Are Social Tenants of Approved Housing Bodies Less Secure Than Council Tenants?

In the first few months of moving into her new social home, a tenant was warned, verbally, a couple of times about noise, but nothing written down.

Then came a notice to quit the property, from the approved housing body, Tuath Housing, which manages the home.

Lawyered up with the help of Mercy Law Resource Centre, she challenged the AHB at the Residential Tenancies Board (RTB) – and won, a recent ruling shows.

There’s been a gradual shift in recent times towards approved housing bodies (AHBs) providing more social housing, as well as the council.

Some have raised questions about differences in how they manage tenants and tenancies – and whether those who move into housing run by AHBs, rather than directly by Dublin City Council, are more insecure, and whether AHBs always respond proportionately to issues that come up.

Due to confidentiality and data protection Tuath cannot comment on individual cases, says Fiona Egan, senior communications, projects and policy advisor with Tuath.

But she says the charity follows all the procedures set out in the Residential Tenancies Act. “Tuath only brings cases to the Residential Tenancy Board as a last resort where every other avenue possible to engage with a tenant has been exhausted,” she says.

At the Tribunal

During the first six months of a tenancy, a landlord can evict a tenant without giving any reason – as Tuath Housing did in this tenant’s case.

That’s different to a tenant in a council house, who has a long-term tenancy with no probation period.

In any case, a tribunal at the RTB found that the notice to quit in this case was invalid, in a ruling published on 25 March.

It found, based on the tenant’s testimony and written submissions from Tuath Housing, that a longer tenancy was “implied”, and that so as long as she didn’t breach her obligations as a tenant, it was reasonable for her to assume that the property would be her home “as long as she was happy there”, it says.

Tuath Housing presented no evidence, and had issued no written warnings, that the tenant had breached her obligations so the tribunal found that the notice of termination was invalid, the report says.

Tuath didn’t attend the hearing, which took place in July 2019. But in written submissions to the tribunal, it said that the notice of termination was valid because it was issued within the first six months of the tenancy.

The tenant’s barrister, Eoin Coffey, who works with Mercy Law Resource Centre, made a few other arguments, too, around the right of his client to stay in her home.

As the AHB was “exercising a public function” – providing public housing and fully funded by the state – its activities should be in line with Article 8 of the European Convention on Human Rights, and the European Convention on Human Rights Act 2003, he said.

That meant, among other things, that its response had to be proportionate, and the tenant should be entitled to an independent determination that takes into account the convention. But its treatment of the tenant hadn’t adhered to this, he argued.

In its written submission, Tuath Housing said it was a private limited company and rejected the claim that it was a public body.

In the end, the RTB didn’t rule on whether the European Convention on Human Rights should apply in the case of an AHB. Instead, the ruling focused on the implied terms of the tenancy.

According to the tribunal report, the tenant had been living with her 14-year-old son in a one-bedroom Dublin City Council property. It was unsuitable, so she applied for a transfer.

In August 2018, she moved to a two-bedroom home, which was managed by Tuath Housing.

During the first six months of her tenancy, she got two verbal warnings for making noise, the tribunal report says.

The tenant said in her testimony that noise stopped after that. But she was issued with a notice of termination in November 2018 – without any reason in writing as to why that was.

The tribunal report says that it didn’t have the authority to judge whether the decision to terminate the tenancy was proportionate but that it was bound by the Residential Tenancies Act and the meaning of a valid termination within that act.

The tribunal found that the termination was invalid.

For Rent Owed

Since the AHBs came under the remit of the RTB in 2016, they have collectively taken hundreds of tenants to the RTB, the online database for the agency shows.

Those cases have been for different reasons.

A sample of cases shows that Clúid Housing, an AHB and registered charity, has brought tenants to the RTB for rent arrears, for example. Sometimes for small amounts, such as €70 and €276.

James Harold, communications manager with Clúid, says that its “policy is to make use of the services provided by the RTB in cases of breaches of tenancy, where necessary, in order to come to sustainable agreements to maintain the tenancy”.

They try to work with tenants internally at first and only go to the RTB when those internal measures have not worked, he says.

Clúid issued 25 notices to quit during 2018 and 2019, says Harold.

But this is only done “in cases of serious breaches of the tenancy agreement, that have a significant impact on neighbours, communities and on the service we provide to all residents”, he says.

“Clúid is committed to providing a home for life to all of our residents,” says Harold. “This is a core aspect of our work and something we are very proud of.”

More Insecure?

It is not unusual for a landlord, including an AHB, to issue a notice of termination in the first six months of the tenancy, without providing a reason, says Rebecca Keatinge, managing solicitor with the Mercy Law Resource Centre.

“It is a concern,” she says. “The first six months is an opportune time to move on any tenants that they see as potentially problematic.”

The tenant is then at risk of becoming homeless, and having been evicted from social housing, they may find it difficult to even get on the social housing list, she says.

In the past, Mercy Law Resource Centre supported a tenant who was served with a notice of termination while they were being detained or “sectioned” in a psychiatric hospital, says Keatinge.

“That was legally valid,” says Keatinge. “Vulnerable tenants are at risk of eviction.”

The eviction process that the local authority uses “is a much more rigorous process and it gives the district court judge the duty to consider whether the eviction is proportionate, reasonable and fair,” she says.

By comparison “those in approved housing bodies are in more insecure tenancies”, says Keatinge.

Keatinge is currently advising a family that was homeless for five years, until recently when they got a home through an AHB.

The mother received a written warning about the children making noise during the day. “She just has very noisy kids, who are not in school or nursery,” says Keatinge. She is trying to get them to be quiet but not succeeding, she says.

Her tenancy agreement says she can’t make noise that is audible outside of her apartment, so she is in breach of that.

Since she has been living there for less than six months, Keatinge fears she may lose her home, once the emergency ban on evictions is lifted.

One of the woman’s children was born into homelessness and this example highlights the importance of proportionality, says Keatinge. Is it fair, or proportional, to make a family homeless for making noise?

In Council Homes

There’s a flipside to this though, some say.

Independent Councillor Cieran Perry says that local authorities are too slow to evict tenants from social housing where there is, say, serious criminality and anti-social behaviour.

Perry says that there are “next to no evictions” from council housing in the city. That has a detrimental impact on communities, allowing intimidation to continue, he says.

The level of proof required is overwhelming and even when the Gardaí have supporting evidence, the eviction can be difficult to achieve, Perry says. “The council system simply doesn’t work.”

Keatinge says that the local authority does have the power to evict people – and she doesn’t know why they don’t use it more.

“The procedure is pretty robust,” she says. “They can absolutely proceed.”

Serious criminals can be hard to handle though because neighbours are reluctant to make complaints, she says.

Perry, the independent councillor, says his criticism of the council’s system doesn’t mean he agrees with evicting social tenants in the first six months without any “due process” either. “There absolutely does have to be due process, for everyone regardless.”