Judge finds in favour of separated father wrongly treated as single person
by Mary Carolan
The Irish Times, Thursday 30th October 2014
A High Court ruling in an action by a separated father of four may have signficant implications for the welfare entitlements of one-parent families. Among the court’s findings is the man was wrongly treated as a single person for the purpose of considering his application for rent allowance.
The unemployed Dublin man, who has joint custody of his children under a separation agreement with his ex-wife who lives in the west, won an order requiring the Department of Social Protection reconsider its refusal to grant him adequate rent supplement to allow him rent a home large enough to accommodate them.
Ms Justice Marie Baker ruled that reconsideration must be in accordance with her findings including a degree of support and dependency does exist between the father and children due to the joint custody arrangements, his provision for them via a capitalised payment under the separation agreement and the fact the mother lived in another town.
Given the joint custody arrangements, the children cannot be viewed as living primarily with one parent, or having one “primary” carer, as the deciding officer had found. The actual needs of the children are more complex, have been assessed by their parents as involving joint custody, and cannot be met in one location only, she said.
She found the department deciding officer applied the wrong legal test by assessing only the father’s accommodation neeeds without having any regard to the complexity of his family relationships, needs of the children and the “intrinsic interconnectedness” of those needs with those of their father.
The children live with their mother, who is working, and her new partner in the family home. Until his separation in 2011, the man cared for the children full-time at home.
He returned to Dublin in early 2012 to try and find work and lives with his parents. While he and his children have been deemed eligible for social housing, he has been told he will be on a waiting list for five years.
He challenged decisions he is entitled only to the €475 monthly rent supplement payment made to single persons. He had sought €900 to cover rent of a house to accommodate himself and regular visits from his children and give effect to the wish, supported by his ex-wife, of his oldest child, aged 16, to live with him.
The deciding officer found the housing and other basic needs of the children were met by their mother and, as he had received no increase in respect of the children on his primary social welfare payment, they were not dependent on their father for support and could not be regarded as dependent children.
Ms Justice Baker noted the legislation identifies a qualified child as one dependent for their “support” on a parent or guardian. While the class of relevant support was confined to financial support, that included more than monetary support and the deciding officer took an “overly narrow” view of what might constitute financal support.
In not having regard to the actual dependence between the man and his children, the officer incorrectly interpreted the relevant legislation so as to exclude the children from the category of “qualified” children in the rent application.
The deciding officer applied the incorrect test in treating him as a single man rather than the parent of four qualified children. A single person could not refer to a person’s marital status but rather to a person who lives alone.
The deciding officer erred in not having regard to the fact the children’s accommodation needs when they are visiting their father in Dublin are an element in the test of whether they are “qualified” children, she said.
The test for an entitlement to the allowance was whether a person can show their means are insufficient to meet their needs and those needs are assessed to include those of his children if they are qualified children under the relevant law, she said.
It was arguable the needs of the children may include their accommodation needs when they visit their father in Dublin and his argument he needed accommodation for their overnight, weekend and holiday visits was a “real” one.
The judge stressed she was dealing only with legal issues and not the merits of the father’s application for rent allowance.
While she was not saying a deciding officer may not come to the same decision after reassessing the man’s application, the officer’s decision took an overly narrow view of the test of the needs of the children for the purpose of considering whether they are qualified children.
This was not to say the needs of the children had to be independently assessed, the judge stressed. Her decision was not concerned with the rights of the children as they were not parties to the case, she added.