justice MacGrath issued judgment in favour of FLAC’s clients in March 2020 resulting in a requirement to have their second housing application determined. On foot of that judgment, their application was assessed by the Council and they were deemed eligible for social housing supports.
The judgment of MacGrath J clarifies the obligation on local authorities to deal with an application for social housing supports within the three-month statutory time limit. He notes that the duty to comply with this obligation “arises in the context of the statutory regime addressing, in so far as is possible, the important social objective of assisting the homeless and those without or in need of housing”. The judgment also clarifies that social housing law allows for fresh applications for social housing to be made, particularly fresh applications arising from a change in circumstances, and that those applications must also be assessed within the statutory time limit.
Another feature of FLAC’s experience of casework involving the Circular is the fact that, while local authorities rigidly apply the Circular at first instance, they do not appear to be prepared to defend decisions made pursuant to the Circular when faced with the fact or threat of legal proceedings. In each case in 2020 where FLAC initiated or threatened legal proceedings in relation to decisions made on the basis of the Circular, the local authority agreed to assess (or re-assess) the housing application without reference to the Circular. In each instance, the applicants were deemed eligible for social housing supports (see, for example, Case Study 3 below).
Case Study 3
FLAC’s client in this case was an older Roma woman who had lived in Ireland since 2013. She suffered from several severe health conditions, including a heart condition and difficulties with her mobility. She lived with her daughter and her grandchildren in two-storey private rented accommodation. The house was manifestly unsuitable for her needs. She could not climb the stairs in the property due to her medical conditions and therefore could not properly access the bathroom and bedrooms in the house. She was in receipt of Disability Allowance and used a significant portion of her allowance, €100.00 per week, to discharge the rental payments in respect of the property. This made it difficult for her to survive on her Disability Allowance, as a significant portion was going to rent.
Our client applied to Donegal County Council for social housing supports in June 2020 with the assistance of Donegal Traveller’s Project. After considerable advocacy on her behalf, in October 2020, the Council advised her by letter that it was not accepting her household’s application for housing supports because she was unable to evidence 52 weeks employment in the State. The advocate assisting her contacted FLAC in relation to the matter just before the three months’ time limit for initiating judicial review proceedings expired. Pre- litigation correspondence was entered into with the Council and the Minister for Housing, Local Government and Heritage and Counsel was briefed and drafted proceedings ready to issue if there was no positive response to the correspondence. However, on foot of correspondence from FLAC, the Council agreed to review her application before proceedings issued and her application was subsequently accepted and she was granted social housing supports.
In several cases, FLAC has joined the Minister for Housing to proceedings relating to the Circular, or put him on notice of potential proceedings relating to the Circular. In each instance, those proceedings have settled in favour of FLAC’s clients before being determined by the High Court. It appears to FLAC that local authorities and the Minister for Housing are now well aware of the issues with the Circular and its legal infirmity. However, local authorities continue to refuse non-Irish EU/EEA nationals access to social housing supports on the basis of paragraphs 5 and 6 of the Circular.
FLAC believes it is now incumbent on the Minister for Housing to withdraw the Circular.