ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012392
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: 26/06/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a claim to the Workplace Relations Commission. It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This Notice in writing shall be brought within two months of the said prohibited conduct or the last instance of same. I note the form ES.1 has been sent to the Respondent on or about the 31st of August 2017 and within two months of the date of the alleged discrimination.
Pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me by the Director General for the purpose of investigation into claims of discrimination and I have heard where appropriate interested parties and have considered any relevant documentation provided in advance of the hearing and in the course of the hearing.
It should be noted that this file should be read in conjunction with the file ADJ number 12389. This second file has been withdrawn in circumstances where it was accepted that the allegation of discrimination on the grounds of disability could only be brought by the Complainant of the within proceedings. The Complainant in ADJ 12389 accepted he had no disability.
The Complainant herein issued a complaint by way of Workplace Relations Complaint Form dated the 19th of December 2017 and which sets out an allegation that the Respondent herein has discriminated against her by reason of her Disability. In particular the Complainant has cited the Respondent’s refusal to rent an apartment to the Complainant in circumstances where the primary reason for said refusal stems from the fact that the Complainant is the owner of and in need of an Emotional Support Animal.
Per the Act I accept that the Respondent is providing a ‘‘service’’, meaning he provides a service or facility of any nature which is available to the public generally or a section of the public.
The Equal Status Act, 2000 states:-
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination…..
Summary of Complainant’s Case:
The Complainant says she has a disability that should have been accommodated by the Respondent when she proposed becoming his tenant.
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
1 S.2 (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;
Summary of Respondent’s Case:
The Respondent says that there is a no dogs policy in operation in the complex wherein it was intended he would rent an apartment to the Complainant.
Findings and Conclusions:
I have carefully considered the evidence adduced herein. The Complainant and her partner agreed to rent an apartment which had been shown to them by a letting agent. The landlord, having been contacted by the said letting agency was happy to accept the couple as prospective tenants and the couple were able to pay a deposit and move into the apartment within two weeks. A deposit and a month’s rent was duly taken by the Letting Agent.
The Complainant and her partner had possession of the Residential Tenancy Agreement from about the 4th of August 2017.
There can be no doubt that the apartment being rented was being rented on the basis of there being no pets allowed per page 9 of the Special conditions where at point 3 it reads:
“No pets permitted in the property”
An additional reference to pets was contained in the third covenant 3:16 which reads
“Not to keep any animals …on the property without the landlord’s written consent”
The Complainant does not deny that she and her partner were aware of the Residential Tenancy Agreement as far as the issue of pets was concerned. . The Complainant has been the owner of a dog for the last eight years and therefore could be taken to have known or ought to have known that an issue might arise. That said, when I expressly asked her, the Complainant said she did not think it would be an issue. The Complainant is a native of Germany said that her different cultural background meant that she had no real understanding of having a pet would pose such difficulties when it comes to the rental market.
The Complainant repeatedly made the point that there is no basis for the application of an almost blanket policy not to allow pets into privately rented residential properties, when pets are such a normal mundane asp3ect of everyday domestic life. The Complainant struck me as genuinely concerned at this mindset, though accepted that any consideration of that viewpoint went well beyond the scope of the matter before me.
Just before the date assigned for the couple to move into the apartment it came to light that that the Complainant had a pet dog. And she did not deny this fact with the letting agent who rang her about it. The information it seems came to light by way of an included detail in an otherwise good reference from a previous landlord.
The letting agent was bound to notify the landlord – the Respondent herein. In his evidence, the Landlord stated that the concealment of the fact of dog ownership gave rise to concerns on his part such that he did not consider he could trust the tenants and opted to break the agreement and return the deposit. The Respondent was, in the course of the three or four days that all this transpired, made aware of the fact that the Complainant was very anxious to proceed with the arrangement and would provide an extra deposit and pet insurance. The Complainant urged the Landlord to recognise that the dog in question was necessary for her and was in fact registered as an “Emotional Support Animal”.
I was obliged to probe deeper into what exactly this registration meant. I fully accept that the Complainant had undergone therapy in 2016 to deal with issues she has had to work through. At that time the Complainant learnt that there was some International recognition of the fact that some people benefit hugely from the companionship and presence of a pet. In particular it seems that the there is some evidence which shows a person in need of such a pet is more likely to remain calm and balanced around that pet.
The Complainant did some research into the topic at the time and believed that her own dog provided that emotional support and in the circumstances, she had her dog registered as an emotional support animal an and around the end of 2016. The Complainant was not able to give me specific details of how such emotional support animals are generally recognised and/or accepted in this jurisdiction. Whilst I am familiar with the concept of Guide dogs for the blind and Autism assistance dogs I am not familiar with this class of canine.
I explained to the Complainant that she had to make out a Prima Facie case that she had a disability and that she was discriminated against on the basis of the said disability.
On balance, I cannot find that the self-certification of a much beloved pet as an emotional support animal amounts to a necessary by-product or medical requirement which has been appropriately or professionally diagnosed so as to help the Complainant deal with any on-going mental health issues she might have.
There is no evidence that there is a medical requirement or medical presumption that her mental health would be facilitated by her going to the trouble of registering her pet (in America) as her emotional support pet. Whilst I do not doubt the existence of a disability per se, I have been given no evidence that suggest that there has been a professional medical assertion that the Complainant needs an emotional support animal.
I have no reason to disbelieve the Complainants assertion that some airlines allow such pets travel in the cabin though I have no evidence of same and no idea what accommodation is made to allow for that.
I allowed the Complainant a two-week period post hearing to come back to me with some evidence which might bolster her case. In particular I am anxious to learn what status, if any, such animals might have in this jurisdiction. I indicated I would give a right of reply to the Respondent etc. In the event, the Complainant did not avail of this facility and no further evidence has been forthcoming.
On balance, I therefore find that the Complainant has not made out a Prima Facie case of discrimination.
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.
The Complainant has failed in her claim under the Equal Status Act of 2000
Dated: 31st October 2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath