THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Michael and Nora O'Reilly, Patrick O'Reilly,
Terrance and Nora O'Reilly, Dawn Burt.
(represented by Eimear Higgins, BL and instructed by Brophy Solicitors)
Waterford City Council
File Reference: ES/2007/0170
Date of Issue: 26th March, 2010
Equal Status Acts, 2000 to 2008 - Section 3(1) - Direct discrimination, Section 3(2)(i) - Traveller community - Disposal of premises and provision of accommodation, Section 6(1).
1. Delegation under the Equal Status Acts, 2000-2008
1.1 These complaints were referred to the Director of the Equality Tribunal on the 20th December, 2007 under the Equal Status Acts. On 11th December, 2008, in accordance with her powers under Section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, 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 Acts, 2000 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 22nd October, 2009. Final correspondence with the parties concluded on the 20th November, 2009.
2.1 This dispute concerns a claim by the complainants that they were discriminated against by the respondent on the grounds of their membership of the Traveller community, or their association thereto, in terms of Sections 3(1)(a), 3(1)(b) and 3(2)(i) of the Equal Status Acts and in not being provided with a service contrary to Section 6(1) of the Equal Status Acts.
3. Summary of the Complainants' Case
3.1 In September 2007, the complainants were living in caravans on the Kilbarry halting site in Waterford City. All of the complainants are members of the Traveller community, with the exception of Ms. Dawn Burt. Ms Burt's partner is a Traveller. The complainants claim they were served noticed on the 6th September 2007 to vacate the Kilbarry site by the following day. They claim that Waterford City Council had provided them with water, electricity and toilet facilities on the site up to that juncture. They claim that they had met with the person(s) responsible for housing/accommodation on many occasions prior to the 6th September 2007 to discuss their accommodation needs. On the 7th September 2007 they claim that they were forcibly removed from the halting site by a private company on behalf of the respondent. They claim that they were discriminated against by the respondent in how they were treated and that this would not happen to members of the settled community. The complainants' individual evidence can be summarised as follows:
o Michael and Nora O'Reilly
Michael and Nora O'Reilly were living at the Kilbarry halting site for over a year before they were evicted in September 2007. They were aware that the respondent was responsible for the site however, they did not seek prior permission to live there before moving in. They claim that they met with a named official from Waterford City Council about one week after moving to the site and outlined their specific needs. They claim that the respondent provided them with access to toilet, water and electricity facilities soon after this first meeting. They claim that they presumed they were on Waterford City Council's housing list, however no formal housing application form was filled out until after they were evicted. They stated that after the eviction they were informed that they were not on Waterford City Council's housing list for accommodation. They claim that they moved to the side of a public road as they had no where else to go.
The complainants stated that they were aware that there was serious trouble and violence on the Kilbarry site however, they were not involved in any of the trouble. They also admit they were granted permission by the respondent to move back into one of the housing bays on the Kilbarry site in October 2007 with their extended family until a more permanent arrangement was found. However, they claim that the temporary arrangement lasted over a year and the conditions they had to endure were far worse than the condition in place prior to the eviction where, they claim, three families were expected to share the facilities at one of the bays, which was overcrowded and that they did not have their own toilet facilities. They stated that they were allocated their own housing bay on the site in the last quarter of 2008.
o Dawn Burt
Dawn Burt claims that she moved with her young family to the Kilbarry halting site less than a year before she was evicted in September 2007. She was aware that the respondent was in charge of the site however, she did not seek prior permission to live there before moving in. She claims that she met with a Waterford City Council official a few weeks after moving to the site, so as to inform it that they had moved there and to outline her needs. She claims that the respondent provided her with access to electricity and running water, and it also levelled out an area to accommodate her caravan. Ms. Burt claims that she had met with a named Waterford City Council officer on a number of occasions prior to the eviction and she always presumed that she was on the housing list, and she claims that the official said that she "would look after them". She stated that after the eviction she was shocked to be informed that she was not on the Waterford City Council housing list for accommodation. She claims that no formal housing application form was filled out until after they were evicted.
The complainant stated that she was aware that there was serious trouble and violence on the Kilbarry site however, she stated that she was not involved in any of the trouble. Ms. Burt claims that she was given permission to move her caravan to where an extended family member was living as a short term measure however, this arrangement was not suitable as it was badly overcrowded, so she moved away to England and on her return she moved back to the same address. Ms. Burt states that she was offered accommodation by the respondent, however it was not suitable as she had requested Traveller type accommodation for herself and her caravan and she was offered non-Traveller specific housing 3 to 4 miles away from her extended family.
The complainant maintains that the respondent discriminated against her and her family because of her association with the Traveller community. She claims that after the eviction she had no where to go so she moved her caravan to the side of the road. She claims that the respondent subsequently sought to remove her from the side of the road by means of a court order, which she claims amounts to harassment. She claims that a member of the settled community in a local authority house would never be treated like she was nor would they be asked to share with another family like she was forced to do.
o Patrick O'Reilly
Patrick O'Reilly did not attend on the day of the hearing to give evidence. He was represented at the hearing by his daughter Kathleen O'Reilly who stated that her father was diabetic and was not well at that time. She claimed that her father had poor literacy skills and accordingly she had dealt with the respondent in relation to his accommodation needs on his behalf. She claimed that her father had moved to the Kilbarry site some eighteen months before the eviction in September 2007, she claims that he did not seek prior permission from the respondent to move there. Ms. O'Reilly claims that she went down to the respondent and met with a Waterford City Council Official and sought services of behalf of her father.
On the day of the eviction Ms. O'Reilly claims that the men with responsibility for carrying out the eviction on behalf of the respondent were exceptionally aggressive towards her and her father. She claims that the complainant moved his caravan to the side of the road for five months and then moved in with a family member in cramped and overcrowded conditions. Ms. O'Reilly said that she had understood that the family were on the housing list however, they were told that they were not on the list at the time of the eviction.
o Terrance and Nora O'Reilly
Terrance and Nora O'Reilly were living at the Kilbarry halting site for over a year before they were evicted in September 2007. They too were aware that Waterford City Council was in charge of the site however, they did not seek prior permission to live there. They claim that they met with an official of the respondent six to seven months after moving to the site and they explained what their needs were. They claim that they did not fill out a formal application for housing with the official at the time, however, they presumed that they were on Waterford City Council's housing list as they regularly met and discussed their needs with a named official of the respondent. They claim that after the eviction they moved to the side of a public road as they had no where else to go.
The complainants stated that they were aware that there was serious trouble and violence on the Kilbarry site however, they stated that they were not involved in any of the trouble. They also agree they were allocated permanent tenancy of bay No. 1 on the Kilbarry site in December 2007. However, they claim that following the eviction they had no where to live for 2 months as no temporary arrangement was provided for them.
3.2 The complainants also questioned whether the legislation that the respondent relied upon to evict them was lawful.
3.3 The complainants also contend that the aggressive nature and behaviour of the people who carried out the eviction on behalf of the respondent, coupled with the respondent's decision to force some of those families who set up caravans at the side of the road to move on by court order could be seen as harassment under the Acts.
4 Summary of the Respondent's Case
4.1 The respondent denies that it discriminated against the complainants on the grounds of their membership of the Traveller community. The respondent presented a detailed submission outlining the situation at the Kilbarry halting site prior to the eviction of the complainants in September 2007. The respondent highlighted the importance of understanding the background to the Kilbarry site so as to understand the decision to remove the families at that time. It can be summarised as follows:
o The halting site at Kilbarry is designed to house twelve Traveller families and in the months leading up to September 2007 the respondent claims that there was a rapid build up in the amount of illegally parked caravans on the site - up to 30 caravans at one point. This lead to a serious difficulty for Waterford City Council in the management of the site. It claims that many of their staff and agents working on/with the site were threatened and at times physically assaulted, resulting in the respondent's withdrawal of its employees in the interests of their health and safety.
o It was reported that the site had become known to the Gardaí due to the amount of criminal activity ongoing there, including a substantial orchestrated illegal dumping operation. The behaviour of certain individuals on the site forced the Criminal Assets Bureau, backed up by the Garda helicopter, to raid the site and seize goods alleged to be the proceeds of crime.
o In August 2007 the Gardaí had to mount a major security operation on the Kilbarry site following serious feuding among certain members of the Traveller community in Waterford City. During this time it claims that one man was shot and two others were injured with slash hooks on the site. It claims that 3 caravans were targeted by arson and a house being built by the City Council for a family living on the Kilbarry site was also "burned to the ground". It claims that Gardaí, including armed members of the Emergency Response Unit mounted a search of the site for weapons. It claims that at the time representatives of the Local Traveller groups were asking the respondent to take action and remove the "illegal squatters".
o It claims that the site and surrounding environs were in an appalling state with mounds of rubbish, including the gutted caravans, and even the remains of rotting animals were strewn all around the site. It claims that following a meeting with Gardaí and Waterford City Council officials, the respondent decided that in order to "clean-up" and "resume control" of the site, all occupiers other than those assigned to the 12 permanent bays were to be removed.
o On the removal of the families from the site Waterford City Council undertook a comprehensive clean-up, which included the removal of 60 tonnes of rubbish, unauthorised structures and scrap. The respondent claims that once it had regained control of the site it was able to re-establish normal services, such as the weekly refuse collection.
4.2 The respondent stated that as far as it was concerned none of the families relating to this complaint were involved in the trouble on the Kilbarry site.
4.3 The respondent stated that it had allowed the complainants to remain on the Kilbarry Halting site and although they were illegally parked, it did provide them with access to water, electricity and toilet facilities on a temporary basis, pending the availability of more permanent arrangements, - such as, certain bays becoming free at the site and the completion of a group Traveller housing scheme later in 2007. It claims that the respondent had no option but to ask the families not assigned to a parking bay to vacate the halting site in the interest of their own safety and to allow it to "take back control of the site". It claims that once it was able to this, following the eviction, it was in a better position to make an assessment of the needs of the complainants in line with the resources available to it. It claims that it did not discriminate against the complainant on the Traveller community ground.
4.4 It summarised its position in relation to the individual complainants as follows;
o Michael & Nora O'Reilly
Following the eviction in September 2007, this couple asked for permission to move their caravan back to the Kilbarry site to move in with extended family on a temporary basis, while Waterford City Council sought to arrange a more permanent solution to their accommodation needs. They were subsequently allocated bay 7 in the Kilbarry site in October 2008 and are still living there.
o Dawn Burt
The respondent claims that Ms. Burt had asked for her application for accommodation to be dealt as a joint application with her father-in-law, Patrick O'Reilly, as her partner was not living with her at the time. Accordingly, she was jointly offered accommodation along with Partick O'Reilly at no. 6 Closegate, Waterford which was refused. It claims that it also offered her a house in Ferrybank, Waterford, which was also refused. The respondent claims that Ms. Burt moved her caravan, along with Patrick O'Reilly's caravan, adjacent to his daughter's house. It claims that Ms. Burt had left the country and had only returned to Waterford city recently.
o Patrick O'Reilly
The respondent claims that Mr. O'Reilly surrendered a Waterford City tenancy in March 2005, when he moved away from Waterford. It claims that his family returned in October 2006 and they were offered a four bed roomed house at Closegate, Waterford in December 2007, which was turned down. It claims that he was living with family until recently when he again moved to the side of the road. It claims that it has offered him and his family Traveller specific accommodation in a service halting site in Bilberry, which was again refused.
o Terence & Nora O'Reilly
This couple and their family were offered and accepted tenancy at bay 1 Kilbarry site, which consists of a 3 bed roomed house on the 31 October 2007, and they are still living there at present.
5. Issue of jurisdiction
5.1 The complainants questioned whether the eviction carried out by a private firm on behalf of the respondent under the Criminal Justice (Public Order Act) 1994 as amended by section 24 of the housing (Miscellaneous Provisions) Act 2002, was lawful. They called a Garda witness who was present at the eviction to give evidence of the Gardaí's role on the day. I note the evidence presented by the witness at the hearing and I particularly note where he states that the Gardaí were present to ensure there was no breach of the peace and there were no records of any breach.
5.2 I should state at this juncture that the question with regard to the legal basis of the provision in which the respondent carried out the eviction is not a matter which falls within the jurisdiction of this Tribunal to determine. I am satisfied that any questions in relation to these issues are entirely outside the scope of the present complaint under the Equal Status Acts. The only question that is within my jurisdiction to decide under the Equal Status Acts is whether the treatment the complainants received was less favourable treatment because of their membership of, or association to, the Traveller community under the Acts.
6. Conclusions of the Equality Officer in relation to the substantive issue
6.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
6.2 Having regard to the circumstances of this case, the key question which I must address in considering whether a prima facie case of discrimination has been established by the complainants is whether they were treated less favourably than another person would have been in a comparable situation because they are members of the Traveller community or were associated with members of the Traveller community. In considering this question and based on the evidence presented, I am satisfied that all of the complainants are covered by the specific ground under the Equal Status Acts.
Patrick O'Reilly's case
6.3 In relation to case brought by Mr. Patrick O'Reilly, I am satisfied that the complainant was provided with ample notice in relation to the investigation and the proceedings. As part of my investigation under Section 25 of the Act, I am obliged to hold a hearing. I note the evidence from Mr. O'Reilly's daughter that he was ill and he would not be attending and she would be giving evidence on his behalf. However, as no application for an adjournment was filed with the Tribunal or documentary evidence provided to state that he was medically unfit to attend, I find that the complainant's failure to attend the hearing was unreasonable in the circumstances and that any obligation under Section 25(1) has ceased. I have considered the evidence presented by the complainant's daughter and I have weighted it accordingly, however as no direct evidence was presented by the complainant to establish a prima facie case, I conclude the investigation in relation to his case and find against the complainant.
The remaining complainants' cases
6.4 In considering whether or not the other complainants have been subjected to discrimination in this case, I note three important pieces of evidence that were not disputed by either party which are hugely important in terms of the core issue to be decided in the present cases. Firstly, I note that the complainants were living on the Kilbarry site for a period of time, without prior permission sought or granted by the respondent however, they were serviced with facilities to allow them live there more comfortably up until their eviction on the 7th September 2007. Secondly, I note that following the eviction the respondent made offers of accommodation to all of the complainants, within varying timescales, some of which were accepted and others were refused, and finally that prior to the eviction of the complainants in September 2007, the Kilbarry site was in a compromised position and that the respondent had accepted that it had lost control of the situation on the site and it was required to take emergency measures to regain control.
6.5 Based on the evidence presented, I am satisfied that the complainants had met with and informed the respondent that they had taken up residence at the Kilbarry site at different stages in 2006 and 2007, and they had requested that the respondent provide facilities to allow them to stay there. I note from the evidence presented that the complainants did not fill out an application form for local authority housing at that juncture. However, I am satisfied that they were provided with permission to stay on the site and I am also satisfied that the respondent provided them with the facilities that they required to make their stay more comfortable. I also note from the respondent's evidence that at the time it was waiting for the completion of Traveller specific group housing, which was to become available later in 2007 and would be used to house families from the Kilbarry site, which it had admitted had become overcrowded.
6.6 I am satisfied that in 2007 the respondent was presented with a huge challenge in relation to issues unfolding at the Kilbarry site - the evidence in relation to this has been documented above at paragraph 4.1. I note that it chose to take decisive action and remove all families not permanently allocated to one of the bays on the site. The evidence presented suggests that the eviction was carried out on a halting site which housed members of the Traveller community. I note that the families evicted were members of the Traveller community and there is no evidence presented to suggest that the families allowed to remain on the Kilbarry site were other than members of the Traveller community. I am satisfied that up to the point of the eviction that there was an amicable relationship between the complainants and the respondent however, this changed once the families were displaced by the eviction. I am satisfied that the families involved in this complaint were not less favourably treated by the respondent prior to the eviction. The evidence at hand would suggest that when the complainants arrived on the Kilbarry site, the provisions they required were put in place to allow them stay indefinitely on the site, close to their extended families. I note that due to the trouble on the site, the conditions allowing the complainants stay on the site changed.
6.7 I note that the complainants have claimed that the eviction was unlawful and as I have already stated I have no jurisdiction to adjudicate on that aspect of the grievance, which the complainants have with the respondent. Notwithstanding this, I am satisfied from the evidence presented that the eviction was not motivated out of some trivial or frivolous action by the respondent. On the contrary, I believe it sought to correct an appalling and serious situation on the site, which had become overcrowded, dangerous and unmanageable. Having regard to the totality of the evidence adduced, I am of the view that on the balance of probabilities the reason the complainants were evicted from the Kilbarry site was that they were not assigned to a permanent bay on the site and that all those asked to leave were asked because the respondent wished to regain control of the site and not because of their membership of the Traveller community.
6.8 I will now address the claim by the complainants that the actions of the people who carried out the eviction could be conceived as harassment under Section 11 of the Acts. Having considered the evidence of all the witnesses presenting at the hearing in relation to the matter, I note that the complainants have stated that the eviction was carried out in an aggressive manner and that people were very distressed and upset on the morning of the eviction. I have also noted that the Gardaí were present in order to prevent a breach of the peace on the day and there is no record of any breach of peace. The evidence adduced presents a situation of a very stressful, tense atmosphere which I can only imagine was very difficult for the families concerned. However, I have not been presented with any evidence from which I could conclude that the complainants were subjected to harassment within the meaning of Section 11 of the Equal Status Acts, on the grounds of their membership of the Traveller community or association thereto.
6.9 Similarly, in relation to the complainants claim that the respondents action of invoking a court order on some of the complainants while illegally parked on the side of the road, as no evidence what so ever has been presented to support the claim that this action was an act of harassment within the meaning of Section 11 of the Equal Status Acts on the basis that it relates to the discriminatory ground i.e. the complainant membership of the Traveller community or association thereto. Accordingly, I am satisfied that there is no case for the respondent to answer in relation to this allegation of harassment.
6.10 In considering whether discrimination has occurred in relation to Section 6 of the Acts, I am obliged to have regard to the exemption that is provided for in Section 6(6), which states that:
"Nothing in subsection (1) shall be construed as prohibiting -
(a) a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1998, or
(b) a body approved under section 6 of the Housing Miscellaneous Provisions) Act, 1992,
from providing in relation to housing accommodation, different treatment to persons based on family size, family status, marital status, disability, age or membership of the Traveller community."
6.11 In accordance with its obligations under the Housing Acts , a housing authority is required to make a scheme determining the order of priority to be accorded in the letting of dwellings and in doing so it may specify certain categories of persons to which priority is to be accorded such as, applicants living in dwellings deemed to be unfit or dangerous, applicants living in overcrowded conditions and applicants who lack suitable or adequate accommodation. I am satisfied that the respondent has adopted a Scheme of Letting Priorities in accordance with its obligations under these Acts. The issue regarding the scope and the manner in which the exemption provided for in Section 6(6) should be interpreted has been addressed in a number of previous decisions under this legislation , which I have taken into consideration. I have also taken cognisance of the Circuit Court judgement delivered by Hunt J. in the case of Dublin City Council -v- Grace Deans where it is stated that:
"I cannot construe subsection 6 of that section as exempting a housing authority in its entirety from all application of the equality legislation. It appears to me simply to provide that a housing authority is entitled to base its priorities and its housing plan on different treatment to persons based on family size, family status and the other considerations set out in the subsection".
Accordingly, having considered this issue fully and in light of previous case law, I am satisfied that the exemption provided for in Section 6(6) of the Acts does not allow a housing authority to discriminate against the category of persons outlined therein, but rather that it facilitates the housing authority to prioritise its resources in favour of those persons in greatest need.
6.12 I note that in the days following the eviction in September 2007 the complainants filled out separate applications seeking Local Authority Housing and filed them with Waterford City Council. I also note that the respondent wrote to each of the complainants on the 3rd December 2007 and offered each of them either a temporary or a permanent housing/ accommodation arrangement while it attempted to find a permanent solution to all of their housing needs. I note and understand the frustration of the complainants in not being provided with permanent accommodation immediately however, I am conscious that the respondent is limited by the resources available to it at any particular point in time. The respondent provided the Tribunal with statistical information in relation to the Local Authority accommodation within its remit. I also note that the average waiting time for Local Authority housing in Waterford at present is over three years and I am satisfied that this identifies that the need for housing from the respondent is far greater than the resources available to it. The statistical evidence shows that the number of Traveller specific housing units available to it between 2006 and 2009 was 17 and that within that period 25 Traveller families were offered housing by the respondent. I am satisfied from the respondents evidence that all of the complainants were offered accommodation within that time. Having considered each of the offers separately, in their own right, I am satisfied that they constitute legitimate offers with genuine attempts by the respondent to provide for the complainants within the confines of the resources available. Accordingly, I find that these complainants have failed to establish a prima facie case of discrimination on the grounds of their membership of the Traveller community in terms of the manner in which the respondent dealt with their applications for Local Authority housing.
7.1 I find that a prima facie case of discrimination and harassment has not been established by the complainants on the Traveller community ground in terms of sections 3(1), 3(1)(b), 3(2)(i) and section 11(5), of the Equal Status Acts and accordingly, I find in favour of the respondent in the matter.
The Equality Tribunal
26th March, 2010