Fagan v Dublin City Council

• Jurisdiction: Ireland
• Judge: Irvine J.
• Judgment Date: 19 December 2019
• Neutral Citation: [2019] IESC 96
• Court: Supreme Court
• Docket Number: [S:AP:IE:2019:000003]
• Date: 19 December 2019

[2019] IESC 96

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Clarke C.J.

Mac Menamin J.

Charleton J.

O'Malley J.

Irvine J.

[S:AP:IE:2019:000003]

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

APPELLANTS/APPLICANTS

AND

DUBLIN CITY COUNCIL

RESPONDENT

AND

IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

AMICUS CURIAE

AND

THE ATTORNEY GENERAL

NOTICE PARTY

Social housing support – Housing (Miscellaneous Provisions) Act 2009 s. 20(1) – Judicial review – Appellant seeking certiorari of the respondent’s decision to classify him as a single person and in assessing his housing needs on that basis – Whether the respondent took into account irrelevant considerations and did not give adequate weight to relevant considerations

Facts: The respondent, Dublin City Council, when assessing the application of the first appellant, Mr Fagan, for social housing support, categorised his household as a one-person household. It concluded that, for the purposes of s. 20(1) of the Housing (Miscellaneous Provisions) Act 2009, he did not “have a reasonable requirement to live together” with his children, the minor applicants, even though at the time he had joint custody and was co-parenting the children with his former partner. Mr Fagan appealed the Council’s decision by way of an internal appeal process but was unsuccessful. He 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. By judgment delivered on 19th November, 2018, Barrett J refused the relief sought. The High Court judge found that, in assessing Mr Fagan’s application and classifying his household for the purpose of s. 20(1) of the 2009 Act, the deliberations that had been carried out by the Council were within the limits provided for by the legislation. The appellant appealed to the Supreme Court. At the centre of this appeal lay the question of how a housing authority should apply s. 20(1) of the 2009 Act. The appellants’ principal submission was that the Council, in its deliberations under s. 20(1)(c), took into account irrelevant considerations and did not give adequate weight to relevant considerations.

Held by Irvine J that the High Court judge was wrong to set the four corners for the assessment prescribed by s. 20(1) as he did. Irvine J held that although the Council enjoys significant discretion when assessing whether two or more persons should be classified as a household for the purposes of s. 20(1)(c), it must form its opinion as to whether the applicants have a reasonable requirement to live together on a case-by-case basis; this requirement is to be assessed with reference to the individual circumstances of the applicants and these are the plain and ordinary meanings of the words contained in the section. Irvine J held that there are no words to steer a housing authority’s deliberations in any other way, e.g. to the effect that they need to have regard to the resources available to them; the focus lies on the requirement of the applicant/applicants. Irvine J also considered it unlikely that the Oireachtas would have intended the section to be interpreted in a manner which undermines children’s rights of equal access to their parents.

Irvine J held that the appeal would be allowed.

Appeal allowed.

Judgment of Irvine J. delivered the 19th day of December, 2019.

1 This appeal arises out of judicial review proceedings to set aside a decision of the respondent (“the Council”) in its capacity as the housing authority for Dublin city.

2 When assessing the first named appellant's (Mr. Fagan's) application for social housing support the Council categorised his household as a one-person household. It concluded that, for the purposes of s. 20 (1) of the Housing (Miscellaneous Provisions) Act 2009 (“the 2009 Act”), he did not “have a reasonable requirement to live together” with his children, the minor applicants, even though at the time he had joint custody and was co-parenting the children with his former partner. The consequences of that determination were first, that for the purposes of considering the type of housing that might be allocated to him under s. 22 of the 2009 Act, Mr. Fagan would be excluded from consideration for accommodation with a separate bedroom for his children, thus significantly impacting on his relationship with his children as hereinafter described. Second, insofar as the Council might decide, in lieu of the provision of accommodation, to meet his housing needs by making a housing assistance payment (“HAP”), the payment would be confined to that which applies to a single person household.

Scope of the appeal

3 Although I will endeavour to do so in greater detail later in this judgment, I will first set out the general scope of the appeal. Instructive in this regard is the determination of this court setting out why leave to appeal was granted and, more crucially, the question to be answered on the appeal. Paragraphs 4 and 5 thereof make clear that at the centre of this appeal lies the question of how a housing authority should apply s. 20(1) of the 2009 Act.

4 4. Considerations that go beyond this question are therefore not of primary relevance. I will nonetheless return later to consider in some small amount of detail how the statutory scheme operates. Suffice for the moment to refer to that section of the Act which is core to the appeal.

5 Section 20 of the 2009 Act, in relevant part, provides:

“(1) For the purpose of this section “household” means-

(a) a person who lives alone,

(b) two or more persons who live together, or

(c) two 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) the most appropriate form of any such support.”

It is the Council's decision that the requirement of Mr. Fagan and his children that they live together is not reasonable for the purposes of s. 20(1)(c) that is the focus of this appeal.

Background to the appeal

6 It is important to record at the outset that the facts relevant to this appeal, and to which I will now refer, are agreed between the parties. Of equal importance is the fact that the Council fully accepts the bona fides of Mr. Fagan in his application for social housing support which would allow him have his three children stay with him overnight approximately three times a week.

7 Mr. Fagan is the father of the other appellants, his children aged eleven, five and four. Although he is separated from the children's mother, they appear to maintain a good relationship. Unfortunately, as a family they have experienced difficulty in securing permanent housing and have had to rely on the Council for their housing needs. Regrettably, from time to time they have had to reside in emergency accommodation.

8 In August 2017, Mr. Fagan and his partner decided to separate. As a consequence, they filed separate applications for housing assistance. Having agreed that they should enjoy joint custody of their children, each parent sought to include the children as part of their household when applying to the Council for social housing support. The mother appears to have been registered by the Council as a separated mother with three children and her application progressed on that basis. Mr. Fagan filed the application which is relevant to this appeal on 13th September, 2017. As part of that application he completed a form provided by the Council stated to be “FOR USE IN THE ABSENCE OF COURT DOCUMENTS OR SEPARATION AGREEMENT” which recorded, inter alia, that the children resided on a day-to-day basis with their mother but that it had been agreed that the father would have “overnight access”. Whatever the precise meaning or status of this document the parties are agreed that the parents have joint custody of their children and that Mr. Fagan made known his right to overnight access 3 days a week and that he was anxious to parent his children on that basis.

9 The Council's Statement of Opposition makes clear that, in its assessment of whether Mr. Fagan had a reasonable requirement to live with his children such that his household might be categorised as falling within the provisions of s. 20 (1)(c) of the 2009 Act, it took the following factors into account:

a. Matters required under s. 20 of the Housing (Miscellaneous Provisions) Act 2009;

b. information relevant to the applicants’ housing need;

c. the purposes of the Housing Acts 1966-2014;

d. the accommodation available and/or to be made available to the minor applicants with their mother;

e. in accordance with s. 69 of the Local Government Act 2001, the resources available or likely to be available to the Council and the need to secure the most beneficial, effective and efficient use of such resources;

f. the prospect of under-utilisation of its housing resources in the event of allocation of bedrooms to the minor applicants in two separate dwellings;

g. the need of others, including children, on its housing lists for multi-bedroom accommodation.

10 Based on its aforementioned assessment, the Council considered that Mr. Fagan's needs and those of his children did not meet the test provided for in s. 20(1)(c) of the 2009 Act. He was informed that he qualified for a housing assistance payment based on the housing needs of a...