Fagan v Dublin City Council

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 19 November 2018
• Neutral Citation: [2018] IEHC 642
• Docket Number: 2017 No. 801 JR
• Court: High Court
• Date: 19 November 2018

[2018] IEHC 642

THE HIGH COURT

Barrett J.

2017 No. 801 JR

Between:

DARREN FAGAN, SENNA COOGAN (a minor), SCOUTLARUE COOGAN (a minor),

AND

DARREN COOGAN (a minor), suing by their father and next friend DARREN FAGAN

APPLICANTS

– AND –

DUBLIN CITY COUNCIL

RESPONDENT

Social housing – Housing (Miscellaneous Provisions) Act 2009 s. 20 – Legal deficiency– Applicants seeking social housing – Whether proper/adequate assessment of the applicants took place under s. 20 of the Housing (Miscellaneous Provisions) Act 2009

Facts: The first applicant, Mr Fagan, consequent upon the separation of himself and his ex-partner, applied on 13.09.2017 to the respondent, Dublin City Council, for social housing. Pursuant to s. 20(1)(c) of the Housing (Miscellaneous Provisions) Act 2009, the Council identified Mr Fagan's household to comprise a single person and determined his housing need was for a one-bedroom unit. Mr Fagan contended that no proper/adequate assessment of him and his children ever took place under s. 20, and that what did take place involved a fettering of discretion by the Council. In essence, Mr Fagan's application to the High Court centred on what is meant by the reference in s. 20(1)(c) to "2 or more persons who do not live together but who, in the opinion of the housing authority concerned, have a reasonable requirement to live together".

Held by Barrett J that he saw no legal deficiency in the Council's decision/decision-making when it came to Mr Fagan's application for social housing.

Barrett J held that the court would decline all of the reliefs sought of it by Mr Fagan.

Reliefs refused.

JUDGMENT of Mr Justice Max Barrett delivered on 19th November, 2018.

1 Mr Fagan and his ex-partner are co-parenting their children. By this the court understands them to mean that like any responsible couple whose cohabitation has ended but who became parents in the course of that cohabitation, they are sharing the duties of rearing their children. Here this co-parenting takes the form of Mr Fagan's enjoying overnight access to his children during the week, the precise level of overnight access seeming to vary. That Mr Fagan engages in such an arrangement with his ex-partner has been known to the Council since, at least, 28.08.2017 when the two of them indicated, in an ' Agreement of Parents', a standard-form document issued by the Council for completion, that they 'have agreed an Overnight Access Arrangement...for the...child/ren with...their...father'. There is suggestion in the pleadings that the Council was in any event familiar with the arrangement from its ongoing course of dealings with Mr Fagan and his ex-partner.

2 Consequent upon the separation of himself and his ex-partner, Mr Fagan applied on 13.09.2017 to the Council for social housing. Pursuant to s.20(1)(c) of the Housing (Miscellaneous Provisions) Act 2009, as amended, the Council identified Mr Fagan's household to comprise a single person and determined his housing need was for a 1-bedroom unit. Per s.20(1)-(2) of the Act of 2009:

'(1) For the purposes of this section "household" means – (a) a person who lives alone, (b) 2 or more persons who live together, or (c) 2 or more persons who do not live together but who, in the opinion of the housing authority concerned, have a reasonable requirement to live together. (2) Where a household applies for social housing support, the housing authority concerned shall, subject to and in accordance with regulations made for the purposes of this section, carry out an assessment (in this Act referred to as a "social housing assessment") of the household's eligibility, and need for, social housing support for the purposes of determining – (a) whether the household is qualified for such support, and (b) an appropriate form of such support'.

3 Social housing assessment under s.20 is separate from social housing allocation. The latter occurs under an allocation scheme adopted by the Council...