ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040910
Paul A Ferris & Co
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: 09/03/2023
Workplace Relations Commission Adjudication Officer: Bríd Deering
In accordance with s 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 represented by an Advisor from Threshold. The complainant made a written submission in advance of the hearing. The complainant gave evidence under oath. The respondent did not attend the hearing. I note that the respondent applied for an adjournment of the hearing, however, this application was refused by the Workplace Relations Commission. I proceeded with the hearing in the absence of the respondent on the basis that the respondent was on notice of the hearing and had failed to proffer sufficiently evidenced reasons for non-attendance at the hearing. No communication has been received from the respondent in the interim indicating any difficulty attending the hearing on 9 March 2023.
The complainant alleges discrimination on the grounds of housing assistance when the respondent allegedly refused the complainant’s request to complete section B of the Housing Assistance Payment (“HAP”) Application Form.
Summary of Complainant’s Case:
Representative for the complainant submitted the following:
The complainant’s landlord refused to comply with the tenant’s request to complete Section B of the HAP application and explicitly stated that he did not want HAP on his property. This is in contravention of ss 3 and 6 of the Equal Status Act 2000-2018. By his actions and refusals to comply with the tenant’s request the landlord has clearly discriminated against the tenant and victimised her by seeking to punish her and her family with an eviction. Failure on the part of the landlord to sign the HAP forms means that the complainant has been treated less favourably than another person would be in comparable grounds. The relevant comparator is a tenant of the respondent not in receipt of HAP or other social welfare payments. The effect of the refusal to sign the HAP forms is to imperil the complainant’s tenancy, and in circumstances where HAP is the primary state support for tenants, is tantamount to refusal to continue to rent to the complainant. This is further compounded by the landlord issuing a Notice of Termination to vacate the property.
Evidence of the Complainant
The complainant outlined that the respondent has been her landlord since 2017. The complainant submitted that the respondent has other rental properties also. The complainant outlined that her relationship with the respondent was a positive one and uneventful until 13 February 2022. On this date, the complainant requested a written lease and informed the respondent that she intended to apply for HAP. The complainant submitted that she advised the respondent that she had received advice from the Local Authority who suggested that she might be entitled to Housing Assistance and should make an application. The following day the complainant received a call from the respondent stating that if she wanted a lease, he would have to increase the rent from €850 per month to €1,000 per month. This call prompted the complainant to get in contact with advisory bodies such as the Residential Tenancies Board (RTB) and a local auctioneer to enquire what her rights were as a tenant. During the week of the 14 to 19 February 2022 the complainant phoned the respondent on several occasions. The complainant contends that the respondent reacted aggressively on these calls and stated repeatedly that he did not want HAP on his property. The complainant submitted that the respondent told her that his solicitor had advised him to get rid of the complainant and that the complainant would be receiving “something in relation to that soon”.
On 26 February 2022 the respondent called to the complainant’s home. The complainant stated that the respondent was extremely aggressive in his interactions with her. The respondent also handed the complainant a document entitled “Notice of Termination”. The complainant opened this document at the hearing. The document stated that the complainant was to vacate the property on 31 May 2022. The complainant contends that this Notice of Termination was served on her as a direct consequence of her request for HAP.
The complainant submitted that she did not know her rights as a tenant and was under the impression that she may have to vacate the property, although she had received an opinion that this Notice of Termination was invalid given it did not comply with the 30-day notice requirement. This time was extremely stressful for the complainant. She has a young child and was pregnant with her second child. The complainant was uncertain if she could remain at the property or be compelled to leave. The complainant referred this matter (and other matters) to the RTB. The Notice of Termination was rescinded by the respondent at an RTB hearing on 30 May 2022. A decision was issued by the RTB on the other matters referred which was appealed by the respondent. The appeal outcome is yet to issue.
Following the RTB hearing, the complainant phoned the respondent twice on 12 June 2022 regarding the HAP application. However, her calls were not returned. Prior to February 2022 the respondent would always return the complainant’s calls. The complainant sent a text to the respondent on 24 June 2022 asking whether she should send the HAP application to the respondent or to the respondent’s solicitor. The complainant did not receive a reply.
On 30 June 2022 the respondent called to the complainant’s home. He acknowledged that he had received the complainant’s text and stated that it was up to the RTB to decide what would happen.
On 7 July 2022 the complainant served the ES1 form on the respondent. The complainant received the ES2 form on 25 July 2022.
The complainant contended that she has been prevented from making a HAP application because the respondent will not sign Section B of the form.
The complainant submitted that this whole situation is extremely stressful. The property is her home and home to her children. The complainant stated that the respondent’s actions has resulted in her paying rental amounts which she should not have to pay if she was in receipt of HAP and that this has placed considerable financial pressures on her and her family.
The complainant requested that the Adjudication Officer make a direction compelling the employer to complete section B of the HAP Application.
Summary of Respondent’s Case:
The respondent did not attend the hearing on 9 March 2023. The respondent did not submit a written submission.
Findings and Conclusions:
I must determine whether the respondent discriminated against the complainant on the ‘housing assistance ground’ contrary to the Equal Status Act 2000 -2018 (“the Acts”) by refusing to complete section B of the HAP Application Form.
Section 38A of the Acts requires the complainant to establish facts from which the alleged discrimination may be inferred. It is only where such a prima facie case has been established that the burden of proof shifts to the respondent to rebut the inference of discrimination. Therefore, the complainant must show that she has been treated less favourably than another person is, has been or would be treated in a comparable situation on the housing assistance ground which requires that, as between any two persons, one is in receipt of housing assistance and the other is not. I accept that the relevant comparator in this case is a tenant of the respondent who is not in receipt of HAP.
The uncontested evidence of the complainant is that the respondent continues to refuse to complete section B of the HAP Application Form and that this is having an adverse effect on the complainant both financially and emotionally. I am satisfied that this ongoing refusal to complete the HAP Form and/or to accept HAP towards payment of rent amounts to less favourable treatment.
The complainant has established a prima facie case of discrimination on the housing assistance ground. As the respondent did not attend the hearing, the respondent has not availed of an opportunity to rebut the inference of discrimination.
Section 27(1) of the Acts provides:
“Subject to this section, 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.”
Section 25 of the Equal Status Acts 2000 – 2018 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under s 27 of the Acts.
Based on the uncontested evidence of the complainant, I decide that the complainant has established a prima facie case of discrimination on the housing assistance ground which the respondent has failed to rebut.
I order the respondent to pay €13,000 in compensation to the complainant for the effects of the discriminatory conduct. This award reflects the seriousness of the discrimination and the effects of same, both financial and otherwise, on the complainant.
Further, I direct the respondent to take such steps as are required to enable the complainant to participate in the HAP Scheme, including completing the relevant section/s of the HAP Application Form and compliance with any other necessary conditions to enable the complainant to apply for and to be in receipt of HAP, and to accept HAP payments from the relevant Local Authority.
Dated: 4th April 2023
Workplace Relations Commission Adjudication Officer: Bríd Deering
Refusal to sign HAP Form. Discrimination. Housing Assistance Ground.