ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013971
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 14/08/2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
In accordance with Section 25 of the Equal Status Act, 2000following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This complaint is closely associated with a complaint made by the Complainant’s wife (Tenant B) against the same Respondent. The other complaint is subject to report bearing reference ADJ-00014956. The complaints were heard together on the 14th August 2018 at a single adjudication hearing.
This dispute involves a claim by two Complainants brought pursuant to Sections 3 and 6 of the Equal Status Act 2000 as amended by the Equality (Miscellaneous Provisions) Act 2015 with effect from 1st January 2016 which introduced the ‘housing assistance ground’ and prohibits discrimination in the provision of accommodation. The Complainants contend that they have been discriminated against by the Respondent in its refusal to accept the Housing Assistance Payment (hereinafter also referred to as ‘HAP’) Scheme towards the payment of their rent, being eligible for the payment of same.
The Respondent did not send in any submissions to the Workplace Relations Commission (‘WRC’) and did not attend the hearing. Post-hearing, on 15th August 2018 the Respondent sent communication via email to the WRC apologising for his non-attendance at the hearing. The Respondent, in his email stated: “My Father is very I'll at the moment with Parkinson's and has also early demensia [sic]. I'm trying to juggle my Father, family life and work just now.” In a letter to the Respondent dated 2nd July 2018 which outlined the details of the adjudication hearing (date, time and the venue) the WRC informed the Respondent that in exceptional circumstances and for substantial reasons a postponement of the hearing will be granted. The letter further stated that “Applications for postponement should be made in writing to the Commission’s Adjudication Services at the earliest possible date (by email to firstname.lastname@example.org will suffice) setting out the full reasons for the application …” The Respondent did not engage with the WRC at any stage prior to the hearing, he did not apply for a postponement and did not indicate any difficulties attending the hearing. I have considered the Respondent communication of 15th August 2018 and I decided that the explanation he has offered for his non-attendance at the hearing is not reasonable in all the circumstances.
Given the sensitivities surrounding the issues connected with this case I have decided to exercise my discretion and anonymise the names of the parties involved.
Summary of Complainants’ Case:
The Complainants submit that they have been long-term tenants in a house under a tenancy agreement with the Respondent. They resided there with their four children aged now thirteen, nine, six and two. The Complainants submit that they agreed with the Respondent a long-term rent of the Respondent’s house from 1st December 2015. The Complainants submit that the house was not furnished and a number of improvements were necessary. Taking the agreed long-term arrangement into account, the Complainants undertook to furnish the house and carry out some of the works in the house at their own expense. The Complainants confirmed that at all material times, they had honoured their legal obligations under the tenancy agreement and have always discharged their rent of €950 monthly in a timely manner.
Correspondence was furnished confirming that the Complainants and the family had applied for Council Housing and by letter dated 28th April 2017, the Local Authority for the rental property in question confirmed their place on the waiting list for social housing and eligibility for HAP as follows: “At present, the Council is not in a position to allocate a dwelling to you and therefore you have been placed on the waiting list for social housing. When any accommodation that is suitable for your housing needs becomes available in your areas of preference, you will be considered for same together with all other qualified applicants. You are now eligible to apply for the Housing Assistance Payment (HAP) Scheme. I enclose a HAP Information Pack, if you wish to apply please complete and return to the Housing Allocations at (your Local Authority), once you have sourced suitable accommodation within the rent caps and suitable to your household needs.”
The Complainants needed to avail of the HAP Scheme as they were struggling to meet the rent from the family’s income. On 2nd May 2017 the Complainants sent their first inquiry about HAP to the Respondent via text message. The Respondent replied: “We can talk but it’s most unlikely that I will be doing HAP”. The Respondent obliged to talk to his accountant about the matter. The Complainants exhibited copies of text messages exchange between the parties from 2nd May to 11th September 2017. On 2nd May 2017 the Respondent inquired what is the maximum rent the Complainants would pay and the Complainants confirmed that they can pay maximum €1,000 and confirmed their long-term commitment. On 23rd May 2017 the Complainants agreed to increase the rent to €1,100 and again inquired about the application form. On 5th June 2017 the Complainants again inquired about the application form. The Respondent replied that the form is with his “account” (presumably meaning his accountant) and he hoped to know more “later this week or next week”. On 16th June 2017 the Complainants again inquired about the application form. On 21st June 2017 the Complainants again inquired about the form. The Respondent replied: “I will drop form to you Thursday or Friday evening.” On 24th June 2017 the Complainants sent another text message to the Respondent. On 11th September 2017 the Complainants again inquired about the application form. The Respondent replied: “I’m sorry but I can’t do HAP just now. We can have a look next year.”
The Complainants submit that they have struggled financially and subsequently contacted Threshold seeking assistance. Having obtained advice from Threshold, on 19th January 2018 they emailed the Respondent informing him that they would like to apply for HAP and requesting the form to be forwarded to them as soon as possible. They forwarded to the Respondent correspondence they have received from Threshold informing that “A landlord must accept HAP and to refuse this is considered discrimination.” A link to the Irish Human Rights and Equality Commission website https://www.ihrec.ie/guides-and-tools/human-rights-and-equality-in-the-provision-of-good-and-services/what-does-the-law-say/housing/ was included in the email. The Respondent replied stating that: “…you will have to wait until I arrive back to Ireland end of February. If this does not fit your plans…then you will have to look for another house.” The Complainant replied informing the Respondent that they accept that and asking “please let me know when you arrive back to Ireland exactly when you ready. Can we use the old HAP form for that, or get the new one from city council social housing department?” The Respondent replied saying that he will do his best to meet the Complainants’ expectation on his return. He also stated that he “will need to spend some money to repair roof and patio so if u guys decide u want to continue at No. 12…then we can make a plan.” He advised that it would probably be best for the Complainants to get a new form from the Council.
Both Complainants gave evidence at the adjudication hearing. The Complainants confirmed at the hearing that the roof of the house badly needed to be repaired. This was discussed in December 2015 and has since put the Complainants under additional financial pressure. The Complainants did their best to keep the house dry at significantly increased cost of electricity. They anxiously awaited the roof repair since December 2015. The Complainants submitted that they met with the Respondent in the house on 5th March 2018. The roof repair, HAP and increase of rent were discussed at that meeting. The Complainants contended that the Respondent first replied: “not really” when asked about the possibility of HAP. He then stated that he would need to speak to his accountant and asked them to wait two more months. The Complainants claim that they told the Respondent at this stage that they could not wait any longer and they informed him that they would refer the matter to Threshold and Residential Tenancies Board. The Complainants contended that the Respondent then told them to get out of the house if they didn’t like it, that it was his house and no one would tell him what to do. The Respondent added that if they do anything they could look for a new house. The Complainants submitted that they contacted Threshold and a letter was sent on their behalf to the Respondent on 6th March 2018 (by email and post). In the letter Ms H of Threshold informed the Respondent of the provisions of the Equality (Miscellaneous Provisions) Act 2015. She requested the Respondent to arrange to contact the Complainant and complete the signing of the HAP forms as a priority. She informed the Respondent that an action would be taken against the landlord should he not engage with the Complainants. She also provided her contact details should the Respondent have any comments or queries. The Complainants submit that on the next day, 7th March 2018 the Respondent visited them in the house and delivered an envelope stating: “there is your HAP”. However, after opening the envelope they discovered that it was a “Notice of Termination”. On 14th March 2018, the Complainants sent an ES1 Notification to the Respondent stating that the Respondent had treated them unlawfully by refusing to participate in the HAP Scheme. On 28th March 2018, the Respondent sent an ES2 Reply to Notification to the Complainants accepting that he received a request in respect of HAP assistance from the Complainants on 2nd May 2017. He stated that he did not refuse to facilitate the HAP assistance application but was not in a position to do so as a result of not having a Tax Clearance Certificate. He further stated that he has been attempting to rectify the situation and the request for HAP assistance “has absolutely nothing to do with ending your tenancy.”
The Complainants gave examples of the consequent financial hardship and detriment suffered which compromised their quality of life as a family. The Complainants submit that they secured a new accommodation from 9th July 2018. The agreed rent is €1,150 and they secured HAP assistance of €858 as of 13th August 2018. However, due to time constraints and the challenging circumstances of the property market they had to downgrade to an apartment. The Complainants submit that this is not an ideal situation with four kids. They also own a dog. Moreover, they were not in a position to move all their belongings which they had specifically purchased to furnish the Respondent’s house and most of them had to be disposed of suffering a significant financial loss. They were also not in a position to move garden furniture and children’s play equipment such as trampoline, slides etc. which were acquired bearing in mind the originally agreed long-term tenancy arrangement. They did not recoup the money invested in the improvements carried out in the house (deck, shed etc.). In addition, the major benefit of the Respondent’s house was proximity to the school the children attend. They are now in a position where their children need to be driven to and from the school.
The Complainants confirmed that they were able to avail of the HAP Scheme and receive €858 monthly toward their current rent. However, as they have been unable to avail of the HAP Scheme previously, they have had to meet the shortfall with loans. Copies of relevant documentation from a named financial institution and instalments agreement with electricity provider were exhibited. The Complainants pointed out that although they have moved out of the house in July 2018 they are still paying off their outstanding financial liabilities in respect of the house.
The Complainants seek compensation for the effects of the Respondent’s discriminatory conduct to include a sum reflecting the direct financial loss suffered by reason of the Respondent’s non-participation in the Scheme. According to the Complainants, the Respondent has left them in a position where they could not avail of the HAP scheme for a period of over fifteen months. The Complainants contend that the Respondent discriminated against them as a result of his failure to allow them avail of the HAP entitlement and, as a result, this had a damaging effect for their family, both financially and personally.
Summary of Respondent’s Case:
As outlined above, the Respondent did not forward any written submissions in response to this complaint and did not attend the oral hearing. In a written reply to the Complainants’ notification of the complaint, dated 28th March 2018 the Respondent accepted that he received a request in respect of HAP assistance from the Complainants on 2nd May 2017. He stated that he did not refuse to facilitate the HAP assistance application but was not in a position to do so as a result of not having a Tax Clearance Certificate. He further stated that he has been attempting to rectify the situation and the request for HAP assistance “has absolutely nothing to do with ending your tenancy.”
Findings and Conclusions:
The sole issue for determination of this complaint is whether the Respondent discriminated against the Complainants under the ‘housing assistance ground’ contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended), by refusing to complete its section of the HAP Application Form/s and/or its refusal to accept payment of their rent under the HAP Scheme and by subsequent termination of the tenancy agreement.
Section 3(1) provides: “For the purposes of this Act discrimination shall be taken to occur— (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,”
Section 3(3B) provides: “For the purposes of section 6(1)(c), the discriminatory grounds shall (in addition to the grounds specified in subsection (2)) include the ground that as between any two persons, that one is in receipt of rent supplement (within the meaning of section 6(8)), housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014) or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”).”
Section 6(1) of the Equal Status Act 2000 as amended provides: “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) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities. Section 6(1A) provides: “Subsection (1)(c) is without prejudice to- (a) any enactment or rule of law regulating the provision of accommodation, or (b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.”
Section 6(2) provides for a list of exclusions from this provision including: “(a) the disposal of any estate or interest in premises by will or gift, (c) any disposal of such an estate or interest, or any provision of accommodation or of any services or amenities relating to accommodation, which is not available to the public generally or a section of the public,
(d) the provision of accommodation by a person in a part (other than a separate and self-contained part) of the person’s home, or where the provision of the accommodation affects the person’s private or family life or that of any other person residing in the home, or
(e) the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender.”
In relation to the applicable burden of proof, Section 38A of the Acts applies to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. 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.
There is no issue that this complaint is properly before the WRC and has been brought within the requisite time-limits provided by Section 21 of the Acts, including those for giving notice of a complaint and referring the complaint. The Complainants’ household is a ‘qualified household’ eligible for the HAP Scheme. Therefore, they are covered by the prohibited ground as per Section 3(3B) as mentioned above. The Complainants’ case is that they agreed to a long-term tenancy commencing on 1st December 2015. They claim that they first notified the Respondent that they had HAP form in May 2017 and the Respondent refused to participate in the scheme. They again notified the Respondent that they would like to apply for HAP on 19th January 2018 and subsequently Threshold wrote on their behalf to the Respondent on 6th March 2018 outlining the Respondent’s obligation under the Equal Status Act. The Complainants claim that on 7th March 2018 the Respondent delivered a Notice of Termination dated 7th March 2018 by hand. I find the Complainants have established a prima facie case of discriminatory treatment on the housing assistance ground.
I must now consider if the Respondent has rebutted the prima facie case raised by the Complainants. The Respondent did not attend the hearing. In a written response to the Complainants’ form ES1 outlined above the Respondent appears to be claiming that he did not refuse to facilitate the HAP assistance application but was not in a position to do so as a result of not having a Tax Clearance Certificate. There was no evidence proffered by or on behalf the Respondent in support of this statement. The Respondent did not forward any written submissions in response to this complaint. I am therefore satisfied that the Respondent has failed to rebut the inference of discrimination.
Having considered the uncontested evidence and on the balance of probability, I find that the Respondent refused to participate in the HAP scheme and chose to terminate the tenancy agreement held with the Complainants on the basis of the HAP application presented to him. Accordingly, I find that the Respondent discriminated against the Complainants because they were HAP approved applicants.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Under Section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:
"the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the prohibited conduct concerned; or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
The maximum amount of compensation I can award under the above Section is €15,000. In considering the amount of compensation that I should award, I have considered the effect of the discriminatory treatment has had on the Complainants and the family. Given the real and tangible effects of the Respondent’s ongoing refusal to participate in the HAP Scheme including the financial hardship suffered by the Complainants and the family, I consider this discrimination to be at the more serious end of the scale. Also, I take note of the stress and inconvenience of having to find suitable accommodation within a short period of time and the emotional and financial pressures they experienced. Having regard to all the circumstances and pursuant to Section 27(1)(a) of the Acts, I deem it appropriate to order the Respondent to pay €7,000 to the Complainant (Tenant A) in compensation for the effects of the prohibited conduct concerned.
Dated: 4th September 2018.
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Equal Status Acts - Section 6 - provision of accommodation - Section 3(3B) - housing assistance ground – HAP – compensation