On 19th November, 2018, Justice Barrett handed down a decision in Fagan & Ors v Dublin City Council. The case concerned a father, who although separated from the mother of his children, still had overnight access to his children during the week. This fact was known to the Council from 2017, however, upon reviewing Mr. Fagan’s application for social housing under s.20 (1) (c) of the Housing (Miscellaneous Provisions) Act 2009, the Council found Mr. Fagan’s housing need to constitute that of a single person. The issue considered in the written judgement was that of the appropriate housing allocation to Mr Fagan, in light of the access to his children.
In submissions, counsel for Mr. Fagan contended that there was a fettering of discretion by the Council and that his case should be considered given reference to the text instilled in s 20 (1) (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”. When considering the Council’s decision not to regard Mr. Fagan’s housing need as more than that of a single person, the court held that there was “no legal deficiency to present in the Council’s decision/decision-making when it comes to Mr. Fagan’s application for social housing”. Upon this, the court denied Mr. Fagan the reliefs sought in his application and found that the Council’s interpretation of s. 20 (1) (c) was permissible.
The decision in Fagan shows a continued trend of a deferential approach by the courts to decisions of the Council. MLRC notes that the Council’s interpretation of ‘reasonable requirement’ is quite restricted and does not have regard to the fact that Mr. Fagan is:
- The father of the child;
- That there was a voluntary overnight access agreement in place between the separated parents;
- That the children had overnight access to their father;
- That the family life of Mr. Fagan and his children is infringed upon by not allowing them to reside together as per the terms of the agreement.
It is clear that the refusal of the court to quash the decision of the Council will continue to have a direct impact on the ability of the children to enjoy a family life with their father, particularly in the current housing context. It is also noteworthy that any decision of the Dublin City Council to deny Mr. Fagan an elevated level of the Housing Assistance Payment (HAP) is at variance with practice in other housing authorities in the Dublin area. It appears that Mr. Fagan is receiving differential treatment as a separated father who has regular access to his children. The Council’s approach appears to be at variance with the Council’s equal treatment obligation under the Equal Status Acts 2000-2015, and its Public Sector Duty under S.42 of the Irish Human Rights and Equality Commission Act 2014, to eliminate discrimination and protection human rights in the performance of its functions.
MLRC did not act in this case but is currently advising four separated fathers on very similar matters. Mr Fagan’s case clearly shows the court’s clear reluctance to interfere or second guess the determination of Councils in the discharge of its functions relating to social housing. We note that solicitor for the applicant confirmed the applicant’s intention to appeal, and we will follow the progress of the case with interest.