EQUAL STATUS ACTS
Frederic Ozanam Trust
and St Benedicts Conference
(represented by Mr Anthony Kerr B.L. instructed
by Kilcullen & Associates)
File reference: ES/2013/0043 and ES/2013/0044
Date of issue: 23rd October 2015
Keywords: Equal Status Acts, Disability, Age,
1.1 The case concerns a claim by Mr Patrick Oldham , (hereinafter referred to as ‘the complainant’) that he was subject of discrimination by St Benedicts Conference and the Frederic Ozanam Trust (hereinafter referred to as ‘the Respondents’) on the grounds of disability, age and civil status contrary to section 3 of the of the equal status Acts 2000 to 2011 (hereinafter referred to as ‘the Acts’).
1.2, The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on the 8th May 2013. On the 27th March 2015, in accordance with his powers under S. 75 of the Employment Equality Acts, and under the Equal Status Acts , the Director delegated the case to me, Peter Healy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. Submissions were received from both parties and a hearing was held on the 30th June 2015 as required by Section 25(1) of the Acts. The complainant made a final submission on the 2nd July 2015.
1.3 In advance of the hearing the complainant wrote requesting that this Tribunal insist that all minutes of specific meetings held by the respondents management committee be provided. This Tribunal responded to the complaint informing him that a reason for such a request would need to be provided. The complainant response to this request did not provide any specific reason and this Tribunal did not insist on the provision of such minutes as I am satisfied that they are not relevant to the issues under examination in this case.
1.4 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
Summary of the complainant’s submission
2.1 The complainant (who suffers from a disability) and his wife became residents in a complex of residential units operated by the respondents. The complainant submits that he knew that the complex specifically caters for people who may require supports for independent living and that he only accepted a place at the complex as he felt a refusal would put him at a disadvantage in the eyes of the local authority. The complainant says he was interviewed by the respondent and offered a place without discussion of the tenancy agreement, which was forwarded to him at a later date.
2.2 It is the complainants position that he is just renting a house from the respondent and that he does not require any special supports.
2.3 The complainant submits that he has been subject to a number of specific provisions which are discriminatory in that a comparator living in local authority housing or a young person would not be subjected to. These specific instances, all of which are set out in the tenancy agreement are as follows.
2.4 The complainant submits that the requirement for visitors to sign in at the office is discriminatory and that he sees no reason for this other than the age group of the complex. Further, the complaint submits that this provision does not allow for privacy. In his written submission the complaint submits that although the respondent now submits that this provision is no longer in force, that this decision was never communicated to the residents and therefor remains in force. However, at the hearing the complainant gave evidence that in practice his and other visitors did not sign in and that this provision is not enforced.
2.5 The complainant submits that restrictions on visitors staying overnight with him are discriminatory as it attempts to control who stays in his home. The complainant submits that everyone in society is afforded the right to have guests stay over in their home on a visitor basis without any restrictions whether private or social housing. The complainant submits that such restrictions have an effect on his dignity and self esteem and that he knows they are implemented because of his age.
2.7 The complainant submits that a daily contact system which was instituted by the respondent was discriminatory. Residents were required to indicate that they were not in need of any assistance every morning by placing a yellow fob on the door of their residence. The complainant submits that failure to do so gave the superintendent the right to enter his home.
Terms of Tenancy Agreement.
2.8 The complainant submits the tenancy agreement itself is discriminatory and cites the following provisions of that agreement which he submits exist because the respondent sees him as old, although he submits that none of these provisions have been enforced,
a) that a provision in the tenancy agreement which would require him to move to a one person unit in the event of the death of his spouse is discriminatory.
b) A provision that states that the landlord can vary the accommodation
c) A term which states that a resident may be evicted with four weeks notice.
d) A term stating that in the event of a medical doctor certifying that a resident is unable to keep the premises in a clean hygienic and proper state and condition and or are unable through ill health to maintain themselves that the landlord shall be entitled to terminate the tenancy.
e) A term that says all visitors must sign in at the office.
Summary of the respondent’s written submission
3.1 The respondent – St Benedict’s Conference – is a primary basic unit of the Society of St Vincent de Paul. The first named Respondent – the Frederic Ozanam Trust – is a trust company which holds property for the Society of St Vicent de Paul in the diocese of Dublin.
3.2 The respondent submits that as St Vincent Se Paul is an approved voluntary housing body for the purposes of Section 6 of the Housing (Miscellaneous Provisions) Act 1992 that accordingly pursuant to section 6(6) of the Acts, the respondents are entitled to treat persons differently depending on their family status, civil status, disability or age in the provision of accommodation and the provision of services relating to accommodation. The respondent submits for this reason alone that the complaint is misconceived.
3.3 The respondent submits that in order to become a tenant that an application must meet the criteria laid down the local authority, namely to (a) aged at least 50 years of age with a disability or (b) aged 55 or over. The applicant must also be in need of housing. Accordingly the respondent submits that no discrimination on the ground of age can have occurred in respect of any of the matters complained of.
3.4 The respondent submits that, before the complainant and his wife became tenants at St Benedict’s both of them must have satisfied the local authority that they had met the above criteria.
Summary of the Respondent’s submission at hearing.
3.5 The respondent is saddened and dismayed that the complainant feels that he has been discriminated against. At the hearing the respondent stated that they would prefer to deal with the issues raised by the complainant rather then give him the impression that they were trying to get off on any legal technicality.
3.6 The respondent states that it operates over ninety housing schemes around the country and has some expertise in dealing with the provision of supports that allow people to live independently. It is the respondent’s submission that all of the examples cited by the complaint are actually supports designed for people who need them. When the complainant has indicated he does not want them they have been discontinued in consultation with the complainant.
Conclusions of the Equality Officer
4.1 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: “On any of the grounds specified... (in this case the age and disability grounds).... A person is treated less favourably than another person is, has been or would be treated.”
Section 3(2) provides that: as between any two persons, the discriminatory grounds are,
(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),.,”
In the instant case I am satisfied that the complainant has a disability under the Acts and this is not contested by the respondent.
4.2 Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.3 In considering cases in relation to the provision of Local Authority Housing, I am mindful that I must consider the appropriate sections of the legislation, namely section 6 and in particular section 6(6) of the Equal Status Acts, 2000 to 2008, which states, inter alia,
(1) A person shall not discriminate in –
(a) disposing of an 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
(6) 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.
The respondent in the present case is empowered under the Housing Acts to act in the capacity of a housing authority and it has adopted a Scheme of Letting Priorities in accordance with its obligations under these Acts. I am of the view that the exemption provided for in Section 6(6) of the Equal Status 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 in favor of those categories of persons and that such prioritisation does not constitute discrimination. I must therefor examine the inference of discrimination raised by the complainant.
4.4 I cannot accept arguments made by the complainant that a correct comparator is a young person living in a council house. A valid comparator in this case is someone in a comparable situation i.e. another tenant of the respondent.
4.5 The complainant has submitted a number of specific instances of discrimination above at 2.4 to 2.8. I accept the respondent’s argument that all of these instances are special supports designed to allow people to live independently. I find that these measures were applied equally to all valid comparators and that there is no less favourable treatment to the complainant.
4.6 I cannot accept the complainant’s contention that he is just renting a house. In this case I find that the complainant was fully aware of the nature of the accommodation being offered by the respondent and fully aware of the services made available in association with that accommodation. The complainant gave the respondent every reason to believe that he needed those services from the outset of his engagement with them. In these circumstances, I find it is reasonable for the respondent to believe that the complainant had requested the services, which he now says are discriminatory. In addition I find that in every instance where the complainant objected to particular services, the respondent desisted in offering those services.
4.7 I have examined all of the instances of discrimination raised by the complainant. In each instance I find that these instances are in fact sensible measures put in place by the respondent to cater for those who need supports for assisted living. I find that the respondent was in no way motivated by direct discrimination on any of the grounds raised by the complainant, nor do I find any evidence of indirect discrimination. I find that the only motivation for the respondent in supplying the alleged discriminatory services was that the complainant indicated to the respondent that he needed them as a person who was unable to live independently. I note that the respondent has been extremely flexible in all its dealings with the complainant and has not enforced any of the supports to which the complaint has objected.
4.8 It is the complainants position that he does not need supports for assisted living and only accepted accommodation with the respondent as be felt he would not be offered other accommodations. The complainant’s speculation about the availability of other accommodation is not a matter for the respondent in regards to this complaint.
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 25 of the Equal Status Acts.
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the age ground.
(ii) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the disability ground
(iii) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the civil status ground.
Adjudication Officer/Equality Officer
23rd October 2015