Kevin and Jackie Buckley
Tipperary Town Council & Tipperary Town Clerk
(Represented by Kennedy Frewen O'Sullivan Solicitors)
Kevin and Jackie Buckley referred a claim of discrimination on the disability ground and victimisation 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 case 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 Complainants' case
The complainants, who are council tenants, allege that they are the victims of anti-social behaviour in their area in Tipperary perpetrated by other council tenants. Both of the complainants allege that they have been targets of this behaviour and there is evidence that their children also suffered. They have made numerous complaints to the Council and the local Gardai. While some action has been taken by the Council this has not been followed up and the Buckleys remain at the receiving end of this behaviour. On 15th March 2006 the Buckleys sent a Notification to the Council in accordance with Section 21 of the Equal Status Act 2000. On 22nd March the Town Clerk issued a letter informing the Buckleys that because of the disproportionate amount of time their contacts were taking up no further telephone calls or visits would be permitted. The Buckleys received a notice to quit from the Council dated 24th March 2006 even though they were paying their rent more or less consistently at that time. The Buckleys eventually stopped paying their rent to the Council in protest at the lack of action in relation to their complaints of anti-social behaviour. When it was indicated to them by the Citizen's Information Centre that this might not be the best course of action they attempted to pay the rent. Payment was refused unless all of the arrears and legal fees were paid. An agreement was ultimately reached with the Council on 6th September as to how this payment would be made on receipt of most of the arrears and most of the costs. The complainants feel that their disabilities are known to the Council as they are required to submit a disability money order book each year when their rent is being decided. The Council also know that the source of their income is disability and carers allowances. In addition, the Buckleys feel very strongly that they are considered to be intellectually challenged by the Council.
Summary of the Respondent's Case
The Council refutes the allegations of discrimination on the disability ground. The Buckley's complaints were addressed by the Community Liaison Officer. Warnings had been issued to a number of tenants. Many of the complaints made by the Buckleys related to criminal activities. The Town Clerk indicated the extent of the contacts received from the Buckleys. During February, March and April 2006 this increased. After discussions and a review of the file it was decided that this was obstructive in managing overall operations and a letter was sent to the complainants stating that no further telephone calls or visits will be permitted. At no stage did the contact stop and the contents of the letter were not implemented. The evidence of the antisocial behaviour is largely anecdotal although they are aware that a file was sent to the DPP who indicated not to proceed with prosecution. In one instance one person was cautioned. The Council submitted, on request, details of payments made by the Buckleys. The Council indicated that the Policy relating to rent arrears that was submitted was adopted by Council on Monday 4th July 2006 . A policy entitled "Anti-Social Behaviour - Procedures" was presented and while this was not adopted by the Council up to the date of the hearing it was indicated that it was used as best practice by the Council. The document appears to be owned by South Tipperary County Council. At the Hearing the date of issue of the Notice to Quit was given as 24th March 2006. A copy of the Notice was not submitted.
Conclusions of the Equality Officer
I am satisfied, based on the evidence presented to me, including oral evidence and letters written by medical practitioners on behalf of the complainants, that the complainants are covered by the disability ground. As the complainants are tenants of the Council there is evidence of interaction between the parties to the case.
By the time the complainants lodged their complaints they were already suffering from stress caused by their perception of their situation and depression. Their health was causing some members of the medical profession real and serious concern.
Notice to Quit
On Wednesday 15th March the complainants sent a notification of their complaint of discrimination to the respondent. In the normal course of post this would have been received by the Council on Thursday or Friday of that week. On the following Wednesday the Council issued their letter indicating the forms of contact which would be unacceptable. On the Friday of that week, 24th March 2006, they issued a Notice to Quit to the complainants. At the hearing the respondent was asked to address this matter with regard to Section 3(2)(j) relating to the victimisation ground. Their response was that the letter was issued because of the inordinate amount of contact from the complainants and the Notice was issued because of their rent arrears.
The timing of the issue of the Notice to Quit appears questionable, as does the amount. At the beginning of 2006 the complainants were in arrears of €154.25. Throughout the period from 1st January 2006 until week 13 the complainants made a weekly payment of more than the rent due with the exception of two weeks when nothing was paid. For the first 13 weeks of the year the total rent due was €583.70. The total paid was €590. These figures are net of a rent adjustment made in February and backdated to January. So while there was an arrears amount it was neither getting better or worse. No explanation has been provided as to why the Council decided to issue the Notice to Quit at the time that they did. In addition, the amounts reported to the complainants were not presented in a consistent manner. It is apparent that each invoice is generated and dated on a Monday. The tables submitted relating to payments include a column headed "Rec Date" What 'Rec Date' refers to is unclear since in the majority of cases it includes the amount added by the invoice on Monday but backdates the amount to the previous Friday thereby including the amount for the following week in the amount due the previous week. To take an example, on Monday 19th June 2006 the Town Clerk wrote to the complainants and stated that the arrears amount was "€441.75 to the end of this week". In the table the rec date for that amount, invoiced on 19th June, is shown as 16th June 2006. On Monday 26th June 2006 he again wrote to the complainants stating that their arrears were "€486.65 which is the balance up to and including Saturday, 1st July 2006". The rec date for this amount is shown as 23rd June 2006.
All of this becomes relevant when we look at the amount considered to be outstanding when the Notice to Quit was issued on 24th March 2006. The amount owing on 24th was €153.05. On Monday 27th a new invoice was generated and increased the total to €197.95 which if we use the logic of the Town Clerk above should have covered the period to Saturday 1st April 2006 even though the rec date brought it back to 24th March. However it is this larger amount, with a small unexplained adjustment, that apparently appeared on the Notice to Quit. It appears that the complainants were issued with a Notice to quit which included an amount that had not accrued on the date of issue. While this accounting method may be applied to everyone, not everyone was issued with such a notice. In addition, the Buckleys may not have been capable of identifying such discrepancies.
Even though a Notice to Quit had been issued the complainants continued to pay rent and the Council continued to accept it. However, after the payment made on 3rd May this situation changed. On 8th May 2006 another weeks rent was added to the arrears amount bring the total to €172.35. On 11th May the complainants' daughter went to the Council offices to make a payment and this was refused. She was told it was not enough. On 12th May the complainants, on visiting the Council Offices, were told by the Council that they would need to pay the bulk of the arrears if they wanted to avoid going to court. Immediately after the Court hearing on 6th June 2006 the Buckleys attempted to pay the arrears but because they were not in a position to pay the Council's costs they were told that the Council would not accept it. When the next Court date, on 18th July 2006, was cancelled the Buckleys again attempted to pay the Council the arrears but again this was refused as they could not pay the Council's costs as required. This last attempt took place after the new policy for rent arrears was adopted by the Council. While I accept that the Council's litigation process against the complainants had begun before the adoption of this policy, their refusal to enter into an agreement with the complainants who clearly wanted to resolve the matter runs counter to this policy. It was not until 6th September 2006 that such an agreement was reached and only on payment of the bulk of what was owing. The Buckleys agreed to pay the Council's legal fees but asked for some evidence of these. An invoice dated 1st August 2006 was not forwarded to the Buckleys until 2nd November 2006. No explanation has been submitted as to why the final invoice for such proceedings was issued before the matter was settled on 6th September and not forwarded to the Buckleys until November. The invoice gives a total figure for the fees without any breakdown and the Council indicated, without explanation, in a letter dated 2nd November 2006 that while the bill was for €387.20 the Buckleys were only charged €316.20.
- the Council issued the Notice to Quit within 5-6 working days of receipt of the complainants' Notification,
- The Notice included amounts not yet accrued,
- Payment of arrears was refused after the Court hearing on 6th June,
- Payment was again refused again after 18th July, even though the new Policy had been adopted
- Payment was accepted only when complainants agreed to pay most of what was owed in September, without evidence of legal costs.
In the Labour Court recommendation LC ADE/04/8 Determination No. 0413 substantial consideration has been given to the concept of accommodating the needs of an employee with a disability. I find these arguments persuasive and applicable to this case.
"Within this factual matrix it is necessary to consider the nature and scope of the duty imposed on an employer by the Act in respect of an employee (or prospective employee) who has a disability.
Unlike the other discriminatory grounds prescribed by the Act, the law does not regard the difference between a person with a disability and others as irrelevant. Baroness Hale of Richmond stated the position thus in relation to the corresponding UK provisions in the recent House of Lord decision in Archibald v Fife Council  IRLR651:
"But this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the difference between the genders is generally regarded as irrelevant. The 1975 Act, however, does not regard the difference between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the need of disabled people. It necessarily entails an element of more favourable treatment.""
"The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person's attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (see British Gas Services Ltd v McCaull  IRLR 60)"
"The duty placed on an employer by section 16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent of a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge  IRLR 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective."
Evidence was presented that the level of contact received by the Council from the complainants changed periodically and the complainants allege that this worsened when the alleged anti-social behaviours worsened. I am satisfied that this worsening increased the level of stress and anxiety for the Buckleys which resulted in an increase in contacts made with the Council. I find that the Council's response in cutting off contacts, in the form of visits and phone calls, and requiring contacts in the one form which would be problematic for the complainants was unreasonable. While the Council may treat all people who they perceive as creating nuisance value for them in this way, in the complainants' case this amounts to a failure to provide reasonable accommodation to them. It is clear that the complainants on occasion became annoyed due to their frustration and although the Council has a duty to protect the staff from harassment, they appear to have no procedure in place for dealing with those who might be perceived as difficult customers or who may have special needs. Rather than banning all physical or oral contact between the Council and the complainants perhaps they could have been provided with one point of contact to deal with all issues, with someone who was familiar with their difficulties under all headings. This could have been restricted further by identifying suitable times for such contacts. I am in no doubt that the complainants could also be given a better understanding of their entitlements so that no unreasonable expectations, with consequential disappointments, could be held by the complainants.
The policy of contacts in writing only was confirmed in a letter dated 13th April 2006 in response to requests from the complainants as to whether this was normal procedure. It was re-enforced by a letter from the Community Liaison Officer dated 9th May 2006 requesting that any further complaints should be forwarded in writing. The Council were made aware of the worsening of the complainants' health in documents received on 26th June 2006. Although information received came both from the complainants' doctor and HSE consultant, the Council's only action was to write to the HSE notifying them of the seriousness of the complainants' situation. Letters were sent on 26th June 2006, 12th September 2006, 20th September 2006 and 4th October 2006. I am not aware of any responses received. It appears that on or after 18th July 2006 when the respondent knew of the seriousness of the case since 26th June 2006, payments were still refused from the complainants. In a letter dated 16th November 2006 the community liaison officer again wrote to the Buckleys and again requested that contacts be in writing. While the Council may have passed on the information to the HSE they took no steps to review their own actions vis a vis the complainants.
While refusing to accept visits or phone calls is considered as a failure to provide reasonable accommodation, it must be noted that the letter in this regard was issued less than a week after the complainants issued their notification under the Act. It is my view that this also constitutes victimisation in terms of Section 3(2)(j) of the Equal Status Acts even though the respondent would argue that it was in response to increased and unreasonable contacts from the complainants who in turn would argue that this was because their difficulties with anti-social behaviour increased. In any event, the Notice to Quit was issued within seven working days of the date of the complainants' notification. As already mentioned, this was issued at a time when:
- Their arrears were getting neither better nor worse.
- The complainants had been in the habit of paying more than what was due, and
- Only three weeks rent in total was overdue, €153.05, as it had been in January.
Since nothing appears to have happened or changed to warrant such a change of approach on the part of the Council other than the receipt of the complainants' notification, an inference of victimisation arises. Based on the evidence presented to me and on the balance of probabilities I find that the issue of the Notice to Quit constitutes victimisation in terms of Section 3(2)(j)(v).
The Council argued that there had been no discrimination against the complainants on the grounds of their disability, in line with Section 3(2)(g) and indeed I have not found that there was. What I have found is a failure to provide the complainants with all that is reasonable to accommodate their needs based on their disabilities in line with Section 4(1). The accommodations required would not, in my view, have created a cost greater than a nominal cost. I have also found that the complainants were treated less favourably on the victimisation ground, that is they were victimised in terms of Section 3(2)(j)(v). Since I have found that the issue of the Notice to Quit was victimisation, then any subsequent treatment arising from it is also victimisation, including the Council's insistence on accruing the weekly rent while refusing to accept payment. The following is an extract from a letter written to the relevant Judge by the Citizen's information centre on behalf of the Buckleys, dated 24th August 2006.
"As the last court date was cancelled Kevin went again to the Council but could not pay, as they wanted court costs.
The Council have now stopped collecting their refuse saying they will not get free tags because they are in arrears (which they have tried to pay) and it is their policy not to give tags to people with arrears, but when we asked them for their policy they were only drawing one up, and that the Buckley's will have to buy tags, which they cannot afford as they are €7.00 a week, and now they have a health issue because of refuse, to conten[d] with."
Throughout the policy relating to arrears adopted on 4th July 2006 all actions appear to be intended to take place where there was a lack of response from the tenant or where there has been no contact. Tenants in a situation similar to the Buckleys would, under the new policy, be able to reach an agreement or settlement with the Council before consideration is given to issue a Notice to Quit or go to court. The policy does not retain a discretion for the Council to opt out of this at three weeks arrears and go immediately to a notice to quit.
Many decisions taken in respect of the Buckleys, both favourable and unfavourable, appear to have been taken on a whim and without policy and procedural support.
I find that the complainants were discriminated against in that the respondent failed to provide all that is reasonable to allow them to continue to avail of their various services. I find that the complainants were also victimised by the respondent. It should be noted that not all of the treatment received by the Buckleys from the Council was less favourable. However, any more favourable treatment or reasonable accommodation was ad hoc, capricious and without the support of background procedures.
Section 27 provides for redress which may be either or both an award of compensation for the effects of the discrimination or an order to take a specified course of action.
I hereby order the respondent to :
- Pay the complainants €6350 each,
- Provide the complainants with a properly itemised invoice indicating how the legal fees were arrived at. A separate letter should accompany this to indicate why and how the reduction allowed by the Council was arrived at. This is intended to provide some form of transparency for the complainants.
- Immediately introduce a procedure to interact with the complainants, and other service users in similar circumstances, in a manner which will be transparent to them given their disabilities. This should include the provision of clear indications as to the services available and what feedback can be expected.
- Fully review the policy relating to rent arrears. Consideration should be given to including provision for those who are in dispute with the Council. Provision for independent conflict resolution e.g. mediation, of disputes arising in good faith and not readily resolved by direct interaction between the Council and tenants should also be considered. The review should also include contact with MABS and the Department of Social and Family Affairs with a view to establishing best practice, particularly in relation to the refusal to accept payments of rent even where the litigation process has begun,
- Contact the HSE with a view to establishing how best to deal with situations where concern arises in respect of tenants' health, for example in a Service Level Agreement. Consideration should be given to formally incorporating these best practices into Council policies.
- Fully review its procedures relating to anti-social behaviour.
14th August 2007