Ms. Mariyam Cementwala (Represented by Disability Legal Resource) V Ms. D. Colbert, Winters Property Management & Crescent Green Ltd.
Complaint under the Equal Status Act 2000
Equal Status Act, 2000 - Direct Discrimination, Section 3(1)(a) - Disability, Section 3(2)(g) - Reasonable accommodation, Section 4 - Disposal of premises and provision of accommodation, Section 6 - Refusal to let an apartment
DEC - S2005 - 184-186
The complainant referred a claim against each of the respondents to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the cases to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
Summary of the Complainant's case
The complainant arrived from the United States in 2002 to pursue a year's study with NUI Galway. She has limited vision and is a long term long cane user. She went to see the apartment for rent, owned by the Ms. Colbert and her son, on 3/9/2002. While concerns were raised as to how she would manage the stairs outside leading to the apartment front door on the first floor, the complainant liked the apartment and asked for two days to consider it. Two days later she called the respondent to inform her that she had decided to rent the apartment. It was agreed they would meet later that day to swap the deposit, advance rent and the keys. Ms. Colbert stayed for a while and helped the complainant to make up the bed. Ms. Colbert agreed to return the next day and to address the faults identified in due course. At 4:30pm next day the complainant called Ms. Colbert and was told to talk to Ann Monahan. Ms. Monahan told Ms. Cementwala that Ms. Colbert no longer wanted to rent the apartment to her because of safety issues and that she, Ms. Colbert, had been reminded of this by the housing management committee. She wanted her out the next day. Ms. Cementwala called the professor who would be supervising her research while in Ireland, Professor Quinn, and discussed the situation with him. The next day was a Saturday, during which two long conversations took place, 2 hours and one hour respectively, raising many issues. Ann Monahan was present as was Professor Quinn and Mr. Kenna. Ms. Cementwala had come to Ireland to study with Professor Quinn in international and comparative disability law and Padraig Kenna is a Ph.D. student of his specialising in housing law. Between the two conversations the complainant and her group went to look at another apartment which she found suitable and was assured that her negotiation of the stairs there would not present the same problems. The complainant did not want:
- To further upset those who had helped her
- The respondent to go to the University which the complainant alleges she threatened,
- The respondent to come live with her which had been suggested or
- To live without heat or water, which was Ms. Cementwala's interpretation of something said during the conversations.
Finally feeling under pressure from Ms. Colbert and knowing that the other apartment would be let quickly, she agreed to move the next day, Sunday. Ms. Colbert arrived on Sunday and threw some of her things into bags.
With regard to the other two respondents, Winters Property Management Ltd. and Crescent Green Ltd. Ms. Cementwala stated that Ms. Colbert mentioned that others had prevailed on her to refuse to let the apartment to Ms. Cementwala. This was supported by a number of witnesses. In all cases those others were said to be connected with the 'management committee'. Ms. Colbert mentioned that there had already been a civil claim against the complex and that it would be unfair on the other owners to continue the tenancy. On the basis of these assertions the complainant decided to also lodge complaints against Winters Property Management Ltd. and Crescent Green Ltd.
In addition to the alleged direct discrimination, Ms. Cementwala alleges that the respondents failed to provide her with reasonable accommodation in such a way as would have allowed her to rent the apartment without difficulty.
Dee O'Farrell, National Council for the Blind of Ireland, (NCBI), Witness for Ms. Cementwala
Ms. O'Farrell attended the hearing as her colleague Ms. Deirdre Towey was unable to attend. Ms. Towey is Regional Manager and Mobility Officer for the NCBI and she worked with Ms. Cementwala to help her identify appropriate routes between home and the University. Ms. Towey submitted an extract from her casenotes which details her interaction with Ms. Cementwala and includes reference to their contacts with the Equality Authority on Friday afternoon, 6/9/02. Both Ms. Towey and Ms. O'Farrell identified Ms. Cementwala as a competent, safe and independent long cane user and both have identified the stairs as presenting no special difficulty for Ms. Cementwala, a trained blind person.
Ann Monahan, International Student Officer, NUIG, Witness for Ms. Cementwala
Ms. Monahan's role, as International Student Officer, includes orientation of students and helping with student problems including accommodation, emotional, practical and academic problems. Ms. Monahan became aware that Amhra House was unsuitable for the complainant and her friend since rules may have been too restrictive. However she was concerned that the University may have already paid the deposit for accommodation for both students in Amhra House and that the students would have to suffer this loss themselves. She took the students to see the accommodation at Ms. Colbert's and they loved it. Ms. Monahan said to Ms. Cementwala that she was a bit concerned about the stairs and asked if they would be a problem. Ms. Cementwala said no. Ms. Colbert repeated the same concerns. Ms. Cementwala offered to sign a waiver on the matter. On the Friday she was told that Ms. Colbert wanted her out of the apartment because the management committee said the owner would not be covered by insurance if Ms. Cementwala had an accident. In addition, Ms. Colbert was even more concerned since Ms. Cementwala's friend would not be moving in with her. Ms. Colbert said she wanted Ms. Cementwala out and asked if Ms. Monahan could tell her. After some persuasion Ms. Colbert said Ms. Cementwala could stay overnight. Ms. Cementwala was upset when she was told. On Saturday morning Ms. Colbert repeated her reasons for wanting Ms. Cementwala to leave. Professor Quinn and Mr. Kenna had also arrived and Ms. Monahan suggested that Ms. Colbert get help as she was alone. She felt it was a question of balance. During a break in discussions Ms. Monahan went with Ms. Cementwala and the others to view another apartment. Ms. Monahan was not aware that Winters was involved with either property, Crescent Green or the complex where Ms. Cementwala finally settled. She had contact with Winters property Management Ltd. and always found them very professional.
Professor Gerard Quinn, Witness for Ms. Cementwala
Professor Quinn is based in the Law Faculty of NUIG and he was the supervisor of Ms. Cementwala's research while she was here. He is head of the department, which is an onerous position, and he has little time to assist individual students. In relation to Ms. Cementwala and her fellow student he arranged temporary accommodation for their arrival in Ireland. He was subsequently aware that Ms. Cementwala had arranged her own permanent accommodation. On Friday 6/9/02 he received a call from Ms. Cementwala telling him that her landlady wanted to terminate their arrangement. While not a property lawyer, he suggested she call Threshold and the Equality Authority. Later that evening he called Mr. Kenna and asked his opinion. They both agreed to be present the next day. Professor Quinn felt an obligation, morally and pastorally. He spoke only once during the Saturday conversations stating that while he was unsure of arrangements under the Landlord and Tenant legislation he felt that Ms. Cementwala was entitled to one month's notice since she had paid, and the respondent had accepted, her deposit and advance rent. He stated that during discussions there was talk about insurance and litigation, either pending or complete. When asked at the hearing if the landlady's behaviour was threatening he stated that she was quite distressed. Points were put to her that were not entertained. When asked whether Ms. Colbert may have felt confronted he stated that he had no intention to confront anyone and was there only because he had a pastoral responsibility. He also stated that, in his opinion, Ms. Cementwala had no difficulty on the stairs. When asked at the hearing who was the committee Professor Quinn stated that he did not know and said the sort of language used was 'it would be unfair to others if the letting went ahead'. In his written statement Professor Quinn stated
"...... At times the Landlady seemed to be implying that the relevant insurance contract would not cover Mariyam's presence. At times she seemed to be implying that Mariyam's presence would have the effect of hugely hiking the insurance premia for all the owners but did not refer to anything specific in the insurance contract. I remember thinking that this logic would also apply to visitors with disabilities but could not imagine that there would be a rule barring visitors with disabilities to an apartment complex.
I gathered from this that the Landlady felt that there was a significantly higher risk of Mariyam injuring herself on account of her blindness. She used words to the effect that if Mariyam were her daughter she would want her in a much safer location. I remember feeling that that would defeat the whole point of modern disability policy which is integration rather than segregation......."
Professor Quinn closed his written statement by saying "The whole episode made me feel sick and ashamed to be Irish."
Summaries of the Respondents' Cases
Ms. Doreen Colbert
Ms. Colbert is a retired lady who, along with her son, owns an apartment which was for rent in September 2002. Ms. Cementwala and her fellow student came to see the apartment and subsequently Ms. Cementwala decided to rent the apartment while her friend did not. After helping Ms. Cementwala move in, make the bed etc., Ms. Colbert returned home at 11:30pm and spoke to her husband. She was very concerned and after spending six hours with Ms. Cementwala she felt she had made a mistake by agreeing to rent to her. Ms. Colbert's husband was very upset and told her that she had a moral duty to the girl and Ms. Colbert agreed. She was aware that Ms. Cementwala had secured an apartment in Amhra House student accommodation which was disability friendly and she felt that this would be more suitable than her apartment with the metal stairs leading to the first floor of the complex. She decided she would not let Ms. Cementwala even settle in if there was somewhere else for her. On the Saturday morning Ms. Colbert went to the apartment, thinking it would be just herself, Ms. Cementwala and Ann Monahan. However, Ms. Cementwala also had Professor Gerard Quinn and Padraig Kenna present. Ann Monahan suggested that perhaps Ms. Colbert would like to contact someone who could be with her during the discussions. Her daughter subsequently joined her. Ms. Colbert stated that, on her conscience she could not leave Ms. Cementwala there alone, particularly now since her friend was not renting with her. She had a genuine concern for the girl whose vision was 80% impaired. She did help Mariyam pack to leave. She was supposed to leave at 12 noon, but when she arrived Ms. Cementwala had only some of her things organised. The apartment was vacant for some time after this incident but was subsequently let to a dentist. He had no disability that Ms. Colbert was aware of. Given that a fully sighted person had already had an accident on the stairs and made a claim against the complex, Ms. Colbert asked what judge would say it was okay to let to a visually impaired person. Ms. Cementwala might be coming home in the evenings with books and shopping and still have to use her cane on the stairs.
John Gallagher, Consulting Engineer, witness for Ms. Colbert.
Mr. Gallagher had acted for the individual who had fallen on the stairs and had presented a report on the stairs in court. The case settled in the Circuit Court. While Mr. Gallagher stated that the stairs are unusual since they are constructed of open steel grating which is more normally used in industrial premises than apartments and while he was content that they conformed with what might be defined as 'semi-public' stairs, he found the stairs unsatisfactory because of the variations in goings and riser heights. He was also not content with the nosings. The stairs were built before the publication of Technical Guidance Document M - Access for People with Disabilities which was published in 2000 by the Minister for the Environment under Article 7 of the Building Regulations. Mr. Gallagher's opinion is that the stairs are below standard and dangerous. The open grating of the stairs were disconcerting as one could see the ground both on the steps and through the risers. The wearing of high heels would also be dangerous. In addition, in relation to the instant complaint, he felt that a long cane might get caught in the open grating of the stairs. Under cross-examination at the hearing MR. Gallagher stated that in his opinion the stairs were unsafe for everyone. He felt that the openness of the treads might create difficulties for a cane user. He stated that he had no experience in relation to whether or not the stairs presented a greater danger for a person with a disability, although as an engineer he knew the guidelines.
Michael Duffy, Manager of Amhra House, Witness for Ms. Colbert
Mr. Duffy described the nature of the accommodation in Amhra House and explained that Ms. Cementwala had made a booking for accommodation there. She faxed her booking form to him from the US incorporating a note about payment and finishing with "I very much want the place". On 9/9/2002 Mr. Duffy wrote to the Director of Student Accommodation NUIG stating that he had still not heard from Ms. Cementwala even though he had held the place for her.
Winters Property Management & Crescent Green Ltd.
Mr. Winters for Winters Property Management Ltd. and Crescent Green Ltd. stated that the companies were not aware of any difficulties in respect of service provision to the complainant until they received correspondence from the Tribunal informing them of the complaints received. The steps opening onto the street have been locked since before Winters Property Management were appointed in 1997. Crescent Green Ltd is a company whose members are made up of the leasehold purchasers of the apartments in the complex. Members are elected to the committee and these are the directors of the company. Decisions about the management of the property are taken at meetings and passed to the management agent, Winters Property Management Ltd. Winters Property Management Ltd. also manages the property in which the complainant eventually settled and stayed for her period of study in Ireland. Neither company received a request to open up the roadside stairway, and if they had it would have been referred for discussion at one of the company meetings. Ms. Colbert is neither an employee nor an agent for either of the companies.
Conclusions of the Equality Officer
Prima Facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Applicability of the discriminatory ground (in this case the disability ground).
(b) Evidence of specific treatment of the complainant by the respondent.
(c) Evidence that the treatment received by the complainants was less favourable than the treatment a person without a disability or with a different disability received, or would have received, in similar circumstances.
If and when those elements are established, the complainant has established a prima facie case and the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
Prima Facie case - Ms. Colbert
Section 6 of the Equal Status Act, 2000 states:
6. -- (1) A person shall not discriminate in --
(a) disposing of any estate or interest in premises,
(b) terminating any tenancy or other interest in premises, or
(c) providing accommodation or any services or amenities
related to accommodation or ceasing to provide accommodation
or any such services or amenities.
I find that section 6 refers to this case in respect of the termination of Ms. Cementwala's tenancy (Section 1(b)) and/or in respect of the cessation of the provision of accommodation (Section 1(c)) to Ms. Cementwala. The Section prohibits discrimination under the 9 grounds, including disability, in respect of these services.
In respect of the three criteria mentioned above, (a) to (c), it was agreed that
- the complainant is disabled in terms of the Act,
- that the tenancy was ceased, and
- that the tenancy was ceased because of Ms. Cementwala's impaired vision and that the apartment was subsequently let to a person with no known disability.
On that basis I am satisfied that the complainant was less favourably treated than a person without a disability in similar circumstances and that she has established a prima facie case of direct discrimination on the disability ground in respect of the claim against Ms. Colbert.
Reasonable Accommodation, Section 4
The complainant has also stated that there was a failure to provide her with such facilities as would render it possible or easier for her to avail of the accommodation in accordance with Section 4. Ms. Colbert is a service provider in terms of Section 4 on the basis of Section 4 (6)(d).
Section 4(1) is as follows:
4. -- (1) For the purposes of this Act discrimination includes a
refusal or failure by the provider of a service to do all that is reasonable
to accommodate the needs of a person with a disability by providing
special treatment or facilities, if without such special treatment
or facilities it would be impossible or unduly difficult for the person
to avail himself or herself of the service.
It is my understanding that Ms. Cementwala contends that she did not require any special treatment or facilities in order to avail of the service, i.e. accommodation. Access to the upper level of the complex is normally via the metal stairs. However alternate solid stairs of concrete exist but these are always locked because of security issues as they open onto the street. The complainant has suggested that access via these stairs might have been offered to her as a way of accommodating her disability. However, access through these stairs were not in fact a requirement for Ms. Cementwala. The evidence is clear that she was able to use the metal stairs comfortably. Such access might, however, have alleviated Ms. Colbert's concerns in respect of the impact of Ms. Cementwala's disability on the other stairs. At no stage was it "impossible or unduly difficult" for Ms. Cementwala to use the stairs and stay in the apartment because of her disability. I am satisfied that Ms. Cementwala did not require any special treatment or facilities as reasonable accommodation to allow her to avail of the service, i.e. rent the apartment. She simply required to be allowed to rent the accommodation.
Had the front stairs, with or without added security measures, been open this case may not have come before me since Ms. Colbert's evidence is that those stairs would have been considered much safer and therefore in my view her concerns in respect of Ms. Cementwala's disability may not have arisen to the same extent. However, they were closed to everybody and therefore there was no less favourable treatment of the complainant, in comparison to others, arising from their being locked. In addition, their being locked did not create an issue in respect of reasonable accommodation for the complainant since she did not require them in order to access the accommodation. Access via those stairs might simply have removed the landlady's fears for the complainant and therefore removed the landlady's objection to Ms. Cementwala as a tenant. While this is an unfortunate situation, the fact that access via the front stairs was blocked does not add to any alleged discrimination or to any failure to provide reasonable accommodation.
I find that there was no failure to provide reasonable accommodation, since none was required. I also find that the complainant has established a prima facie case of discrimination on the disability ground in respect of the complaint against Ms. Colbert.
Prima Facie Case - Winters Property Management Ltd. & Crescent Green Ltd.
In respect of the other two respondents, Ms. Cementwala has stated that she did not request a service of them. Several witnesses gave evidence that Ms. Colbert stated on more than one occasion that others had impacted on her decision to cease the renting of the accommodation to Ms. Cementwala. However, Ms. Colbert is neither an agent nor an employee of either company and therefore any actions on her part, allegedly on their behalf, do not create any vicarious liability for either company in terms of Section 42 of the Equal Status Act, 2000. Ms. Colbert has since stated that there was no outside influence brought to bear on her in respect of the letting. Since access to the front stairs was denied to all comers no less favourable treatment arises on the part of Winters property Management Ltd. or Crescent Green Ltd. Since Ms. Cementwala did not require special treatment or facilities to access the accommodation no failure to provide reasonable accommodation arises in this case . Therefore since, in terms of criterion (c) Ms. Cementwala has not shown that someone without a disability or with a different disability would have been treated differently by these respondents, and since she did not require special treatment or facilities, I find that Ms. Cementwala has failed to establish a prima facie case of discrimination on the disability ground in respect of Winters Property Management Ltd. and Crescent Green Limited.
Ms. Colbert's defence throughout has been her concern for Ms. Cementwala's safety because of difficulties that may or may not have been created or exacerbated by her disability. I am satisfied that this concern was genuine. However, Ms. Colbert did not point to any legal provision in respect of a defence to the instant complaint.
The provisions of Section 6(1), in respect of the termination of a tenancy and/or the cessation of the provision of accommodation have been found to apply in this case. The remaining subsections of Section 6 provide exceptions where less favourable treatment on one of the discriminatory grounds, including disability, should not be considered discriminatory. I am satisfied that none of these are relevant to the instant case and therefore do not provide a defence in respect of the prima facie case of discrimination.
The Occupiers Liability Act 1995, Section 3, states that the occupier of a premises owes a duty of care towards a visitor to the premises to take such care as is reasonable to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger that exists on the premises. While Ms. Colbert's primary concern throughout was the safety of Ms. Cementwala on the stairs, the stairs were not entirely within Ms. Colbert's control as they are part of the common area in the complex shared by many residents. As one of many occupiers of the premises the extent to which Ms. Colbert had a duty of care towards an entrant with respect to the stairs appears limited.
When letting the apartment Ms. Colbert may have known about the accident which led to a claim in respect of personal injuries and loss and damage. However, she would not have known at that time what the engineer's report would have contained. In addition, she was subsequently content that such care as was reasonable had been taken when letting the apartment to the next tenant.
I am satisfied that Ms. Cementwala did not present a danger to other residents that might warrant Ms. Colbert's refusal to let to her. I am also satisfied that Ms. Colbert did not have the authority to refuse access to a person on the basis of the stairs. Therefore the Occupiers Liability Act does not provide a defence in this case.
Given the evidence presented, particularly the expert evidence from the employees of the National Council for the Blind, I am satisfied that Ms. Colbert assessed any perceived danger on the basis of Ms. Cementwala's disability alone without reference to her expertise and ability to manage.
I find that the respondent, Ms. Colbert, has failed to rebut the prima facie case of discrimination on the disability ground.
I find that the respondent, Ms. Colbert, discriminated against Ms. Cementwala when she ceased the provision of accommodation to her in September 2002. I find that Ms. Cementwala has failed to establish a prima facie case of discrimination in respect of the respondents Winters property Management Ltd. and Crescent Green Ltd.
I hereby order the respondent Ms. Colbert to pay the complainant, Ms. Cementwala, €500.
In making this order I have taken account of the effects of the discrimination on Ms. Cementwala, in accordance with Section 27 of the Equal Status Act and in terms of a number of issues including:
- The publication of details of the case on the internet with its depiction as a case of clear discrimination before the case had even come to hearing, in possible contravention of Section 36 and the complainant's determination to treat this as a test case.
29 November 2005