The Irish Supreme Court has ruled that assessment of whether a family have “a reasonable requirement to live together” for the purposes of social housing assistance must be conducted on a case-by case-basis.
The man in this case, Mr. Fagan, was the father of three children aged eleven, five and four. He was separated from the mother of the children, but the relationship remained amicable. The couple struggled for a number of years to secure permanent housing to support their needs, often residing in emergency accommodation.
In August 2017, following the separation, they filed separate applications for housing support from Dublin City Council. Having agreed that they should enjoy joint custody of their children, each parent sought to include the children as part of their household. Mr. Fagan submitted that he had overnight access to the children 3 days per week.
When assessing Mr. Fagan’s application, the Council categorised his household as a one-person household. It concluded that, for the purposes of section 20(1) of the Housing (Miscellaneous Provisions) Act 2009 (the 2009 Act), he did not “have reasonable requirement to live together” with his children, even though at the time he was co-parenting the children with his former partner.
Section 20 of the 2009 Act defines “household” as a person who lives alone, two or more persons living together and two or more persons who do not live together but who, “in the opinion of the housing authority, have a reasonable requirement to live together”.
The consequences of the Council’s assessment were two-fold: firstly, it had the ability to significantly impact upon the relationship he had with his three children as they would have one bedroom to share and, secondly, if the Council were to grant him Housing Assistance Payment (HAP), the payment would be confined to a single person household.
Mr. Fagan appealed the decision by way of an internal appeal process but was unsuccessful. Dissatisfied with the outcome of his application, Mr. Fagan issued judicial review proceedings in the High Court seeking primarily an order of certiorari of the Council’s decision to classify him as a single person and in assessing his housing needs on that basis.
Before the High Court on 19 November 2018, Barret J refused the relief sought. He found that the Council acted within the limits provided to them by legislation when assessing Mr. Fagan’s application. He found that the Council had taken into account relevant considerations and had disregarded irrelevant considerations.
An appeal to the Supreme Court was granted on the basis that Mr Fagan raised issues of general public importance. Mr. Fagan argued that unlike most other local authorities, Dublin City Council would not even consider his eligibility for social housing with additional space for his children, which prevented them being adequately assessed for their housing need. Ultimately, Mr. Fagan maintained that the Council unduly fettered the discretion it enjoyed under section 20(1)(c) based upon its consideration of available resources.
In handing down the judgement, Ms Justice Mary Irvine stressed the appeal was primarily about how a housing authority should lawfully conduct assessments under section 20(1). She outlined that the standard that must be complied with was an “objective yardstick” as to whether there was reasonable requirement to live together. In conducting this assessment, the Council was entitled to interrogate the personal circumstances of the applicant and those with whom they wanted to live. According to the Court, “In making its assessment in a case such as this the Council might, for example, want to be satisfied (i) that the applicant was the father of the children with whom he required to reside, (ii) that the relationship with the children’s mother was at an end and that he could no longer share any accommodation she might have (iii) that he was genuine in his stated requirement to have his children reside with him three days a week and (iv) that he had the mother’s agreement or was entitled to custody/access on this basis as a matter of law.”
Irvine J held that it was clear that the decision of the housing authority must be based solely on the specific requirements of the applicant, and concern as to availability of resources fell outside the test envisaged by section 20(1). She continued that to classify every parent as a one-parent household on foot of resource considerations on the basis that their children were already provided for as part of the household of the other parent constituted a “de facto” blanket policy on the Council’s part. Such a policy was outside the terms of section 20(1) because it prevented any case-by-case assessment and meant, regardless of their rights and desires as joint custodians of their children, their requirement to live with their children would be automatically assessed as “objectively unreasonable”.
The Council must now reconsider Mr. Fagan’s application based on the relevant considerations.
The Irish Human Rights and Equality Commission intervened as amicus curiae in this case.
Click here for the decision in Fagan v Dublin City Council.
Click here for a PILA Bulletin article on the High Court decision.