ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022559
Marguierette Kent & Frank Keevy
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: 12/02/2020
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
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 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 submits that her landlord refused to accept Housing Assistance Payment (HAP) and this refusal led in turn to a termination of her tenancy. The Respondent denies any discrimination because the Complainant did not bring any HAP application to the attention of the Respondent during the relevant months of her tenancy.
The tenancy commenced on the 28th of January 2017 and ended on the 1st of February 2019. The rent was €100 per week.
Summary of Complainant’s Case:
The Complainant submits that she had commenced renting the property with her partner but when he left in April 2018 she experienced problems in paying her rent. She submits that she asked the Respondent, on numerous occasions from June 2018 to December 2018, to accept HAP payments. She states that the Respondent refused this request. The Respondent served her with a notice to quit on June 23rd, 2018 with a termination of tenancy date of January 31st, 2019.
The Complainant submits that In December 2018 the Respondent advised her that she had looked into the HAP scheme but that she was not able to accept HAP because the Respondent’s father had dementia and was not able to sign anything.
The Complainant relied upon written evidence in a submission that the Respondent made to the Residential Tenancies Board (RTB), in separate actions, where texts sent by the Complainant to the Respondent, dated December 2018, mentioned the fact that the Respondent had refused HAP.
The Complainant also relied on the following paragraph from the Respondent’s submission to the RTB to show that the Respondent had refused HAP:
“A number of people approached me about renting my dad’s house. Then (The Complainant) and her partner came along, told me about the place they were in, said it was in very bad condition, damp, and was making their baby sick. I told them if we were to consider them, we wanted someone who would mind the place. In made it clear I wasn’t a landlord. It was my dad’s house and I couldn’t sign any social welfare stuff. They said that was fine. A (The Complainant’s partner) had a job as a painter decorator, and they could pay the rent without assistance…”
The Complainant submitted evidence that she was eligible for HAP from the 25th of November 2015.
Summary of Respondent’s Case:
The Respondent is the landlord but his daughter, who was present at the hearing confirmed, she had authority to deal with the Complaint as the agent of the Respondent. The Respondent’s father has dementia and is in a nursing home The Respondent states that the Complainant approached her about renting the house, but she made it clear to the Complainant that it was not her house, it belonged to her father. She submits that the Complainant and her partner were quite happy with this arrangement and subsequent tenancy agreement.
The Respondent submits that the Tenancy did not go very well and in June 2018, the Complainant was served with 6 months’ notice of termination of agreement. The Respondent submits that the Complainant expressed satisfaction with this and stated that she, the Respondent, was being “more than fair”.
Subsequently, however, the Complainant brought a case for unlawful termination of tenancy to the RTB for unlawful termination of a tenancy, but the RTB ruled against the Complainant.
The Respondent submits that the Complainant never raised HAP with her during her tenancy but referred to it only texts in December 2018, within one month of the expiry of the six months’ notice of termination period. The Respondent submits that, at this stage, the Complainant had been in continuing default on her rent.
The Respondent submits that she was given no application form nor any other documentation on HAP, to sign. The Respondent contends that the Complainant also brought up the HAP matter at the RTB hearing but the adjudicator in that instance asked why no HAP application, nor any other documentation on HAP, was furnished to the Respondent; a question to which no satisfactory answer was given by the Complainant. The Respondent asserts that she was not given the opportunity to refuse any HAP payments.
Findings and Conclusions:
The Equal Status Act seeks to prohibit discrimination in the provision of services The Act was extended to include discrimination on the housing assistance ground, i.e. a claimant’s reliance on a social welfare payment. This includes the Housing Assistance Payment (HAP) as provided by Part 4 of the Housing (Miscellaneous Provisions) Act, 2014, which sets out the requirements for a landlord.
Section 3(1) of the Equal Status Act 2000, as amended 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”.
The burden of proof is set out in Section 38 of the Equal Status Acts 2000-2015 and requires that where facts are established by or on behalf of a Complainant from which it may be presumed that prohibited conduct has occurred, the burden of proof shifts to the Respondent. Then it is for the Respondent to prove the contrary.
To be eligible for HAP, a person must first apply and be approved for social housing support by his/her local authority. If a person is already on the local authority’s housing list, they will be eligible for HAP. A HAP form application is then filled in and presented to a landlord. Any refusal by a landlord to fill in their portion of the form, or to otherwise refuse an application, is on the face of its discrimination under the Act.
In this instance, the Complainant produced documentary evidence at the hearing from her local authority that she was approved for social housing from November 25th, 2015, which therefore made her eligible to apply for HAP. However, she could produce no evidence that she had applied for HAP nor filled in the required application form for submission to the Landlord. Her evidence was that she had mentioned HAP verbally to the Landlord after June 23rd, 2018, which was after the Respondent had served her with a six-month termination date. A decision of the Residential Tenancies Board on the validity of the termination notice (papers from which were relied upon by the Complainant) found that the termination notice was valid. The RTB adjudicator found, in a summary of reasons, that the parties had a discussion and an agreement on the termination of the tenancy. On this basis alone, it is evident that an alleged refusal for HAP, did not cause the termination of the tenancy, contrary to the assertion of the Complainant.
The Complainant was eligible for HAP but crucially she supplied no evidence to show that she had applied for HAP in respect of the tenancy that she had vacated. No evidence was given of the required forms having been given to the agent of the landlord, nor was there any cogent account of serious intent by the Complainant to pursue her HAP entitlement. To show discrimination the Complaint must first produce primary facts to show that there was a refusal of an application. She did not do so. I found her evidence overall to be unconvincing on the pivotal contention that she had sought HAP approval from her landlord. I conclude that the Complainant did not establish facts from which it may be presumed that prohibited conduct had occurred. I therefore find that her complaint is not well founded and therefore fails.
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.
I find that the Complainant did not establish facts from which it may be presumed that prohibited conduct had occurred under the Acts, therefore her complaint fails.
Dated: 2nd July 2020
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Equal Status Acts, HAP