Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2008-069
Christina Boland
(Represented by Mr. Garrett O’Neill, Solicitor,
The Equality Authority)
-v-
Killarney Town Council
( Represented by Mr. John J. Daly, County Solicitor
Kerry County Council)
File Ref: ES/2003/0662
Date of Issue: 21st October, 2008
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Act, 2000. On 22nd February, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Act, 2000, the Director has delegated the complaint to me, Enda Murphy, 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 Acts, 2000-2008, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 2nd May, 2008. Further correspondence was received from the parties and the final information was received on 6th October, 2008.
1. Dispute
1.1 This dispute concerns a claim by the complainant, Ms. Christine Boland that she was discriminated against by the respondent on the grounds of her membership of the Traveller community in terms of Sections 3(1)(a) and 3(2)(i) of the Equal Status Act, 2000 in not being provided with a service which is generally available to the public contrary to Section 6(1) of the Equal Status Act, 2000.
2. Summary of the Complainant’s Case
2.1 The complainant claims that the respondent has discriminated against her on the grounds of her membership of the Traveller community in a number of respects including its failure to provide her with housing, the failure to carry out a proper assessment of her housing needs and the delay in the processing of her housing application. The complainant is a member of the Traveller community and she made an application on behalf of herself and her two children to the respondent for housing accommodation on three separate occasions in 1999, 2002 and 2005. The complainant made these housing applications as both herself and her two children were homeless and as a result were obliged to reside with her cousin, for a total of eight years, in a two bedroom house which was rented from the council. There were a total of seven people living in this house including the complainant’s brother; his wife and daughter and consequently, the standard of the living conditions in the house were appalling and overcrowded. The complainant suffered from poor health including a bad back, high blood pressure and depression during this period while her two children suffered from chest infections and these medical conditions were exacerbated by the poor standard of the accommodation in which they were forced to reside. The complainant’s cousin also suffered from depression and was reluctant to allow her and her family to continue living in this house and she requested them to leave on a number of occasions. On one such occasion the complainant and her children were forced to move into a bed and breakfast for two weeks which was paid for by the respondent.
2.2 The respondent made a number of housing allocations in the Ballyspillane estate in 2003 and given the poor conditions in which the complainant was living at that particular time, she fully expected to be allocated a house in this estate. The complainant’s preferred location to be allocated a house was the Ballyspillane estate as other members of her family were residing in that estate, however, she would have accepted a house in any other estate if it had been offered to her by the respondent. The complainant was not offered a house at this juncture and upon making representations to the respondent regarding this matter she was informed that the respondent was seeking to create a reasonable social mix and that only a house vacated by a Traveller could be allocated to a Traveller and that this was the reason she did not receive an allocation. The complainant was informed by the respondent on a number of occasions that she would have to wait for a Traveller to vacate a house in the Ballyspillane estate before she could be allocated a house in that estate. The complainant submitted that this form of estate management operates as a quota on the number of Travellers living in the area irrespective of the housing needs of the Travellers and the availability of housing. The complainant claims that a number of offers of accommodation were made to settled people at this time who refused the offers and that a number of houses in this estate were boarded up and remained unoccupied for long periods of time.
2.3 The complainant claims that she has been subjected to discrimination by the respondent on the basis that it will only re-house members of the Traveller community in houses that have already been occupied by members of the Traveller community and she contends that this form of estate management operates as a quota on the number of Travellers living in a particular area irrespective of the housing needs of Travellers and the availability of housing. The complainant submits that it was only after she had made a third application for housing on 18th February, 2005 that the respondent’s Housing Officer carried out a proper assessment of both her and her children’s personal living circumstances. Following this assessment it was recommended that the complainant qualified for three-bedroom housing on financial grounds and she was subsequently allocated a house by the respondent in January, 2006.
3. Summary of the Respondent’s Case
3.1 The respondent denies that it discriminated against the complainant on the grounds of her membership of the Traveller community with regard to the manner in which her application for local authority housing was processed. The respondent submitted that itis empowered under the Housing Acts, 1966 to 1992 to act in the capacity of a housing authority and that it has adopted a Scheme of Letting Priorities in accordance with its obligations under these Acts. The respondent states that its Scheme of Letting Priorities sets out the criteria that are taken into consideration when making decisions regarding the allocation of houses and the Scheme provides for a number of factors such as overcrowding, unsuitable living conditions, financial means etc. The respondent received 1081 applications for housing during the period from 1999 to 2005 and it was only possible to allocate a total of 137 houses to applicants during this period. The respondent is also obliged to operate a reasonable social mix in allocating housing accommodation, in accordance with the provisions of the Housing Acts, and it claims that the Scheme of Priority Lettings which it has adopted recognizes this obligation in the interests of effective estate management. The respondent states that it is necessary to maintain the existing social balance when allocating houses in a particular estate however, it denied that it operated a quota system in terms of its policy of allocating housing to members of the Traveller community. The respondent also denied that it operated a discriminatory policy in terms of its allocation of housing to members of the Traveller community and it stated that a number of houses were allocated to members of the Traveller community during the period of time from when the complainant made her initial application until she was allocated a house in January, 2006.
3.2 The respondent accepts that the complainant originally made an application to it for local authority housing in 1999 and the initial assessment of her application was carried out by the respondent’s Housing Officer in 2001. The respondent claims that the complainant indicated at that juncture that she was living with a relative who was anxious not to reside alone and the Housing Officer’s report concluded that the complainant was happy to reside there for the immediate future. The respondent introduced a ‘banding system’ for housing applications in June 2003 which had the effect that applicants were prioritized in a particular band for different categories of housing rather than being prioritized on an individual basis. The complainant’s application for housing was placed in band one (i.e. the highest category of prioritization) for a two bedroom house in 2003. The complainant was visited by the respondent’s Housing Officer on a number of subsequent occasions and she indicated on one such occasion that she only wished to be housed in the Ballyspillane estate. The respondent claims that it ultimately fulfilled this request and, in addition, to comply with her changing accommodation requirements rather than allocating her a two bedroom house she was granted a three bedroom in the location of her choice in January, 2006 i.e. in the Ballyspillane estate. The respondent submitted that it does not have a stock of housing readily available to meet the requirements of all housing applicants and accordingly, it is normal for an applicant to be on the housing list for a period of time, in some cases a number of years, before being allocated a house. It further submits that the period of time it took to provide the complainant with housing appropriate to her requirements and in her preferred location was not abnormal, in the circumstances, and did not amount to discrimination on the grounds of her Traveller identity.
3.3 The respondent totally denies the allegation that it did not let one of four houses boarded up in the Ballyspillane estate in 2003 to the complainant because of her Traveller identity. It claims that these houses were boarded up pending renovation and to prevent unauthorized occupation of them and that these houses were not let to any housing applicant in 2003, irrespective of their identity or ethnic origins. The respondent claims the fact that houses were allocated in the Ballyspillane estate to applicants whose applications were made subsequent to the complainant’s application does not mean that she was discriminated against nor does it mean that its policy for the allocation of housing is operated in an arbitrary or a discriminatory manner towards members of the Traveller community. The respondent claims that the houses in this estate were allocated on the basis of an objective assessment of all applicants on the housing list having regard to their particular need for housing at the time the accommodation was available and having regard to the provisions of the Scheme of Letting Priorities, including the provision contained within in relation to the maintenance of a reasonable social mix in the interest of estate management.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. 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 raised.
Section 6(6) of the Equal Status Acts, 2000 to 2008
4.2 In considering whether discrimination has occurred in the present case, I am obliged to have regard to the exemption that is provided for in Section 6(6) of the Equal Status Acts which states that:
“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.”
In accordance with its obligations under the Housing Acts [1], a housing authority is required to make a scheme determining the order of priority to be accorded in the letting of dwellings, and in doing so, it may specify certain categories of persons to which priority is to be accorded, such as applicants living in dwellings deemed to be unfit or dangerous, applicants living in overcrowded conditions and applicants who lack suitable or adequate accommodation. The respondent in the present case is empowered under the Housing Acts to act in the capacity of a housing authority and it has adopted a Scheme of Letting Priorities in accordance with its obligations under these Acts. The issue regarding the scope and the manner in which the exemption provided for in Section 6(6) of the Equal Status Acts should be interpreted has been addressed in a number of previous decisions under this legislation, and in this regard, I have taken note of the decisions of the Equality Officers in Mr. Leo Jones –v- Dun Laoghaire Rathdown County Council, A Complainant –v- A Local Authority, Michael McCann –v- Dun Laoghaire-Rathdown County Council and Mr. X –v- A Town Council [2]. I have also taken cognisance of the Circuit Court judgement delivered by Hunt J. in the case of Dublin City Council –v- Grace Deans [3] where it is stated that:
“I cannot construe subsection 6 of that section as exempting a housing authority in its entirety from all application of the equality legislation. It appears to me simply to provide that a housing authority is entitled to base its priorities and its housing plan on different treatment to persons based on family size, family status and the other considerations set out in the subsection”.
Having considered this issue, I am of the view that the exemption provided for in Section 6(6) of the Equal Status Acts does not allow a housing authority to discriminate against the category of persons outlined therein, but rather that it facilitates the housing authority to prioritise in favour of those categories of persons. I will now proceed to examine the complaint having regard to the exemption that is provided for in Section 6(6) of the Act.
4.3 In the present case, the complainant claims that the respondent has discriminated against her on the grounds of her membership of the Traveller community in a number of respects including its failure to provide her with housing, the failure to carry out a proper assessment of her housing needs and the delay in the processing of her housing application. The complainant has also alleged that the respondent was operating a ‘quota system’ with regard to the number of Travellers living in a particular area, irrespective of the housing needs of the Travellers and the availability of housing. The complainant claims that in September, 2003 there were 4 houses vacant in the Ballyspillane estate and that she was refused accommodation in one of these houses because she did not fit in with what the council describes as ‘reasonable social mix’ in relation to the allocation of houses in the interest of estate management. The respondent denies that it discriminated against the complainant on the grounds of her membership of the Traveller community and it claims that housing was allocated to applicants based on an objective assessment of their needs which was carried out in accordance with its Scheme of Letting Priorities. The respondent refutes the allegation that it was operating a ‘quota system’ in relation to the allocation of housing to members of the Traveller community and claims that it was obliged to take cognisance of a reasonable social mix in relation to the allocation of housing in the interest of estate management. The respondent accepts that there were a number of houses vacant in the Ballyspillane estate around September, 2003, however it claims that these houses were boarded up pending renovation and to prevent unauthorized occupation of them and that these houses were not let to any housing applicant in 2003, irrespective of their identity or ethnic origins.
4.4 I must therefore decide whether the housing allocation policy that was operated by the respondent had the effect of subjecting the complainant to less favourable treatment on the grounds of her membership of the Traveller community, in terms of the manner in which her housing application was dealt with by the respondent. In considering this issue, I note that the complainant made her initial application to the respondent for housing on 23rd September, 1999 and that she was ultimately allocated a three bedroom house in the Ballyspillane housing estate on 25th January, 2006 i.e. a period in excess of 6 years after she made her initial application. During this period of time the respondent received a total of 1,081 applications for local authority housing and it allocated a total of 137 houses to applicants (with the result that a total of 944 applicants were unsuccessful during this period). I note from the statistical data submitted by the respondent that approx. 46 of the applicants who were allocated housing during this period (and who were members of the settled community) were on a waiting list for a period of five years or more prior to the date of allocation of accommodation (and in excess of 70 applicants were on a waiting list for four years or more prior to allocation of a house). I am therefore satisfied that it was not an unusual occurrence for a housing applicant to be on a waiting list for a period of time comparable to that of the complainant before being allocated housing by the respondent.
4.5 The complainant was visited by the respondent’s Housing Officer on a number of different occasions during the period of time she was awaiting to be allocated a house and I note that during one such visit in June/July, 2001 the Housing Officer’s report indicated that the complainant was ‘quite happy’ to remain at the residence she occupied at that particular time (i.e. her cousin’s residence). The complainant, in her evidence, did not dispute that she had informed the Housing Officer that this, in fact, was the case during that particular visit. I also note the undisputed evidence that the complainant indicated to another Housing Officer during a subsequent visit in 2005 that she would only accept a house in the Ballyspillane estate due to the fact that a number of members of her family were already housed in that estate. I am satisfied that the complainant’s application for housing was accorded a high level of priority by the respondent and it is clear from the evidence adduced that her application was placed in ‘Band one’ for a two bedroom house i.e. the highest prioritisation for that category of house when the respondent introduced its new system for the prioritisation of housing applications in 2003. Having regard to the evidence adduced, I am satisfied that a number of other applicants, who were members of the settled community, were also subjected to similar, or indeed longer waiting periods, than the complainant in terms of the length of time that it took for them to be allocated housing by the respondent. The complainant has not adduced any evidence to suggest that the housing needs of the other applicants, who were allocated housing prior to her, were not more urgent than hers, at the particular time of the allocation.
4.6 The complainant has also alleged that the respondent operated a ‘quota system’ in relation to the allocation of housing to members of the Traveller community within its jurisdiction irrespective of the housing needs of the Travellers and the availability of housing. In considering this issue, I have also taken into consideration the provisions of Section 20 of the Housing Act, 1988 regarding the obligations placed upon a housing authority, which states:
“In providing dwellings under section 56 of the Principal Act, a housing authority shall have regard to the latest assessment made under section 9 and to the need for housing of any person accepted, after the making of such assessment, for inclusion in the next assessment, and shall seek to maintain a reasonable balance between the respective needs of the classes of persons specified in section 9(2).”
I am satisfied that a housing authority, such as the respondent, is obliged to have regard to the maintenance of a reasonable social balance, in terms of its housing allocation policy, to the categories of persons that are outlined in section 9(2) of this Act, of which members of the Traveller community are included. I am also of the view that compliance with this provision of the legislation does not permit a housing authority to adopt or implement policies that have the effect of discriminating against members of the Traveller community in terms of their housing allocation policies.
4.7 In the present case, I note that the respondent stated in its response (dated 5th November, 2003) to the complainant’s notification that “Another factor included in the scheme is that cognisance should be taken of a reasonable social mix in relation to the allocation of houses, in the interest of estate management. It is on this basis that a certain number of houses in each scheme are reserved for Members of the Travelling Community. Accordingly, when a Local Authority house is vacated by a member of the Travelling Community, it is then re-allocated to a member of the Travelling Community in order to maintain a desired social mix. In addition, when any casual vacancy occurs, Members of the Travelling Community are considered as tenants, again having regard to the Scheme of Letting Priorities”. Having regard to the provisions of Section 6(6) of the Equal Status Acts, I am satisfied that the respondent is not prohibited from providing special housing facilities for the categories of persons identified therein, with members of the Traveller community being one such category, and that such a policy does not constitute discrimination. I am of the view that the respondent was not acting in a discriminatory manner by invoking the aforementioned measures in terms of its housing policy but rather was implementing a positive action measure for the inclusion of members of Traveller community who may otherwise be disadvantaged in relation to their housing needs. I am satisfied that the housing allocation policy operated by the respondent did not have the effect of limiting the numbers of Travellers in any particular area as it is clear from the evidence adduced that members of the Traveller community were also considered for any ‘casual vacancy’ that may arise in addition to the housing that was set aside specifically for Travellers.
4.8 It is clear from the statistical data submitted by the respondent that a number of houses were allocated to members of the Traveller community during the period from 1999 to 2005 and in this regard, I note that of the 137 houses which were allocated during this period that a total of 8 houses were allocated to members of the Traveller community. I am satisfied that the respondent was not operating a ‘quota system’ on the number of Travellers living in any particular estate or area, including the Ballyspillane estate as it is clearly the case that houses were allocated to members of the Traveller community which had been occupied by a non-Traveller immediately prior to allocation. I have found the following evidence to be persuasive in coming to my conclusion in this regard, namely:
· The house which the respondent allocated to the complainant in January, 2006 was in the Ballyspillane estate and that it had not been occupied by a member of the Traveller community immediately prior to allocation.
· The complainant also stated in evidence that her cousin had been allocated a house in the Ballyspillane estate which was not occupied by a Traveller immediately prior to the allocation.
Based on the evidence presented, I am satisfied that the respondent’s housing allocation policy was operated in accordance with its obligations under the Housing Acts, and I have found no evidence to suggest that this policy was operated in a discriminatory manner against the complainant on the grounds of her membership of the Traveller community during the period of time she waiting to be allocated a house.
4.9 Having regard to the totality of the evidence adduced, I am satisfied that the housing requirements of all applicants were assessed in accordance with the criteria outlined in the respondent’s Scheme of Letting Priorities and accordingly, I find that the reason the applicants who were allocated housing in preference to the complainant was because their need for housing was considered to be more urgent than that of the complainant’s, based on an objective assessment carried out in accordance with its Scheme of Letting Priorities. The complainant has not adduced any evidence to show that the housing needs of such persons were not more urgent than hers, at the particular time, or any evidence from which I could conclude that this was the case. In the circumstances, I find that the complainant has failed to establish that she was treated less favourably than another person, in similar circumstances, on the basis of her membership of the Traveller community in terms of the manner in which her application for housing was dealt with by the respondent.
5. Decision
5.1 On the basis of the foregoing, I find that a prima facie case of discrimination has not been established by the complainant on the Traveller community ground in terms of sections 3(1) and 3(2)(i) of the Equal Status Act, 2000. Accordingly, I find in favour of the respondent in the matter.
Enda Murphy
Equality Officer
21st October, 2008