ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014215
Mr Emmanuel Eguare
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: 02/08/2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
In accordance Section 25 of the Equal Status Act, 2000,following 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.
The Complainant referred a complaint to the WRC on 17th April 2018 under Section 21 of the Equal Status Act 2000-2015 (also referred to as 'the Acts'), the Complainant having sent an ES1 Notification to the Respondent on 27th February 2018; no ES2 Reply was received by the Complainant. The complaint was referred to me by the Director General for hearing and determination pursuant to Section 25 of the Equal Status Act.
This complaint is 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 Complainant is a long-term tenant of the Respondent Landlord and contends that she has been discriminated against by the Respondent in his ongoing refusal to accept the Housing Assistance Payment (hereinafter also referred to as ‘HAP’) Scheme towards the payment of her rent, being eligible for the payment of same. The Respondent contends that personal family circumstances prevent him from accepting HAP from this tenant, i.e. he intends that his children live in the rented house when they attend third level education in Dublin.
Summary of Complainant’s Case:
The Complainant submitted that she has approached her landlord on several occasions asking him to accept the HAP scheme, but that he continually refuses to accept her request. The Complainant and her husband pay a rent of €1,700 per month for the house they rent from the Respondent. At present they receive Rent Supplement of €1,094, which leaves them with a balance of €606 to pay every month. The Complainant's husband is working and his hours vary between twenty-four and thirty hours per week, he cannot work above these hours as to do so would disqualify the couple from the Rent Supplement; without Rent Supplement the couple do not earn enough to pay the rent themselves. The Complainant is in receipt of a Carers Allowance, as one of her children needs extra care, she can work up to fifteen hours per week, but again should she take up employment it would add to the family income and disqualify them from receiving Rent Supplement. Even if the Complainant did take up employment, by losing the Rent Supplement, the couple would be at a major monetary loss.
The Complainant submits that the landlord, by refusing to accept HAP, is treating the family less favourably and putting the family at a financial disadvantage and leaving them to struggle each month to pay the top up they must pay. The Complainant submitted that if she and her husband could avail of the HAP scheme then he could work more hours and she could take up part-time employment without losing assistance in rental payment and this is where the financial and unfavourable treatment comes in.
In direct evidence at the hearing, the Complainant stated that in or around November 2017 she called her landlord, the Respondent, raising the matter of HAP. The landlord said he would not enter into a HAP arrangement with the Complainant. The Complainant wrote to her landlord on 21st November 2017. This letter, adduced at the hearing, explains the Complainant's family, work and rent allowance situation, and includes a plea to the landlord to reconsider his position in relation to HAP.
The Complainant did not receive a response to her letter from the Respondent, however, sometime in December 2017 the Respondent called to the rented house to carry out some repairs to the gas system. The Complainant took the opportunity to raise the matter of HAP again. She explained to the Respondent how the change would benefit her family.
The Complainant pleaded with the Respondent as the house is ideally suited for taking her child to hospital for her regular visits. The Complainant stated that the Respondent told her that he would not go into HAP as he had had problems with the council regarding HAP and a tenant in another property he owned.
The Complainant stated that she contacted the Respondent by text message on 2nd January 2018 asking him to reconsider. His reply, sent the next day, included the following, "I am sorry but like I told you before it is not our intention to be involved in the HAP scheme. I have my own reasons and I will appreciate it if you could respect my decision." The Complainant asked the Respondent to reply to her letter, which he did on 4th January 2018. The letter, which was adduced at the hearing, was short, the gist of it contained in the line; "Thank you for your letter. Unfortunately, I am not in a position to go into the HAP scheme arrangements due to my prevailing circumstances."
Following this interaction, the Complainant sought advice from the Citizen's Information Office and it was suggested to her that she should send an ES 1 Form to her landlord. The Complainant stated that the Respondent called her when he received the ES 1 Form, he was annoyed, but said he would reply. He never did.
A month or so after this the Complainant decided to lodge a complaint with the WRC. On the same day as the Complainant received the Respondent's response to her WRC complaint she also received a quit notice from her landlord, the Respondent, dated 23rd May 2018, which informed her that, "due to personal and family reasons, I will not be in a position to renew your tenancy contract at the expiration of the current one at the end of December 2018 and thereby serve you this notice".
The Complainant believes this quit notice was sent in bad faith. She believes this as sometime in 2017 the Respondent lead her to understand that his children live in another house which he owns in Dublin and because about four years ago he called her to tell her that he needed her house for his children, but that ended up as a rent increase.
In response to my questions the Complainant explained she had found another house to live in that did accept HAP but because the Notice to Quit from the Respondent was invalid the local council could not support the move. The PTRB has suggested mediation on the issue of the Notice to Quit, nothing else.
In closing, the Complainant stated that it had never seemed to her in her interactions with the Respondent that he needed the house for his children and that he was perhaps reticent to enter the HAP scheme because of the standards required of dwellings in the scheme. She also stated that she knew that the Respondent had moved his children into another house.
Summary of Respondent’s Case:
In his written submission to the WRC the Respondent outlined that he had he first met the Complainant in 2011 when she implored him to rent his home. He acceded to her request on compassionate grounds and since then their relationship has been strictly on a landlord/tenant basis and has remained amicable.
In early 2018, the Complainant contacted the Respondent saying that she wanted to change the previously agreed contract in that she wanted to transfer to the HAP scheme. The Respondent submits that he explained to the Complainant that because of his prevailing personal and family circumstances it would not be possible for him to go into the HAP scheme as this would entail long-term and binding contracts. His expectation was that the Complainant would accept his explanation.
The Respondent was annoyed that the Complainant had probed into his private affairs and had obtained information by stealth from him which she had disclosed to the WRC (e.g. text messages).
The Respondent submitted that he wanted to make it abundantly clear that he had no reason whatsoever to discriminate against the Complainant and he was appalled that she was making this "egregious accusation of discrimination" against him. The Respondent had explained to the Complainant that he would not be able go into the HAP scheme as he has two children who are in universities in Dublin (and a third who will be joining them) who are in desperate need of accommodation in Dublin and that it had always been his intention to notify the Complainant that he would not be renewing the tenancy at the expiration of the current one. The primary purpose of acquiring this property was for his family's use.
The Respondent went on to write, "when we did not need the property for my family use, I willingly offered it to contribute in my small way in the alleviation of the housing pressures in Dublin and for the past seven years they have lived there without any hindrance. Now that I need it for the purpose we intended, I think it is only fair that she understands that."
In direct evidence at the hearing, the Respondent stated that the Complainant has been a tenant for seven years and that she has been a good tenant. Regarding the text messages referred to above, the Respondent stated that he had replied that he had no problem with the Complainant but had a problem with the HAP scheme. It is his view that once you get into HAP it is hard to break it. He had bought the house solely to house his children when they went to college; he had told the Complainant this and he was taken aback when he received the ES 1 Form.
On receipt of the ES 1 Form the Respondent was "hot" and he rang the Complainant asking her if she was accusing him of discrimination, even though we are of the same race. He explained that he wanted the house for personal reasons, i.e. for his children to use while they attended college in Dublin and this was the reason that prevented him going into HAP.
When he got the ES 1 Form he decided to send a Notice to Quit to the Complainant. As it transpired this Quit Notice was void as it was not made out on the statutory declaration form and the notice period stipulated in the document was too-short. The Respondent decided that he would get the statutory declaration form and send it with ample time; at the date of hearing he had not yet done this.
The Respondent stated that although he was "hot", he was happy to give the Complainant a reference letter as she had requested.
The Respondent stated that he had told the Complainant more than a year ago that he needed the house. He now needs the house and the reason he did not go into the HAP scheme was mainly due to the long-term aspects of HAP.
In response to questions from me, the Respondent stated that it was the long-term nature of the HAP scheme that creates the problem for him. He is aware that it is illegal to discriminate on the HAP ground but he does not want to tie himself to a long-term HAP contract.
The Respondent denied there was a link between the notification to him of a complaint having been made to the WRC and the quit notice he sent to the Complainant, though he did say that one may have been a "trigger" for the other.
In denying his actions were discriminatory, the Respondent stated that when he bought the house he had a plan and the long-term nature of a HAP agreement would have scuppered that plan; he now needs the house for the purpose for which he bought it.
In closing, the Respondent stated that there was no problem with the house being up to the standards required of dwellings in the HAP scheme and the reason the tenant from the other house moved out was because he got a house from the council.
He had not bought the house for rental purposes but for his children. As he had explained, "once in a HAP scheme, you can't get out of it".
Addressing the Complainant, the Respondent stated that his "aim is not to put you on the streets, but I know the 3-4 year aspect of HAP won't work for me."
Findings and Conclusions:
The only issue for determination in this complaint is whether the Respondent discriminated against the Complainant under the ‘housing assistance ground’ contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended), by refusing to accede to the Complainant's request to move from the Rent Allowance system to the HAP scheme for rent payments.
Section 3(1) of the Act 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.”
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 and there is no question that the Complainant’s household is a ‘qualified household’ within the meaning of Part 4 of the Housing (Miscellaneous Provisions) Act 2014 and thus eligible for the HAP Scheme.
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 Complainant has tried on a number of occasions to persuade the Respondent to accept HAP as a method of paying rent but to no avail, this is not disputed and as such I am satisfied that the Complainant has 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 Complainant. The Respondent stands over his decision to refuse to enter into a HAP scheme agreement with the Complainant because he does not want to be tied into a long-term contract, which he believes would come with HAP. His view is that he is entitled to utilise his house for the purpose for which he says it was bought and he is not legally bound to enter into a HAP scheme agreement with the Complainant.
It would seem to me that the Respondent only aired his desire to use the house for his children when the Complainant introduced the notion of HAP, up to that point there did not seem to be any issue regarding the continuation of the tenancy.
The Complainant also gave evidence, which I find credible, that there were reasons, other than that given by the Respondent, to explain his refusal to agree to accept HAP as a method of rental payment.
I am satisfied that the Respondent’s ongoing refusal to accept HAP towards payment of the Complainant's rent by way of direct payment from the Local Authority in question amounts to less favourable treatment when compared with a tenant not requiring HAP. Owing to the Complainant's financial situation, the Respondent’s refusal to participate in the HAP Scheme has had effect of placing the Complainant in a detrimental financial situation and has placed the tenancy in jeopardy.
I find that the Respondent refused to participate in the HAP scheme and chose to initiate the termination of the tenancy agreement held with the Complainant based on the HAP request presented to him by the Complainant. Accordingly, I find that the Respondent discriminated against the Complainant on the HAP ground.
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 Complainant and her family.
Because the Complainant and her husband have not been able avail of the HAP scheme she and he have been unable to take on extra hours of work for fear of losing their rent assistance; thus, they have lost out financially due to the Respondent's stance on HAP. The Complainant and her family have also suffered emotionally due to the stress that this matter has caused for them.
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 within 42 days of the date of this Decision in compensation for the effects of the prohibited conduct concerned.
In addition, I direct the Respondent to take such steps as are required to enable the Complainant to participate in the HAP Scheme and accept HAP payments from the relevant Local Authority forthwith.
Workplace Relations Commission Adjudication Officer: Roger McGrath
HAP, tenant, landlord, discrimination