A separated father who has shared custody and overnight access to his three children has lost his legal challenge to a decision his housing need was for a one bedroom unit.

The High Court found Dublin City Council was lawfully entitled to have regard to factors including it has made accommodation available for the ex partner and children and ensuring efficient use of its housing resources.

Mr Justice Max Barrett said he could see “no legal deficiency” in the council’s decision making when it came to the man’s application for social housing.

Eileen McCabe, solicitor for the man, who is aged in his twenties, said he will be appealing the judgment.

The man separated from his partner in summer 2017 and applied for social housing in September 2017. He challenged the council’s identification of his household as comprising a single person and its determination his housing need was for a one bedroom unit. He claimed the council is operating an unfair, irrational and discriminatory housing scheme in classifying separated fathers as “single” persons when allocating housing.

The scheme breached his rights, including to equal treatment, under the Constitution and the European Convention on Human Rights Act, he claimed.

‘Agreement of parents’

In his reserved judgment, Mr Justice Max Barrett noted the council knew from at least August 2017 that the man had an access agreement with his former partner as both had signed an ‘agreement of parents’ form issued by the council.

He said social housing “assessment” under Section 20 of the Housing (Miscellaneous Provisions) Act 2009 is separate from social housing “allocation” which occurs under an allocation scheme adopted by the Council under various provisions of the 2009 Act. Section 20 states “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”.

The man contended that no, or no proper and adequate assessment of him and his children, ever took place under Section 20 and that what happened here involved a fettering of discretion by the council.

This application essentially centred on what is meant by the reference in Section 20.1.c to “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”, the judge said.

When it comes to Section 20.1.c, it is the “opinion of the housing authority” that is determinative, he said. Others may reasonably hold a different opinion to the council but, so long as the council’s opinion is lawfully reached and held, the opinions of those others, even of the court, “does not matter in law”.

He examined the meaning of the phrase “have a reasonable requirement to live together” and analysed a number of cases in that regard.

‘Societal norm’

What is at play here is an “impersonal objective standard which appeals to an objective societal norm” and the 2009 Act being interpreted “with liberality” having regard to its social purposes plus recognition of the claims of others and the nature and scale of the council’s housing responsibilities, he said.

The council had said, in determining the reasonable requirement to live together matter, it had regard to factors including the purpose of the 2009 Act, accommodation being made available to the mother and children and the prospect of under-utilisation of housing resources those if bedrooms were allocated to the three children in two different dwellings.

The council’s approach to its decision making under Section 20.1.c was “practical, proper and lawful”. While this was a “wide-ranging” application, his judgment was confined to the issue of statutory interpretation, he also said.

The man is currently living in a one-bed apartment and receives a single person monthly Housing Assistance Payment (HAP).

He said the council had assessed his former partner, based on her status as a separated mother, as entitled to up to €1,900 HAP and claimed this was unfair as both parents share custody and access.