ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008034
A member of the Travelling Community
A County council
1. David Fennelly Bl. 2. Irish Human Rights and Equality Commission
Director of Services
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 15/11/2017
Workplace Relations Commission Adjudication Officer: Shay Henry
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Act, 2000, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainants applied for social housing to a local authority in June 2016. The Council refused the application on the basis that they were not normally resident in that local authority area.
Summary of Complainant’s Case:
The complainant and her family are members of the Traveller community. In June 2016 the complainant and her husband with their three children, applied to the respondent County Council to be placed on that council's housing list as they had been living in the county for two years. Their application was refused and the family appealed the decision. In the letter appealing the decision the complainant stated that; they had been normally resident in that county since 2014, they had family connections in the area, and they were effectively homeless as they were living on the side of the road in a small caravan without basic facilities and no prospect of finding accommodation without the assistance of the county council. The respondents sent a letter dated 10 October 2016 to the complainant stating that a review of the initial determination of their application had been carried out and the decision to deem them ineligible for social housing support had been upheld. The letter from the respondents stated that the Social Housing Assessment Regulations 2011 stipulated that a household should apply for social housing support to the local authority in whose area they normally resided. It stated that at the time of their application in June 2016 the complainants were not normally resident in the respondent county as they were ‘illegally residing in a caravan on private property’. The letter further stated that the council was informed by the Garda authorities that the complainants had subsequently moved to a neighbouring county where they remained and, therefore, they were not normally resident in the respondent county council area and did not satisfy the eligibility criteria. The letter from the respondent also stated that no member of the complainant’s household was in full-time education in the respondent county area, and they had not established any close links in the form of commitment or dependence with any relative who had lived in the area for a minimum period of two years. It was stated in the letter that, therefore, they had not demonstrated a local connection with the administrative area of the respondent.
In considering the complainant’s application, the council treated the complainant’s family less favourably than housing applicants who are not members of the traveller community. The council failed to take account of the distinct challenges facing members of the traveller community which would not be faced by members of the settled community.
To give effect to the provisions of the Housing (Miscellaneous Provisions) Act 2009 the Minister adopted the Social Housing Assessment Regulations 2011 which lay out the general rules applicable to applications for social housing. Regulation 5 identifies the appropriate housing authority to which an applicant may apply as either;
a) The housing authority for the functional area in which the household normally resides or
b) The housing authority for the functional area with which the household has a local connection or
c) The housing authority that agrees, at its discretion, to conduct a social housing assessment in respect of that household on receipt of an application from the household.
The focus on normal residence and local connection poses particular challenges for members of the Travelling community due to their nomadic tradition which makes it all the more important that the interpretation and application of the criteria is undertaken in a manner which takes account of the distinct circumstances of applicants from that community. In this case, the specific geographical region concerned posed particular issues as it is a confined area at the crossroads of three different counties.
There is no dispute about the fact that the complainants were, at the time of their application, living in the respondent county council area. The Regulations speak of ‘normal residence’ not legal or lawful residence. The latter is an additional criterion inserted by the council. Furthermore, it does not appear that the Council routinely assesses the lawfulness of the current residence of all applicants for social housing e.g. the legality of applicants’ existing tenancy arrangements. If legality were a proper consideration it would provide a basis for rejecting applications from many applicants who would be most in need. By adopting the approach they did in relation to the legality issue, the council treated the complainants less favourably than members of the settled community who applied for inclusion on the social hosing list.
It is also submitted that the respondent discriminated in relation to Regulation 5(b) regarding local connection. This criteria, which places an emphasis on applicants with a settled life style, puts Traveller families at a disadvantage. The criterion relating to employment, in circumstances where members of the Travelling community face such high levels of unemployment, places the community at a disadvantage. In relation to Regulation 6(c) the council also took no account of the unusual circumstances insofar as while the children were in education in a different county, the school in question was very close to the complainant’s place of residence. Also, under Regulation 6 (d) a narrow view was taken of relatives of household members.
The council failed to consider whether or not to exercise its discretion under Regulation 5 (c).
Local authorities have special duties towards homeless persons and the complainants in their application stated that they were homeless. The respondent has stated that the complainants could have sought emergency accommodation from a neighbouring county on the basis that the origin of the homeless incident was in that council’s administrative area because the last permanent address which the family had was in the that other county. This appears to be premised on the belief that homelessness may only arise from a permanent address as opposed to other circumstances, specifically a caravan of a Traveller family. This interpretation has no legislative support and is discriminatory as it puts members of the Travelling Community at a particular disadvantage in applying for support as homeless persons.
Summary of Respondent’s Case:
The complainants submitted an application to the respondent County Council for Social Housing Support (SHS) on 24th June, 2016 in respect of their household which consisted of themselves and their 3 children. All Applications for SHS are assessed by the council in accordance with the Social Housing Assessment Regulations 2011 which Regulations were made under the Housing (Miscellaneous Provisions) Act, 2009 and under the guidance issued by the Department for implementing the regulations.
The general rule is that a household will apply to the authority where the household normally resides. It was noted that at the time of this household's initial application to this Authority (in June 2016) for Social Housing Support, this household was not normally resident in the respondent County as the family were at this time illegally residing in a caravan on private property. Notwithstanding the general rule that a household will apply to the authority in whose functional area it resides, an application can be made to another housing authority provided the household can demonstrate, to the satisfaction of the housing authority of application, a local connection with the area. ln determining if a household has a local connection to its area, the housing authority shall have regard to whether: -
A member of the household has resided for a continuous 5 year period at any time in the area concerned; or
The place of employment of any household member is in the area concerned or is located within 1.5 kilometres of the area; or
A household member is in full-time education in any university, college, school or other education establishment in the area concerned; or
Any household member with an enduring physical, sensory, mental health or intellectual impairment is attending an educational or medical establishment in the area concerned that has facilities or services specifically related to such impairment, or
A relative of any household member lives in the area concerned and has lived there for a minimum period of 2 years. A relative in this context is defined in the regulations as being a parent, adult child or sibling and includes other relatives such as a step-parent, grandparent, grandchild, aunt or uncle, where there are close links with the household in the form of a commitment or dependence.
The Council examined the complainants’ application under the above headings and determined as follows; the household was deemed not to have satisfied the eligibility criteria having regard to the fact that they neither normally resided within the functional area of the Council nor did they demonstrate, to the satisfaction of this authority, that they had a local connection with the administrative area of the respondent County Council at that time, to enable them to apply to that Council for social housing support. The family were notified by letter dated 9th August, 2016 that they did not satisfy the eligibility criteria. The decision was appealed and the council, having reviewed the matter, upheld the original decision.
Findings and Conclusions:
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.
The interpretation of the Social Housing Assessment Regulations 2011, made under the Housing (Miscellaneous Provisions) Act, 2009 and the guidance issued by the Department for implementing the regulations, is the central issue to be considered. Regulation 5 (a) identifies the appropriate housing authority to which an applicant may apply as the housing authority for the functional area in which the household normally resides. The respondent has interpreted this as only referring to a legal residence and excluded the complainants on the basis that their caravan was illegally parked on private property. The issue of legality is not mentioned in the regulations and in my view, the introduction of this additional criterion disproportionately affects members of the traveller community and is therefore discriminatory. Furthermore, the question of the legal tenancy of people resident in houses is not generally examined by the local authority when applications are received from such residents for accommodation. The application of the legality requirement is clearly therefore discriminatory towards members of the traveller community and in particular in this instance to the complainants.
In relation to Regulation 5(b), section 14 (1) (a) (i) of the Equal Status Act, 2000, states:
Certain measures or activities not prohibited.
14.—(1) Nothing in this Act shall be construed as prohibiting—
( a) the taking of any action that is required by or under—
(i) any enactment or order of a court,
(ii) any act done or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or
(iii) any convention or other instrument imposing an international obligation on the State,…”
That provision precludes me from expressing any opinion on whether any legislative provision is discriminatory or not.
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.
In deciding on the appropriate compensation I note that the complainants have secured accommodation in a neighbouring local authority. 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 €4,000 to the Complainant in compensation for the effects of the prohibited conduct concerned.
In addition, I direct the Respondent to review its policy in relation to the Social Housing Assessment Regulations to remove the criterion of legality when interpreting normal residence.
Dated: 26th April 2018
Workplace Relations Commission Adjudication Officer: Shay Henry
Equal Status Acts. Local authoring housing accommodation. Interpretation of Normal residence