Complainant

Respondent

Parties

Jakub  Cherek

Jun Ding

Representatives

Self-represented

Self-represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00058035-001

01/08/2023

The complainant, Mr. Cherek, made a complaint that he was discriminated against when the respondent failed to sign Housing Assistance Payment (HAP) Forms. The complainant was renting property from the respondent from 25th March 2022 until he moved out on 27th November 2022.

The respondent, Mr. Ding, denies that he discriminated against the complainant.

Summary of Complainant’s Evidence

Mr Cherek gave testimony that he was a single father with two children and that he had a 12-month rental agreement with the respondent. The rent payment per month was €1,500. His two children stayed with him, usually at weekends. Shortly after signing the tenancy agreement, his working hours reduced to zero hours, and he sought HAP assistance with paying the rent. He was receiving a social welfare payment when he was on zero hours. He said that the respondent did not sign the HAP forms. The reason he was given was that the respondent was seeking legal advice. He was then informed that the respondent would need the apartment for his in-laws. He said the respondent later relied on a breakdown of trust due to being unaware that his children would be staying in the apartment.

He said he struggled with keeping up rent payments when he was out of work and that the rental assistance would have a made a huge difference. As he was under financial pressure, he moved out in November 2022. He was then homeless and stayed with friends, in bed and breakfasts and in his car until he was able to obtain alternative accommodation.

He said he was struggling mentally at this time due to the stress which delayed the submission of his complaint. He said he sent an ES1 Form to the respondent on 26th January 2023. He then submitted a complaint to the WRC which was received on 1st August 2023.   

Summary of Respondent’s Evidence

Mr Ding said that he was aware through friends that the complainant was seeking accommodation as he was working in Cork City. Even though he accepted that a formal lease was signed for 12-months, he said the complainant did not inform him that his two children would be staying in the apartment. He said if he knew this, he would not have rented the apartment as there were no window restrictors. He said there was a breakdown of trust when he discovered the children were staying. When he was presented with the HAP forms, he did not sign due to this breakdown of trust. He then sought legal advice. Around this time, he also needed the apartment for his in-laws. He was aware he had a right to serve a termination notice on the complainant as he needed the property for his extended family.

He said as rent payments were delayed and the complainant could not be contacted for several days, he sought assistance from the Residential Tenancies Board. As an agreement was reached on rent payments, he was surprised a complaint was later made to the WRC.

Under cross-examination from the complainant, he was asked why the tenancy agreement was for 12-months if he required the apartment for his in-laws. He replied that things were changing due to Covid and he only later became aware that his in-laws needed accommodation. He did not have room in his own apartment to accommodate his in-laws for a prolonged period.

He was asked why the tenancy agreement did not refer to children not being allowed and why this was not raised earlier. He replied that as the owner of the property he expected to be informed, and this had eroded his trust with the complainant.

The Law

Notification

(2) 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,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

 (b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

(4) The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is 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.

(5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).

WRC Complaint

(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

 (b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Discrimination

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) of the Act 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”).”

Burden of Proof

Section 38A applies to all complaints of discrimination under the Equal Status Acts which places the burden of proof on 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.

Finding on Preliminary Issue

The complainant gave testimony that he sent the ES1 Form in or around two months after leaving the apartment. The complaint was received by the WRC on 1st August 2023 which was 8-months after he moved out of the apartment in November 2022.

There is discretion on the sending of the ES1 Form to the respondent under section 3(a) of the Act. The 2-months can be extended to 4-months due to reasonable cause, where the respondent is likely to be aware of the prohibited conduct and is not prejudiced. The submission of the complaint to the WRC within 6-months can also be extended to 12-months due to reasonable cause, as per section 6(b) of the Act.

I am satisfied reasonable cause exists to extend the 2-months to 4-months in circumstances where the complainant was homeless. Also, the respondent was on notice when he was asked to sign the HAP forms. He was also not prejudiced as he had sought legal advice in relation to the implications of signing the HAP forms. I am satisfied that due to being homeless from November 2022 that reasonable cause continued to exist to extend the receipt of the WRC Forms to 12-months.

For the reasons outlined, I am satisfied that I have jurisdiction to hear the substantive complaint.

Finding on Substantive Complaint

Prima Facie Case?

The issue to be decided is whether the complainant was discriminated against due to his application for a HAP payment compared to another tenant who has not applied for HAP. Although the complainant was never in receipt of HAP, he presented the forms for signature in April 2022 so it is a situation that ‘may exist in the future’ as per section 3 (1) of the Act. It is not in dispute that the respondent refused to sign the forms, so in effect, facts have been established from which discrimination can be inferred. It was therefore for the respondent to rebut the inference of discrimination that had been established.

Inference of Discrimination?

The respondent testimony relied on the evolving situation of requiring the apartment for his in-laws. The respondent also submitted that there was a trust issue as he was not informed that the complainant’s children would be staying at weekends. He said that this resulted in him seeking legal advice when he was presented with the forms.

Although the respondent was in the process of serving a termination notice at that time, this did not prevent him from signing the HAP forms. This would not have interfered with each of their tenancy rights as established in law. These facts clearly put the onus on the respondent to explain why the forms were not signed. The signing of forms would have assisted the complainant and also the respondent. In effect, whether this was intentional or not, it ultimately contributed to the complainant leaving the apartment. The non-signing of the forms was an inference of discriminatory treatment when compared with a hypothetical comparator who may not have required financial support to pay rent.

I am satisfied with the complainant’s testimony that this was a difficult time and the non-signing of the forms contributed to him becoming homeless. Unlike a comparator (not receiving HAP), the affordability issue ultimately led to him leaving the property. His rights under the tenancy agreement were diminished as unlike a comparator (not receiving HAP), he had to leave the apartment earlier than required.

For the reasons outlined, I decide that the respondent has failed to rebut the inference of discrimination. I find that discrimination occurred up to November 2022 as the complainant could have had forms signed up to this date. The respondent by his actions refused to continue with a potential tenancy under HAP which is a breach of the Act.

I find that the complaint is well founded.

Redress

 Section 27(1) of the Act provides redress may be ordered where a finding is in favour of the complainant-

"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."

Given the circumstances of this case, the appropriate redress is compensation. In making an order for compensation, I am minded that even a comparator tenant without HAP assistance, may have been served with a termination order due to the requirements of the respondent’s extended family. Therefore, the tenancy would have been relinquished at the end of the 12-month tenancy agreement.

I order that the respondent pay to the complainant the compensatory sum of €2,000 which I consider appropriate given the circumstances.

I find that the complaint is well founded. I order that the respondent pay to the complainant the compensatory sum of €2,000.

Housing Assistance Payment