ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025781
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: 25/02/2020 and the last documents were received on 10/03/2020
Workplace Relations Commission Adjudication Officer: Marian Duffy
In accordance withSection 25 of the Equal Status Act, 2000, and 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.
I have anonymised the decision to protect the complainant’s privacy.
The Complainant stated that he has a tenancy with Respondent since December 2014 and he currently pays €850 per month in rent plus €50 service charge. He applied for HAP in August 2019, and he was deemed eligible by the Local Authority. He is claiming that he was discriminated against on the housing assistant payment ground by the Respondent contrary to the terms of the Equal Status Act. He said that the Respondent when requested did not complete the necessary documentation for HAP.
Summary of Complainant’s Case:
The Complainant stated that he has a tenancy with Respondent since December 2014 and he currently pays €850 per month in rent plus €50 service charge. He applied for HAP in August 2019, and he was deemed eligible by the Local Authority on the 12th of August 2019. He was given the relevant form to complete and have part B completed by the landlord.
The Complainant said that he presented the form to the landlord's representative Ms. A who has an office in the apartment building complex and asked her to sign part B. Ms. B told him she could not submit the relevant forms and proof of ownership and tax clearance. She told him that he had a lease agreement with the Landlord and the rent was due to be paid on the 23rd of each month, the Local Authority pays HAP in arrears on the 27th of each month and the landlord would not agree to the rent being paid in arrears. He said Ms A would not accept the form and he dropped it into the letterbox. The Complainant said he went to the Local Authority about the matter and the official told him he would take it up with the Respondent. He was also advised to contact Threshold.
The Complainant said that he was never in arrears with the rent and he could not understand why the Respondent would not sign the form. He said that the Local Authority took the matter up with Ms. A on several occasions, but the form was not signed. The Complainant said that Ms A, in a letter to him dated the 4th of November 2019, told him that she could not provide the information to the Local Authority, so he could get approval for HAP, but that he would not lose his security deposit if he wished to move in order to lease a property that could accommodate HAP. Ms A then agreed to sign the form if the Complainant paid a security deposit. In January 2020 he said he paid €1,125 to the landlord as a security deposit. On the day of the hearing the Complainant said he understands that form B has been signed but he has not got the HAP payment yet. He said he urgently needs this payment to pay his rent as he is living on a very low income.
Threshold, the Complainant's representative, said that that she took the matter up with the Local Authority and she was informed that the Complainant was eligible to apply for HAP, but the landlord did not submit section B of the application form and that the application could not be processed. The Local Authority in an email also told her that the landlord’s agent, Ms A, had informed the Local Authority that the tenant’s rent was payable monthly in advance and as the HAP payments were paid in arrears and not on the tenant’s lease date, she could not alter the terms and conditions of the rental agreement and therefore she could not sign the form. Ms A also said that there was a change in ownership in progress for the property and that she could not provide the documentation required to process the HAP application to the Local Authority. The Local Authority also told her that they had advised Ms A on the alternative documents she could submit if the relevant documents were not available
Threshold wrote to the Respondent to request Ms A to sign the form and return it to the Local Authority. On the 6th of November 2019, the Complainant served a notification under the Equal Status Act claiming that he has been discriminated against on the housing assistant ground. In reply Ms A again refused to sign form B and stated that the Complainant was seeking to contract out of aspects of his lease and the Landlord would not agree to it. On the 12th November 2019, Threshold emailed Ms. A to tell her that the Complainant would continue to pay his rent on the 23rd of each month and the HAP, which is paid on the last Wednesday of the month, would have to be paid back to him and the terms of the lease agreement would not have to be changed. In response she said that Ms. A wrote to the Complainant on the 12th December 2019 telling him that if he wished to change over from private payments to HAP payments he would have to pay an additional month’s rent in advance. Threshold said that Ms. A sought an additional deposit of €1,125.00 from the Complainant and told him as soon she received it, she would submit the form to HAP. The Complainant paid the money to Ms A on the 24th of January, despite the fact he had very little money due to the delay in getting HAP. He paid it because he really needed Ms. A to complete Section B form for the Local Authority. She said that despite paying the money the Local Authority informed her prior to the hearing that the correct documentation still had not been submitted and the HAP payments have not been made.
Summary of Respondent’s Case:
The Respondent denies that she discriminated against the Complainant in relation to the HAP payments. She said that she never refused to sign the forms. She said that the Complainant asked her to complete the form in August 2019 and she told him at the time that HAP would not process any application for him until the landlord provided proof of ownership, proof of bank account, a tax clearance certificate and other information required and that the form could not be submitted because she didn't have this documentation. Ms A said that she explained to the Complainant that she could not agree to the payment of rent in arrears that he was seeking, and that irrespective of how his rent with paid, whether by private payment or by HAP, he was legally obliged to adhere to the terms and conditions of his lease agreement that he had entered into, and that the rent payments must be maintained as per the lease agreement. She said that she wrote to the HAP department of the Local Authority and it was confirmed to her that HAP pays in arrears.
On the 9th of September 2019, Ms A said she wrote to the Complainant to tell him that she didn't have the necessary documentation to submit to the Local Authority in respect of the HAP scheme. She also told him that the landlord would only agree to accept HAP payments provided that the terms and conditions of his lease remain the same, that is his rent is paid monthly advance. She said that she also advised him in that letter, if he wished to change his tenancy from private payments to HAP payments, that he would need to pay an additional month's rent upfront to keep payments in advance and that she would need written confirmation of his agreement to this before she would submit the forms to the HAP department.
Ms A said that the Complainant did not respond, and she wrote to him again on the 4th of November 2019 telling him that if he wished to move to a new apartment and to find a landlord who could take HAP immediately he would not lose his security deposit if he moved before the expiry of his lease. The Complainant agreed to pay a month's rent in advance and he did so on the 24th of January 2020. Ms. A said that following receipt of this payment she forwarded the necessary documentation to the Local Authority. On the 29th of January 2020 the sale of the apartment block closed she informed HAP that the landlord's name had changed now and sent updated documentation to them. On the 31st of January 2020, the Local Authority acknowledged receipt of the information and the documents but requested additional documentation as proof of ownership. Ms A said she could not provide this information on privacy grounds. On the 21st of February 2020 she said that you provided a receipt from RTB as proof of ownership and a new form B.
Findings and Conclusions:
The 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), in relation to housing assistance payments.
Section 3(1) 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 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.
“38A. — (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary”.
The Complainant was an applicant for housing assistance, therefore he is covered by the prohibited ground per Section 3(3B) cited above. The Complainant’s case is that the Respondent refused to sign the HAP form despite a number of requests resulting in him being unable to get HAP from the Local Authority for which he was deemed eligible. The Complainant submitted that the refusal of the Respondent to sign the form placed him under significant financial pressure as his only income is his social welfare pension of €240 per week and his rent was €850 plus a service charge of €50 per month. I am satisfied that the Respondent’s ongoing refusal to complete the HAP application form in question and to provide the relevant documentation to the Local Authority amounts to less favourable treatment on the housing assistance ground. The Respondent’s refusal to sign form for the HAP Scheme had the direct effect of placing the Complainant in a very difficult financial situation and placing the tenancy in jeopardy, when compared with a tenant not requiring HAP. Therefore, I find 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’s Agent, Ms A, accepts that she received the HAP form from the Complainant in August 2019, and stated that she could not complete it, because the Complainant would not agree to keep within the terms and conditions of the lease and that she did not have all the documentation required by the Local Authority, as the Landlord was selling the apartment block. She said that the Complainant by applying for HAP was attempting to contract out of his obligations under his lease and was looking for the Landlord to change the terms of the lease. She said that the Local Authority pay HAP in arrears and on the 27th of each month and the tenancy agreement with the Complainant provided for rent in advance and payable on the 23rd of each month I note that the Respondent wrote to the Complainant telling him that she would need an additional month’s rent to ensure the rent was paid in advance before she would submit the HAP form.
The Respondent has provided no credible reasons for the delay in signing Form B other than discriminatory reasons. It would appear from her interactions with the Complainant that she did not want him to avail of HAP payments. I note the Respondent told the Complainant that if he wished to terminate the lease before its expiry and find a landlord who would accept HAP he would not lose his security deposit. Likewise, I note that the Respondent signed the form B on the 29th January 2020 and only after the Complainant had paid an extra month’s rent in advance and submitted it to the Local Authority together with the other documentation on that date This was an onerous financial imposition and meant that the Complainant had paid 2 months’ rent in advance as he had already paid the February rent. The Respondent stated that she had HAP tenants in the past and had accepted rent in arrears and when these tenants did not pay their Local Authority contribution the Local Authority stopped paying HAP and this was the reason she needed an extra month’s rent before she signed the form. Given that the Complainant has been a tenant of the Respondent since 2014, had never been in arrears with his rent and had already informed the Respondent that he would continue to pay his rent on the 23rd of each month as per the lease provided the rent paid by HAP was returned to him, it was inexcusable for the Respondent to use this experience to impose preconditions on accepting HAP in respect of the Complainants rent. I also note that the Respondent was informed by the Local Authority that the Complainant was eligible for HAP and was advised about the prohibition of discrimination on “the housing assistance ground” under the terms of the Equal Status Act. Having considered the evidence, I am satisfied that the Respondent has provided no credible explanation other than discriminatory reasons for the refusal and delay in signing the Part B of the HAP form.
The Complainant is legally entitled to the HAP payment and I am of the view that the reasons put forward by the Respondent for denying him access to the payments do not stand up. For all of the above reasons, I am satisfied that the Complainant has been treated less favourably on the housing assistance ground than another tenant who did not require housing assistance.
This amounts to less favourable treatment of the Complainant contrary to the Equal Status Act 2000 as amended. For the foregoing reasons, I find that the Respondent has failed to rebut the prima facie case of discriminatory treatment on the housing assistance ground raised by 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.
I have concluded my investigation of this complaint and for the above reasons I find, pursuant to Section 25(4) of the Acts, that the complainant was discriminated against on the housing assistance ground.
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.
(2) The maximum amount which may be ordered by the Director of the Workplace Relations Commission] by way of compensation under subsection (1)(a) shall be the maximum amount that could be awarded by the District Court in civil cases in contract.”
Under the above Section the maximum amount of compensation I can award is €15,000. In considering the amount of compensation that I should award, I have noted the effects of the discriminatory treatment has had on the complainant. I note the complainant was in financial hardship because his only source of income is his social welfare pension of €240 per week and his rent was €850 (plus €50 service charge) per month and he urgently needed access to the HAP to pay his rent. Also, I note that he is 80 years old and he is very fearful of losing his apartment and becoming homeless and this was causing him unbearable stress and worry. It is understandable that the fear of becoming homeless during a housing crisis would be particularly stressful and worrying for him. Taking these factors into account, I am of the view that the prohibited conduct is at the higher end of the scale and requires commensurate redress. In calculation the amount of compensation, I have also considered the fact that the complainant has missed out on at least 6 months HAP payments and that he had to pay extra rent in advance in January and still had not received the HAP payment at the date of the hearing. Having regard to all the circumstances and pursuant to Section 27(1)(a) of the Act, I find that an award of compensation in the amount of €12,000 is appropriate in the circumstances.
I order the respondent to pay to the complainant the sum of €12,000 (twelve thousand euro) compensation for the effects of the prohibited conduct.
Pursuant to Section 27(1)(b) of the Act, I order the Respondent to put in place an equality policy which provides information and guidance on the discriminatory grounds in relation to the terms of the Equal Status Act. This policy should include information and procedures for tenants accessing HAP and a commitment from the Respondent to deal with applications from tenants and compliance with the Local Authority’s requirements for HAP payments in a timely and non-discriminatory manner The Respondent should make the policy available to staff and tenants and ensure staff are fully trained on all aspects of the policy.
Dated: 30th June 2020
Workplace Relations Commission Adjudication Officer: Marian Duffy
Equal Status Act, S.3(1) – less favourable treatment, S. 3(3B) – housing assistance ground, HAP payments