Mr Michael McCann
V
Dun Laoghaire - Rathdown County Council
(Represented by Martin Dully BL)
1. Delegation under the Equal Status Act 2000
1.1. Mr Michael McCann referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Equal Status Act.
2. Dispute
2.1. The dispute concerns a complaint by Mr McCann that Dun Laoghaire-Rathdown County Council (hereafter the Council) treated him contrary to the Equal Status Acts 2000 to 2004 on the Traveller ground. Mr McCann maintains that the Council's Traveller Unit treated him less favourably than a non-Traveller would have been treated in a similar situation on 8 December 2004 by turning down his request for a key to a barrier restricting access to a halting site, his primary residence. Mr McCann needed a key to get in and out of the site after he purchased a van that, due to its height, could not pass the barrier.
3. Case for the Complainant
3.1. Mr McCann, a Traveller, resides on a halting site with his mother, an older person who has health related problems. Mr McCann is a carer. Mr McCann and his extended family have been living in the Dun Laoghaire-Rathdown Council area for over 15 years. He has lived in his current location since the halting site was constructed in 2002.
3.2. A halting site is similar to a small housing scheme. This particular one has four individual bays, each intended for a family unit. Every bay has an allocated space for a large caravan/mobile home, a small caravan and a self-contained unit (permanent structures) for cooking and washing facilities. All bays have space for parking. Each bay is walled and has an entry to a small communal area. The halting site itself is also surrounded by a wall and has a barrier at the entry point to the halting site.
3.3. As the site was built with the McCann family in mind, Mr McCann and others participated in a consultation meeting with the Council's architects to discuss the site's design and specifications. Mr McCann agrees with the Council's statement that the families had wanted a barrier at the entrance. He states that while some disagreement existed around the barrier's aesthetics, the future tenants of the site had wanted a barrier but that they had naturally presumed that they would get a key to it.
3.4. Mr McCann states that he obtained a key from a source he does not want to disclose (not the Council) some years ago while the circus were using the field next to the site. This key enabled him to open and close the barrier whenever he needed to. With this in mind, the complainant purchased a camper van. Mr McCann maintains that he always locked the barrier after him. However, after a time, the lock in the barrier was changed and when Mr McCann approached the Traveller unit for a new key he was told he could not have one.
3.5. The Council informed Mr McCann that if he needed to get his van out of the site he would have to give the Council 24 hours notice. As the barrier would be locked after Mr McCann's departure, he would have to give another 24 hours notice to ensure that he would get back in. As a result, the camper van was no longer a realistic means for transportation and Mr McCann was left with no other alternative than to sell his van.
3.6. There are no parking facilities anywhere adjacent to the halting site. Mr McCann has to park his vehicle(s) in his bay. He states that there is ample room in his bay for a camper van but due to the barrier he could not get in or out. This type of a situation, he maintains, would not occur if he chose to live in standard local authority housing where he could just park in the driveway to his house.
3.7. Mr McCann argues that he can prove that non-Travellers have been given a key to the barrier. The halting site in question is adjacent to a field that is locally known as the 'circus field'. The same barrier restricts entry to this field (you need to pass under the barrier before you get to the gateway located at the side of the driveway into the halting site). Mr McCann contends that when the circus is in town the barrier is often left unlocked and people working for the circus come and go as they please. To prove his point, Mr McCann submitted photographs of the barrier at the hearing. The photographs showed the barrier being left open with a number of circus vehicles parked nearby.
3.8. Mr McCann had to sell his camper van because he was not able to get in and out of his place of residence. He maintains that the only reason the Council has not given him a key is because the Council do not trust him. He says the Council is trying to restrict his freedom and is preventing him from having a van of his choice. Mr McCann also pointed out that the Council would not give him (or any other Traveller for that matter) a key to the service unit on the bays because 'they think we would steal the copper'. He argues that persons living in non-Traveller specific accommodation would routinely have keys to any types of barriers or locks governing their properties.
3.9. Mr McCann acknowledges that he himself has been a victim of anti-social behaviour during his tenancy. There have been problems with some of his neighbours. He does not, however, accept that his problems with anti-social behaviour have anything to do with the issue of him having a key to the barrier.
3.10. Mr McCann disagrees with the Council's statement that emergency services have a master key to open halting site barriers when needed. He reported an incident from the recent past where an ambulance attending to a person could not get under the barrier.
3.11. When questioned Mr McCann did not accept that should he have a key to the halting site it would subject him to intimidation from other members of the Traveller community. He stated that he considers himself to be perfectly capable of keeping the barrier locked and maintains that he used to do so when he had the key. Mr McCann further states that only Traveller sites have barriers restricting access to them while non-Traveller housing areas do not. This, he argues, is less favourable treatment.
3.12. Mr McCann further argues that in any other housing situation where barriers such as gates exist residents are always given a key.
4. Case for the Respondent
4.1. The Housing (Traveller Accommodation) Act 1998 places a statutory obligation on Local Authorities to meet the accommodation needs of Travellers . The Traveller unit of the Council is responsible for all Traveller specific housing issues within the Council's area. Keys for halting site barriers are held by staff working for the Council's Parks' Department.
4.2. Traveller specific accommodation includes serviced halting sites (such as the one Mr McCann resides on), groups housing schemes and transient sites. These are usually built in consultation with the local Traveller community.
4.3. The Council maintains that the barrier was in place when Mr McCann purchased the camper van. A copy of Guidelines - Residential Caravan Parks for Travellers was submitted at the hearing to support the Council's argument that the site was constructed in adherence to the requirements set out in the said document. Any vehicle up to 2.1 meters in height can travel freely under the barrier. The Council submits that no key has ever been provided by them to Mr McCann or any other person living on the halting site he resides on.
4.4. All Traveller halting sites have barriers governing access. The council submits that the families residing in Mr McCann's halting site had been involved in a consultation with architects when the site was under construction. A copy of a letter from the Architects dated 27 July 2001 submitted at the hearing by the Council. It outlines the points raised by members of the McCann's extended family in relation to the site's design and that "they accept that a barrier must be provided at the entrance".
4.5. The keys to the barrier are not held with the Traveller unit. The Council's Parks' Department staff have keys to the barrier and regulate access to the neighbouring circus field. If a resident of the halting site needs, for example, to move a new caravan in then the Traveller Unit will arrange with the Parks' Department staff to have someone open the barrier and monitor the movement in and/or out.
4.6. The Traveller Unit had responded to Mr McCann's request for a key by promising that it would take every effort to accommodate the opening of the barrier provided that appropriate notice is given. The Council points out that Mr McCann was not entitled to the key he had somehow obtained and that the person who had given it to him was equally not entitled to do so.
4.7. In relation to Mr McCann's photographs presented at the hearing, the respondents acknowledge that the barrier in the photographs is indeed from Mr McCann's halting site. No explanation could be given as to why the barrier would have been left open. The Council indicated that such an act was a breach of the Council's protocol and would have to be investigated. The respondents maintain, however, that this could only have been a once-off incident as leaving a barrier unopened is a serious matter.
4.8. The Council pointed out that Mr McCann has himself been a victim of anti-social behaviour and that he has first hand knowledge of the difficulties involved in managing problematic situations that sometimes occur between Traveller families. The Council maintains that the barriers are there as a preventative measure and to ensure that families that do not have the right to reside in a particular halting sites do not attempt to intimidate legal tenants out.
4.9. The Council named a few pilot programmes where Travellers had been issued with keys to barriers. During one of these pilots a caretaker residing on a halting site had asked the Council to take the key back as he had been subjected to enormous pressure to open the barrier to members of his own community. Another situation was mentioned where a wall of a halting site was knocked down and some families trespassed onto a field behind a legal site causing serious damage to the environment and to the relationship between non-Travellers and Travellers.
4.10. The Council maintains, in a response to the notification form dated 21 January 2005, that Mr McCann was "not treated any less favourably than any other person who is so associated has or would be treated as no tenant of halting sites are given keys of the access barriers". The reason why no Traveller is given a key was explained as a way of protecting the sites and the residents living in them. The Council submits that it has never turned down a request to open the barrier in relation to a legal tenant's request for them to do so.
4.11. Unlawful encampments are, at least in part, a direct result of a shortage of Traveller specific accommodation. Unlawful encampments usually consist of new family formations, Travellers who follow a more traditional nomadic lifestyle and families who have been living in the area but are still waiting for the full implementation of the Local Traveller Accommodation Plan. This shortage of Traveller specific accommodation has resulted in families having to live on the side of the road or in similar locations where no services are available. As a result, some extended families have felt the pressure to double up in bays while appropriate accommodation becomes available.
4.12. The Council could not name any other non-Traveller housing scheme where tenants do not have unlimited access into the area. It was mentioned that the Council is considering erecting barriers at the entrances of some standard local authority housing estates in the future. Some apartment complexes with underground car parks have restricted access to them but no comparator could be given to a situation where unlimited access could only be achieved with the Council's involvement.
5. Conclusions of the Equality Officer
5.1. In a complaint of discrimination the burden of proof to establish a prima facie case rests with the complainant. In order for Mr McCann to establish a prima facie case of discrimination he must satisfy the Tribunal that 1) he is a member of the Traveller community; 2) that the actions complained of actually took place; and 3) Mr McCann must show that the treatment was less favourable than the treatment offered to a person who is not a Traveller in similar circumstances.
5.2. It is important to highlight that the issue here is not necessarily about the barrier itself. It is about a legal tenant having a key to the barrier. It seems that barriers have been historically used at the entry of all halting sites and that both Travellers and the Council see it as a standard structure part and parcel of a halting site. The Department of Environment, Heritage and Local Government (DEHLG) Guidelines on halting sites refer to a need to consider entrance control . It is essential to note that Traveller specific accommodation is allowed under section 6(6) of the Equal Status Acts:
Nothing in subsection (1) shall be construed as prohibiting -
(a) a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1998, or
(b) a body approved under section 6 of the Housing (Miscellaneous Provisions) Act, 1992,
from providing, in relation to housing accommodation, different treatment to persons based on family size, family status, marital status, disability, age or membership of the Traveller community.
5.3. The above exemption for differential treatment cannot be construed as legitimising less favourable treatment. Section 6(6) is intended as a positive action measure allowing for the inclusion of categories of people who may otherwise be disadvantaged in relation to their housing needs. In this particular case, the above exemption cannot be used to justify the fact that only Travellers living in Traveller specific accommodation are the only category of people living in local authority housing who are not given keys to have full access to their common areas despite having exactly the same contractual obligations as any other tenant living in standard local authority housing.
5.4. The Council submitted a copy of Mr McCann's tenancy agreement at the hearing. I note that Mr McCann has signed it (with the words 'signed under duress' added after his name). The agreement makes no specific mention of types of vehicles residents are allowed to park within their residential areas nor that residents would have restricted access. The agreement appears to be a standard one issued to all tenants of the Council. I take this to indicate that the council views Traveller specific accommodation as being parallel to that of standard local authority housing. Paragraph 17 of the agreement clearly outlines the tenants' responsibilities in relation to "nuisance, annoyance and disturbance". Part vi of paragraph 17 would appear to cover the tenant's responsibilities in relation to ensuring that all security measures are adhered to:
"Any act or omission which creates a danger to the well-being of any neighbour or to his/her belongings".
I interpret the above to mean that should a tenant fail to take appropriate care to ensure that collective entry points are properly secured then they are in breach of their agreement with the Council. Therefore, Mr McCann is aware he has a responsibility in this matter. It is perfectly logical for Mr McCann to presume that he would be given a chance to comply with such a matter.
5.5. While the issue of anti-social behaviour on halting sites is a real one, I note that Mr McCann had been on the receiving end of it. The Council stated at the hearing that they viewed Mr McCann as a good tenant. I do not see how the issue of anti-social behaviour in Mr McCann's site is relevant to this particular issue, as it would appear that the problem occurred without anyone on the site having an ability to open the barrier and was an issue between neighbours living on the site. It seems that another family living on the site may have wanted Mr McCann to move out. This incident only illustrates that barriers are not entirely successful in preventing anti-social behaviour from occurring.
5.6. The Council stated that Mr McCann has not been treated any less favourably than any other Traveller would be treated as no Traveller has a key to a barrier. However, the Equal Status Acts 2000 to 2004 prohibits less favourable treatment between any two persons who differ on the basis of any of the discriminatory grounds. For the purposes of this investigation, this means that the comparator on a Traveller ground complaint must be "that one is a member of the Traveller community and the other is not".
5.7. The Council could not provide any evidence of any mainstream housing situation where barriers are used to govern access to a housing area. The Council submitted that group-housing schemes built specifically for the Traveller community have barriers at the entrance. From the evidence presented to me at the hearing I must conclude that only Traveller specific accommodation in the Council's area has protective barriers at the entry point(s). Even Traveller housing schemes have a barrier .
5.8. While no evidence has been submitted of any non-Traveller specific residential area where barriers are used at entry point, similar situations do exist. Gates are used to protect most apartment complexes and some residential housing estates are known as 'gated communities'. A person living in any of these types of housing situations must accept the security measures imposed. Car parks may have high restrictions. Always, however, where gates exist, keys are provided to residents. Alternatively, a caretaker is always present to ensure the free movement of those who have the right to do so.
5.9. The Council could not explain the reason why Traveller halting sites have barriers in the first place. Words like 'control', 'duty of care' and 'security' were used a lot at the hearing by the Council staff and the health and safety aspects of building regulations were also referred to. Overcrowding of bays seemed to be a particular concern. It is no secret that Local Authorities across the country are struggling to implement the Local Traveller Accommodation Plans in a timely manner and that, consequently, delays have occurred in relation to Traveller families being offered appropriate housing options. Similarly, illegal Traveller encampments have caused problems and local upset. Some families may have engaged in illegal trespass for criminal reasons or simply because they had nowhere else to go. Some individuals may have intimidated other members of the Traveller community in order to get a place to live. The Council presented anecdotal evidence of these types of problems at the hearing but I was not presented with any direct evidence from a Traveller who has been subjected to such harassment or intimidation. While the above issues may be important when looking at the situation and experience of the Traveller community in Ireland, it is crucial to note that none of the above problems mentioned are, however, Mr McCann's personal responsibility and there is no evidence to indicate that giving Mr McCann a key would increase the likelihood. Instead, the contrary is evident as Mr McCann was in possession of the key for a considerable time and no issue of harassment or intimidation in relation to the key did arise.
5.10. The fact that Mr McCann was able to show photographic evidence that the barrier could be left opened for non-Travellers creates an inference of discrimination. It appears that the staff of the circus were trusted enough to leave the barrier open while the staff moved their equipment in/out of the "circus field". It appears that the Council officials dealing with this matter were relaxed enough to a) give the circus staff a key and/or b) have enough trust in them to leave the barrier open for a considerable period of time. I do not accept that this was the only time this has happened. While Mr McCann was reluctant to name the person who gave him the key to the barrier it is obvious that someone else outside the Council had a key to it or that a person working for the Council failed to follow his/her employer's guidelines. This premise is further supported by the fact that at no point did the Council deny that Mr McCann was for some time in possession of a key that, according to the Council's own evidence, was for Council staff use only.
5.11. It is clear from the evidence presented to me that Mr McCann has not been given a key because he is a Traveller living in a residential halting site. If Mr McCann lived in standard local authority housing his movements would not be restricted in a similar manner. Firstly, there would be no barrier at the entrance and secondly, if there was some type of a protective measure in place, he would be given a key. I am certain that the reason why Mr McCann is not trusted with a key has nothing to do with his personal traits. I am satisfied that the treatment he received was entirely based on his membership of the Traveller community and a direct result of him choosing to live in Traveller specific accommodation.
5.12. The Council maintains that all Traveller specific accommodation has barriers at the entrance points. This is in accordance with national guidelines and accepted as a standard feature of a halting site. The Council argues that the barriers are there to ensure that health and safety requirements are complied with. The barrier is a design feature of any Traveller specific housing and any person choosing to live in such accommodation must accept the barrier as such. While this may be the case, it still does explain why tenants who have entered a legally binding contract with the council are not allowed free access to the barrier.
5.13. I find that this design feature is creating a situation where a Traveller choosing to live in Traveller specific housing is at a particular disadvantage compared with a non-Traveller living in standard local authority housing. This is direct discrimination contrary to section 3(1) of the acts. The fact that residents of residential halting sites are not given keys to the barrier could been seen as an indicator that the Council does not trust the residents living in Traveller specific housing to use them appropriately. This could be because the Council may fear that residents would be intimidated into letting others into the sites or simply because a family might invite another to join them in a bay. To prevent this, barriers have been erected at entry points and emergency services are expected to carry and locate keys in situations where time is of the essence.
5.14. The Council's reasons for why persons living on halting sites are not given keys to the entrance barriers of their homes does not justify the less favourable treatment experienced by Mr McCann. It is because of this failure to accept a Traveller as a responsible person that the Council is treating any person choosing to live in Traveller specific accommodation in a less favourable manner than a person who resides in standard non-Traveller specific accommodation.
6. Decision
6.1. The complainant has established a prima facie case of discrimination. I order the respondent to pay him €2000 as redress for the effects of the discrimination.
6.2. Further, in accordance with section 27(b) of the Acts, I order the respondent to issue the complainant a key to the said barrier immediately.
6.3. I also recommend that the Council carry out an urgent review to examine whether there is still a continued need for a site entrance barrier as recommended in Guidelines - Residential Caravan Parks for Travellers paragraph 6.4.
_____________
Tara Coogan
Equality Officer
29 January 2008
1 This means that Local Authorities must implement an accommodation programme that includes a range of accommodation provision, including standard local authority housing for Travellers for whom this is a preferred option.
2 Issued by Department of Environment and Local Government
3 Guidelines - Residential Caravan Parks for Travellers (DEHLG).
4 These are small groups of houses built specifically for Travellers
5 Traveller housing schemes consist of a small number of houses. They usually do not have a space for a caravan.