Seanad Éireann - Volume 193 - 28 January, 2009
Residential Tenancies (Amendment) Bill 2009: Second and Subsequent Stages.
Question proposed: “That the Bill be now read a Second Time.”
Deputy Michael Finneran Deputy Michael Finneran
Deputy Michael Finneran: Before outlining the precise circumstances which have given rise to the need for this legislation, I will clarify an issue raised in the course of yesterday’s Dáil debate on the Bill which delayed its arrival in the Seanad yesterday evening. A question was raised concerning the period that would remain in the term of membership of the Private Residential Tenancies Board’s dispute resolution committee, DRC, of the persons whose appointments were being regularised by the Bill. This gave rise to the need to check the duration of the period for which the persons concerned had been appointed to the DRC and, in the interests of absolute clarity, to be absolutely sure those appointments had been made for a minimum of three years, as required under section 157(3) of the Residential Tenancies Act 2004. It was necessary to check this issue with the PRTB and I was not in a position to have this completed in the short period between the conclusion of the Bill in the Dáil and the scheduled start time for the Bill in the Seanad last night. The PRTB confirmed to the Department late last night that when the persons concerned had been reappointed to the DRC, they were appointed for three years. Therefore, there is no difficulty in regard to compliance with the terms of section 157(3) of the 2004 Act. They will continue to serve as members of the DRC for the remainder of their three-year term, even where this extends beyond their board membership.
I will now turn to the specific reasons for this legislation. Section 159 of the Residential Tenancies Act 2004 empowers the board of the PRTB to establish a dispute resolution committee, delegate functions to that committee and appoint its members. The members of the DRDC, when required, form the tenancy tribunals which determine tenancy disputes. Section 159 provides that the membership of the committee must contain at least four members of the PRTB’s board but also specifies that to be eligible for appointment to the committee any such board member must at the time of appointment to the committee have at least three years remaining in his or her term of office as a board member. Section 159(4) requires the board of the PRTB to consult the Minister before appointing members, including the chairperson, to the committee.
It was brought to the Department’s attention by the PRTB in mid-December 2008 that nine of its board members who had been appointed a year earlier to the committee and one further member appointed in January 2007 did not satisfy the three-year rule. On further examination, doubts were also raised regarding the extent of compliance with the consultative requirements of section 159. The effect of this is to raise questions about the constitution of the committee and hence the dispute resolution work carried out under its aegis. In order to ensure the matters involved are regularised urgently, the legislation has been brought forward to validate the appointments to the committee and the associated work undertaken by it and its members.
It is important to stress that the competence and professionalism of these tribunals are not in question. The procedures adopted were robust and proper and the outcomes and judgments were properly reached. Nonetheless, the technical mistake places a question mark against the more than 100 tribunals convened which have contained at least one incorrectly appointed board member. To remove any uncertainty in this regard and in regard to compliance with the consultation requirements of section 159 more generally and, thereby, ensure this tribunal-related work by the PRTB is validated, I have brought this legislation forward. Given the good progress made by the PRTB in recent months in addressing the challenges facing it, it is essential to remove this potential uncertainty. To do otherwise would not serve tenants, landlords or the taxpayer well. The Bill, very simply, validates the appointments to the DRC and the associated work undertaken by the committee and its members. It validates the irregular appointments and deems as valid any acts by the DRC prior to the emergency legislation. It corrects a technical legal error and allows the PRTB to proceed confidently with its essential work.
I emphasise to the House that when the issue regarding DRC appointments was brought to its attention last month, the Department requested the PRTB to urgently commission an external audit to check compliance with the provisions of the Residential Tenancies Act 2004 with regard to governance and legal structures, appointment of board members and committee members and any other relevant aspects relating to the governance provisions of the Act. This audit was to be undertaken by an appropriate external party with access to legal advice, as necessary. This compliance audit has since been completed and identified no similar issues requiring legislative correction.
The Residential Tenancies Act 2004 has provided a stable framework for the better operation of the landlord-tenant relationship and, since its establishment in September 2004, the PRTB has achieved notable successes in fulfilling its mandate, including, for instance, large-scale compliance with the tenancy registration requirements. Partly as a consequence of the board’s success in ensuring registration compliance and the resulting large workloads arising, it is acknowledged that the processing times for dispute resolutions are not yet optimal. This is owing to a combination of the significant increase in demand in line with expansion of the sector and the quasi-judicial process involved which requires very time consuming work, for instance, the heavy administrative requirements of proceeding with court actions. It is important to note that while the PRTB provides dispute resolution services, less than 1% of all registered tenancies seek to avail of the PRTB’s dispute resolution mechanisms. This indicates that a healthy and stable landlord-tenant relationship prevails in the vast majority of tenancies.
In response to the large and ongoing volume of work with which it had to deal, the board of the PRTB requested an additional 14 permanent staff to bring the permanent staffing complement from 26 to 40. This was approved by the Department in 2008 and the additional personnel were recruited during the summer of that year. This raised staffing level will help significantly with the administrative work related to the processing of dispute cases.
Due to the nature and complexity of the Residential Tenancies Act, one element of the board’s remit under the Act is to assess the functioning of the PRTB and the Act and put forward suggestions for improvements to the original legislation. This review is ongoing and a number of notable legislative changes to the Act have been proposed to the Department by the board. I hope to take a significant number of these suggestions on board as part of the Housing (Miscellaneous Provisions) Bill 2008. Some relevant amendments to the Residential Tenancies Act were debated in the Seanad late last year. I hope to bring forward a number of other related amendments on Committee stage in the Dáil.
Of particular interest, especially in terms of how to optimise the efficient performance of the PRTB, is a proposal to allow for on-line registration by removing the current requirement to have the signatures of both landlord and tenant on the registration form. This will free up staff who have been working on registrations to assist with the dispute resolution process and enforcement areas. The PRTB has also recently embarked on a number of internal initiatives that do not require legislative changes but which will improve work practices and maximise use of resources. For instance, a system of paper-based adjudications in specific instances has recently been introduced on a pilot basis to fast-track certain cases without the need for an actual hearing. Such an approach has been used in other similar organisations and initial feedback is positive.
An automated document management system will also be introduced as part of the PRTB’s recently adopted ICT strategy, the roll-out of which has commenced. This should begin to yield staffing and process efficiencies in the short to medium term.
The Residential Tenancies Act has set the conditions and tone of landlord and tenant relationships and I am intent on maintaining, nurturing and improving the private rental sector in general, in regard to which the PRTB is a pivotal organisation. It has come a long way in the last four years and, while there are sizable challenges facing it, I am confident it has the resources, capacity and imagination to meet these challenges in the years ahead. The Bill corrects an historical and technical oversight by the board and safeguards the effort and time invested by its tribunals. It removes any doubt as to the validity of the dispute resolution committee’s work and allows the organisation to focus fully on delivering the best service possible to its clients. I express my gratitude to the Opposition for its co-operation in facilitating the passage of this urgent legislation today and commend the Bill to the House.
Senator Maurice Cummins Senator Maurice Cummins
Senator Maurice Cummins: I welcome the Minister of State. As we accept that the errors made must be rectified, we will support the legislation. It is important to note that we are rectifying mistakes. I wonder what is wrong with the Minister for the Environment, Heritage and Local Government, Deputy Gormley, and his Department in terms of their ability to assess legislation. That is what we are talking about. Only last September the Minister had to rescind two political appointments to the board of the Private Residential Tenancies Board because it was in breach of the 2004 Act. He did not even know what was contained in an Act relevant to his Department when he appointed two councillors from his own party who were prevented from joining the board because they held public office. Now we have another mistake and it seems management of the PRTB has been party to it by not being adequately familiar with the legislation. The Minister of State has mentioned that it commissioned an audit to ensure compliance but is it necessary to have audits to ensure legislation is complied with? Surely such people should know, although it would be difficult for the board to know what is contained in the legislation when the Minister did not know when he tried to appoint two councillors to the board. When he made his ill-advised appointments last September which caused inconvenience and embarrassment to the board, were procedures not changed to ensure the mistakes would not be repeated? When did the PRTB and the Minister first become aware of the problem? Have they been threatened with legal action? It is farcical that the Government and its agencies are not fully aware of the provisions of relevant legislation. This cannot continue. What is the Government considering to ensure we will not find ourselves in this position again?
The PRTB does good work. The Minister of State has indicated it has come a long way in four years but it still has a long way to go. The board was designed to make matters more expeditious but we still have long delays in processing complaints. I hope the matter will be addressed, as there have been a number of complaints from the public about the amount of time taken to process cases.
We will support the legislation, as a failure to do so would create chaos, but we require answers. The House was due to take the Bill last evening but the Minister of State received a telephone call and I wondered at that point whether another mistake had been made. Obviously, however, the technicality that arose has been checked and the position has been found to be acceptable. The events surrounding this legislation represent a comedy of errors. To err once is careless but to make a further mistake is merely incompetent.
Senator Larry Butler Senator Larry Butler
Senator Larry Butler: I thank the Minister of State for introducing this emergency legislation. He provided an extremely good outline of the good work done by the Private Residential Tenancies Board. The fact that we have a register of all landlords is a good development. As the Minister of State indicated, however, there are few difficulties among landlords and tenants and fewer than 1% of all registered tenancies seek to avail of the PRTB’s dispute resolution mechanisms. This is evidence of the success of the existing legislation and also of the fact that landlords and tenants are getting on well.
Despite what I have said, an anomaly has been identified in the existing legislation. It is right the Minister of State has introduced the Bill before us to correct the position. He has acted speedily to ensure the proper legislation will be in place to allow the PRTB to operate correctly. When an anomaly such as that to which I refer is identified, it is important the Government should state it got matters wrong and that it must take action to correct the position. That is what the Minister of State is doing with this Bill.
I commend this emergency legislation to the House. The Minister of State has assured Members that, when necessary, he will deal with any future anomalies that may arise. I thank him for providing that assurance and I support the legislation.
Senator Dominic Hannigan Senator Dominic Hannigan
Senator Dominic Hannigan: I welcome the Minister of State. I am glad this anomaly in the existing legislation is being put right. I thank the Minister of State for contacting Members prior to yesterday to inform them of the problem that had arisen and to indicate that amending legislation would be introduced.
Like Senator Cummins, I was disappointed the legislation did not proceed last evening and that we were not informed it was being pulled. Members were obliged to look at monitors throughout the Houses to discover what was taking place. If, in the future, legislation is pulled late at night, I ask that Members be notified.
I accept the reasons for pulling the legislation and I am glad the Minister of State clarified the position this morning. I understand the debate in the Seanad did not proceed last evening as a result of questions raised by Deputy Ciarán Lynch in the Lower House. The Minister of State provided clear reasons the legislation had to be pulled. He also indicated that, as it stands, the Bill will plug the gap that has been identified.
I am disappointed the opportunity to include some further amendments in the legislation has not been grasped. As Senator Cummins stated, we are all aware of the difficulties relating to the appointment of Senator Boyle’s colleagues to the board last year. I do not have a problem with appointing councillors to the board and I am of the view that it is probably fair to do so. Councillors work at the coalface and understand what is involved in this area. Their input could add greatly to the work of the board. I am somewhat saddened that the Minister of State has not altered the legislation to permit councillors to sit on the board.
I am also disappointed the Private Residential Tenancies Board falls outside the ambit of the Freedom of Information Act. My party tried to table an amendment in the Lower House to allow it to be covered by the terms of that Act, but this was ruled out of order. I am disappointed the Minister of State has decided not to amend the Bill in this regard. That said, however, the Labour Party will not oppose this obviously necessary legislation.
Senator Dan Boyle Senator Dan Boyle
Senator Dan Boyle: It is unfortunate there has been a need to introduce emergency legislation of this type. The circumstances surrounding the Bill’s introduction represent a catalogue of errors in respect of information passed on and knowledge of what can or cannot be done under the existing legislation. This has created considerable confusion and the Bill before us seeks to correct the position in the context of not having any of the decisions made during a short period questioned. I welcome the fact this aspect has been recognised.
As Senator Hannigan stated, perhaps there might be an opportunity to consider the primary legislation in greater detail. We have a job of work to do in the context of passing the Bill before us. Once that is done, however, we could review the legislation relating to residential tenancies because a number of issues arise such as, for example, those relating to management companies, towards which we need to take a more responsive attitude.
I know the people who were selected for appointment to the Private Residential Tenancies Board but who were not allowed to be appointed because they held local government office.
Senator Maurice Cummins Senator Maurice Cummins
Senator Maurice Cummins: My party will support the Senator if he wishes to change the position.
Senator Dan Boyle Senator Dan Boyle
Senator Dan Boyle: I merely wish to place on record my opinion that one of the individuals concerned is a person of high ability. Not only is he a serving local councillor, he is also a barrister. He would have been appointed to the board on the basis of his expertise in respect of property law, etc., which he practises on a daily basis.
I have argued in the past that legislation of this nature which precludes councillors from serving on bodies such as the PRTB is not welcome. In addition, we should not encourage the introduction of legislation which insists that a set number of councillors should serve on particular bodies. Either a person serving in local government possesses the ability to do a particular job or he or she does not. It could be the case that when appointments are being made to bodies such as the PRTB, there are no suitable candidates in the area of local government to take up the relevant positions. It could also be the case that a body such as the PRTB could comprise a large number of local government representatives.
On where the PRTB should go from here, I hope the procedures that allowed the relevant information to pass through the Department and the decision to be made in the way it was will be corrected. There was certainly no intention to abuse or misuse the legislation. We must avoid a repetition of the circumstances that arose in this case or there will be a need to introduce similar legislation in respect of other areas in future.
Perhaps the best way to proceed is to consider this matter in the context of the all-embracing local government Bill that will be forthcoming in the aftermath of the White Paper on local government. The role of local councillors and other representatives on State bodies, etc., should be properly defined and the circumstances in which these individuals may be involved with these bodies should be placed in the context of a better legal framework. If that is done in the near future, I hope we will be able to avoid a recurrence of the circumstances that arose in this instance.
I welcome Members’ general support for the Bill. I look forward to the House having the opportunity to consider the local government Bill and engage in a better review of the residential tenancies legislation.
Deputy Michael Finneran Deputy Michael Finneran
Deputy Michael Finneran: I listened with great interest to what Members had to say and I appreciate the high quality of their contributions. I again acknowledge the positive way in which this legislation has been considered.
I reiterate that what is involved here is a simple procedural error — a technical flaw — which casts no reflection on the quality of the tenancies tribunal convened during the period in question. The mistake concerned the unexpired portion of the board’s membership for those members appointed to the dispute resolution committee. There is also doubt whether the statutory consultation requirements with me, as Minister, were properly complied with. It was purely a technical mistake by the board of the PRTB which did not impact on the quality and professionalism of the tribunal hearings. The competence and professionalism of the tribunals is not in question. The procedures adopted were robust and proper and the outcomes and judgments are not in question. None the less, it could provide grounds for legal challenge which would set the PRTB back significantly in terms of time, resources and reputation damage which is why I have moved urgently to close off this area of doubt.
The referral was purely precautionary in nature in order to be absolutely sure the appointments to the dispute resolution committee have been made for a minimum period of three years as required under section 157(3). If this had not been the case, consideration would have had to have been given to the need to introduce an amendment to the Bill to deal with this. This is not now necessary following the PRTB’s clarification. The appointments were made for a minimum of three years.
Looking to the future, I was pleased to launch the board’s new corporate plan in December last. This maps out how the PRTB intends to deal with the challenges during the period 2009 to 2011. It has announced specific targets and performance indicators in respect of its work in the areas of dispute resolution, tenancy registration, research, information, innovation, customer service, leadership, governance, human resources and finance. No effort will be spared by the board in vigorously delivering on the corporate plan and its success will be measured in terms of the ambitious target set out in the plan.
Senator Maurice Cummins asked when this matter came to the attention of the board, the Department and myself. I assure the House that this matter was brought to my attention on 22 December 2008. It had been brought to the attention of the Department informally on 9 December 2009. The Department sought legal advice at that time. I acted on the first day the Dáil sat in this session, which was yesterday. I, along with the departmental officials, acted with haste on this matter.
Last night we did a rain check on an issue raised by a Member of the Dáil during the debate. It was only fair to the House that we would clarify it. Unfortunately, it was not clarified by the time we were to come to this House. That is why the Bill was delayed until this morning. I apologise to the House for that but it is best the legislation is correct.
This issue is entirely different from the councillors’ appointments. I wish to distinguish between this and that issue which was dealt with in 2008. I am not aware of any legal challenges initiated in regard to the issues covered by the Bill since this issue came into the public domain. Nothing like that has been brought to my attention.
I am conscious of dispute resolution delays and have stated during the debate in the Dáil on the Housing (Miscellaneous Provisions) Bill that I intend to bring forward some amendments which will improve the Residential Tenancies Act 2004. Despite what Senator Hannigan said, it would be inappropriate to introduce them during emergency legislation and that is the reason they have not been introduced.
I refer to freedom of information requests, a matter which is always being considered. The extension of freedom of information requests to other bodies is a matter my Department keeps under review. We will report on that when any such decision is taken. Senator Boyle referred to a review of the primary legislation, which I have addressed.
Question put and agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: “That the Bill do now pass.”
Deputy Michael Finneran Deputy Michael Finneran
Deputy Michael Finneran: I thank Members for their co-operation in the passage of this emergency legislation. The co-operation of the Opposition is appreciated. I apologise for not being able to take the Bill last night but I have explained the reasons. Again, I acknowledge the co-operation of the House in this matter.
Question put and agreed to.
Seanad Éireann 193 Residential Tenancies (Amendment) Bill 2009: Second and Subsequent Stages.