Complainant

Respondent

Parties

Alokeshwar  Tiwary

The Minster for Housing, Local Government and Heritage

Representatives

Mr. Neil Cosgrave, Cosgrave Solicitors

Mr. Stephen O’Sullivan BL, instructed by the Chief State Solicitors Office

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00064204-001

20/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00064204-002

20/06/2024

On 20th June 2024, the Complainant referred the present complaint to the Commission. Herein, he alleged that the then named Respondent, The Housing Agency, discriminated against him on the grounds of “Race” and “Civil Status” in the provision of a service. In particular, he submitted that his application for a housing loan was refused on the grounds of his nationality and civil status. By response, the Respondent raised numerous preliminary issues, which will be individually listed below. Regarding the substantive compliant, the Respondent submitted that they were bound by a credit policy guidelines that had, in their view, legal effect and that they were not permitted to deviate from the same.

A hearing in relation to the this matter was convened for, and finalised on, 3rd December 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issues extensive submissions in advance of the hearing. On the request of the Adjudicator, further submissions were invited in relation to various issues that had arisen during the hearing. The Complainant issued a further submission in relation to many of the matters that had arisen during the hearing. Each of these submissions were exchanged between the parties, with both sides having the opportunity to comment on the content of the same prior to the issuing of this decision.

At the outset of the hearing, the Respondent raised numerous issues as to procedure and jurisdiction. Firstly, the Respondent applied to have their title amended. As the Complainant did not consent to same, this application will be discussed below. Secondly, the Respondent submitted that the Complainant had not complied with the notification requirements imposed by the Act. As this may be determinative of the entire proceedings, the matter will be discussed in advance of the substantive matter. Thereafter, the Respondent submitted that they did not provide a “service” within the definition of the Act to the Complainant. The Respondent then submitted that if this is not the case, then the exclusion set out in Section 14 applies and the Complainant does not have jurisdiction to raise the matter in the present forum.

Each of these submissions was contested by the Complainant and will be addressed on an individual basis below.

By submission, the Respondent stated that the Respondent initially listed on the complaint form, “The Housing Agency”, should be substituted for “The Minister for Housing, Local Government and Heritage”. In this regard, they submitted that the initial Respondent was established by virtue of Statutory Instrument 265 of 2012. The legal title of that body is “The Housing and Sustainable Communities Agency” and it is a non-commercial state agency under the aegis of the Department of Housing, Local Government and Heritage. In this respect, they submitted that Section 2 of the Ministers and Secretaries Act 1924 provides that in respect of litigation against such a body, the Minister in question is the “corporation sole with perpetual succession”. In this respect, the Respondent submitted that the correct Respondent for the present complaint, without prejudice to the further preliminary point listed below, is the relevant Minister.

By response, the Complainant submitted that the Respondent was seeking to avoid liability substituting the initially listed Respondent for another entity. In this regard they submitted that the Minister in question did not issue or approve the guidelines that led to the alleged discriminatory treatment. In this respect, they submitted that the initially named Respondent was the body that was guilty of the alleged discrimination, and that liability must attach to that entity. 

In this regard, Section 2 of the Minster and Secretaries Act 1924 provides that,

“Each of the Ministers… shall be a corporation sole…and shall have perpetual succession…and may sue and (subject to the fiat of the Attorney-General having been in each case first granted) be sued under his style or name aforesaid.”

In Administrative Law in Ireland, Hogan, Morgan, Daly, 5th Ed. 2019 at 3.39, the authors interpret the above cited provisions as follows,

“…the Minister is not only head of the Department; he or she also personifies the Department, in law; and, as corporation sole, bears responsibility in law for its every action (a responsibility which extends to branches, for example the Revenue Commissioners in the case of the Minister for Public Expenditure and Reform). And this is so, although most of these actions are performed by departmental civil servants, rather than the Minister him-or herself”.

In the present case, the Respondent has submitted that on foot of this provision, the Minister bears responsibility for the actions of the initially named Respondent. While the Complainant has submitted that this represents a method by which the Respondent seeks to avoid liability, this is not the case. While they are correct in the assertion the person of the Minister presumably did not have any hand, act or part in the drafting or application of the relevant guidelines, nonetheless the Minster as the corporation sole remains the party to which liability attaches in respect of the allegations raised by the Complainant. This application does not serve to dimmish any potential liability for the Respondent, and in this respect the Respondent has expressly stated that the Minster accepts full liability for the actions of the initially named Respondent.  

Having regard to the foregoing, I accept the Respondent’s submission and amend the name of the Respondent to the Minster for Housing, Local Government and Heritage.

At the outset of the hearing, the Respondent submitted that the Complainant had not complied with the notification requirements imposed by the Act.

By response, the Complainant opened correspondence issued by his solicitor which he submitted complied with these requirements.

In this regard, Section 21(2) of the Act (as amended) provides that,

“Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act”.

Thereafter, subsection 4 provides that,

“The Director of the Workplace Relations Commission…shall not investigate a case unless the Director of the Workplace Relations Commission…satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.”

In order to demonstrate compliance with this provision, the Complainant opened correspondence issued by his solicitor 11th March 2024. This correspondence states that the Respondent’s refusal to underwrite the Complainant’s loan constituted an act of discrimination and expressly stated that such a decision was in breach of the impleaded Act.

The issue raised by the Respondent related to part (ii), cited above. While it was accepted that the correspondence confirmed that nature of the allegation, and identified the legislation the Respondent purported breached, they submitted that this correspondence did not set out any intention to seek redress and, consequently, did not comply with the requirements of the section. 

In this regard, it is noted that the correspondence in question ends with the following statement,

“…should you fail to respond within 10 days of the date hereof, we are instructed to commence legal proceedings against your agency…for the avoidance of any doubt, our instructions are to seek leave to make an application for a judicial review of the refusal.”

While the Respondent submits that the statement above relates to an application for leave to seek judicial review, it is apparent that the statement threatens more general “legal proceedings against your agency”. In this respect, it is noted that earlier in the letter outlines an alleged breach of the Equal Status Acts. As such, the natural implication of such a statement is that the Complainant is seeking to seek redress under the impleaded Act.

In so finding, I am guided by of the authority of G -v- Department of Social Protection [2015] IEHC 419. Here, in considering the application of the Act generally, O’Malley J. stated that,

“...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 consideration of the accumulation of the foregoing points, I find that the Complainant has complied with the notification requirements imposed by Section 21 of the Act.

In addition to the foregoing points, the Respondent has submitted that they did not provide a “service” to the Complainant within the meaning of the Act.

By correspondence dated 22nd August 2024, the Respondent submitted that they were not the correct Respondent for the purposes of the present complaint. In this regard, they submitted that their function in relation to the Local Authority Home Loan Scheme was to assess eligibility criteria as outlined in the Housing Loans (Credit Policy) Guidelines 2023.  They stated that a recommendation based on these guidelines is then communicated to the relevant local authority. In this respect, the Respondent submitted that the relevant local authority is the body that administers the scheme and issues a final decision. In this regard, the Respondent submitted that the did not provide a “service” to the Complainant as defined by the Act.

By response the Complainant stated that the Respondent is the body that made the decision not to underwrite his loan based on, in his view, a discriminatory set of guidelines. He stated that the local authority stated that they were bound by the decision of this body and that the alleged act of discrimination was committed by this organisation.   

In this regard, Section 5(1) of the Act provides that,

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 2 of the Act defines “service” as follows,

“a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes,

…

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing”.

The position of the Respondent in this regard was that they did not provide a service as defined above to the Complainant. In this respect, they submitted that the service in question, a local authority home loan, was provided and administered by the relevant local authority. The Respondent submitted that on receipt of an application from the local authority, they assess eligibility criteria in accordance with the relevant guidelines. A recommendation is then issued to the relevant local authority, with the final decision in respect of that application issuing from that body. In this regard, the Respondent submitted that they did not provide services to the Complainant but provided services to the local authorities. By response, the Complainant stated that the language adopted by the Respondent indicated that they made the final decision in respect of the application. He further submitted that the application of the guidelines, and by extension the act of discrimination, was committed by the Respondent and consequently they should answer the complaint.

In this regard, the explanatory note to the Statutory Instrument No. 701/2021 - Housing Loans Regulations 2021 states that the purpose of the instrument is to,

“…provide for the provision of loan finance by local authorities to eligible first-time buyers for the acquisition of new or existing houses, or for the construction of houses.”

Section 2(1) defines a “housing loan” as,

“…the amounts advanced by a housing authority, or the total sum of amounts advanced by a housing authority, to a borrower which are or are to be secured by way of a legal charge on a property”

Section 5(1) then provides that,

“An application for a housing loan shall be made in such manner and form as the housing authority may require.”

In this respect, it can be seen that the Respondent is correct in their assertion that loan in question is provided for and administered by the local authority. The particular function of the Respondent, being the Housing Agency, was established by virtue of Statutory Instrument 265 of 2012. Amongst its various duties, it describes itself as the,

“…central national loan underwriter for local authorities in respect of the Local Authority Home Loan scheme.”

Having regard to the foregoing, it is apparent that the Complainant made his application to the Local Authority, who then issued the same to the Respondent for assessment in accordance with the relevant guidelines.

Applying the foregoing to the definition “service” for the purpose of Section 2, it is noted that the same is defined in that provision as being, “one which is available to the public generally or a section of the public”. In circumstances whereby the service provided by the Respondent is not available to any section of the public, but is available to local authorities only, it is apparent that the Respondent did not provide a service to the Complainant within the meaning of the Act. While the Complainant is correct in that the decision in respect of the application of the guidelines, and by extension the alleged discriminatory act complained of, was committed by the Respondent, the Act stipulates that such discrimination may only arise in the context of the provisions, or non-provision, of a service to him.

In his final submission, the Complainant stated that the Respondent is vicariously liable for the discrimination alleged. In this respect, Section 42 provides that,

“(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employee’s knowledge or approval.

(2) 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.”

Regarding the first subsection listed above, it is common case that the local authority in question is a entirely separate legal entity to the Respondent, and that the Respondent cannot be fixed with vicarious liability for the action of the employees of the local authority. Regarding the second subsection, it could be argued that the Respondent was acting as an agent for the local authority and would, by operation of that subsection, be fixed with vicarious liability for the alleged discrimination. However, it is apparent that this section would operate so as to potentially fix the local authority with vicarious liability for the actions of the Respondent. In this respect, the local authority was not acting as an agent for the Respondent, rather the Respondent was providing a service to the local authority.

By submission, the Complainant stated that by firstly seeking to amend the title of the proceedings and then submiting that the service in question was provided by the local authority, the Respondent was seeking to “fragment accountability, forcing applicants to navigate complex bureaucracy and further compound the initial act of discrimination”. While I have sympathy for the Complainant in respect of this position, it is noted that shortly following receipt of the notification of the complaint, the Respondent issued correspondence expressly stating that, in their view, they were not the correct Respondent and indicating that the liability for the complaint rested with the local authority. In this respect it can be seen that the position of the Respondent remained consistent at all times and was communicated to the Complainant early on in the proceedings.

Having regard to the accumulation of the foregoing points, I find that the service in question was provided by the Respondent for the local authority, as opposed from the Respondent to the Complainant, and that as a consequence of the same, the complaints are not well-founded.

CA-00064204-001

I find that the Respondent did not provide a service to the Complainant within the meaning of the Act. In such circumstances I find that they did not engage in prohibited behaviour as defined by the Act.

CA-00064204-002

I find that the Respondent did not provide a service to the Complainant within the meaning of the Act. In such circumstances I find that they did not engage in prohibited behaviour as defined by the Act.

Service, Local Authority, Home Loans