ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024143
Sarah Kate Mcconnell
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: 22/11/2019
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
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 went to view a property which was being let by the respondent, in its capacity as a letting agent, in mid-May 2019 and was later informed that she could rent the property. Having paid over the first month’s deposit and rent, the complainant subsequently requested that HAP forms be signed but was told by the respondent that the landlord did not accept HAP.
Summary of Complainant’s Case:
The complainant went to view a property which was being let by the respondent in mid-May 2019 and was subsequently informed that she could rent the property. As a result, she sent through one month’s rent as well as one month’s deposit on 22nd May 2019. She also informed the respondent that she wished to avail of HAP. When she inquired if the lease could be effective from 31st May 2019, she was informed that this was not possible and that it ran from the day on which she paid her first month’s rent, namely 22nd May 2019.
The complainant picked up the keys on 31st May, gave the respondent the HAP forms and went to move into the property on 1st June. When she arrived at the house however, she noticed that the property was not in a habitable condition and also noted that the property was sale agreed. As a result, she emailed the respondent on Monday 1st June inquiring as to why the property was not clean and if it was sale agreed. The respondent subsequently informed her that it was not sale agreed but acknowledged that it was for sale.
The complainant emailed the respondent once again on Friday 5th June to check if the property had been cleaned but did not get a response. She subsequently visited the property on Friday 12th June but noted that it was still not clean. She later telephoned Threshold, who advised her that the rental payment she had made should be reimbursed. When the complainant informed the respondent of this, she was advised that the landlord had changed his mind about renting the property to her because he was unwilling to accept HAP. She was also instructed to return the keys to the respondent and was informed that she would be reimbursed for what she had paid.
Subsequently, on 15th June, she received notice of termination to vacate the property but was informed by Threshold that the notice was invalid. The complainant gave back the keys on 2nd July and received a refund of her deposit but was not returned any of the month’s rent she paid, despite never having lived in the property because it was not habitable. She sent an ES1 form to the respondent on 8th August, which was responded to on 12th August
Summary of Respondent’s Case:
Despite having been notified in writing on 18th October 2019, of the time and date of the hearing, the respondent did not attend to give evidence.
Findings and Conclusions:
Prior to making a decision on this case, I note firstly that it was the landlord, who allegedly informed the respondent that he was unwilling to accept HAP.
Notwithstanding this, 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. In the absence of any evidence from the respondent, it was undisputed that a service was refused when the termination notice was issued, on the basis that the landlord refused HAP.
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. 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 from the landlord to reject a tenant in receipt of HAP from its clients became likewise illegal.
I find that, taking all these undisputed 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, because the termination of the complainant’s lease was a direct consequence of her 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.
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 find that that the complaint succeeds.
In deciding upon the size of the award, I note that the complainant obtained alternative accommodation very quickly and that she had not fully moved into the property. I must recognise however that she was nonetheless subject to a very serious inconvenience and that any award I make must be dissuasive.
In all of the circumstances, an award of €4,800, which is the equivalent of six months rental payments, is appropriate.
Dated: 17th December 2019
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill