Decision
Mr Y and Housing Agency
From Office of the Information Commissioner (OIC)
Case number: OIC-148190-S3N1P1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148190-S3N1P1
Published on
19 December 2024
In a request dated 20 February 2024, the applicant sought access to information specifically related to the eligibility criteria as applied by the Housing Agency in Local Authority Home Loan Applications (LAHL). The applicant specifically listed 10 specific categories of information which he was seeking, including correspondence and data across various sources. The following day, the applicant issued a second FOI request to the Agency and requested the following:
1. With reference to the Section 5.3 of the Housing (Miscellaneous Provisions) Act 2009, where on the internet has the Housing Agency published the guidelines issued by the Minister for the Environment, Heritage and Local Government based on which the Housing Agency included the residency criteria for Non-EU/EEA applicants in the Credit Policy?
2. With reference to the Section 5.3 of the Housing (Miscellaneous Provisions) Act 2009, provide a copy of the guidelines issued by the Minister for the Environment, Heritage and Local Government based on which the Housing Agency included the residency criteria for Non-EU/EEA applicants in the Credit Policy.
On 19 March 2024, the Agency issued its decision to the applicant. The decision set out 3 specific categories of information sought by the applicant:
• Category one comprised of records specifically related to eligibility criteria applied by the Housing Agency in LAHL applications,
• Category two related to records concerning applications rejected by the Agency based on residency and/or other eligibility criteria and,
• Category three concerned the guidelines issued by the Minister under section 5 of the Housing (Miscellaneous Provisions) Act 2009.
The Agency identified one record as relevant to the request, and scheduled the Guidelines under category three. The Agency refused access to the guidelines on the basis that it considered the record to be exempt under section 35(1)(a). It stated that the guidelines had been given in confidence by the Department of Housing, Local Government and Heritage and that it did not have the authority to publish them. The Agency refused categories one and two on the basis that the information requested fell under the remit of the Department of Housing, Local Government and Heritage. It stated that it did not hold any records related to sub – request two and refused that part of the request under section 15(1)(a).
On 23 March 2024, the applicant sought an internal review of the Agency’s decision. The applicant specifically appealed the Agency’s decision to refuse part 3 of the request. He queried why the guidelines were being refused when according to section 5(3) of the Housing (Miscellaneous Provisions) Act 2009, the information requested should be available to members of the public.
The Agency issued its internal review decision on 10 April 2024, wherein it affirmed its original decision. The Agency said that the authority to publish the record lay with the Minister, and that until such time as the Minister publishes the record, the Agency would be unable to release it. It said that subject to section 5(2) of the Housing (Miscellaneous Provisions) Act 2009, it is a matter for the Minister to publish the information in a manner they deem appropriate.
The applicant sought a review by this Office of the Housing Agency’s decision on 15 April 2024.
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 communications between the Agency and the applicant as outlined above and to the communications between this Office and the Agency, applicant and Department of Housing on the matter. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, I contacted the Department of Housing, Local Government and Heritage to seek its submissions on the release of the relevant Guidelines. I queried why it was the Agency’s position that the Guidelines in question had been provided in confidence from the Department when section 5 of the Housing (Miscellaneous Provisions) Act 2009 provides the following:
(1) The Minister may, from time to time, as he or she considers appropriate, issue to housing authorities such guidelines in relation to the performance of their functions under the Housing Acts 1966 to 2009 as he or she considers appropriate and housing authorities shall have regard to such guidelines in the performance of those functions.
(2) The Minister shall publish or cause to be published, in the manner he or she considers appropriate, any guidelines issued under this section.
(3) A housing authority shall make available for inspection by members of the public, without charge, on the internet and its offices and such other places as it considers appropriate, during normal working hours, a copy of any guidelines issued to it under this section.
In its response, the Department agreed to provide a lightly redacted version of the Credit Policy guidelines to the applicant, and these were provided to the applicant on 28 November 2024. I contacted the applicant following provision of the guidelines to query whether the applicant would be willing to settle the matter on the basis that the relevant guidelines had been provided in part. In response, the applicant said that the document shared by the Department was not what his FOI request had sought but that he was seeking “the guidelines issued by the Minister under section 5 of the Housing (Miscellaneous Provisions) Act 2009, that specifically impose the five-year residency requirement, as outlined in the credit policy, as mandated by section 5 of the Housing (Miscellaneous Provisions) Act 2009.” The applicant said that while the Credit Policy guidelines may provide some insight that his request specifically pertains to obtaining the guidelines issued by the Minister under Section 5 of the Housing (Miscellaneous Provisions) Act 2009. He said that he was seeking these guidelines in the form of a circular, statutory instrument, or any other format if such a document exists.
The Department’s position is that the relevant record requested is the 2023 Credit Policy Guidelines and it maintains that these guidelines, are the only guidelines issued by the Minister under section 5(3) of the Housing (Miscellaneous Provisions) Act 2009. Since the applicant has clearly stated that the guidelines he is seeking are not the Credit Policy Guidelines, I will not consider any further part of them for release.
Given the “De Novo” nature of this Office’s reviews, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision, I consider that the Department’s position that no further Guidelines were issued by the Minister amounts to a refusal to grant access to any other relevant records under section 15(1)(a) on the basis that no further records exist.
While the Housing Agency provided submissions on its refusal of the request under section 35(1)(a), I will not be considering those submissions for the purposes of this review, as it is not relevant to the question of whether further guidelines exist.
Accordingly, the scope of this review is confined to whether the Agency was justified in refusing access to any further records on the basis that no further records exist.
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to locate them have been taken. The role of this Office in such cases is to review the decision of the FOI body and decide whether that decision was justified. This means that we must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
The Applicant’s submissions
The applicant in this case has said that he is seeking the guidelines in the form of a circular, statutory instrument, or whatever format they might exist in. He has noted that circular 07/2023, referred to in the Credit Policy guidelines shared by the Department, makes no mention of the five-year residency criteria for non – EU applicants. He further contends that the Credit Policy is stated to be based on guidelines issued by the Minister under section 5 of the Housing (Miscellaneous Provisions) Act and that he is seeking the Guidelines that specifically impose this five-year residency requirement. The applicant said that the credit policy guidelines are not the same as the guidelines issued by the Minister. The applicant said that the Housing Authority creates the Credit Policy based on the Minister’s guidelines, he contends that the Credit Policy, which reflects criteria (such as the residency requirement for non-EU applicants) derived from guidelines issued by the Minister, but that it is not the guidelines themselves.
The applicant further stated that of the three documents issued by the Minister which the Credit Policy references (S.I No. 701/2021, S.I No. 76/2023 and Circular 07/2023) none of them explicitly reference the five year residency requirement. The applicant also argued that Page 2 of Circular 07/2023, provides the following "Please note that the Credit Policy is for local authority use only: it should be treated as a confidential document and should not be shared. It is available on www.housingmanual.ie." He maintains that this clearly demonstrates that the shared Credit Policy is a confidential internal document designed for use in processing Local Authority Home Loan applications, as explicitly described in Circular 07/2023 but that section 5 of the Housing (Miscellaneous Provisions) Act 2009 mandates that ministerial guidelines must be public documents and that accordingly this proves that the Credit Policy guidelines cannot be the guidelines issued by the Minister under section 5.
The applicant has argued that Credit Policy contains a specific residency criterion for non-EU applicants, which is not referenced in either Statutory Instrument 701 of 2021 (as amended by S.I. 76 of 2023) or in the circular referenced within the Credit Policy itself.
The applicant has also argued that the Department's assertion that issuing the revised Credit Policy under a departmental circular is standard practice for amending the Local Authority Home Loan scheme is incorrect. He states that historically, such amendments have been formalized through statutory instruments. He states that the scheme was established under Statutory Instrument 701 of 2021 and later amended by S.I. 76 of 2023. Additionally, the Housing Loans (Amendment) Regulations 2024 (S.I. No. 221 of 2024) further amended the Housing Loans Regulations 2021, broadening eligibility criteria under the Fresh Start principle.
The Department’s submissions
The Department maintains that the guidelines scheduled under this request by both the Agency and the Department are the only Guidelines which issued under section 5 of the Housing (Miscellaneous Provisions) Act 2009. It said that the full title of the document is “Guidelines made under section 5, Housing (Miscellaneous Provisions) Act 2009 – Housing Loans (Credit Policy) Guidelines 2023. It said that the document is commonly called the “Credit Policy”, and that there is no other document issued by the Minister/Department setting out the rules for the Local Authority Home Loan. It said that the scheme was established by S.I 701 of 2021 as amended by S.I 76 of 2023, it said that it provides for the Credit Policy to apply for applications under this scheme. It said that the Credit Policy is amended from time to time, as appropriate, to provide instructions on how scheme rules should be applied. It said that the revised Credit Policy was issued under Departmental circular which would be the normal practice for amendments to a scheme.
The Department also stated that it is the Departmental view that the relevant sections of the Credit Policy guidelines were published on the LAHL website, however it acknowledges that the entire document was not published. The Department said that it is considering its position on the publication of the Credit Policy, it stated that while it was willing to publish most of the existing Credit Policy, it said that the current version contained elements that were not fit for publication. The Department considers that the use of the term appropriate contained in 5(3) also refers to the content of the Guidelines to be published. The Department contends that the relevant sections have been published in an appropriate format on the internet. It said that the entire Credit Policy document was not published as it stated to do so in the opinion of the Department, could impair future decision making in relation to the assessment of loan applications by contaminating the decision making process and impair the integrity and viability of the decision making process.
My Analysis
Having regard to the Department’s submissions and to the record scheduled, I am satisfied that the Guidelines sought by the applicant in his original request are the Guidelines which were scheduled by the Housing Agency. The Department has clearly set out that no other Guidelines were issued under this section, and the Guidelines set out that the Credit Policy complies with appropriate legislation including; Housing Miscellaneous Provisions Act 2009, section 5. It states that the Credit Policy are the guidelines which have been made in respect of the Home Loans Scheme.
Page 1 of the Overview within the Credit Policy states the following “The Minister shall issue guidelines, such as set out in this document, to housing authorities setting out the terms and conditions for making of home loans by housing authorities in compliance with Section 5, Housing (Miscellaneous Provisions) Act 2009, hereafter referred to as the ‘Credit Policy’.
The Credit Policy also states on page 2 that “Housing (Miscellaneous Provisions) Act 2009, Section 5; refers to Credit Policy Guidelines 2021, which the Minister has the power to make under section 5 of the Act of 2009. The Credit Policy are the Guidelines, which have been made in respect of the Home Loans Scheme”
S.I 701 of 2021 which issued from the Minister at the time states that in making the Housing Loan Regulations 2021, “Credit Policy Guidelines” means Housing Loans (Credit Policy) Guidelines 2021, made under section 5 of the Act of 2009. It states that the regulations apply to the making of housing loans by Housing authorities in accordance with the Credit Policy Guidelines. It is clear that the Minister issued the guidelines under this S.I in 2021 originally and then amended the Guidelines with S.I 76 of 2023. Both S.I’s clearly refer to the Credit Policy Guidelines and does not refer to any other Guidelines issued under section 5(3) relating to the Local Authority Home Loan scheme. It is noteworthy, that while the Guidelines do not specifically contain any reference to being issued by the Minister as noted by the applicant, the accompanying S.I specifically states that it was in the exercise of the Minister’s power that such regulations were made.
While I note that the applicant appears to be specifically seeking information on why the residency criteria for Non-EU/EEA applicants was included in the Credit Policy Guidelines, his request specifically sought the Guidelines issued by the Minister under section 5. While the Credit Policy Guidelines include the residency criteria as correctly pointed out by the applicant, it appears that what he is seeking is may be an S.I that specifically directs the inclusion of the residency criteria in the Guidelines.
In addition, the Housing Agency have clearly stated in each of its decisions, that it did not create the Credit Policy guidelines as suggested by the applicant, but that the guidelines were provided in confidence by the Department. While the applicant has stated in his submissions that he sought the guidelines in the form of a circular, statutory instrument his original request to the Agency sought a copy of the guidelines and did not reference either any accompanying S.I or circular, I am satisfied on that basis that any additional S.I or circular which may have accompanied the Credit Policy Guidelines would be outside the scope of this request.
Finally, while I am not required to consider the release of the remainder of the Credit Policy document considering the applicant’s position, I would note that section 5 of the Housing (Miscellaneous Provisions) Act clearly states that the Minister shall publish or cause to be published, in the manner he or she considers appropriate, any guidelines issued under this section. It seems to me that the applicant’s position that there are additional guidelines which exist, may be due to the fact that section 5 appears to mandate the availability of such guidelines to members of the public. However, the Department’s current position is that the Credit Policy is for internal use and will only partially be made available. This seems to me to be in direct conflict with what is set out in section 5 of the Act.
While the Department has interpreted “as it considers appropriate” to relate to the contents of the record which it may publish, it is not apparent to this Office that the term refers to the contents, but rather it seems to me to refer to the places where it may decide to make the guidelines available. This is reinforced by section by section 5(3) which provides that “a housing authority shall make available for inspection by members of the public, without charge, on the internet and at its offices and such other places as it considers appropriate, during normal working hours, a copy of any guidelines issued to it under this section”
I say this notwithstanding the fact that the applicant has stated that he is not seeking the credit policy guidelines, and accordingly, it is not our role to make a definitive finding on that point based on the applicant’s position.
I am satisfied on that basis, that there are no further guidelines which exist and am affirming refusal on the basis that no further records exist in relation to the applicant’s request. I find that section 15(1)(a) applies to the applicant’s request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Housing Agency’s decision. I find that the Agency was justified under section 15(1)(a) of the FOI Act in refusing access to any further records that fall within the scope of the applicant’s request on the basis that no further records exist.
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.
Rachael Lord
Investigator