THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2011
Decision No. DEC-S2011-065
A Male Complainant
A Local Authority
File Reference: ES/2010/059
Date of Issue: 19th December, 2011
Equal Status Acts
Decision No. DEC-S2010-065
A Male Complainant
A Local Authority
Equal Status Acts - Section 3(2)(a), Gender Ground - Section 3(2)(g) Disability Ground - Section 6(1) - Housing Need - Interest in property - Section 25(11), Ongoing Policy
1. Delegation under the relevant legislation
1.1. On 11th June, 2010, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 25th July, 2011, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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, on which date my investigation commenced.
1.2. Written submissions were received from both parties. A hearing of the complaint was held on 18th November, 2011.
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the gender and disability grounds contrary to the Equal Status Acts in terms of Sections 3(1)(a), Section 3(2)(a), 3(2)(g) and Section 4(1) of the Equal Status Acts and contrary to Section 6 (1) of the Equal Status Acts in that the respondent treated him less favourably by refusing to provide him with housing support when it provided same to his former partner.
3. Summary of the Complainant's Case
3.1. The complainant stated that he was affected by depression and other related conditions. He described the effect of these conditions on him and stated, inter alia, that he also had a hand injury. He stated that he had a disability in that context. He said that the respondent was aware of his disability when he made an application to it for housing support in 2009. He outlined the background to this application. He stated that he had been "forced to leave my home" in 2009 following the break-up of his relationship with his former partner, Ms A. He said that he applied for housing from the respondent as he was homeless as a result of this break-up. He said that he had earlier sought support from the Department of Social and Family Affairs in that respect and they had given him a form to fill in which the respondent had to sign to say that he had a housing need.
3.2. The complainant said that he met with a number of officers of the respondent with respect to his application and gave detailed accounts of these meetings. He said that he was provided with a housing bond by the respondent in May, 2009, but that this offer was later withdrawn. He said that no housing support was provided to him by the respondent and he was told by it that he should return to the house he had previously shared with Ms A. He submitted that the decision of the respondent in that respect required him to "break back into" the house occupied by Ms A and risk a very traumatic confrontation.
3.3. The complainant agreed that he had an interest in that property and described the extent of that interest, stating, inter alia, that he did not contribute anything to the mortgage on the property. He said that he had told the respondent about this at the outset. He added that he was still joint owner of the property but had not been able to pay the mortgage since 2009, except for one small payment.
3.4. The complainant said that he understood the criteria for receipt of housing support to be that you had to be homeless. He also understood that the respondent could take into consideration his disabilities as well as the fact that he was a single parent (of a son whose mother was not Ms A). In that context, he stated that he should have received housing support from the respondent. He added that the respondent should have been more sympathetic to his situation and to his disabilities, in particular his depression. He submitted that the HSE had expressed its concerns to the respondent that the complainant should not return to a high-stress situation because of his depression and, in that context, returning to the property he had an interest in was not an option given Ms A's occupation of that property at the time in question.
3.5. The complainant stated that he understood that Ms A had been provided with housing support by the respondent despite being, and continuing to be, joint owner of the same property with him. He submitted that this was part of a policy by the respondent of providing housing support to single mothers but not to single fathers. He stated that this was a discriminatory policy and that he had been discriminated against by the respondent in that context. He stated that if he had been a single mother rather than a single father his application would have been approved by the respondent. He described the effect that the respondent's decision in that respect had on him stating, inter alia, that he had been "pushed into a place from where I felt there was no going back".
3.6. The complainant's complaint was received by the Tribunal on 11th June, 2010. With respect to the issue as to whether the complaint was made in time or not in that context, the complainant stated that the policy of the respondent was an ongoing policy that was tantamount to unequal treatment. He stated that it was therefore within time in the meaning of the Acts in the context of Section 25(11) of the Acts. He further submitted that the policy was ongoing as Ms A was still in receipt of rent allowance on a private property. He added, however, that he might not have made the complaint if the respondent had confirmed prior to the hearing that it had not provided any assistance to Ms A.
4. Summary of the Respondent's case
4.1. The respondent stated that the decision whether to provide rent supplement or not is a decision for the Department of Social and Family Affairs (D/SFA). It said, however, that it will usually involve asking the applicant to make an application for housing to their local authority. It added that D/SFA may provide rent supplement to an applicant even if that applicant was not provided with housing by the relevant local authority.
4.2. The respondent said that the complainant made an application for housing in that context on 20th August, 2008. It said that the application was made, inter alia, on medical grounds. It said that the complainant did not indicate in that application that he had an interest in a property at the time of the application although he did indicate that he had previously had an interest in a property and was asked to provide details of same.
4.3. The respondent gave a detailed account of the eligibility criteria for the housing support in question. It outlined what it described as "the common practice among all local authorities" with respect to applicants such as the complainant (i.e. an application from a party or parties who are applying for housing but who have an interest in property). It said that, even where the parties concerned are separated, it is common practice that matters relating to that property must be resolved first before a full consideration of the application is given. Such an application would only be considered (or reconsidered) if the applicant's circumstances changed in that respect. It said that, in that context, it does not and cannot take into consideration who is in residence in the relevant property at the time of the relevant application.
4.4. In short, the respondent stated that it does not provide housing where someone has an interest in a property, irrespective of the particular circumstances of that applicant (i.e. whether male of female, whether single parent or not). It stated that it did not wish to state whether it had considered an application for housing from Ms A in the interests of protecting her privacy. (This was also the reason why it had not informed the complainant of the position in that respect prior to the hearing). However, in response to my request for information in that respect, it stated that it did not provide and had not provided any form of housing support to Ms A. It reiterated in that context that D/SFA make the ultimate decision whether to grant housing supplement to an applicant.
4.5. The respondent stated that it did make one exception to this policy with respect to the residents of a particular development, who were primarily elderly residents. It stated that it had provided housing to these residents even though they had owned the houses they had previously been in. However, it also described particular conditions that were attached to the provision of this housing, including that they would sell the properties that they owned.
4.6. The respondent also submitted, with respect to applications for housing, that persons with medical conditions are accorded a greater priority than those in other categories. However, it submitted that this prioritisation only takes effect with respect to an existing applicant on a housing list and the complainant was never under consideration for the allocation of a property in that respect.
4.7. The respondent stated that, on the basis of the information first provided to it by the complainant, he was put on a housing list and was given a housing bond (i.e. an undertaking to a landlord that the respondent will be liable for the cost of the housing in question). However, it stated that when it later received information that he had an interest in a property, this offer was withdrawn in light of its policy as outlined at paragraphs 4.3 and 4.4 above. It gave a detailed account of its communication with the complainant in that respect, both before and after the offer was revoked. It stated that its advice in such circumstances would always be that the applicant should return to the property in which they have an interest.
4.8. The respondent stated that, on foot of an appeal by the complainant of its decision to withdraw the offer of housing and representations from third parties in that respect, it reviewed his file in August 2009. It said that it wrote to him in September to inform him that it was satisfied that the withdrawal of the offer in May was the correct decision.
5. Conclusions of the Equality Officer
Preliminary Matters with respect to jurisdiction
5.1. Section 21(6) of the Acts provides that "a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates...". The complaint in question was submitted to the Tribunal on 11th June, 2010, over six months after the complainant's last communication with the respondent with respect to his application for housing support (other than the provision of a notification to the respondent as required by the Acts).
5.2. The complaint's submission is that the respondent had a policy of providing housing support to women who were single parents, even if they had an interest in a property, but not providing the same support to males in the same or similar circumstances. I also note that the complainant's application for housing support in that respect could have been reconsidered at any time had his circumstances changed.
5.3. The complainant's claim, then, relates to an allegedly discriminatory policy that was operated by the respondent at the time he made his claim to the Tribunal and which still applied to his application at that time. In that context, I am satisfied that the policy under consideration is a provision which falls for consideration in the context of Section 25(11) which provides that "For the purposes of this section prohibited conduct occurs -- (a) if the act constituting it extends over a period, at the end of the period, (b) if it arises by virtue of a provision which operates over a period, throughout the period".
5.4. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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 in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.5. The complainant has made a complaint on the disability ground, and I must consider whether the respondent has discriminated against him on that ground. As the complaint is on the disability ground, I must also look, in accordance with Section 4(1) of the Acts, at whether the respondent did "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities", and whether "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." If relevant to considering what is reasonable in this context, and in light of Section 4(2), I must take into account whether the provision of the special treatment and facilities referred to in Section 4(1) would "give rise to a cost, other than a nominal cost" to the respondent.
5.6. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties. Section 6 of the Acts provides that "(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."
5.7. The policy of the respondent with respect to the provision of housing supports to persons who have an interest in a property is quite clear. It does not entertain any individual applications from such applicants in any circumstances. An exception to this policy was made with respect to a group of applicants in a particular housing development. However, it is quite clear that this was a once-off decision made at a high level based on social policy considerations. In that context, it is quite clear that neither the complainant nor his former partner were provided with housing support by the respondent.
5.8. It is clear, then, that, with respect to applicants for housing who have an interest in a property, the respondent does not carry out a policy of providing housing support to single mothers but not to single fathers. The complainant's submission in that respect is incorrect. It is also clearly the policy of the respondent not to provide housing support to anyone with an interest in a property irrespective of whether they have a disability or not. In that context, reasonable accommodation is irrelevant as the complainant is not eligible for housing support irrespective of his disability. Therefore, the complainant's complaint on both the gender and disability grounds fails.
6.1. Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination of him by the respondent on the Gender and Disability grounds in terms of Sections 3(1)(a), 3(2)(a), 3(2)(g) and Section 4(1) of the Acts, and contrary to Section 6(1) of the Equal Status Acts.
6.3. The complainant's case fails.
19th December, 2011