ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009705
A Property Company
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: 31/05/2018
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with 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 was a tenant who wished to avail of the Housing Assistance Payment (HAP) Scheme.
Summary of Complainant’s Case:
The complainant became a tenant in the relevant property in January 2016. The initial tenancy was for one year but continued on a monthly basis.
The complainant wished to avail of the HAP brought this to the attention of the respondent who, the complainant believed was the property owner’s agent in the matter.
The respondent was evasive or refused to sign the application form.
Then on March 30th, 2017 he was given notice to quit the property.
The sequence of events was as follows.
On March 17th the complainant met an employee of the respondent in relation to the HAP application. On March 20th he was notified of a rent increase.
On March 28th the complainant approached the local authority to apply for HAP and brought these forms to the respondent on March 29th.
In the course of that day he was told that the agency would not sign the form. The complainant sent an email to the respondent summarising what had happened that day and the following day he was given the notice to quit.
The complainant had asked the respondent on a number of occasions whether they had been on contact with the property owner.
In a subsequent submission the complainant added the following; This is a commentary on three previous decisions of the WRC ADJ-0000329, ADJ-00004060 and ADJ-00004073
"According to the respondent, [ADJ 00004073] the landlord had told him he would not be able to obtain insurance if he accepted a tenant on rent allowance, as the insurance company would not accept rent allowance as valid income and hence not cover the landlord for loss of rent. The respondent stated that he felt obliged to act on the landlord’s instructions as, in his words, “he’s the one paying me”." - this is part of the respondent's submission.
In the decision we can read: "In terms of basic contract law, if an act is illegal under statute, then a contract to do that act will also be illegal and unenforceable.[...]In other words, from the moment discrimination on the housing assistance ground became unlawful, any contractual obligation on the part of the respondent to accept an instruction to reject tenants in receipt of same from its clients became likewise illegal, and hence cannot avail the respondent as a defence. Accordingly, I find that
the complainant is entitled to succeed."
I believe the above mentioned cases will clarify the aspects on this case and show that agents acting on instructions of the landlords must respect the legislation and avoid discriminating tenants or prospective tenants.
Summary of Respondent’s Case:
The respondent says that the letting agreement is between the landlord and the tenant.
There was no agreement involving the respondent. It was the letting agent only and did not have a continuing property management role.
The respondent does not have the authority to authorise receipt of payments based on HAP or to sign the application form.
In a later submission in response to legal submissions by the complainant, the respondent re-stated that an agent may not sign the HAP form, and that the burden of doing so rests squarely with the landlord.
Findings and Conclusions:
Section 3B of the Equal Status Acts 2000-2016, as inserted by S. 13(b) of the Equality (Miscellaneous Provisions) Act 2015, states that
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”).
Similarly, S. 6(1)(c) of the Equal Status Acts 2000-2016 was amended by S. 14(4) of the Equality (Miscellaneous Provisions) Act 2015 to read that
[S]ubject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities. [Emphasis added].
In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 38A of the Acts. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. 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 raised.
The complaint in this case is that neither the landlord nor the letting agent acting for the landlord would sign the application for the HAP.
Initially the respondent in this case, in an attempt to distance itself from responsibility submitted that it had only had a role in letting the property.
On further investigation this turned out not to be the case.
The respondent had been involved in the receipt of the complainant’s rent monies for a considerable part of the tenancy (up to July 2016). The respondent sought to represent its relationship with the landlord as not being of a commercial nature, seemingly suggesting that neither was it engaged in relation to the continuing management of the property.
This too turned out not to be an entirely accurate representation of the relationship with the landlord either, as it emerged that while the respondent may have been acting on a type of pro bono basis for the landlord who was a friend he was fully engaged in what was going on; not the impression he sought to give to the hearing.
This is important as it confirms that the respondent was an active player in the landlord-tenant relationship. It was able to communicate to the complainant on April 25th that the landlord would not accept the complainant as a tenant on the basis that he had HAP support. Just before that on March 20th it communicated news of a rent increase.
In determining whether the current respondent can be validly seen as a respondent it is necessary to look at the provision in the Act above which for convenience is repeated here.
S. 6(1)(c) of the Equal Status Acts 2000-2016, amended by S. 14(4) of the Equality (Miscellaneous Provisions) Act 2015 states that
[S]ubject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities. [Emphasis added].
The reference to ‘any services’ is critical. The respondent was clearly providing ‘services related to accommodation or ceasing to provide accommodation’. Indeed, it was the respondent who communicated the ‘notice to quit’. In addition, the respondent was the conduit to the landlord and also communicated his refusal to accept the HAP payment, or cooperate with the complainant’s application. The respondent and the landlord were in close communication.
Accordingly, I find that the respondent is properly named as a respondent according to Section 6(1)(c) of the Equal Status Acts 2000-2016, amended by S. 14(4) of the Equality (Miscellaneous Provisions) Act 2015.
Secondly, section 42 (2) of the Equal Status Act states;
Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person
This creates a clear direct liability for acts which have clearly been done directly by an agent (see ADJ 4073 below) but also a vicarious liability for acts carried out with the authority of a landlord or property owner, or on their instructions, where these constitute a breach of the act.
The respondent submitted that it could not sign the HAP application form and this is accepted. The following is taken from the HAP.ie website guidance to tenants considering an application.
If you are already on your local authority’s housing list, you can ask for the HAP application form and find your own accommodation. The HAP application form only needs to be filled in after you have found accommodation that meets your needs. This could be your existing accommodation if you are in receipt of Rent Supplement. If this is the case, you need to talk to your landlord as they need to agree to the terms and conditions of the HAP scheme.
So, while it is accepted that there is a requirement that the actual landlord agree to the terms, the provisions of the Equal Status Act as amended make it clear that there can be no discrimination between a HAP tenant and one who is not, and that an agent is also covered by this in the terms of the statutory provisions referred to above.
It should be noted that the Act refers to a person ‘who is in receipt of rent allowance’, and the complainant was not ‘in receipt’ at the material time.
Is the refusal to sign the form a breach of the Act?
Is a person who is not in yet in receipt of HAP, but an applicant covered by its provisions.
To construe the Act in such a strict way so as to defeat the very purpose it was seeking to achieve would be illogical. It was clearly setting out to remove discrimination in relation to accommodation where HAP might be the basis for the discrimination.
In my view, ‘in receipt of’ includes the circumstances in this case where an application for HAP, and the immediate prospect of it being the basis for payment becomes a critical factor in an alleged discriminatory act.
Both of these questions have been addressed comprehensively in ADJ 4100 Tenant A v A Landlord Issued August 9th 2017. I adopt and endorse the following from that decision which has not been the subject of appeal.
‘The starting point in relation to the interpretation of any Act or Statutory Instrument of the Oireachtas is the Interpretation Act 2005. Section 5 of that Act provides: "In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)-(a) that is obscure or ambiguous, or(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of [the Oireachtas]....the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole."
Words should therefore be construed literally, utilising their plain and ordinary meaning unless to do so would fail to give effect to the intention of the legislature as ascertained from the Act as a whole or give rise to an obvious absurdity.
I am also guided by the purposive approach to what are termed as ‘remedial social statutes’ adopted by the Superior Courts. The title to the Equal Status Act 2000 describes it as: “An Act to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access, to provide for investigating and remedying certain discrimination and other unlawful activities...”
In G -v- The Department for Social Protection 2015 IEHC 419, Para 161, Ms Justice O’Malley referred to the Equal Status Act 2000 as being a ‘remedial social statute’ requiring liberal interpretation as follows: “…the Act is intended to cover a broad range of human life and activity, and that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally.”
In this respect, she was guided by Dodd (2008) on Statutory Interpretation in Ireland, Para 6.52: “‘Remedial social statutes’ and legislation of a paternal character favour a purposive interpretation and are said to be construed as widely and liberally as can fairly be done within the constitutional limits of the courts' interpretive role. This formula has been repeated in a number of cases [citations at fn. 82 p.179]…Remedial social statutes are enactments which seek to put right a social wrong and provide some means to achieve a particular social result.” Dodd cited Bank of Ireland -v- Purcell  1 IR 327 at 333, where Mr Justice Walsh in the Supreme Court referred to the Family Home Protection Act 1976 as a ‘remedial social statute’ stating: “This statute is not to be construed as if it were a conveyancing statute. As has been frequently pointed out remedial statutes are to be construed as widely and as liberally as can fairly be done. The first consideration in construing s. 3 is to ascertain the purpose of the section.”
The Equal Status Act 2000 was amended with effect from 1st January 2016 as outlined above such that discrimination in relation to “providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities” is now prohibited under the new ‘housing assistance ground’ which provides 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”).” It was not disputed on behalf of the Respondent that as a matter of principle, landlords are prohibited from discriminating in relation to the provision of accommodation or related services and amenities. In so far as I can understand the arguments made on behalf of the Respondent, the contention that the provisions in question could only apply to a prospective tenant arises from the requirement that for discrimination to arise, as between any two persons, one “is in receipt of” HAP and the other is not. An interpretation of the wording “is in receipt of” is therefore required.
Section 3(3B) of the Act requires housing assistance to be “construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014”.
It is clear from Section 39(2) of that Act that certain minimum conditions have to [be] met by a ‘qualified household’ before HAP becomes payable as follows: “(2) In order for housing assistance to be provided under this Part to a qualified household in respect of a dwelling- (a) that household shall source the dwelling in respect of which it seeks housing assistance, (b) the dwelling concerned shall meet the conditions set down in section 41, (c) the landlord shall comply with the conditions set down in section 42,” A qualified applicant must therefore firstly source a dwelling which meets certain minimum conditions and the landlord for that dwelling has to comply with various conditions before an application can be considered and payment under the HAP Scheme made.
Therefore, the wording “in receipt of” has to be interpreted as encompassing qualified applicants deemed eligible for the payment of HAP once they have sourced a dwelling and all the conditions have been met. To interpret the wording otherwise would render the Section 6(1)(c) provisions nugatory not only in relation to existing tenants but also in relation to prospective tenants. In this respect, an interpretation of the wording “in receipt of” in any other sense would be absurd and/or would fail to reflect the plain intention of the Oireachtas.
(Emphasis added for this current case)
Adopting a purposive approach to the Act which requires a wide and liberal interpretation and taking the provisions as a whole, it is clear that the Oireachtas intended to legislate for a wide gamut of possible discrimination that could arise in relation to the provision of accommodation including the manner in which rent is accepted. In particular, I note the all-encompassing nature of the wording contained in Section 6(1)(c) as prohibiting discrimination in relation to: “providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities”. The inclusion of the word ‘ceasing’ would appear to envisage that discrimination under any of the prohibited grounds can arise in relation to existing tenants. I am also of the view that although the Oireachtas could not possibly legislate for every conceivable discriminatory scenario arising, had it intended to exclude any particular tenancy status, it would have done so explicitly, particularly as Section 6 of the Equal Status Act 2000 (as amended) clearly sets out any exclusions. For the same reasons, I also reject the Respondent’s reliance upon the public information leaflet on the HAP Scheme stating: “The landlord must agree to rent their property to the HAP recipient.” Notwithstanding the fact that there was no evidence as to whether this leaflet post-dated the legislation in question, I am satisfied that this along with any other officially generated documentation has to be read in line with the applicable legislation.
Similarly, in ADJ 11156 A Tenant v A Property Company May 1st 2018, the Adjudicator held;
‘The complainant was an applicant for housing assistance, therefore she is covered by the prohibited ground’.
The complainant relied on a number of earlier decisions of the WC (ADJs 3291, 4060 and 4073).
In ADJ 4073 a letting agent refused to show an apartment to a HAP supported applicant on the instructions of the landlord, and stated that he felt he had to act on the landlord’s instructions as he was paying him. The landlord’s instruction was justified on the basis of an (unproved) assertion that a HAP tenant would adversely affect his insurance.
The Adjudicator in that case found as follows.
The question therefore shifts to whether the unexamined (by the respondent’s own evidence) assertions of his landlord client regarding insurance, coupled with an instruction by the client not to accept tenants in receipt of rent allowance, compel the respondent in any way to conduct his business unlawfully by carrying out this instruction, and therefore constitute a valid defence.
I cannot accept this argument. First of all, I am satisfied that as a letting agent, the respondent is a service provider in its own right within the provision of S. 6(1) of the Equal Status Acts, as amended. It is clear and undisputed that the respondent refused a service when he refused to show the complainant the apartment, solely on the basis that the respondent believed that the complainant was in receipt of rent allowance.
Further to the above point that the respondent is a business and service provider in its own right which provides property-related services, including letting services, to property owners for consideration, I am satisfied that the respondent is at no time obliged to act unlawfully on behalf of a client, as the respondent asserts was the case here. In terms of basic contract law, if an act is illegal under statute, then a contract to do that act will also be illegal and unenforceable.
The case of Gray v. Cathcart (1899) 33 I.L.T.R 35, sets out this principle. The defendant in that case had taken a lease of an insanitary house in Belfast. The Belfast Corporation Acts made it an offence to occupy insanitary premises. The landlord’s action to recover arrears of rent failed. Johnston J. said:
Everyone commits a misdemeanour who does any act forbidden by a statute; accordingly when these parties entered into an agreement to occupy a house which had been condemned it was a contract to do what the statute says you could not do. It was a contract to do an illegal thing, and though the parties might go through the form yet such a contract is not binding and cannot be sued upon. [as quoted in Clark, Contract Law in Ireland, 5th edition, p. 383, “Statutory Illegality”]
In other words, from the moment discrimination on the housing assistance ground became unlawful, any contractual obligation on the part of the respondent to accept an instruction to reject tenants in receipt of same from its clients became likewise illegal, and hence cannot avail the respondent as a defence.
Accordingly, I find that the complainant is entitled to succeed.’
The critical actions in the current case were the refusal to sign the HAP, the immediate increase in the rent and the termination of the complainant’s tenancy.
In all of these actions the respondent was fully involved. They managed the communication in relation to the HAP application, communicated the news of the rent increase and they communicated the notice of the termination of the tenancy.
They communicated the ‘notice to quit’ on their business headed paper on March 30th.
In that respect its actions are on similar to those of the landlord in ADJ 4073 who felt he had to carry out the landlord’s instructions because he was paying his fees. Refer again to the provision in the Act related to ceasing to provide accommodation or any such services or amenities, and the Adjudicator’s finding in ADJ 4073 that;
the respondent is at no time obliged to act unlawfully on behalf of a client, as the respondent asserts was the case here. In terms of basic contract law, if an act is illegal under statute, then a contract to do that act will also be illegal and unenforceable.
The question then turns to whether the termination of the tenancy in these circumstances was unlawful.
It is helpful to review the sequence of events.
The matter of the HAP application was first raised with the respondent on March 17th.
By a most extraordinary coincidence the complainant was given notice of an increase in his rent three days after he brought this HAP application to the attention of the respondent, and after the landlord declined to sign the HAP application.
The complainant’s pursuit of the respondent was, as it turns out, misconceived. In the course of the month of April he continued to communicate with the respondent which re-iterated that it could not sign the form.
On March 29th, the complainant sent an email to the respondent stating that he would not be in a position to pay April’s rent due to his inability to apply for HAP.
The following day, in what again must also be seen as something of unusual timing, the notice of termination of the tenancy was received.
It is also rather odd that a Landlord would seek to increase the rent if he intended to dispose of the property, which was the reason stated for the termination of the lease. This too was communicated by the respondent in a letter ‘Further to a conversation with your landlord’.
This is a very serious case.
The applicant was denied the possibility of holding on to his home because the landlord refused to sign the HAP application form. The explanation at the hearing that this was a short term let is not credible. The complainant had been a tenant since January 1st 2016.
I find that, taking all these facts, this was an act of unlawful discrimination in which the respondent was fully and actively engaged and is accountable under S. 6(1)(c) of the Equal Status Acts 2000-2016, amended by S. 14(4) of the Equality (Miscellaneous Provisions) Act 2015 and section 42 (2) of the Equal Status Acts quoted above.
Its actions represent a discriminatory breach of the Act both in respect of its direct and vicarious liability.
In this case, it is quite clear that the termination of the complainant’s lease was a direct consequence of his proposed application for HAP, and therefore a breach of the Act. The respondent was a full participant in this action and its actions fall within the parameters of Section 6(1)(c) of the Equal Status Acts 2000-2016 and contravene it.
Accordingly, I find for the complainant.
The lack of any appreciation by the respondent of its legal responsibilities in the matter, and the attempts to evade them were quite astonishing.
But the law is quite clear as set out above and agents must consider their liability for breaches of the law before seeking to plead that they are simply carrying out the landlord’s instructions. This will not be sufficient to evade their responsibility under the legislation.
In ADJ 4100 (and decisions related to it) the Adjudicator made substantial awards, just below the limit of €15,000 permitted by the Act, because she considered the discrimination to be at the more serious end of the scale.
In respect of this ground, it is hard to imagine how much further one could go on that metaphorical scale than that a family would lose its home as a direct consequence of breaches of the Act, perhaps something with more serious consequences than the termination of employment, although this will depend on the facts in each case.
Nonetheless, it is serious and this is reflected in the level of my award which is equivalent to twelve month’s rent at the level to which it was raised by the landlord.
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.
For the reasons set out above I uphold complaint CA-00012737-001 and award the complainant €12,000.00 in compensation for the breach of his rights under the Act.
Workplace Relations Commission Adjudication Officer: Pat Brady