The Need for Recognition of a Right to Adequate Housing to Vindicate the Rights of Local Authority T
Claire-Michelle Smyth graduated from NUIM with a BA in Psychology and from Griffith College Dublin with an LL.B in Irish Law and an LL.M in International Human Rights Law. She is currently a PhD Candidate at Queens University in Belfast researching the justiciability of social and economic right through the European Convention on Human Rights.
As Ireland spiralled into the economic abyss, the swollen waiting lists for social housing bulged. Those in need of social housing languished on the ever increasing file burdened with an inability to pay private sector rents due to continued decreases in rent supplement. While the spotlight focused on this undoubtedly serious issue it was shifted away from the fact that once a property is allocated, that does not necessarily spell the end of hardship for the Local Authority tenant.
Just as there is no right to be housed recognised within the Irish system, there is likewise no right to adequate housing. Therefore there is no guarantee that the property designated to Local Authority tenants will be of an acceptable standard compared to private rented accommodation.
In the landmark case of Siney v Dublin Corporation the Court declared that there was an implied warranty in the agreement between the tenant and the housing authority that the accommodation was fit for human habitation. Further in Burke v Dublin Corporation the Court considered an issue whereby a child tenant contracted asthma as a result of a conversion of the heating system. The Supreme Court held that there was a continuous obligation on the Corporation to inspect the system and to fix any defects. Chief Justice Finlay went on to hold that it was an implied warranty of fitness for human habitation in the contract which included that the property would be capable of being healthily, safely and properly heated.
Despite these court rulings, the fact remains that many Local Authority tenants reside in sub standard accommodation which are clearly not fit for human habitation. The tragic death of Rachel Peavoy in her flat in January 2010 brought the plight of many Local Authority tenants once again to the fore. Ms Peavoy resided in a block of flats in the Ballymun area of Dublin which was the subject of a regeneration project. The vast majority of flats had been vacated and as a result of this the Council conceded that the heating may not have been working efficiently. Ms Peavoy died of hypothermia while she slept in her flat during the coldest month in Dublin for 45 years. The adequacy of the heating was not something that was discussed, despite the ruling in Burke, when the Coroner returned a verdict of death by misadventure.
At a recent Human Rights Law Conference I heard one of the residents of the Dolphin’s Barn flats speak about their ongoing struggle with the Local Authority to remedy serious and dangerous defects within their properties. Residents of this development have been living in damp and mould infested conditions for over two decades. More recently raw sewage has been entering the properties through sinks, baths and washing machines. An independent report in 2010 found that the sewage was toxic and harmful to health and a further report in 2011 confirmed that the mould spores were also harmful to health. Surveys of those living in these conditions found a high percentage of the residents suffer from some form of pulmonary disease which can be directly or indirectly attributed to the living conditions.
While these conditions are extreme, they unfortunately are not unique among council and social housing tenants with 28% of tenants stating that there were significant issues relating to adequate heating and dampness in their property.
Why then are tenants of the Local Authorities living in such deplorable conditions? The answer lies in the rights afforded to them. With the right to adequate housing outside the remit of the courts, it falls to the legislature to determine what rights tenants have. The protection afforded to private tenants by way of the Residential Tenancies Act 2004 expressly excludes social housing tenancies.
The Housing (Standards for Rented Houses) Regulations 1993 provide that properties must meet a certain minimum standard of structural soundness and amenity provision. Article 5(2) provides that they must be ‘(e)ssentially sound, with roof, floors, ceilings, walls and stairs in good repair and not subject to serious dampness or liable to collapse because they are rotted or otherwise defective.’
This regulation was expressly incorporated into the Residential Tenancies Act 2004 by section 12(1) which refers to the regulations and incorporates them into the Act. In addition, it is not possible for a landlord to contract out of these minimum standards requirements, which will override any conflicting clause in a lease or tenancy agreement. However, as social housing tenancies are expressly excluded, they do not have the benefit of this minimum standard.
Further Regulations which govern rented accommodation do not apply equally to tenants of social housing and as such lower standards in relation to heating, food preparation and laundry are allowed.
Where a private tenant is living in substandard accommodation they have options, they may leave or take a claim to the Residential Tenancies Board to enforce their Landlord’s obligation to maintain a minimum standard. Local Authority tenants do not have those options. If they leave their tenancy they will not get any State assistance and will effectively become homeless. They are excluded from the provisions of the 2004 Act and have no forum to have their grievances independently adjudicated upon.
It is quite clear that until there is recognition of the right to adequate housing in Ireland as a fundamental human right, there will continue to be long waiting lists and sub standard accommodation for clients of Local Authorities.
Is Mise Le Meas,
Claire-Michelle Smyth B.A, LL.B, LL.M, PhD Candidate at Queens University Belfast.