Whether the Council was justified in refusing to provide the applicants with statements of reasons for various acts relating to their application for housing supports

13 November 2019

Background

In a request dated 15 March 2019, the applicants submitted a request to the Council, through their legal representatives, for access to a wide range of records and information relating to their application for housing supports and more generally relating to the provision of housing, including emergency accommodation, in a specified area of Cork.

They also sought statements of reasons (i) for their current position on the housing list, (ii) in relation to any actions taken by the Council in relation to the provision of emergency accommodation for their family since September 2018, and (iii) in relation to any actions taken by the Council in relation to the provision of emergency accommodation in the specified area since September 2018. This review is concerned solely with the application for statements of reasons. The request for records has been considered in a separate review.

In a decision dated 15 April 2019, the Council refused the application for statements of reasons on the ground that the applicants did not have a material interest in a matter affected by the acts identified. On 25 April 2019, the applicants sought an internal review of that decision, following which the Council affirmed its original decision. On 23 July 2019, the applicant sought a review by this Office of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the applicants and the Council and to the correspondence between this Office and both the applicants and the Council on the matter.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council has complied with the requirements of section 10 of the FOI Act in refusing to provide statements of reasons for various acts relating to the applicants’ housing situation.

Analysis and Findings

Section 10

Section 10(1) of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. For the purposes of section 10, an act of the body includes a decision of the body.

Section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates:

"if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member."

Under subsection (13), benefit is defined as including any advantage to the person, or the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

General Principles

This Office has previously set out its approach to, and interpretation of, section 10 and has established the following principles:

• The applicant bears the burden of proof in establishing the standing necessary to be entitled to a statement of reasons for an act of an FOI body; i.e. the applicant bears the burden of showing that he or she has a material interest in the matter. The FOI Act is silent as to the standard of proof which should apply in such cases. The Commissioner takes the view that the standard of proof required is that of "the balance of probabilities".
• The requirement to provide a statement of reasons does not apply to every action of an FOI body. The Commissioner takes the view that the Oireachtas could not have intended that FOI bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the FOI body and its officials.
• Taking section 10 as a whole, the Commissioner’s view is that the word "act" in the section must be interpreted as the exercise of (or refusal to exercise) a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question then section 10 does not apply to that act.
• There will be many instances where a number of secondary actions/decisions are taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. While the person may be entitled to a statement of reasons for the substantive decision, the Commissioner considers that section 10 does not entitle a person affected by the substantive decision to a statement of reasons in respect of each and every action which was taken in arriving at that decision.
• The requirement on an FOI body to provide a statement of reasons for an act of the body does not require each and every member of staff who might have contributed in any way or had been involved in the decision making process to provide an account of his/her reasons for every action he/she carried out during the course of the body's decision making process.

It seems to me that the key issue arising in this case is whether the applicants have identified any specific acts of the Council that have affected them and whether they have a material interest in a matter affected by those act or to which they relate.

The applicants argued that they do, indeed, have a material interest in matters affected by the acts identified as they have been assessed as homeless and their area of preference for social housing is the specific area identified. In their submission to this Office, they argued that they are entitled to know how their housing application is being dealt with and that they are therefore entitled to a statement of reasons on the matter

As can be seen from the principles I have outlined above, the requirement to provide a statement of reasons does not apply to every action of an FOI body. It does not require the Council to provide reasons for any and all actions it has taken in relation to the provision of emergency accommodation for the applicants unless the acts have affected them and they have a material interest in a matter affected by those acts or to which they relate.

As I have also outlined above, section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member.

It seems to me that the substantive action taken by the Council in this case was the assessment of the housing needs of the applicants. This is the act that may confer or withhold a benefit. On this point, the applicants are aware that the Council assessed them as “homeless” in September 2018. On the matter of their current position on the housing list, the Council previously explained to the applicants that it does not operate a numerical type positioning of applicants on a housing list. As such, I am satisfied in applying for a statement of reasons for their position on the housing list, the applicants have not identified a specific act of the Council for which a statement might be provided.

I note that the applicants have expressed concern that being aware of the fact that they have been categorised as homeless provides them with no assistance in understanding when they may expect to have their housing needs met. However, it is not the purpose of section 10 to require the Council to provide such clarity.

On the matter of their application for statements of reasons in relation to any actions taken by the Council in relation to the provision of emergency accommodation for their family since September 2018 and in relation to any actions taken by the Council in relation to the provision of emergency accommodation in the specified area since September 2018, the applicants have not identified any specific act for which a statement of reasons in sought.

If the Council made a specific decision or carried out a specific act in relation to the provision of emergency accommodation for the applicants which affected them and they consider that the outcome of that act or decision was to confer on or withhold from them a benefit, it is open to them to submit a fresh application wherein they can identify the specific act or decision for which a statement of reasons is sought.

In the circumstances, I am not satisfied that the applicants have identified specific acts of the Council for which the Council is required to provide statements of reasons. As such, I find that the Council was justified in refusing to provide the statements sought.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council to refuse to provide the applicant with statements of reasons for various acts relating to their application for housing supports.

Right of appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

 

 

Stephen Rafferty

Senior Investigator