DEC-S2009-028 - Full Case Report

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000-2008

DECISION DEC-S2009-0028

Parties

Mr. Maurice Cleary

and

DublinCity Council

File Ref: ES/2007/0117

Date of Issue:  30^th April, 2009

Keywords

Equal Status Acts 2000-2008 - section 3(1)(a) - Direct discrimination, section 3(2)(a) – Gender, section 3(2)(b) – Marital Status, section 3(2)(g) – Disability, section 3(2)(j) – Victimisation,  section 6(1) - Disposal of premises and provision of accommodation

Delegation under the Equal Status Act 2000-2004

This complaint was referred to the Director of Equality Investigations under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act 1998 to 2008 and under the Equal Status Acts 2000 to 2008, the Director has delegated the complaint to me, James Kelly, 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 to 2008.  The hearing of the case took place on 30^th January 2009.  Further information/submissions were received from the parties and the final submission was received on 20^th March 2009.                 

1. Dispute

1.1             This dispute concerns a complaint by Mr. Cleary that he was discriminated against by Dublin City Council on the gender, marital status, disability and victimisationgrounds in terms of Sections 3(1)(a), 3(2)(a), 3(2)(b), 3(2)(g) and 3(2)(j) of the Equal Status Acts, 2000 to 2004 in not being provided with a service which is generally available to the public contrary to Sections 4(1) and 6(1) of the Equal Status Acts, 2000 to 2008. 

2. Summary of the Complainant’s Case

2.1 The complainant, Mr. Cleary, is a single man who suffers from depression and panic attacks, and also has a congenital back problem. He initially made an application to the respondent for local authority housing on the 10^th March 2005. During the period since making this application for housing Mr. Cleary’s General Practitioner wrote to the respondent regarding the severity of his illness and his urgent requirement for suitable local authority housing and on the 19^th December 2006, as a consequence, Mr. Cleary was given an overall Medical Priority status. However, the complainant claims that the respondent discriminated against him on gender, marital status and disability grounds because he is a single male, incurring extreme hardship and the respondent is showing “blatant contempt” for his medical condition, while “housing countless thousands of healthy foreigners”, which have been facilitated by moving them ahead of him on the list for housing. Mr. Cleary states that there was a number of foreign nationals that he was aware of, who were not entitled to housing and they have been accommodated ahead of him.

2.2 The complainant has resided at different rented accommodation since making his application for housing with the respondent. He outlined that his current one bedroom rented accommodation, of two years, is inappropriate for a man of his condition. He has no cooking facilities, which means that he has to eat out for all of his meals and he has very little storage space, which means he has to make alternative arrangements to store his belongings. However, despite these issues he has never been offered any housing by the respondent. The complainant claims that the discriminatory manner in which his housing application has been dealt with by the respondent has contributed significantly towards the deterioration of his mental health.  

2.3 The complainant has in the past requested statistical information from the respondent by means of an application under the Freedom of Information Act 1997 (as amended). He claims that the respondent would not provide him with much of the statistical information he had requested, including a breakdown of all the accommodation allocated to applicants by reference to the applicants’ nationality. He claims that the reason for this was because it was hiding information from him, as it was involved in a ‘blatant cover-up’. The complainant maintains that the information he was provided with is contrary to the information he was able to extract from the respondent’s website himself. He produced a letter from the respondent where it mentions the difficulty it has in collecting some of the statistical information requested, as it does not keep information of that nature, however the letter did provide some raw statistical data for a 12 month period up to September 2007. Mr. Cleary then produced a print down from the respondent’s website, entitled Local Authority Programme 2007 Capital Allocations and he claims that by comparing the statistics in this document with those contained in the respondent’s letter to him, that there are substantial differences and this substantiates his theory that the respondent is withholding the truth.

2.4 The complainant maintains that he has also tried on occasion to access the respondent’s information via its website, in particular, information in relation to Dublin City Council’s scheme of letting priorities. He maintains that the web pages he tried to access were blocked from him and he maintains that was deliberate on the part of the respondent. Mr. Cleary produced a print down of an error message he claims that he encountered while trying to access the respondent’s website. He contends that this is part of the cover-up that the respondent is presiding over and claims that the respondent is housing countless healthy foreign nationals, many of whom should not qualify for accommodation, and have been moved to the top of the housing list. He maintains that all of this amounts to victimisation by the respondent.                

3. Summary of the Respondent’s Case

3.1 The respondent denies that it has discriminated against the complainant on any of the grounds as alleged. Mr. A, from the Housing Allocations Department with the respondent, informed the Tribunal of the procedures for making an application for local authority housing with Dublin City Council. He outlined that there are different categories of applicants that may apply for housing, namely Irish Citizens residing within the environs of Dublin City Council,  EU citizens residing within the environs of the Dublin City Council, and other persons who have authorisation to reside in the State, such as foreign nationals with a Green card - stamp 4[1]. He went on to state that once an applicant has established eligibility to receive the State services and can show they are in need of housing and do not have the provision to provide for same, they are accepted on to the housing list. After such time all applicants are treated equally irrelevant of their nationality, citizenship, ethnic origin or cultural background and such information is of no interest to the respondent for its own records or for the allocation of housing. Each applicant is visited by a Housing Officer to assess their particular housing conditions and they are accordingly awarded points based on the scheme of letting priority according to their housing needs. Accordingly, an applicant’s points determine where they are placed on the housing list. A detailed document outlining how points are awarded was submitted in the evidence presented. The respondent also explained that if an applicant can demonstrate a medical priority because of a medical complaint/condition, which is assessed by a Chief Medical Officer, they are subsequently placed on a list for Overall Medical Priority and their position on this list is determined by the date they were accepted as a medical priority applicant. Mr. A, outlined that Dublin City Council operates a system for the allocation of housing dwellings on the basis that ¼ of it’s housing resources are set aside for applicants on the general priority letting housing list, ¼ is set aside for applicants wishing to transfer within it’s area, ¼ goes to emergency cases/homeless persons and ¼ for the Overall Medical Priority List. As accommodation becomes available for allocation, it is allocated to the next applicant on the appropriate list based on this system.

3.2 The respondent claims that Mr. Cleary applied for and was accepted for housing on the 10^th March 2005, after an assessment was carried out on his housing needs by a housing officer. Mr. Cleary nominated three specific areas in the city where he wished to be housed. On the 19^th January 2006 Mr. Cleary was later accepted onto the Overall Medical Priority list following a decision by the Chief Medical Officer after consideration was given to a letter from Mr. Cleary’s GP detailing Mr. Cleary’s living and health conditions and outlining his specific needs for suitable accommodation.

3.3 The respondent was able to provide the Tribunal with the most up-to-date statistical information in relation to its housing transactions and it also provided a list of applicants with Overall Medical Priority divided between the three areas of the city where Mr. Cleary had identified he wished to live. The statistics clearly show that there is substantially many more applicants requesting housing than there are resources available each year. The medical priority list for the three areas of the city in question show that all the applicants are chronologically placed by reference to the effective date that they were awarded Overall Medical Priority status, which is claimed, is in line with the respondent’s policy. The documents identify that Mr. Cleary is placed 14, 14 and 17 on these lists respectively. The respondent stated that it does not keep records of its applicants’ nationality as it not a piece of information of interest to the respondent once an applicant qualifies for housing and that is the reason that they could not provide Mr. Cleary with exact information in relation to the nationality of applicants, when he had requested it.

3.4 The respondent said that it does not operate a system where it prevents certain people from accessing its website, it suggested that the difficulty Mr. Cleary had in accessing its website would appear to be a technical problem that occurs from time to time with the Internet for all users. Mr. A also referred to the document produced by Dublin City Council and presented by Mr. Cleary at the hearing entitled “Local Authority Programme 2007 Capital Allocation”. He said that this document shows the Capital investment allocation in monetary terms for 2007, and it is clearly not the number of applicants housed by the City Council for 2007, as Mr. Cleary had claimed.

4. Conclusions of the Equality Officer

4.1 The Equality Officer must first consider whether the existence of a prima facie case has beenestablished 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.  In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. 

4.2 Therefore, the question that I must decide upon is whether the respondent discriminated against the complainant on the gender, marital status, disability and victimisation grounds in terms of Sections 3(1)(a), 3(2)(a), 3(2)(b), 3(2)(g) and 3(2)(j) of the Equal Status Acts 2000- 2008.

Gender and Marital Status Grounds

4.3 The complainant, who is male and single, claims that the respondent has discriminated against him on the grounds of his gender and marital status by virtue of not being offered accommodation since he was placed on Dublin City Council’s Housing List.  I note from evidence presented that Mr. Cleary made his application for housing with the respondent and was visited by a Housing Officer who made an assessment of his housing needs in accordance with its Scheme of Letting Priorities which is subject to the provision of the Housing Acts 1966 to 1992. It is clear from the evidence adduced that Mr. Cleary was originally placed on the respondent’s housing list based on the points awarded to him in March 2005, following assessment. I note from the respondent’s statistics that at any given time the amount of applicants waiting to be housed far exceeds the amount of housing units available. A rough calculation shows that less than 20% of those waiting for housing are accommodated each year due to scarcity of resources. I am satisfied that the lack of housing resources prevents the respondent from meeting the needs of all its applicants immediately. I have taken note of the system used by the respondent to manage the allocation of its housing resources, namely, the Scheme of Letting Priorities and in particular the medical priority status and I am satisfied that it appears fair and transparent.

4.4 Mr. Cleary states that there was a number of foreign nationals that he was aware of, who were not entitled to housing and they have been accommodated ahead of him. However, I was not provided with any evidence to substantiate this claim. The complainant has not produced any evidence to show that such persons exist; he claims that there is anecdotal evidence of countless people across the country offered local authority housing to which they are not entitled. Again no evidence was presented to substantiate this claim and I can not make a comparison based on anecdotes alone. I accept the respondent assesses the eligibility of all its applicants and based on the lack of resources available to it. I am not of the opinion, and no evidence has been presented to persuade me otherwise, that persons not entitled to State services are capriciously placed on the housing list and then expedited on an impulse by the respondent. Therefore, I must proceed on the basis that all applicants on the housing list are entitled to housing.

4.5 In considering cases in relation to the provision of Local Authority Housing, I am mindful that I must consider the appropriate sections of the legislation, namely section 6 and in particular section 6(6) of the Equal Status Acts, 2000 to 2008, which states, inter alia,

(1)  A person shall not discriminate in –

(a)  disposing of an estate or interest in premises

(b)  terminating any tenancy or other interest in premises, or

(c)   providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities

…………….

(6) 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.

Having considered the provisions of Section 6(6) of the Equal Status Acts I am satisfied that they facilitate a housing authority to prioritise in favour of the categories of persons identified therein and that such prioritisation does not constitute discrimination.

4.6 I note that Mr. Cleary was accepted on the Overall Medical Priory list in January 2006, some 10 months after making his original application for housing and shortly after his GP wrote to the respondent. I note that the points system operated by the respondent allows an applicant to move up or down the general housing list based on the assessments made by the Housing Officer and the award of points made. From the statistical evidence presented to me I note that in 2007 alone approximately 37% of all housing was provided for single persons male or female without dependants whereas, another 31% single male or female persons with dependants, amounting to nearly 70% of all housing provided for that year. In the present case, I find that the complainant has failed to provide any evidence of discrimination to establish a prima facie case under the grounds of his gender or marital status.  I am satisfied that the respondent was acting in accordance with the provisions of Section 6(6) of the Act, and I find, therefore, that it did not treat the complainant less favourably on these grounds. 

Disability Ground and Reasonable Accommodation

4.7 The complainant has been diagnosed as suffering from depression, panic attacks and has a congenital back problem and I am satisfied that this constitutes a disability within the meaning of the legislation the Equal Status Acts.  The complainant claims that he has not been afforded housing and that he is being subjected to discriminatory treatment on the basis of his disability. The respondent claims that it has recognised the complainant’s disability and it denies that it has discriminated against the complainant on the grounds of his disability. It claims that his housing application has been assessed in accordance with the same objective criteria as all other applications.  It contends that the only reason the complainant has not been allocated local authority housing is that there are far more applicants than resources available to it. Mr. Cleary was placed on the Overall Medical Priority List and would have to wait until his name is reached on this list.  

4.8 I note that the respondent, when carrying out an assessment of the housing needs of applicants, is obliged to consider each individual application in accordance with the list of priorities that are identified in its Scheme of Letting Priorities. The Scheme that has been adopted by the respondent makes provision for the prioritisation of applications by persons who are in need of housing on medical grounds and applicants who are deemed to fit into this category are placed on a medical priority list which has access to ¼ of the respondent’s resources. I note that the Medical Priority list is a significantly shorter list as compared to the general local authority housing list.  I also note that the actual assessment of the housing applications made to the respondent is carried out by the Housing Officer and is further assessed by the Chief Medical Officer, if medical priority is sought. I am therefore satisfied that this procedure facilitates an objective assessment of applications based on the criteria identified in the Scheme of Letting Priorities which includes objective consideration on medical grounds. 

4.9 Having regard to the evidence presented, I am satisfied that the respondent was fully aware of the precise nature of the complainant’s disability, and furthermore, I am satisfied that this disability was taken into consideration as part of the overall assessment of his application for housing.  I am satisfied that the reason the complainant has not been allocated housing by the respondent is not in any way attributable to his disability but rather is as a result of the number of applicants for housing whose needs were made known to the respondent prior to Mr. Cleary’s assessment.  Accordingly, I find that the complainant has failed to establish that the treatment he was afforded was less favourable than the treatment that would be afforded to another person, in similar circumstances, who was not disabled or had a different disability.    

4.10 In the case of disability, in considering whether discrimination has occurred, further consideration must be made to the issue of the provision of reasonable accommodation to a disabled person.  Section 4 of the Equal Status Acts states as follows:

“4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question”.

I am now going to examine if the respondent did all that was reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities.  In considering the obligations that are placed upon a housing authority to provide reasonable accommodation to a disabled person in terms of an application for housing, I have taken cognisance of the judgement of Hunt J. in the Deans[2] case where it is stated that:

The housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities. It undoubtedly enjoys a substantial and generous measure of appreciation in dealing with individual applications for reasonable accommodation.  All that it is commanded to do by the equality legislation is to devise a “reasonable” solution to a problem, not to achieve perfection and not to give in to every demand that is made of it, which, of course, would be wrong, because its primary consideration is to the community as a whole and to the community of homeless persons or persons requiring accommodation. Consequently, in my opinion it cannot be forced to make more than a modest or nominal departure from its carefully constructed allocation scheme to meet the needs of any particular individual and its obligations to the disabled must be seen in that context, that they involve no more than a nominal cost and a reasonable approach to the solution of the problems posed by the needs of a disabled person”  

4.11 Having regard to the findings of Hunt J. in the foregoing case, I am satisfied that a housing authority is not exempt from the obligation to provide reasonable accommodation to a person with a disability, however in doing so it must also have regard to the Scheme of Letting Priorities that has been adopted.  In the present case, I note that the complainant submitted medical evidence to the respondent from his General Practitioner outlining the nature of his disability.  I am of the view that the provision of special treatment or facilities in the context of section 4 of the Acts, in the present case, would have placed an obligation on the respondent to give due consideration to the complainant’s disability as part of the overall assessment of his application.  Having regard to the evidence adduced, I am satisfied that all of the medical evidence regarding the complainant’s disability was made available to the respondent and was assessed by the Chief Medical Officer and that this information was taken into consideration in the assessment of his application for housing, where he was subsequently given an overall Medical Priority Status. Therefore, he was placed on a priority list which is a much shorter list with access to the same proportion of resources (¼) as those applicants on the general housing list. In doing so, I am satisfied that the respondent has provided reasonable accommodation in its assessment and consideration of the complainant’s application for housing. In the circumstances, I find it is reasonable to conclude that the only reason the complainant has not been allocated housing by the respondent is as a consequence of the number of applicants for housing on the overall medical priority list that predate his application.   

Victimisation

4.12 The complainant claims that the respondent operated a policy of victimisation against him; he claims the respondent was reluctant to provide him with statistical information and when it did provide some information, it was no more than “bogus and fabricated in the extreme”. He also claims that the information he extracted himself from a document on the respondent’s Internet website was totally different to the information he obtained from the respondent by letter and finally, that the respondent targeted him by refusing him access to its website. Mr. A explained the difference between the information contained in the document Mr. Cleary produced from the respondent’s website as compared to the information contained in the respondent’s letter and I accept that explanation. The figure Mr. Cleary refers to in the document entitled “Local Authority Housing Programme 2007 Capital Allocation” under Total Housing Allocation is 190,340,000 and this surely cannot be taken to mean the number of people housed, as suggested by Mr. Cleary. Accordingly, I am satisfied that the figure referred to relates to capital investment rather than to numbers of applicants housed.   

4.13 I also note that Mr. Cleary presented a printout of a computer error he had encountered while he claims he was trying to access the respondent’s website. I am not satisfied that this amounts to an orchestrated policy by the respondent to stifle or prevent Mr. Cleary accessing its website. Having regard to the evidence presented, I am satisfied that the complainant has failed to adduce any evidence to substantiate the claims that there has been an orchestrated campaign of victimisation directed against him by the respondent within the meaning of section 3(2)(j) of the Acts.    

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 gender, marital status, disability and victimisation grounds in terms of sections 3(1)(a), 3(2)(a), 3(2)(b), 3(2)(g) and 3(2)(j) of the Equal Status Acts, and accordingly, I find in favour of the respondent in the matter.

James Kelly

Equality Officer

30^th April 2009