Complainant

Respondent

Parties

Barbara  Pisarek

Wexford County Council

Representatives

  Self-Represented

Jonathan Cullen of Ensor O'Connor 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-00067504-001

19/11/2024

The Complainant presented to the Respondent’s Homeless Services following the loss of her private rented accommodation. Following assessment, she and her family were provided with emergency accommodation from September 2023 onwards.

Initially, the accommodation provided consisted of Bed and Breakfast accommodation located in Gorey. In May 2024 the Respondent offered the Complainant own-door emergency accommodation in Enniscorthy, which she accepted under a licence arrangement forming part of the Respondent’s homeless services.

The Complainant remained engaged with the Respondent’s housing supports throughout the relevant period.

The complaint before me concerns the administration of those emergency accommodation arrangements and the Complainant’s contention that decisions taken by the Respondent amounted to discrimination on the disability ground, harassment, and a failure to provide reasonable accommodation.

The Complainant submits that she is a person with a disability and that she was treated unfairly and differently by the Respondent in the provision of accommodation services.

She contends that her accommodation arrangements were repeatedly subject to short-term extensions and frequent review and that she was required to demonstrate ongoing efforts to secure private rented accommodation. She maintains that other residents were not subjected to similar scrutiny and that she was therefore treated less favourably.

The Complainant further submits that her relocation from Gorey to Enniscorthy caused significant hardship due to distance, transport difficulties, and the impact on her family life and wellbeing. She described the conditions attaching to emergency accommodation as restrictive and stated that she felt under constant threat of losing accommodation.

In her additional written submission, the Complainant asserted that she was treated in a degrading manner, that decisions affecting her accommodation caused distress and anxiety, and that she believed these matters arose because of her disability and mental health history. She also expressed dissatisfaction with housing allocation outcomes and the absence of priority access to long-term social housing.

During cross-examination, the Complainant clarified aspects of the complaint being advanced. She denied that she was making a complaint concerning the operation of the Respondent’s homeless services as such and stated instead that her concern related to the priority afforded to her social housing application, which she believed did not adequately reflect her disability and housing circumstances.

It was put to the Complainant that both the WRC complaint form and the ES1 notification referred to her interactions with the Respondent in the context of the provision of emergency accommodation through homeless services. In response, she stated that her complaint concerned the provision of accommodation generally and her access to long-term housing rather than the administration of homeless supports.

The Complainant further stated that she wished to be prioritised for long-term housing, explaining that she had been homeless for approximately two years and did not understand why she remained in emergency accommodation for that period. She expressed the view that her disability and housing circumstances ought to have resulted in earlier access to permanent housing.

The complaint form submitted to the WRC indicated, by way of a ticked box, that the complaint also related to the Housing Assistance Payment (HAP). The Complainant accepted in evidence that she was eligible to access accommodation through the HAP scheme and that she was not pursuing a complaint in respect of her status as a recipient or prospective recipient of housing assistance and that no issue concerning HAP arises for determination.

The Respondent denies that any discrimination or prohibited conduct occurred. It submits that the Complainant was provided with emergency accommodation continuously following her presentation as homeless and that all arrangements were implemented in accordance with homeless policy and operational requirements.

The Respondent states that review procedures, engagement requirements, and licence arrangements are standard features of emergency accommodation management and apply generally to service users. It submits that accommodation placement decisions are determined primarily by availability and service capacity and that the offer of own-door accommodation in Enniscorthy represented an improvement on prior arrangements.

The Respondent maintains that housing allocation decisions are governed by statutory housing schemes and objective assessment processes unrelated to disability. It denies that the Complainant was treated less favourably than any comparable service user.

The Respondent further maintains that all measures complained of arose from the ordinary administration of its homeless services and were applied uniformly to residents of emergency accommodation, and denies that any treatment was connected to the Complainant’s disability.

In making these findings, I have considered the documentation submitted in advance of the hearing, the oral evidence adduced at the hearing and the oral and written submissions made by and on behalf of the parties.

The Complainant also submitted a transcript of what was described as an audio recording which was alleged to have been recorded on her daughter’s phone. No audio recording itself was produced and the Complainant’s daughter did not attend the hearing to give evidence in relation to the recording or the preparation of the transcript. In those circumstances, the provenance, completeness and accuracy of the transcript could not be verified and I have therefore not placed reliance on this material in reaching my findings, which are based on the oral evidence given at the hearing and the documentary material properly before me.

Cognisable Period

Before considering the substantive issues, I must first be satisfied that the complaint falls within the time limits prescribed by section 21 of the Acts. The complaint was referred to the WRC on 19 November 2024. The cognisable period for the purposes of this complaint therefore extends to the six-month period immediately preceding that date, namely from 20 May 2024 to 19 November 2024.

Insofar as the Complainant referred to matters occurring outside that period, including matters arising after the date of referral, those matters do not fall within my jurisdiction for the purposes of this complaint. My findings are therefore confined to events occurring within the cognisable period identified above.

I am satisfied that the notification requirements prescribed by section 21(2) of the Acts were complied with. Accordingly, I am satisfied that the complaint is properly before me for inquiry.

Scope of the Complaint

During the hearing, clarification through questioning was required in order to identify the matters properly before the Adjudication Officer.

Notwithstanding a reference to the Housing Assistance Payment (HAP) on the complaint form, the Complainant confirmed in evidence that she was not pursuing a complaint under the housing assistance ground and was only pursing her complaint on the disability ground. Much of the evidence described the personal impact of her housing circumstances rather than specific acts of alleged discriminatory treatment connected to the disability ground. Furthermore, clarification was required regarding the precise scope of the complaint being advanced. The Complainant’s evidence was wide-ranging and at times moved between matters relating to the provision of emergency accommodation, dissatisfaction with housing allocation priorities, and broader concerns regarding her social housing application. A significant portion of her evidence concerned her wish to be prioritised for long-term social housing and her difficulty understanding why she remained in emergency accommodation after a period of homelessness.

In light of the foregoing, I now turn to consider whether the matters properly falling within the scope of this inquiry are capable of establishing a prima facie case of discrimination within the meaning of the Acts.

Legal Framework

Section 3(1) of the Acts provides that discrimination occurs where, on one of the discriminatory grounds, a person is treated less favourably than another person is, has been, or would be treated in a comparable situation. Section 3(2)(g) of the Acts identifies disability as a protected ground.

It was not in dispute that the Complainant has a disability within the meaning of section 2 of the Acts, and I accept that she falls within the protection of the legislation.

Burden of Proof

Section 38A of the Acts provides for the allocation of the burden of proof and requires the Complainant to establish, in the first instance, facts from which prohibited conduct, including discrimination, may be inferred. Only where such a prima facie case has been established does the burden shift to the Respondent to rebut that inference.

In Pierce Parker v Office of the President and University Advocate and University of Limerick DEC-S2013-004, the Equality Officer confirmed that section 38A of the Acts is analogous to section 85A of the 1998 Act and that it is appropriate to have regard to Labour Court jurisprudence developed under that provision when applying the burden of proof. In that decision, reliance was placed on the Labour Court’s reasoning in Dyflen Publications Limited v Spasic (ADE/08/7), adopting the approach in Madarassy v Nomura International plc [2007] IRLR 246, that the primary facts relied upon by a complainant must be assessed in their proper factual context and in light of all of the evidence.

The Labour Court further clarified in Melbury Developments Ltd v Valpeters (ADE/09/16) that the complainant must establish primary facts on credible evidence which are of sufficient significance to raise a presumption of discrimination and that mere speculation or assertion, unsupported by evidence, cannot ground such an inference.

Accordingly, the issue at the first stage is whether the facts established, viewed cumulatively, objectively, and in the context of the totality of the evidence, are sufficient to permit an inference that the treatment complained of occurred by reason of disability. Only if that threshold is met does the evidential burden shift to the Respondent, which must then rebut the prima facie case by cogent evidence.

Discrimination on the Disability Ground

The Complainant indicated on the complaint form that both direct discrimination and indirect discrimination were alleged. However, no distinction was drawn in evidence between these forms of discrimination, nor was any specific provision, criterion or practice identified as giving rise to indirect discrimination. I have therefore considered whether the facts relied upon are capable of establishing a prima facie case of discrimination under either head within the meaning of the Acts.

Having considered the evidence as a whole, I am satisfied that a significant portion of the Complainant’s case concerned dissatisfaction with housing allocation priorities and the length of time spent in emergency accommodation rather than specific acts of discriminatory treatment within the meaning of the Acts. The evidence relied upon primarily described the personal impact of her housing circumstances and did not identify treatment connected to the disability ground capable of giving rise to an inference of discrimination.

The Complainant relies on a number of matters in support of her contention that she was treated less favourably, including the temporary nature of her accommodation arrangements, the frequency of reviews of her emergency accommodation, the requirement to engage with housing services, the requirement to demonstrate ongoing efforts to secure private rented accommodation, her relocation to Enniscorthy and her dissatisfaction with housing outcomes.

Having considered the evidence, I am satisfied that these arrangements formed part of the Respondent’s administration of emergency accommodation services generally. The evidence demonstrates that review processes and engagement requirements were inherent features of homeless service provision rather than measures directed at the Complainant because of her disability.

No comparator evidence was identified, nor were facts established demonstrating that a person without a disability in materially similar circumstances would have been treated differently. While the Complainant experienced the arrangements as stressful and unfair, the Acts require evidence linking treatment to a discriminatory ground.

I therefore find that the Complainant has not established primary facts from which discrimination on the disability ground may be inferred and, accordingly, the burden of proof does not shift to the Respondent pursuant to section 38A of the Acts. In reaching this conclusion, I have considered the totality of the evidence and am satisfied that the matters relied upon by the Complainant are equally explicable by non-discriminatory factors arising from the operation of the Respondent’s homeless services.

Insofar as indirect discrimination is alleged, no evidence was adduced identifying any apparently neutral provision, criterion or practice applied by the Respondent which placed persons with a disability at a particular disadvantage compared with persons without a disability. Accordingly, no prima facie case of indirect discrimination has been established.

Harassment on the Disability Ground

Section 11 of the Acts defines harassment as unwanted conduct related to a discriminatory ground which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment.

The Complainant described distress arising from her housing circumstances and interactions with officials. However, no evidence was presented of conduct related to disability meeting the statutory definition of harassment. There was no evidence of derogatory remarks, inappropriate behaviour, or conduct linked to disability capable of constituting harassment within the meaning of the Acts.

Reasonable Accommodation

Section 4 of the Acts requires a service provider to take reasonable steps to accommodate the needs of a person with a disability where, without such measures, it would be impossible or unduly difficult for that person to avail of the service.

The Complainant’s complaint in this regard relates primarily to the location of the accommodation in Enniscorthy rather than Gorey and her view that the decision to house her in Enniscorthy was unreasonable. When asked during the hearing to explain how this amounted to a failure to provide reasonable accommodation within the meaning of the Acts, the Complainant stated that the location required one of her children to travel by bus in order to go to school, socialise with friends and attend sports training. While I accept that these arrangements may have caused inconvenience for the family, the matters identified relate to personal and familial circumstances rather than to any disability-related need requiring accommodation within the meaning of section 4 of the Acts.

The obligation under section 4 of the Acts concerns disability-related needs rather than personal preference as to location or housing outcome. No evidence was presented demonstrating that the accommodation provided prevented or materially impeded the Complainant from accessing accommodation services because of her disability. I therefore find that the reasonable accommodation claim is misconceived and not established.

Conclusion

Having considered all of the evidence before me, I find that the Complainant has failed to establish primary facts from which discrimination, harassment or a failure to provide reasonable accommodation may be inferred under the Acts. I therefore find that the complaint is not well-founded.

For the reasons set out above, I decide that the complaint is not well-founded.