FLAC’s Traveller Legal Service – A Review for Traveller Pride Week

Traveller Pride Week 2021 runs from 20 September 2021 until 2 October 2021. The theme for the week is “Stronger Together” and it will be marked by national and local Traveller organisations hosting events celebrating Traveller culture and its contribution to our national life.

Although there is much to celebrate during Traveller Pride Week, it remains an unacceptable reality that Travellers are consistently denied their rights and subjected to discrimination in both the public and private spheres.

In FLAC’s analysis, many of the issues faced by Travellers are justiciable, meaning that they involve a breach or misapplication of the law, have a legal solution, and are amenable to adjudication by a court.

To meet this need, since March 2020, FLAC has operated a dedicated Traveller Legal Service (the “TLS”) in cooperation with a Steering Group of representatives from all the national Traveller organisations and supported by the Community Foundation of Ireland. 

Traveller Pride Week is an opportune time to review the work of the TLS and to consider how the TLS’s experience fits in with and supports the broader work undertaken by Traveller organisations, NGOs and lawyers in seeking to vindicate Travellers’ rights.

The Traveller Legal Service – Referrals and Representation

The TLS functions principally on a referral basis with the majority of its current cases originating with local Traveller groups or advocates. While the TLS aims to provide as much assistance as possible, within its resources and capacity, it particularly seeks to support cases which could benefit the wider Traveller community.

The table below outlines the queries and referrals which the TLS has received since its establishment.

Traveller Legal Service Queries and Referrals

As its resources are limited, the TLS cannot provide representation in every case. The table below outlines the cases where representation has been provided. Representation is defined here as entering into or bringing proceedings or issuing pre-action correspondence.

Cases Where the Traveller Legal Service Has Provided Representation

Accommodation

It is notable, but unsurprising, that the majority of the queries received by the TLS, and instances where representation has been provided, relate to the areas of accommodation (entailing both standard local authority accommodation and Traveller specific accommodation) and evictions.

It is well-established that Ireland’s housing crisis has had a disproportionate impact on Travellers. As part of a wider and comprehensive report on Traveller accommodation, the recommendations of which have been prioritised for implementation by the Department of Housing’s “Housing for All” plan, the Independent Expert Review on Traveller Accommodation (2019) (the “Expert Group”) found from census data that Travellers are more likely to be homeless than the general population, comprising 7.5% of the homeless population in 2016. On the basis of more detailed local data, the Expert Group further found that Traveller homelessness was a much more prevalent issue in particular local authority areas than the census data disclosed. For example, research commissioned by Offaly Traveller Movement (2016) found that 19.1% of Offaly’s homeless population were Travellers despite comprising 1.3% of the overall population.

The TLS has represented Travellers who are homeless and who have been wrongly deprived of access to emergency accommodation by local authorities. One such case was reported in our December 2020 blog post available here.

Apart from disproportionate levels of homelessness, Travellers suffer further disadvantages in relation to the provision of Traveller specific accommodation and standards in such accommodation.

Between 2019 and 2021, the Irish Human Rights and Equality Commission (“IHREC”) undertook equality reviews of all local authorities in the State, prompted by evidence of a consistent underspend of Traveller specific accommodation budgets. IHREC noted that between 2008 and 2018 just two thirds of available funding for Traveller specific accommodation had been drawn down. IHREC additionally found that the information gathering procedures used by local authorities to record Travellers’ accommodation preferences were frequently inadequate, leading to Travellers expressing a preference for standard accommodation as a result of feeling that accessing Traveller specific accommodation was a practical impossibility.

Many of the enquiries received by the TLS relevant to accommodation involve Travellers who have encountered difficulties in accessing Traveller specific accommodation. These difficulties include local authorities advising that delivery of Traveller specific accommodation will be subject to long timelines with little to no evidence of the necessary preparatory work to provide accommodation being undertaken. In addition a further obstacle is the refusal of elected members of local authorities to progress plans to provide Traveller specific accommodation included in a Traveller Accommodation Programme prepared in accordance with the Housing (Traveller Accommodation) Act 1998. The TLS has taken judicial review proceedings against a local authority on the basis of such a refusal, the hearing of which is awaited.

In its evidence to the Joint Oireachtas Committee on Key Issues Affecting the Traveller Accommodation (“JOCKIAT”) in July 2021, the TLS recommended the immediate implementation of the recommendations of the Expert Group that the power of elected members of local authorities to vote against Traveller specific accommodation should be suspended and an alternative method of delivering such accommodation introduced.

The absence of specific statutory standards for Traveller specific accommodation is a further issue highlighted by the TLS in its evidence to the JOCKIAT. Whereas the Housing (Standards for Rented Houses) Regulations 2019 set minimum standards for houses which are let, they are specifically excluded from applying to mobile homes and caravans let by local authorities and no equivalent regulations for such accommodation exist. The TLS has provided representation to a number of families who are currently living in uninhabitable conditions in mobile homes rented from a local authority.

A further issue encountered by the TLS, in the area of accommodation provision, is the reliance of local authorities upon the provisions of the Housing (Miscellaneous Provisions) Act 1997 to refuse or defer the letting of a house to a person where the authority considers the person has been engaged in anti-social behaviour. The TLS has brought proceedings challenging the constitutionality and compatibility with the European Convention on Human Rights of certain of these provisions, as reported in our April 2021 blog post available here.

Evictions

A local authority wishing to evict a Traveller living on the roadside or an unofficial site has at its disposal no fewer than five separate legislative mechanisms to do so. Each of these mechanisms carry with them the risk of prosecution, of a caravan being towed and/or impounded, and all but one may be invoked on short or no notice, without prior or subsequent recourse to a court or other independent authority. 

In particular, under the provisions of the Criminal Justice (Public Order) Act 1994 (the “Criminal Trespass Legislation”), the mere presence of a caravan, on local authority land without explicit permission, constitutes an offence for which the TLS’s clients have been prosecuted.

By contrast, a local authority wishing to evict someone from a dwelling, even where there is no legal basis or right for the person being there must first apply to the District Court for a possession order. The proceedings are on notice to the person against whom the order is sought and the order may only be granted if the Court is satisfied that it is proportionate and reasonable having regard to all the circumstances of the case.

The legislative mechanisms routinely used by local authorities to evict Travellers have been the subject of criticism by international human rights bodies. For example, the European Committee of Social Rights found that a number of mechanisms which are available to local authorities to eliminate unauthorised encampments by Travellers breach Article 16 of the Revised European Social Charter. Additionally, the Expert Group recommended the repeal of the Criminal Trespass legislation and revision of other mechanisms used by local authorities for evictions.

The TLS has represented Travellers in a number of eviction cases. In our blog post in August 2021, we reported on one such case where our client faced summary removal from a site where she had grown up and lived most of her life. The TLS is also on record in proceedings before the European Court of Human Rights relating to an eviction of Travellers from a site where they had lived for years, without being heard by the Court with the benefit of legal representation.

Discrimination

The majority of the remainder of the TLS’s referrals concern claims of discrimination.

Discriminatory attitudes against Travellers are commonplace and were comprehensively outlined in a 2017 survey by Behaviour and Attitudes (“B&A Survey”) commissioned by the Community Foundation. Among the findings of the B&A Survey were that just 22% of the general public surveyed said they would accept a Traveller as a neighbour; 15% said they would accept a Traveller as a friend; and 17% said they would employ a Traveller. A corollary of these attitudes was the finding that 90% of Travellers surveyed said they had suffered discrimination in their lifetime.

The TLS has provided representation to Travellers in 9 cases where discrimination pursuant to the Equal Status Acts 2000 – 2018 is alleged. The facts of these cases cover a range of circumstances including accessing a restaurant, booking venues for anniversary celebrations, booking a venue for weddings, attending a first Holy Communion mass, not receiving a postal delivery services to their addresses, and not receiving waste disposal services at a halting site.

Taken together, these cases highlight how Travellers are deprived of basic services which are received as a matter of course by the general public and thereby are being isolated and excluded from society.

Conclusions

As Traveller Pride Week proceeds, it is instructive to bear in mind the considerable work that is yet required to secure Travellers’ rights.

The reports and advocacy referred to throughout this post by bodies such as the Expert Group, IHREC and local and national Traveller organisations are essential in identifying where change is required and how it can be made.

As a service providing legal assistance, the TLS can add to that work with evidence of the significant level of unmet legal need in the Traveller community.

FLAC has long campaigned for the expansion of the State’s civil legal aid scheme. In its current guise, the Legal Aid Board principally provides a service for family law matters. While this is undoubtedly essential, it leaves many vulnerable citizens, including Travellers, with no adequate assistance or advice where issues of housing law, social welfare law or equality law are concerned.

FLAC’s calls have been substantiated by the findings, in 2019, of the UN Committee on the Elimination of Racial Discrimination which expressed its “concern about the lack of legal aid provided for appeals concerning social welfare, housing and eviction, which has a significant adverse impact on Travellers and other ethnic minority groups to claim their rights”.

A review of the State’s scheme of civil legal aid was recently announced and, as noted above, the Department of Housing’s “Housing for All” plan has committed to prioritising the recommendations of the Expert Group. While the TLS will continue to provide advice and representation wherever possible, we hope that by next year’s Traveller Pride Week, we will also be in a position to celebrate positive news arising out of these commitments.