The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
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Website: www.@equalitytribunal.ie
Equal Status Acts 2000-2008
Equality Officer Decision
DEC-S2009-036
Lang
(With Mr. AengusÓ Snodaigh T.D. as advocate)
v.
Dublin City Council
Case reference ES/2006/0058
Issued 28 May 2009
DEC-S2009-036
Keywords
Equal Status Acts 2000 to 2004 – Discrimination, section 3(1)(a) – marital status ground, section 3(2)(b) – Disposal of premises and provision of accommodation 6(1), 6(6)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Ms Gemma Lang referred a claim of unlawful discrimination on the ground of marital status to the Director of the Equality Tribunal under the Equal Status Acts on 6 June 2006. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, 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 Acts. An investigation in accordance with section 25(1) of the Acts commenced on 30 July 2008. An oral hearing, as part of the investigation, was held in Dublin on 1 April 2009. A copy of the revised scheme of letting priorities was received 7 April 2009.
2. Dispute
2.1. The dispute concerns a complaint by Ms. Gemma Lang (“the complainant”) of unlawful discrimination on the marital status ground in relation to the manner in which Dublin City Council (“the respondent”) allocated and continues to allocate points for individuals on its housing list. The complainant maintained that the respondent treated and continues to treat her less favourably on the grounds of her marital status as she is unable as a single person to get the additional 15 points that would help her qualify for a house. The complainant maintained that the first discriminatory act took place on 15 March 2006 and is on-going. The respondent was notified on 15 March 2006.
3. Case for the complainant
3.1. The complainant, a single parent, submitted that she has been and still is unable to achieve the required points to obtain a local authority house in her chosen neighbourhood. The complainant maintained that the reason why she has been unable to qualify for a house is because she is single. She maintained that if the respondent gave her the points that it awards couples then she would have the required points and would be able to obtain a house. It was submitted that too much emphasis is based on the second adult and that this emphasis creates a situation where the complainant, purely on the ground of her marital status, is unable to get the required points that would get her a house in her chosen area.
3.2. The complainant submitted that she has received all the points that she is entitled to in accordance with the scheme. These include points for her child, her living arrangements, time spent on the housing lists, etc. The complainant had no difficulties with the manner in which the other points are allocated in accordance with the scheme. It was submitted that it was unfair that two adults living in an intimate relationship are awarded 20 points and a mother and child only receive 8 points. This, it was submitted, was discrimination contrary to section 3(1) and 6(1) of the Acts.
4. Case for the respondent
4.1. The respondent submitted that it did not discriminate against the complainant within the meaning of the Equal Status Acts 2000 to 2004. The respondent denies any less favourable treatment in relation to the complainant on the ground of her marital status.
4.2. The respondent submitted that section 6(6) expressly allows a housing authority when carrying out its functions under the Housing Acts to provide different treatment based on family size, family status, marital status, disability, age or membership of Traveller community. This, they submitted, renders the complainant’s claim outside the ambit of the Acts.
4.3. The respondent submitted that the Scheme of Letting Priorities is a complex matrix that takes into account of a number of factors including bedroom shortage, access to bath and shower, time on waiting list, etc. It was submitted that the 20 points allocated for partners is awarded under the heading of “Size of Applicant’s Household”. It was submitted that it is entirely reasonable and non discriminatory to assess two adult as having a larger family size that one adult and to treat a larger family differently to a smaller family. The respondent submitted that it allocated the points to the complainant judged solely on her family size and not because of her marital status. Furthermore, the complainant submitted, it is not the case that any application is judged solely on the family size of an applicant. Where an applicant is awarded points under other headings they may end up with more points than a larger family, and may be allocated housing before the larger family.
4.4. The current scheme of letting priorities allocates 5 points for an applicant person, 20 points for a spouse or partner and 3 points for each child. The revised scheme of letting priorities applicable to the complainant’s application was adopted at a meeting of the City Council on March 4, 2002 and approved by the Minister of the Environment and Local Government on July 26, 2002. While the respondent had indicated that it was considering changing the number of points allotted to a single applicant is to be changed to bring them into line with the points allotted to a verified partner or spouse. This change has not taken place as the respondent had indicated that there is not enough reason to warrant such a change.
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainants to establish, in the first instance, facts upon which she wishes to rely in asserting that they suffered discriminatory treatment. It is only where such a prima facie case has been established that this onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. In making this decision I have taken cognisance of both oral and written submissions made by the parties.
5.3. Having examined the evidence presented to me it would appear that the respondent has created - by applying the current scheme of letting priorities to the complainant’s current circumstances - what would appear to be a less favourable situation than a couple would be in the exact same circumstances in relation to the points allocation on the housing list. However, it is equally clear that the complainant, in her current circumstances, could find herself in a comparable situation where she could be more favourably treated than a couple who, for example, did not have the same living circumstances in relation to bedroom shortage or length of time on the housing list as the complainant. Therefore, having examined the materials before me, I am not satisfied that the complainant has established, on the balance of probabilities, that the treatment (the number of points allocated to her) is because of her marital status only. I do accept that the respondent, in accordance with section 6(6) is entitled to treat applicants differently on the basis of family size. While family size may be linked to marital status and in certain situations an inference may arise because of this, the section makes it entirely justifiable for the respondent to do what it does. The very nature of the housing list lends itself to situations where a person qualifying for a ground could imply that they are treated less favourably than a comparator.
5.4. In my reading of section 6(6), using everyday language and looking at the Acts as a whole, it clearly provides local authorities with the right to different treatment in relation to family size, family status, marital status, age, disability or membership of the Traveller community. While the Equal Status Acts do not prohibit all types of discrimination, it is important to note that this section does not provide local authorities with a carte blanche approach from the ambition and obligations set out in the Equal Status Acts. It does, however, give local authorities discretion to manage their housing lists by providing different treatment based on family size, family status, marital status disability, age or membership of the Traveller community provided that it does so in a transparent and coherent manner. I am satisfied that the respondent has done so in this case.
6. Decision
6.1. In accordance with section 25(4) I conclude this investigation and issue the following decision:
The complainant has failed to establish a prima facie case of discrimination. Therefore, the complaint fails and I find in favour of the respondent.
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Tara Coogan
Equality Officer
28 May 2009