File Reference: ES/2007/0095
Date of Issue: 14th August, 2009
Equal Status Act 2000-2008
Equality Officer Decision
DEC-S2009-052
Thomas Compagno
-v-
Kinsale Town Council
Keywords
Equal Status Acts 2000-2008 - Direct discrimination, Section 3(1)(a) – Disability Ground, Section 3(2)(g) - Reasonable Accommodation, Section 4(1) - Discrimination by a Housing Authority, Section 6(1)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 28th August, 2007 under the Equal Status Acts, 2000 to 2004. On 11th December, 2008, in accordance with her powers under Section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, the Director 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 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 8th July, 2009. Final correspondence with the parties concluded on 22nd July, 2009.
1. Dispute
1.1 This disputeconcerns a claim by the complainant, Mr. Thomas Compagno, that he was discriminated against by the respondent on the grounds of his disability in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status Acts, 2000 to 2008 and contrary to Sections 4(1) and 6(1) of those Acts in terms of the manner in which it processed his application for local authority housing.
2. Summary of the Complainant’s Case
2.1 The complainant was involved in an accident in 1999 and as a result he suffers from chronic back pain and has nerve damage to his leg. He initially made an application to the respondent for local authority housing in 1999 or 2000 (but cannot recall the specific date) and this application has subsequently been updated on a number of occasions in the intervening period. The complainant stated that the respondent was made fully aware of the nature of his disability as all relevant information in this regard was disclosed on the housing application forms that he completed and through letters that he provided to the respondent from his doctor. The complainant was offered the tenancy of a local authority house by the respondent in June, 2007, however, he claims that this property was totally unsuitable for his needs as the access to the entrance contained six concrete steps. He stated that it would have been impossible for him to climb these steps on certain occasions because of his disability and it would have exacerbated his medical condition. The complainant informed the respondent that he was unable to accept the offer in respect of this property for the aforementioned reasons and he also provided the respondent with a letter from his doctor which confirmed that this house was unsuitable for his needs on medical grounds.
2.2 The complainant subsequently received a reply from the Acting Town Clerk, Mr. A, which stated that the respondent had not been previously made aware of any problems he had with climbing steps or stairs. This reply also indicated that the respondent didn’t have any ground floor/single story accommodation available at that juncture and as a result the complainant’s application would only be reviewed if and when suitable accommodation became available i.e. no step or stairs. The complainant stated that it would have been impossible for him to have foreseen the offer of accommodation that he received from the respondent, namely a property with six steps leading to the entrance and therefore, it would not have possible to state in his application that such a property would be unsuitable or his needs. The complainant submitted that it should have been abundantly clear from his application, given the information that he had provided regarding his disability, that the property offered was totally unsuitable for his needs. He claims that the statement by Mr. A that the respondent would only review his application if and when suitable accommodation without steps or stairs became available amounts to discrimination against him on the grounds of his disability given that the vast majority of houses at its disposal would have steps or stairs. He submitted that this decision dramatically reduced his prospects of being offered further accommodation by the respondent and it effectively resulted in his removal from the housing list.
2.3 The complainant stated that neither he nor his doctor had requested that he only be considered for accommodation without steps or stairs. The complainant stated that he would not have had a difficulty living in accommodation with steps or stairs and the reason he refused the property offered was because of the difficulties presented by the six steps leading to the entrance. The complainant had also made an application to Cork County Council for local authority housing and he was subsequently offered suitable accommodation by this local authority in March, 2008 i.e. a two storey house. The complainant accepted this offer and is currently residing at this property and it is located within close proximity to the area within which he had applied to the respondent for local authority housing.
3. Summary of the Respondent’s Case
3.1 The respondent denies that it has discriminated against the complaint on the grounds of his disability in terms of the manner in which it has dealt with his application for housing. The respondent submitted that it is 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 stated 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, medical grounds etc. The respondent stated that it has a very limited housing stock at its disposal and as a result it would not be uncommon for a person to be on the waiting list for several years prior to being offered accommodation. The respondent accepts that the complainant originally made an application to it for local authority housing in 1999 or 2000 and that he had indicated on his application forms (which were subsequently updated on a three-yearly basis) that he was suffering from back problems following an accident in 1999.
3.2 The complainant’s application for housing was assessed by the respondent's Housing Officer, Ms. B, (who also acts in this capacity for Cork County Council) on two separate occasions in September, 2006 and June, 2007. Ms. B. stated that she was aware the complainant had a disability from the documentation on his file and she stated that this disability was taken into consideration when assessing his application for housing. However, during the course of their two meetings, the complainant did not mention to Ms. B. that he had a difficulty in climbing steps or that he required any special facilities or adaptations in terms of his housing requirements as a result of this disability. Following the latter meeting in June, 2007, Ms. B, made a recommendation to the respondent that the complainant should be allocated a three-bedroom house. The complainant was subsequently offered a house in June, 2007, however, he informed the respondent that this property was not suitable for his needs because of the six steps that were leading to the entrance. The respondent submitted that although the complainant had provided information regarding his back problems he had not at any stage (either on his application forms of during his meetings with the Housing Officer) indicated that he had a difficulty in climbing steps or that he required special facilities in terms of his housing requirements as a result of his disability.
3.3 The respondent wrote to the complainant on 5th July, 2007 and indicated that it did not have any suitable ground floor/single storey accommodation available at that juncture and that his application would be reviewed when suitable accommodation became available. The respondent submitted that only one other property became available for allocation within its jurisdiction during the period from June, 2007 to March, 2008 and the reason that this property was not offered to the complainant was because its tenancy was taken over by the daughter of the previous tenant following her mother's death. The respondent emphatically denied that the complainant’s application was removed from the housing list following his refusal of the offer in June, 2007 and it stated that his application remained active until it received confirmation from Cork County Council in March, 2008 that the complainant had been housed within its jurisdiction. The respondent stated that Kinsale Town Council and Cork County Council work in close collaboration with each other in terms of the allocation of local authority housing within their respective jurisdictions. It is normal practice that an applicant for housing living in the Kinsale area would make simultaneous applications to both authorities and if the applicant is provided with suitable housing by Cork County Council then the application to Kinsale Town Council would be automatically closed.
4. Conclusions of the Equality Officer in relation to the substantive issue
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts 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 can rely in asserting that prohibited conduct has occurred in relation to him. 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, both written and oral, made to me by the parties to the case.
Discriminatory Treatment
4.2 In the present case, the complainant suffers from chronic back pain and I am therefore satisfied that he is a person with a disability within the meaning of section 2(1) of the Equal Status Acts. I have identified the following key questions which must be addressed in considering whether a prima facie case of discrimination has been established by the complainant in the present case:
1. Was the complainant subjected to discrimination on the grounds of his disability in terms of the manner in which his application for housing was dealt with by the respondent prior to the offer of a house in June, 2007.
2. Was the complainant subjected to discrimination on the grounds of his disability following his refusal of the offer of a house in June, 2007 on the basis of the respondent’s letter which stated that his application would only be reviewed when accommodation without steps of stairs became available.
4.3 In considering whether discrimination has occurred in cases that relate to the provision of local authority housing, I am mindful that I must take cognisance of the provisions of section 6(6) of the Equal Status Acts, which states, inter alia,
“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. 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 and that such prioritisation does not constitute discrimination.
4.4 In considering the first question identified above, I note that the complainant made his initial application to the respondent for housing in 1999 or 2000 (neither party was able to provide confirmation of the definitive date) and he was ultimately offered a house in June, 2007 i.e. a period of approximately 7/8 years after he made his initial application. During the period from 1999 to 2007 the respondent received a total of 401 applications for local authority housing and it allocated a total of 46 houses to applicants (with the result that a total of 355 applicants were unsuccessful during this period). I have noted the respondent’s evidence that given the very limited supply of housing available to it 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.
4.5 Having regard to 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. 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 his, 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 he was treated less favourably than another person, in similar circumstances, on the basis of his disability in terms of the manner in which his application for housing was dealt with by the respondent up to June, 2007.
4.6 In considering the second question identified above, I have taken note of the reply that the respondent issued to the complainant on 5th July, 2007 in response to his refusal of the offer of a house that was made to him on 21st June, 2007. In this letter the Acting Town Clerk, Mr A, on behalf of the respondent states “According to our records, there has been no mention of your problem climbing steps or stairs. I would be obliged if you would clarify. At present, there isn’t any ground floor/single storey accommodation available. As a result, your application will only be reviewed if and when suitable accommodation becomes available i.e. no steps or stairs”. The complainant states that neither he nor his doctor had informed the respondent at any stage prior to this offer that he had a difficulty in climbing steps. He stated that he did not have a problem living in a house with steps or stairs but it was the fact that the house which was offered by the respondent had six steps leading to the entrance that would have caused him difficulty due to the nature of his disability. He claims that this letter effectively meant that his application was being removed from the housing list as the vast majority of local authority housing would have either steps or stairs.
4.7 I am satisfied from the information contained on the housing application forms that were completed by the complainant in 2003, 2005 and 2008 that details regarding his disability had been disclosed to the respondent. However, I note that the complainant did not indicate or state on these application forms that he had a difficulty in climbing steps or that he would require specially adapted or modified accommodation on account of his disability. Indeed, I further note that the complainant ticked the box indicating his preference for “Standard Local Authority Housing/Flat” on the 2003 application form (which would have been the most up to date form on record prior to the offer of the house by the respondent in June, 2007). I have also taken into consideration the evidence of Ms. B, Housing Officer, that the complainant did not indicate during the course of her two meetings with him that he had a difficulty in climbing steps or that he required any special facilities in terms of his housing requirements. Based on the evidence presented, I am satisfied that the respondent could not have foreseen that the complainant would have had a difficulty as a result of his disability with the property that was offered to him in June, 2007.
4.8 The complainant claims that the above letter (which he received from the respondent on 5th July, 2007) effectively meant that his application was being removed from the housing list as the vast majority of local authority housing would have either steps or stairs. In considering this issue, I note the respondent’s evidence that only one house became available for allocation during the period from June, 2007 to March, 2008 (i.e. when the complainant accepted an offer of a two storey house within the Kinsale area from Cork County Council). I accept the respondent's evidence that the reason this property was not offered to the complainant was because its tenancy was taken over by the daughter of the previous tenant following her mother's death. I also accept the evidence provided by Ms. B, Housing Officer, that Cork County Council and Kinsale Town Council work in close collaboration with each other in terms of the allocation of local authority housing within their respective jurisdictions and that if an applicant is provided with suitable housing by Cork County Council then that person’s application to Kinsale Town Council would be automatically closed. Based on the evidence presented, I am satisfied that the complainant’s application was not removed from the respondent's housing list following his refusal of the property that was offered to him in June, 2007. I am also satisfied that I have not been presented with any evidence from which I could reasonably conclude that the complainant's application for housing was treated less favourably on the grounds of his disability during the period from June, 2007 to March, 2008 by virtue of the letter that he received from the respondent on 5th July, 2007. Accordingly, I find that the complainant was not subjected to less favourable treatment by the respondent on the grounds of his disability within the meaning of the Equal Status Acts.
Reasonable Accommodation
4.9 In the case of disability in considering whether discrimination occurred, consideration must be also made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Act 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 the complainant as 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”
4.10 Having regard to the findings of Hunt J. in the foregoing case, I am satisfied that a housing authority is not exempted 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 information to the respondent which detailed 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 Act, 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 that was carried out on his application for housing in accordance with the adopted Scheme of Letting Priorities.
4.11 Based on the evidence adduced in the present case, I am satisfied that all of the information regarding the complainant’s disability was made available to the respondent’s Housing Officer and that this information was, in fact, taken into consideration in the assessment of his application for housing. 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. Accordingly, I find that the respondent did not fail in its obligations in accordance with the provisions of section 4 of the Equal Status Acts.
5. Decision
5.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1), 3(2)(g), 6(1) and 4(1) of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
14th August, 2009