Complainant

Respondent

Parties

Iwona  Tusznio

Paul Mooney Cindy Mooney

Complainant

Respondent

Anonymised Parties

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Representatives

Alex O Conor Threshold

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00062688-001

09/04/2024

The Complainant is a tenant of the Respondent since 2018.

The Complainant alleges discrimination by the Respondents in the provision of rental services on the housing assistance ground pursuant to S3 and 6 of the Equal Status Act 2000 as amended. The Respondents refused to comply with the tenant’s request to complete Section B of the HAP application on 16th January 2024 and explicitly stated that they would not be proceeding with the HAP application on behalf of the tenant.

Section 6 of the Act (1) :

A person shall not discriminate in—[…](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.

In Smith v Copeland Judge Simons stated “The effect of these provisions is that, subject to certain statutory exceptions, it is unlawful to discriminate against a prospective tenant on the ground that he or she is in receipt of housing assistance.” The Complainant submits discrimination may occur between a landlord and an existing tenant, and not just in relation to a prospective tenant. In A Tenant v A Landlord ADJ-00004100 the Adjudicator adopted a purposive approach to interpretation of the legislation and that the inclusion of the word ‘ceasing’ would appear to envisage that discrimination under any of the prohibited grounds can arise in relation to existing tenants.

The Complainant initially requested the landlords to complete their HAP application in July 2022. This was refused verbally and there Is no record of this at the time. However, on 8 November 2023 the tenant once again requested the landlord to accept and comply with their application for HAP. The landlord responded on 24 November 23 stating they were “close with having everything done”, however the tenant heard nothing further until 16/01/24 when the landlord responded stating that “i am not eligible to get the tax clearance cert”. The tenant then protested by email stating that she was entitled to avail of HAP and was advised to issue an ES1 Form. On 23 February 2024, the landlord threatened the tenant’s tenancy by stating “This is an official email informing you of our intention to sell our house. It is certainly not what we ever wanted to do now or in the near future however it is our best option given the current situation we find ourselves in”.

The Complainants representative submits the messages not only contravened the Equal Status Act but also victimised the tenant by further seeking to punish her with an eviction. The tenant was in a particularly vulnerable and precarious situation regarding their tenancy in that they were in receipt of Rent Supplement but were required to switch to HAP, and could not afford to continue to pay the full rent without housing assistance to which they were entitled to by law. The refusal of HAP caused great stress and hardship for the tenants and resulted in them seeking advice, as well as having to source alternative accommodation as the property was no longer sustainable on a low income without housing assistance.

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 on comparable grounds. The landlord has attempted to defend their actions by stating that they are not tax compliant and would not be able to get the certificate necessary for HAP. In ADJ-00043396 the landlord was non- tax compliant from 2017-2022 and could not provide tax clearance for HAP to be accepted, so he refused to sign the HAP forms. This was still found to be discrimination, as the adjudicator noted “I am unable to find any statutory basis or legal precedent that would support the Respondent’s contention that his non-compliance with the statutory tax clearance certificate can act as a defence or a rebuttal to a claim of discrimination”.

The Complainant relies on the decision in ADJ-00046010 Diaf v McManus, where the tenant raised a WRC dispute as the landlord consistently failed to complete their Rent Supplement forms. In that case the adjudicator found that the landlord had victimised the tenant following the ES1 form being sent to the landlord, and so made a finding of victimisation. The adjudicator awarded the client €12,500 for the housing assistance discrimination, and an additional €5,000 on the basis of the victimisation.

The Respondents say the whole situation has been stressful for them and their family in Ireland. Since 2018 the Respondents rented their house out to the Complainant who has been a fabulous tenant. The Respondents says they always tried to do the best by her and deal with issues in a positive and efficient manner to solve any problem.

The Respondents deny they discriminated against the Complainant. Due to their financial situation when they left Ireland, they have a substantial bill owed from an overpayment. They were unable to proceed with the Housing Assistance Payments (HAP) scheme for the Complainant since 2020. The Respondents say they tried to sign up to the HAP scheme last year. They have children and financial responsibilities. Under normal circumstances signing onto this scheme would not have been such a stressful situation, but their situation is not normal. They still have a large and outstanding tax bill that will stop them from getting the Critical Tax Clearance cert required or their payments will stop. They say they cannot afford for this to happen and to have to pay rent to live abroad while also sending money back to Ireland every month until the debt is paid, and they can get their clearance certificate. They have submitted documents showing their financial position in Ireland. They have not increased their rent over seven and a half years and signed the initial contract for E1450 with when the going rate at the time was E1600.

Due to the situation they were in they had no option but to decide to sell their house. They served two notices of termination of the tenancy which were invalid. Last September, they called the Complainant and suggested they would look at a way forward. The reason they did this was because of two invalid notices of termination served. They decided to try and sign a new agreement as they would have had to wait till approx. Jan 2025 to serve the next notice and they lost the opportunity to go and clear out the house. They signed a new agreement with the Complainant and secured a way to borrow the funds to clear all taxes owing. They have now been approved for HAP in Ireland. They would like to apologise again as this is their fault that they have a large and outstanding bill. They deny they “victimised the tenant by further seeking to punish her with an eviction”, and say this comment is irresponsible and misleading. The issue has always been about a significant debt issue and trying to protect family and finances, so they are not too severely affected. Any award to the Complainant will have serious implications for them.

I heard and considered the submissions and evidence of the parties at the hearing.

The Complainant alleges discrimination and victimisation by the Respondents in the provision of rental services on the housing assistance ground pursuant to Section 3 and Section 6 of the Equal Status Act 2000 as amended.

The Complainant has been a tenant of the Respondent since 2018. The complaint of discrimination was received by the Workplace Relations Commission on 9th April 2024. She alleges discrimination occurred on 16th January 2024, when the Respondents refused to sign a HAP form. The Complainant served a form ES1 dated 28th February 2024 on the Respondents. No response was provided to the form ES1.

The Respondents are owners of the property which the Complainant currently rents. They have lived abroad for some years. The Respondents accept they did not comply with the Complainants requests to accept HAP payments in 2020, 2022, and 2023. They say it is a misleading to say they discriminated against or victimised the Complainant. They have submitted written evidence confirming a substantial debt, and as a result were unable to obtain a tax-clearance certificate for participation in the HAP scheme. When the Complainant first requested them to participate in HAP they declined, explained the position and gave her a one month’s reduction in rent.

The Complainant made another request for HAP which was refused on 16th January 2024. Subsequently on 23 February 2024, the Respondents notified the Complainant of their intention to sell the property, that they did not want to but due to their situation could see no other option. Ultimately due to delays due to errors in terminating the tenancy, the Respondent arranged a loan to obtain a tax-clearance certificate and is now participating in the HAP scheme.

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 Respondents. Then it is for the Respondents to prove the contrary. I find a prima facie case of less favourable treatment has been shown by the Complainant due to the actions of the Respondents in failing to agree to the HAP payment.

The Respondents are entitled to serve Notices of termination of the tenancy, and these can be challenged. This applies for all Tenants, whether on housing assistance or not. I find pursuant to S25 (4) of the Act that the Complainant has raised a prima facie case of discrimination on the housing assistance ground contrary to S3 and S6 of the Equal Status Act, which has not been rebutted by the Respondents. There is no evidence that the Complainant has been victimised by the Respondents.

Undoubtedly, the refusal to accept the Housing Assistance Payment placed the Tenant under financial pressure, when compared to a Tenant not requiring the Housing Assistance Payment.

Pursuant to Section 27 of the Equal Status Act 2000-2015, I order compensation of 1,500 euro to be paid by the Respondents to the Complainant as compensation for the effects of the prohibited conduct.

I direct payment of compensation of 1,500 euro by the Respondents to the Complainant as compensation for the effects of the prohibited conduct.