The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
E-mail: info@equalitytribunal.ie
Website: www.@equalitytribunal.ie
Equal Status Acts 2000-2008
Decision
DEC-S2009- 012
William Hennessy
(represented by Michael Farrell, Solicitor FLAC)
v.
Thurles Town Council
(represented by Mairead McKenna B.L. instructed by Patrick J.O'Meara & Co. Solicitors)
File Reference: ES/2001/213
Date of Issue: 19th February 2010
Key words
Equal Status Act, 2000 - Direct discrimination, Section 3(1) - Disability, Section 2 (1) and 3(2)(g) - special treatment or facilities to accommodate the needs of a person with a disability - Section 4(1), Section 6(1) - provision of accommodation, failure to establish a prima facie case.
Delegation under Equal Status Acts, 2000-2008
The complainant referred complaints to the Director of the Equality Tribunal under the Equal Status Act 2000 on 7th June 2001 and the 3rd September 2001. On the 24th June 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director delegated the case to me, Marian Duffy, 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. On this date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on 29th September 2009 and the 9th November 2009. The final submissions were received on 9th November 2009.
1. Dispute
1.1 The dispute concerns a claim by the complainant that he was discriminated against on the gender, marital status, family status age, disability and victimisation grounds. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a), and 3(2)(a), 3(2)(f), 3(2)(g) and 3(2)(j) of the Equal Status Act, 2000 contrary to Sections 4(1) 6(1) of that Act. The complainant also alleged he was harassed contrary to section 11 of the Act. At the commencement of the hearing the complainant withdrew all the complaints except discriminatory treatment on the disability ground. The complainant alleges that the respondent allocated him a local authority house which was unfit for habitation and refused to remedy it.
2 Referral of the Complaint
2.1 At the commencement of the hearing a preliminary issues arose in relation to the referral of the complaint to the Equality Tribunal. The respondent submitted that the complaint which was before the Tribunal was not notified to the respondent and submitted to the Tribunal within the statutory time frame and that the said complaint was not properly notified to the Tribunal. It was submitted that for these reasons the Tribunal had no jurisdiction to hear the complaint.
2.2 On the 7th June 2001 the complainant referred the complaints on form ODEI 2 and naming the respondent as Thurles UDC now Thurles Town Council. The complainant outlined his complaint as follows: "I refer to my complaint details as set out in my form ODEI Form 5 and confirm the content in same." The ODEI 5 form was used by the complainant to notify the respondent of a complaint in accordance with Section 21(2) of the Act. The complainant, in that form referred to a rented apartment in Dun Aoibhinn, Slievenamon Road, Thurles and complained to the Council that they discriminated against him in respect of that accommodation.
2.3 On the 3rd of September 2001, the complainant referred a further complaint against the respondent to the Tribunal alleging ongoing discrimination and he attached a copy of the ODEI 5 notification form which referred to the above mentioned house at Dun Aoibhinn and appeared to relate to a complaint about that accommodation. However, in the complaint referral form dated the 3rd September, the complainant stated " I refer to my complaint set out in my questionnaire dated 18th June 2001 and I confirm the facts set therein. I have received no response to my questionnaire that I have been placed in inhuman conditions contrary to statutory obligations of the respondent. The respondent would not place any other person, male female, disabled or able bodied in the inhuman conditions in which it put me. That they knew the condition of the house was unfit for habitation prior to putting me into it."
2.4 During the course of my investigation and in correspondence with the Tribunal prior to the hearing, both the complainant and the respondent indicated that the complaints referred to a local authority house at 16 Beechwood Grove which had been allocated by the respondent to the complainant. At the commencement of the hearing, the complainant's solicitor submitted that a complaint concerning Beechwood Grove was properly before me and that the complaint submitted in relation to Dun Aoibhinn was withdrawn. It was submitted on behalf of the complainant, that there was confusion about the premises to which the complainant was referring occurred, because he put the wrong notification form with the referral form he sent to the Tribunal. He submitted that it is clear from the wording of the complaint received on the 3rd September 2001, that the complaint referred to a house which the respondent had placed the complainant in. This could only have referred to Beechwood Grove and could not have been Dun Aoibhinn which was a private rented apartment, because Beechwood Grove was the only accommodation which the respondent allocated to the complainant.
2.5 He also stated that the referral form indicated that the first occurrence, of the discrimination complained about, occurred on the 3rd November 2000, and this was the date the complainant was allocated the house in Beechwood Grove by the respondent. The complainant submitted that the respondent was notified of the complaint about Beechwood Grove by way of form ODEI 5 on the 29th May 2001. This notification gave the address of Beechwood Grove and it refers to the fact that the house in question was given to him by the respondent. The complainant said that due to an error this notification form was not included in the referral of the complaint to the Tribunal. The complainant in his legal submission said that the respondent was fully aware of the case that they had to meet. In the legal submission I was referred to the High Court judgment in the case of County Louth Vocational Education Committee v The Equality Tribunal and Pearse Brannigan (Notice Party)[2009]IEH370 . The Court in that case was considering a submission from the VEC that the complainant's case, as put to the Tribunal hearing, differed from what had been submitted in the complaint form EE1. McGovern J. rejected the argument. The complainant submitted that the rationale of the judgment should be applied in this case.
2.6 The respondent submitted that the complaint was not properly before me because both complaint forms lodged with the Tribunal relate to a private rented property at Dun Aoibhinn and that I had no complaint before me in relation to the respondent's house at Beechwood Grove. It was submitted that my jurisdiction was limited to the complaint which was before me in relation to Dun Aoibhinn and that that complaint had now been withdrawn by the complainant.
2.7 The respondent also submitted that the complaint referred by the complainant is out of time as it was not served on the Tribunal within 6 months from the date of the occurrence of the prohibited conduct in accordance with Section 21(6) of the Act. He also submitted that the complainant failed to notify the respondent of the complaint within two months in accordance with Section 21(2) of the Act and that the complainant had not applied for an extension of time in relation to the service of the notification on the respondent. The respondent accepts that in a letter dated 4th February 2001, they were notified of complaints regarding the Beechwood Grove house which was rented to the complainant, but they submit that this notification does not comply with the requirement of Section 21(2) of the Act, in that it was served outside the two months notification period. The respondent stated that they received a notification (ODEI5) of complaints concerning Beechwood Grove from the complainant dated 29th May 2001, but that this form was not served on the Tribunal. Therefore these complaints did not form the subject matter of the complaint referred to the Tribunal on the 3rd of September 2001.
2.8 The respondent submitted that an analogy should be drawn with the TIA form of the Employment Appeals Tribunal which is used for presenting an application of unfair dismissal. The respondent referred me to the High Court judgment in the case of Bank of Scotland (Ireland) Limited v The Employment Appeals Tribunal; Prisca Grady [2003]8 I.C.L.M.D 33. This case concerned a claim of constructive dismissal and whether the claim had been referred within the statutory six months time limit. In quashing a decision of the Employment Appeals Tribunal, that they had jurisdiction to hear the case, Mr. Justice O'Caoimh, in holding that the complaint was referred outside the six month time limit, stated that the presentation of a potential claim to the Employment Appeals Tribunal within the requisite time frame, was a condition precedent to the jurisdiction of the Tribunal and that it was the responsibility of the dismissed employee to ensure that the statutory requirements are complied with. The respondent's legal representative submitted that this Judgment was a relevant authority in relation to time limits and that the complainant failed to bring a claim for redress to the Tribunal within the statutory time limit. It was further submitted that the complaint in respect of the house provided by the respondent to the complainant was not properly before the Tribunal in that the complainant in referring the complaint to the Tribunal complained about another house.
3 Decision
3.1 In the interest of clarity, I want to state that the first complaint served on the Tribunal on the 7th of June 2001, and which referred to a private rented property at Dun Aoibhinn was withdrawn by the complainant at the commencement of the hearing, and the only referral I am now dealing with is the one relating to the Beechwood Grove house.
Statutory Time Limits
The first matter I have to consider is whether the complainant notified the respondent of the complaint in accordance with the Equal Status Act. Section 21 of the Act provides that:
21. -- (1) A person who claims that prohibited conduct has been
directed against him or her may, subject to this section, seek redress
by referring the case to the Director.
(2) Before seeking redress under this section the complainant --
(a) shall, within 2 months after the prohibited conduct is alleged
to have occurred, or, where more than one incident of
prohibited conduct is alleged to have occurred, within 2
months after the last such occurrence, notify the respondent
in writing of
(i) the nature of the allegation,
(ii) the complainant's intention, if not satisfied with the
respondent's response to the allegation, to seek
redress by referring the case to the Director,"
Section 21(6)(a) provides that "a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of the most recent occurrence."
3.2 I note that the notification served on the respondent was dated 29th May 2001. The complainant stated in that notification that he was discriminated against on the 30th March 2001 and that the said discrimination was ongoing since 3rd November 2000. The Act clearly provides that where the alleged prohibited conduct extends over a period of time and that the 2 month time limit for serving the notification in accordance with section 21(2) runs from the end of that period. It is clear therefore, that the Act applies to the type of ongoing discriminatory treatment alleged by the complainant in the above mentioned notification, that is, that he was placed in a Council house which he believed was not fit for habitation which the Council failed to remedy and carry out repairs. I note that the complainant in his evidence stated that the discrimination he was complaining about extended over the period that he was a tenant in Beechwood Grove from the 3rd November 2000 to an unknown date in July 2001. Therefore I find that the notice served on the respondent on the 29th of May 2001 complaining about ongoing prohibited conduct, the date of the last occurrence mentioned as being the 30th March 2001, was served within the two months statutory time limit.
3.3 I must now consider if the referral was received by the Tribunal within the statutory six month time limit. Under Section 21(6) the complaint must be referred to the Director within six months of the most recent occurrence of the prohibited conduct. The complaint was received by the Tribunal on the 3rd September 2001. The referral refers to ongoing discrimination commencing on 3rd November 2000 and gives the date of the most recent occurrence as the 28th of August 2001. I am satisfied from these dates that the referral complies with the six month statutory time limit under section 21(6) above.
3.4 I must now consider the respondent's submission that the complaint was not properly referred to the Tribunal. Section 21(1) of the Equal Status Acts 2000 provides that:
"A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director.
The respondent's legal submission concerns the fact that the referral served on the Director, seeking redress in accordance with Section 21(1) of the Act did not have the correct notification attached. It was accepted that the correct notification was served on the respondent. The complainant served three notifications on the respondent, two in relation to a private rented apartment at Dun Aoibhinn (which has now been withdrawn) and one in relation to the Beechwood Grove which was rented to him by the respondent. The notification which accompanied the referral form related to the private rented apartment.
3.5 It should be noted that the forms used by the complainant are the Tribunal 's own forms and they are not prescribed forms. Therefore it is not mandatory to use these forms to refer a complaint or notify the respondent. It is not mandatory for the complainant to serve the notification on the Director when referring a complaint. It is mandatory however, for the notification to be served on the respondent but this is not at issue here. I am satisfied from the referral form (see paragraph 2.3 above) that the complainant is complaining about the house rented to him by the Council. I have been referred to the High Court Judgment in the case of County Louth Vocational Committee cited above. The issue being considered in that case was whether the Equality Officer had jurisdiction to hear allegations of discrimination which were not contained in the referral form EEI or whether her jurisdiction was limited to the incidents occurring on the two dates specified in the form. I note that McGovern J. stated at paragraph 6.2:
"I accept the submission on behalf of the Respondent that the Form EEI was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, a fortiori, it should be permissible to amend a claim as set out in a form such as the EEI, so long as the general nature of the complaint .....remains the same."
3.6 In applying the High Courts reasoning to the case in hand, I am satisfied that the Council was fully aware of the general nature of the complaint against them because it was set out in the notification form ODEI 5 which was served on them. Likewise I am satisfied that there was enough material contained in the ODEI 2 form, lodged with the Director, to identify that the complainant was making a complaint about specific accommodation provided to him by the Council. This form was also copied to the respondent by the Tribunal. In submissions to the Tribunal the matters, which were the subject of the discrimination claim, were further identified. In applying the reasoning in the above Judgment, I find that it is permissible for a complainant to elaborate further in submissions on a matter complained about provided the nature of the complaint is the same and provided the other party is put on notice. For the aforementioned reasons, I am holding that the complaint of discrimination about accommodation referred by the complainant on the 3rd of September 2001, to the Director and notified to the respondent on the 29th May 2001, is valid and admissible and that I have jurisdiction to hear the complaint.
I will now deal with the substantive complaint
4. Summary of Complainant's case
4.1 The complainant is a wheelchair user and following the landlord taking possession of the private rented apartment he lived in Dun Aoibhinn he was allocated the above mentioned house in Beechwood Grove by the respondent. The house had been adopted for a previous tenant who was also a wheelchair user. The complainant said that he was allocated the house by Mr. Noel McCormack, Housing Allocation Officer, and he was well aware that he had a disability. He said that he had no opportunity to view the house beforehand and he was pressurised into signing the tenancy agreement because he had nowhere else to go following his eviction. He moved into the house on 3rd November 2000. The complainant claims that the house was in a filthy condition and was not fit for habitation. The floors were smeared with dirt, the bathroom fittings were dirty, there was no toilet seat and the shower head was missing. There was an old fashioned solid fuel stove for cooking and heating which gave off noxious fumes and could not be used safely. As this was the only means of heating, the house was cold. There was a fitting for an electric cooker on the wall but the cooker had been removed. He said that the living room was the only room in the house which was habitable and where he slept on a mattress on the floor. In support of his contention the complainant produced photographs of the house. He said that he took the photographs the evening he moved into the house. He said that he attended the respondent's office the following day (4th December 2000) and handed in a letter of complaint about the condition of the house to the receptionist. He received no response He said that he telephoned the housing allocation officer a number of times and got no satisfactory response. He said that he sent a further letter and on the 4th of December 2000 and enclosed a medical certificate and again he received no reply. The complainant said that because of his disability he was unable to clean the house. He said that he could not use the shower or toilet and was forced to use external facilities. In December 2000 Dr. Murphy GP, who he attended when he lived in Cork, came to visit him and she was shocked at the condition of the house.
4.2 In January 2001 the complainant spent a number of days in hospital. On the 4th of February 2001 the complainant wrote to the Council again enclosing copies of his letters of the 4th November and the 4th of December 2000. He also wrote to the Ombudsman who in turn wrote to the Council summarising the complaints and requesting a copy of the Council's the procedures for inspecting accommodation to ensure that the property was fit for a new tenant. The complainant said that when he was out of the house on the 20th of February 2001, he received a note through his letter box from the Town Foreman requesting the complainant to contact the Council. The Town Clerk wrote to the complainant on the 27th of February 2001 stating that the Council had not received the earlier letters concerning the state of the house and requesting the complainant to contact the Council with a view to making arrangements with the Town Foreman to call to the house and investigate the complaints about the state of the house. The complainant did not contact the Council.
4.3 He said that he was hospitalised in early March 2001 while he was in Dublin making enquires about accommodation with a view to taking up a course of study at UCD. In late April 2001 the complainant's doctor in Thurles, Dr Liam Collins, wrote to a housing official outlining the complainant's living conditions in Beechwood Grove and stating that he was suffering severely as a consequence and that he urgently needed to be re-housed. The complainant got private rented accommodation in Dublin and applied for a rent allowance and it was refused on the basis that he was still a tenant of Thurles Town Council. He appealed the decision and the Social Welfare Appeals Officer granted the appeal on the basis that the house in Thurles was not of a suitable standard and did not meet the Housing Standards Regulations 1993. He submitted that the respondent's housing allocation officer Mr. Noel McCormack attended the appeal hearing and opposed the application for rent supplement on the basis that he was a tenant of a house in Thurles.
4.4 On the 29th of May 2001 the complainant notified the respondent under section 21(2)of the Equal Status Act of his complaints about the house provided to him by the Council. The Town Clerk wrote to the complainant on the 6th of June 2001 stating that they were willing to investigate the complaints but they needed to gain access to the house and they requested the complainant to contact them to make arrangements. The complainant submits that the respondent did not express any concern about his well-being or put forward any suggestions about solving the problem.
4.5 Dr Caroline Murphy stated in evidence that she knew the complainant for over twenty years and he was her patient when he resided in Cork. The complainant contacted her around November / December 2000. She said that she was concerned for his welfare and when she came to Thurles before Christmas 2000, to visit friends and she called to see him at the house in Beechwood Grove. She was not the complainant's doctor since he moved to Thurles, but she visited him as a friend She said that the house was dirty, there were stains on the floor, there was no head on the shower. The complainant was sleeping on a mattress on the floor in a room with a stove and it was smoky. She said that the complainant has a respiratory problem and she did not think it was a fit place for him to live. She offered to clean the house but the complainant would not let her. She advised him to contact the local health officer and his GP to see if he could get the matter resolved.
4.6 Dr Liam Collins, the complainant's GP said that he visited the complainant at Beechwood Grove in January 2001. He said that the living conditions were very poor. The floor in the living room was stained and there was a mattress on the floor and the place was very cold. He said that he sent a letter to the Council on the 19th of January 2001. Dr. Collins conceded that the complainant wrote the letter but he said that he agreed with its content. He said that he was not aware that the letter was sent to an official in Dun Laoghaire County Council.
4.7 The complainant's solicitor submitted that the respondent discriminated against the complainant under section 5 and 6 of the Equal Status Act and in terms of section 4(1) of that Act when they failed to provide him with reasonable accommodation for the complainant in accordance with that section of the Act. He submitted that the respondent as a service provider had an obligation to ensure the accommodation it allocated to the complainant, a disabled man, was adequate to allow him to live there safely and comfortably. He submitted that the respondent should have ensured that the house had been fully washed down and disinfected and that there were proper cooking and washing facilities a clean bathroom a working shower and a working stove and heating system. He submitted that because of the nature of the accident the complainant suffered resulting in his disability and given his overall poor health he required extra warmth and the solid fuel heating system did not meet that need. He also submitted that the complainant was less able than a non disabled person to undertake strenuous cleaning duties. For these reasons, he submitted that he was discriminated against and the respondent failed to provide him with reasonable accommodation under section 4(1) of the Act.
5. Respondent's Case
5.1 The respondent submitted that the complainant applied to the Council for housing on the 12th of May 2000. At the time he was living in a hotel following a problem he had with private rented accommodation. In the meantime, with the help of the HSE, he sourced a private rented apartment at Dun Aoibhinn. The complainant had a problem with this accommodation and complained to the Council. The Council said that they were unable to get into the property to assess the problem. The Community Welfare Officer informed the Council on the 31st of October 2000, that the landlord had terminated the complainant's tenancy in Dun Aoibhinn and he was now homeless. The respondent said that they understood that the complainant failed to pay his rent. Despite the Council's policy of not offering alternative accommodation to applicants who have become homeless as a result of their own actions, the respondent officials were of the view that it would be difficult for the complainant to source suitable accommodation in the private market. The Town Clerk decided to give the complainant priority on the housing list and allocate him a house in Beechwood Grove which had become available. The house which was a two bedroom bungalow had been specifically modified for the previous occupant, a wheelchair user. It had a ramp to the front door and a roll in shower in the bathroom. The house was allocated to the complainant and he signed a tenancy agreement on the 3rd of November 2000.
5.2 Mr. Michael Ryan, Town Clerk, said that he made a decision to allocate the house to the complainant on the basis that he was homeless and that the house was wheelchair accessible. The Council provides only unfurnished houses and the fixtures and fittings are a matter for the tenant. In this particular scheme of Council houses heating was provided by way of a solid fuel stove. He submitted that the Council did not receive the letters of complaint that the complainant said that he sent on the 4th November and 4th December 2000. The Council received a letter of complaint dated the 4th of February 2001, with the said letters attached. Mr. Ryan said that he asked the receptionist to prepare a repair document for the Town Foreman as soon as he got the complaint This is the usual procedure when requests for repairs from tenants are made. He then received a fax letter from the Ombudsman concerning the complaints. He said that he contacted the Foreman who told him that he had called to the house and he got no reply. He instructed him to put a note through the door asking the complainant to contact the Council about his complaint. The Town Clerk responded to the Ombudsman and to the complainant by letter dated 27th February 2001 setting out the Councils position regarding the complaints and their inability to contact him to investigate the complaints.. In that letter Mr. Ryan requested the complainant to contact the Council. He said that the complainant did not contact the Council and several efforts were made by his officials including the Foreman and the Rent Collector to contact the complainant during his tenancy in Beechwood Grove and they failed. The Council could not deal with the complaints unless they were given access to the house.
5.3 The Town Foreman said that he is responsible for housing repairs and maintenance. After a tenancy ceases he has a team of workers who carry out cleaning and repairs and prepares the house for a new tenant. He said that the house in Beechwood Grove was cleaned out and repaired. The work commenced on the 1st of June 2000 and finished on 23rd June 2000. He said that the whole house was washed down and cleaned. The walls were painted and the tiles on the floor and the ceramic tiles in the bathroom were washed. Some plumbing work was carried out in the bathroom. He said that the shower was working and the head was in place. The stove which heated the water and provided heat for the radiators was working. He carried out repairs to the chimney. He put in a new soot box and cleaned the chimney. No electrical work was carried out except to replace bulbs When the work was finished he inspected the house and he was satisfied that it ready for a new tenant. On the 1st of November 2000 he instructed the carpenter to change the locks. The Town Foreman said that he did not inspect the house himself before the complainant took up his tenancy. He said that the carpenter, who carried out the repairs and painted the house in June, is a long standing and reliable worker and would have reported back to him if the house was not fit for letting When he changed the locks the day before the complainant took up the tenancy. He called to the house on a number of occasions and he also put a note through the door but he failed to meet the complainant. He said that he would have assessed the complaints and carried out the repairs if he could get in. He said that he was a foreman in the Council for over twenty five years and he had never a complaint about a house being dirty after he prepared it for letting.
5.4 Ms Deirdre O'Shea, Housing Officer, said that the complainants housing application was prioritised because of his disability and the lack of suitable ground floor accommodation in the private sector for people in wheelchairs. Applicants for housing would normally have to wait over a year for their application to be processed. She said that the houses in Beechwood Grove are all bungalows and are used specifically for older people or people with disabilities. She said that modifications were carried out to the house for a previous tenant who was a wheelchair user. The modifications were based on a recommendation of an occupational therapist of the Mid Western Health Board now the HSE. It is a matter for all tenants to furnish houses rented from the Council. The tenancy agreement, which was signed by the complainant, states at paragraph 16 that the tenant is responsible for the internal decoration and repair for breakages and damage to any fixture or fitting. She said that the complainant who was a social welfare recipient could have applied to the Community Welfare Officer for an exceptional needs payment to set up home. The payment covers all items of furniture, floor covering and equipment including beds and cookers.
5.5 Ms.O'Shea said that the Council prides itself in the housing stock and they would never let a house to a tenant in a filthy dirty condition. She accepted that the photographs produced in evidence were of the house but she disputes that the pictures were taken on the day the complainant received the keys to the house because the Council would never allocate a house in such a condition. She said that once the house was allocated they had no access because the complainant would not let them in. They tried to investigate the complaints but they could never get access to the house. The Tenancy Agreement provided for the weekly collection of rent by the rent collector but the complainant failed to answer the door for the entire tenancy. The rent collector is a conduit for complaints from tenants. If the complainant had answered the door he could have made his complaints known and they would have been passed on to the foreman for investigation. She instructed the rent collector to document the dates he called to the house because they believed the complainant had left the house. She said that the foreman called to the house and he was not let in either. If they gained access to the house the foreman would have assessed the complaints and dealt with them and would have repaired the shower. The complainant never surrendered the tenancy or handed back the keys. The Council were unaware that the complainant left the house in July 2001. In March 2003 the Council took possession of the house and it was in an appalling state.
5.6 Noel McCormack, Housing Allocations Officer, said that he knew the complainant and that he helped him to fill out an application for housing. The Community Welfare Officer told him that the complainant was homeless. He informed the Town Clerk and he was subsequently told by him that he had allocated the complainant the house in Beechwood Grove which had been specifically adopted for a person in a wheelchair. The Council only supplies unfurnished accommodation. In accordance with the Council procedures for tenancy lettings, The Foreman, gave him the keys and told him the house was ready for letting. On the 2nd of November 2000 he telephoned the complainant and told him about the house and made arrangements for him to call to the office the next day to sign the lease agreement, to pay 2 weeks rent and to collect the keys. The complainant came to the office late on Friday afternoon, the 3rd of November and signed for the house. Mr. McCormack said that he asked him to contact him if he had any problems. He also offered to assist in moving his furniture and belongings into the house, but the complainant declined the offer.
5.7 The Rent Collector said that he collected the rents from the Beechwood Grove area. If tenants had problems with their house he took a note of the complaints and passed them on to the Council. He had to write them into a complaints book for the foreman. If there was an urgent complaint such as a leak he would contact the foreman immediately. He called to the complainant's house once a week to collect the rent but he never got an answer. He was instructed by the Town Clerk in February 2001 to call to the house and to make every effort to meet the complainant. He said that he called there three times per week on different days and he never received an answer. On one occasion he was collecting rent from another house and he saw the complainant enter his house. He called there five minutes later and he got no reply. He believed that the complainant was inside on other occasions when he called but he refused to answer the door. He kept a record of the times he called there and gave them to the Council. He said that the window, door and letter box was blanked off with plastic bin bags. He met the complainant in the office in July 2001 when he was paying his rent. The complainant did not make any complaint about the house.
The respondent's representative submitted that the complainant had failed to establish discrimination on the disability ground.
6. Conclusion of Equality Officer
6.1 The matter for consideration is whether the respondent discriminated against the complainant contrary to section 3(2)(g) and 6(1) and in terms of Section 4(1) of the Equal Status Act 2000. The complainant case is that the house rented to him by the respondent was unfit for habitation because of its dirty and unkempt state and the failure to provide facilities such as a working shower, heating and cooking facilities. The respondent denies the allegations about the condition of the house and submits that they could not inspect or remedy any of the alleged matters because the complainant denied them access to the house.
In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(2)(g) provides that: as between any two persons, the discriminatory grounds ... are ... that one is a person with a disability and the other either is not or is a person with a different disability,"
Section 6(1) provides that: A person shall not discriminate in-
(c)" providing accommodation or any services or amenities related to the accommodation or ceasing to provide accommodation or any such services or amenities".
Section 4 of the Equal Status Act, 2000 which states, inter alia:
"(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".
6.2 I am now going to examine if the respondent did "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". A person making an allegation of discrimination under the Equal Status Act, 2000 must first establish a prima facie case of discrimination. Once a prima facie case of discrimination has been established by the complainants, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. I will examine three matters to see if the respondent failed to provide reasonable accommodation, the first matter the letting of an unfurnished house, secondly whether the respondent let the house in a filthy dirty condition with broken fittings, and thirdly whether the respondent failed to investigate complaints about the condition of the house when it was brought to their attention by the complainant.
6.3 It is accepted that the complainant is a wheelchair user and that he was accommodated on the 3rd November 2000, by the respondent in a house which had been modified for a wheelchair user. The complainant claims that the respondent failed to provide him with clean habitable accommodation, furniture, cooking and heating facilities and a shower in working order and therefore it was impossible for him to use the bathroom, wash, cook and to heat the house. He submitted this constituted a refusal or failure of the respondent to provide him with reasonable accommodation. He submitted that given his disability he was unable to clean the house and attend to the facilities which were not working. He submitted that there was a duty on the respondent under Section 4(1) of the Act to do an assessment of the complainant's needs, to inspect the house prior to letting to ensure it was furnished and that everything was in working order. He also submitted that included in the duty to provide reasonable accommodation there was an implied duty on the respondent to check on the complainant after he moved in to ensure that everything was to his satisfaction.
6.4 The respondent denies the allegation and submits that the house was handed over in good condition with all the facilities in working order. The also state that they had no responsibility for furnishing the house and the complainant could have sought the assistance of the Community Welfare Officer in that regard.
6.5 I am satisfied from the evidence of the respondent witness that as soon as they became aware that the complainant was homeless they provided him with wheelchair accessible house which was unfurnished with a solid fuel stove central heating system. It is clear from the evidence that the respondent only rents out unfurnished houses and the complainant did not request the Council to furnish the house or to provide any other facilities. If he had he would have been directed to the Community Welfare Officer who provides assistance towards furnishings and fittings for social welfare recipients. I am satisfied that the complainant was aware of the services of the CWO because he was referred to the Council by them when he became homeless. It should be noted that the complainant was housed by the respondent with exceptional speed by the respondent once they learned he was homeless. He was also advised by Mr. McCormack when he took up the tenancy that he should contact the Council if he had any difficulty. He did not do so and if he had I am satisfied he would be referred to the services of the CWO. Therefore I am not satisfied that the complainant has established that the respondent failed or refused to provide him with a house that was furnished and fitted because he never requested them to provide such a house. I find that the respondent provided the complainant with reasonable accommodation, that is an unfurnished wheelchair accessible house, as soon as they learned he was homeless.
6.6 There next matter I am examining is the condition of the house when the complainant took up the tenancy. I consider, that if the respondent rented the house to the complainant in a dirty and unkempt condition with broken fixtures and fittings as suggested by the complainant, in my opinion that this could be construed as a failure to provide reasonable accommodation to a person in a wheelchair in accordance with Section 4(1) of the Act. I am now going to examine the evidence to see if this is the case. There was a complete conflict of evidence about the state of the house. The complainant produced photographs of the house which he said were taken on the evening he moved in. The respondent rejected that the house was in the condition as represented in the photographs and queried the date they were taken. From the evidence it appears that the complainant moved into the house after he signed the tenancy agreement late in the afternoon of the 3rd of November. I am satisfied that some of the photographs were taken in the daylight and therefore they could not have been taken on the 3rd of November as it was agreed it would have been dark at the time the complainant moved into the house. I note that the complainants witness, Dr Caroline Murphy, who visited the complainant on or about the 18th of December said in evidence that she did not recollect that toilet was as dirty as it was in the photographs. Likewise I note that the complainant sent a number of letters of complaint to the respondent and copies of the photographs to support the complaint were not enclosed. . For the above reasons, I am of the view that the photographs were not taken at the time the complainant moved into the house and I cannot accept them as evidence of the condition of the house at the time he took up the tenancy. I note that the complainant's two witnesses who attested to the condition of the house were there some six to eight weeks after he took up the tenancy and therefore they were not in a position to support the complainant's claim that the house was in the condition that he claimed it was in when it was allocated to him by the Council.
I found the evidence of the complainant less than compelling. He was reluctant to answer questions that I put to him. I found the evidence of the respondent's witnesses more compelling, particularly the evidence of the Foreman. His evidence in relation to the condition of the house and the works carried out there under his supervision during the month of June 2000 was very convincing. I am satisfied therefore that the complainant has failed to establish that the respondent failed or refused to provide him with reasonable accommodation. I find that the evidence does not support the contention that the house allocated by the respondent was in the condition as described by the complainant when he took up the tenancy.
6.7 The next matter I am going to consider is whether the respondent failed or refused to provide the complainant with reasonable accommodation by not repairing the stove, the heating system, the bathroom fixtures and cleaning the house while he was a tenant there. The complainant stated that the respondent failed to respond to his many complaints about these matters. In evidence he said that he wrote a letter of complaint to the Town Clerk and hand delivered it to the receptionist on the 4th of November 2000. The respondent stated that they did not receive this letter. I note that the 4th of November was a Saturday and the Council offices were closed. I am not satisfied therefore that this letter was hand delivered to the respondent. The complainant also said that he wrote to the respondent again on the 4th of December 2000, enclosing the letter of the 4th of November and a medical certificate and the respondent said that they did not receive this letter or enclosures. I note that the medical certificate to which the complainant refers was not written by Dr. Murphy until the 10th of July 2006 and therefore it could not have been enclosed with the letter of complaint of the 4th of December. The complainant sent a letter dated 4th February 2001 enclosing the above mentioned letters and the respondent accepts these letters were received on 7th of February, but the medical certificate mentioned in the letter of the 4th of December was not enclosed. I note that a medical certificate from Dr. Collins which the complainant claimed he sent to the respondent, and which was drafted by the complainant and signed by Dr. Collins around the 19th of January 2001 was addressed to an official in Dun Laoghaire. It is clear from the above sequence of events that there was considerable confusion in the complainant's evidence about the complaints he made to the Council about the various defects in the house. For this reason, I am satisfied that the first letter of complaint that the respondent received about the condition of the house was on the 7th February 2001. The Town Clerk, Mr. Michael Ryan, wrote a detailed letter of response and requested the complainant to contact the Council with a view to having the Foreman inspect the house.
6.8 The respondent witness outlined the number of times they called to the house and failed to meet the complainant. I note that the Foreman, could not get access and that the complainant did not respond to his note requesting him to contact the Council about his complaints. Likewise I note that the Rent Collector called weekly to collect the rent and then called three times per week after he was instructed to do so and he failed to get an answer. I also note that he saw the complainant enter the house and the complainant did not respond when he called to the door five minutes later. I also note that the complainant called to the Council office to pay his rent and he did not make any arrangements for the Council Foreman to call to inspect the house.
6.9 Likewise I note that the complainant sent the statutory notification under section 21 2(a) of the Act to the respondent on 28th May 2001 and he received a response dated 6th June 2001 from the Town Clerk asking him to contact the Council with a view to resolving the matters. The same offer was made to him in a letter from the Town Clerk dated 3rd July. The complainant failed to make arrangements for the responded officials to enter the house. It is clear that on one occasion he was in the house when a council official called and he did not answer the door. He was also in the office paying his rent in July 2001 and he made no arrangement for the Foreman to call to his house. It is very difficult to see how the respondent could assess and remedy any defects without gaining entry to the house.
6.10 I am of the view that the complainant for his own reasons did not want the Council officials to visit the house and assess his complaints. It was unreasonable for the complainant to expect the Council to deal with his complaints while at the same time he was denying them access. Because the respondent could not get access to the house it could not investigate the complaints and arrange to remedy any defects which had arisen during the course of the tenancy. I am satisfied that the respondent neither failed or refused to provide reasonable accommodation to the complainant in relation to this aspect of his complaint because they could not gain entry to the house. For the above mentioned reasons, I find that the complainant has failed to establish a prima facie case of discriminatory treatment contrary to section 4(1) of the Act.
7. Decision
7.1 I find therefore, that Thurles Town Council did not unlawfully discriminate against the complainant on the disability ground in terms of Sections and 3(2)(j) and contrary to Section 4(1) and section 6(1) of the Equal Status Act, 2000.
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Marian Duffy
Equality Officer
19th February 2010