Complainant

Respondent

Parties

Elif  Weldon

Deborah Bailey

Representatives

  N/A

Darach McNamara BL instructed by Craughwell Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00070401-001

31/03/2025

The Complainant stated that the Respondent refused to accept Housing Assistance Payment (HAP) in respect of her tenancy following a request from her in June 2024 that they do so. She asserted that this refusal constituted discrimination under the Act.

The Complainant stated that she moved into the property owned by the Respondent on 1 July 2021. and always paid her rent of €1,100 per month on time with no missed or late payments.

On 11 June 2024, due to temporary health-related work difficulties, the Complainant informed the Respondent that she had been approved for HAP support and requested that the necessary forms be signed by the Respondent. On 15 June 2024, the Respondent informed her that, after taking advice, they decided not to engage with the HAP scheme and declined to sign the documentation.

On 4 July 2024, the Complainant met with the Respondent to discuss solutions but no compromise was reached.

On 25 July 2024, the Complainant received a termination notice, requiring her to leave the property by 21 January 2025, with the stated reason being that the property would be sold. She vacated the Respondent’s house on 3 March 2025.

Following her departure from the house, she was effectively homeless and was forced to move in with a friend with her daughter and two pets. She stated that this caused severe emotional stress and disruption for her daughter during her final school year.

The Respondent acknowledged that she refused the Complainant’s HAP application. She maintained however that the Complainant’s request to avail of HAP was not the reason for the subsequent termination of the tenancy, of which the Complainant was notified in July 2024. According to the Respondent, the decision to terminate the lease was made because she and her husband intended to sell the property to provide financial assistance to their son, who was seeking to purchase a home.

Preliminary Matter:

The Law

Section 21 of the Equal Status Acts, 2000 - 2015, states:

(2)(a)

Before seeking redress under this section, the complainant-

(a) shall, within 2 months after the prohibited conduct 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.”

3) (a) On application by a complainant the Director of the Workplace Relations Commission 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.

Section 41 of the Workplace Relations Act 2015 states:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Analysis:

I note that Mr McNamara BL initially highlighted that, although the Respondent refused the Complainant’s request to sign her HAP application on 15 June 2024, the Complainant did not issue a Form ES1 to the Respondent until 26 August 2024, more than two months after that refusal.

I also noted that Mr McNamara BL pointed out that the Complainant did not refer the present complaint to the WRC until 31 March 2025, more than six months after the Respondent’s initial refusal of her HAP application.

Notwithstanding these delays in both issuing the ES1 form and in referring the complaint to the WRC, and accepting that the HAP request was refused on only one occasion, I noted that the Respondent’s refusal of 15 June 2024 to sign the HAP application was maintained throughout the Complainant’s tenancy until 3 March 2025. The Complainant was therefore continuously denied access to housing assistance during that period.

The Labour Court in Ann Hurley v Cork VEC (EDA1124) held that where a discriminatory position is maintained and kept in force so as to have a continuing adverse effect on a complainant, the act is regarded as extending over a period and is treated as occurring at the end of that period.

Specifically, the Court stated as follows:

Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant…Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

In the context of the instant case, I am satisfied that the Respondent maintained a discriminatory practice whereby the practice of not accepting HAP remained in force for the duration of the tenancy and therefore constituted a continuing contravention. The contravention ended on 3 March 2025 when the Complainant left the property. The ES1 notification and the referral to the WRC were therefore within time and I am satisfied that I have jurisdiction to hear this complaint and will now proceed to address the substantive matter.

Substantive Matter:

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”).”

Section 38A (1) provides-

" 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."

Therefore, the Complainant must first establish a prima facie case of discriminatory treatment. It is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

The explanation provided by the Labour Court in its decision in Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof is helpful:

“This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Given that the Respondent did not dispute that the Complainant’s request for HAP was refused on 15 June 2024 and continued thereafter until she left the house on 3 March 2025, I find that the Complainant has successfully established a prima facia case of discrimination in relation to the ground of housing assistance payment which was not rebutted by the Respondent.

Considering the foregoing, I find that the Complainant was discriminated against and that the Respondent engaged in prohibited conduct.

I find that the Respondent engaged in prohibited conduct under the Act for the reasons set out above.

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 that the Complainant no longer resides in the property, the appropriate redress is compensation. In making an order for compensation, I note that the Complainant has suffered considerable stress and financial loss for a period of over eight months as a result of the Respondent’s refusal to accept her HAP application. I am also of the view however that even a comparator tenant without HAP assistance, would have been served with a termination order due to the requirements of the Respondent’s family.

Considering all of the foregoing, I order that the Respondent pay to the Complainant the compensatory sum of €10,000 which I consider appropriate given the circumstances.