State in last-minute intervention over constitutional right to housing

The State has been permitted to make a last minute intervention in an important Supreme Court appeal for the purpose of arguing there is no constitutional right to housing.

The appeal, for hearing on November 7th, concerns the housing rights of separated parents with access to their children and the housing obligations of local authorities.

It was brought by a separated father with shared custody and overnight access to his three children after the High Court rejected his challenge to Dublin City Council's decision his housing need is for a one-bedroom unit.

The case centres on interpretation of Section 20 of the Housing (Miscellaneous Provisions) Act 2009 in the context of the entitlement to be considered for social housing and the meaning of “household” under section 20.

The Irish Human Rights and Equality Commission was previously joined to the case to make submissions on the legal issues raised.

During an appeal management hearing on Thursday, the Chief Justice, Mr Justice Frank Clarke, granted an urgent application by Margaret Nerney SC, for the Attorney General, to be joined as a notice party to make submissions on certain issues.

The issues of concerns to the AG include whether there is a right under the Constitution and European Convention on Human Rights to State provision of housing; whether there is an unenumerated right to housing under Article 42A of the Constitution; the rights of family and children under Article 42A and the recognition of the rights of non-marital parental relationships under the Constitution.

Lawyers for the father and IRHEC did not object to the joinder application but Feichín McDonagh SC, instructed by Eileen McCabe, for the father, stressed the focus of their case is on statutory interpretation.

Submissions

Conor Power SC, for the IRHEC, said it seemed the right to housing issue arose from the council’s response to submissions but it was not otherwise in the case.

If the Supreme Court decides to address the issues of concern to the AG, the IRHEC may want to make submissions on those, he added. The Chief Justice said he would join the AG as a notice party.

The right to housing as a constitutional right may not arise in the case, he added. The appeal is against a 2018 judgment of the High Court's Mr Justice Max Barrett who ruled that the council, when deciding the man's application, was lawfully entitled to have regard to factors including having made accommodation available for his ex-partner and children and ensuring efficient use of its housing resources.

The man disputes the council’s identification of his household as comprising a single person and his housing need as a one-bedroom unit. He is living in a one-bed apartment and gets a single person monthly Housing Assistance Payment (HAP).

He claims it is unfair the council assessed his ex partner, based on her status as a separated mother, as entitled to up to €1,900 HAP.

He claims the council is operating an unfair, irrational and discriminatory housing scheme in classifying separated fathers as “single” persons when allocating housing.

His case centres on interpretation of section 20 of the 2009 Act which states “household” means, inter alia, “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 argues the council, in determining the “reasonable requirement to live together”, inappropriately took into account factors including the purpose of the 2009 Act, its provision of accommodation to the mother and children and the implications for housing resources.