THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC–S2010-003
PARTIES
Maurice Cleary
and
Waterford City Council
File Reference: ES/2007/0167
Date of Issue: 18th January, 2010
Keywords
Equal Status Acts 2000-2008 - Direct discrimination, Section 3(1)(a) – Gender Ground, Section (2)(a) – Marital Status Ground, Section 3(1)(b) – Disability Ground, Section 3(2)(g) - Race Ground, Section 3(2)(h) – 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 13th December, 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 25th November, 2009. Final correspondence with the parties concluded on 15th December, 2009.
1. Dispute
1.1 This disputeconcerns a claim by the complainant, Mr. Maurice Cleary, that he was discriminated against by the respondent on the grounds of his gender, marital status, disability and race in terms of Sections 3(1)(a) and 3(2)(a), 3(2)(b), 3(2)(g) and 3(2)(h) 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, Mr. Maurice Cleary, who is forty seven years of age and single has a congenital back condition and recurrent depression. He initially made an application to the respondent for local authority housing on 1st September, 2005 and this application was subsequently updated on 11th October, 2007. The complainant stated that when he made his initial application for housing in September, 2005 the respondent was implementing a policy whereby persons who were residing outside of the county of Waterford were not accepted onto the housing list for local authority housing. The complainant was residing in Dublin at that juncture, however he stated that he was born in the Waterford area and that he resided in the county of Waterford for a period of approx. two months in September/October of 2006. He claims that this policy of refusing to accept the housing applications of persons residing outside of County Waterford amounts to discrimination against him. The complainant accepts that the respondent amended its housing policy in December, 2007 and that from this point onwards it accepted applications for housing from persons living outside of its area of jurisdiction. However, the complainant stated that the respondent has never carried out an assessment of his housing application since making his initial application and that he has not been offered any accommodation whatsoever throughout this period.
2.2 The complainant claims that he has not been offered local authority housing by the respondent on the basis that he is a single male and he claims that this amounts to discrimination on the grounds of his gender and marital status. The complainant claims that the respondent was made fully aware of the nature of his disability but that it has failed to take this disability into consideration in terms of the assessment of his application. He claims that this amounts to discrimination against him on the grounds of his disability. The complainant also claims that the respondent has provided local authority housing for a large number of refugees/non-Irish nationals during the period of time since making his initial application for housing. He claims that the respondent’s failure to provide him, as an Irish citizen, with local authority housing constitutes discrimination on the grounds of his race.
3. Summary of the Respondent’s Case
3.1 The respondent stated that the complainant initially submitted an application for housing on 1st September, 2005 and he was informed at that time that Waterford City Council did not accept housing applications from persons residing outside of Waterford City and County (in accordance with it's existing policy at that juncture). As a result the complainant's application was not accepted on the respondent's housing list at that juncture. The respondent stated that the complainant moved into private rented accommodation in the Tramore area of County Waterford in September, 2006 and re-applied for local authority housing. The complainant's application was accepted at that juncture as he was at that stage resident within it's jurisdiction. However, it subsequently came to the attention of the respondent in April, 2007 that the complainant was no longer resident within it's jurisdiction and he was notified through his elected representative that it could no longer consider his housing application. The respondent stated that the policy which it implemented at that juncture which required applicants for housing to reside within it's jurisdiction was applied uniformly to all applicants regardless of their gender, marital status, disability or race and it therefore submitted that this policy did not constitute discrimination against the complainant within the meaning of the Equal Status Acts.
3.2 The respondent stated that this policy was amended following the issuance of guidelines from the Department of the Environment in December, 2007 and from this juncture onwards it decided to accept applications for housing from persons residing outside of its jurisdiction. The respondent stated that it is obliged under the Housing Acts, 1966 to 1992 to carry out a formal assessment of housing needs within it's jurisdiction every three years. It stated that the most recent formal assessment was carried out on 31st March, 2008 and it confirmed that the complainant's application for housing was included on it's housing list as a result of this assessment and that it is currently still active. The respondent stated that prior to January, 2008 it's policy was to conduct a home visit with all new applicants for housing. However, since January, 2008 the respondent no longer undertakes home visits and from that date onwards an initial assessment is carried out on each individual application upon receipt with an interview subsequently arranged with the applicant at the respondent's premises at a later date.
3.3 The respondent stated that it has jurisdiction to allocate housing within eight different areas throughout Waterford City and applicants are permitted to indicate their preferred areas when completing their initial application for housing. The respondent confirmed that applicants are only considered for tenancy of the housing units that become available in the area(s) of their stated preference. The respondent stated that the complainant has indicated on his application form that he only wishes to be considered for housing in three of the eight areas within it's jurisdiction. The respondent stated that no new housing units have been built in two of these areas since the complainant's application was accepted onto the housing list. The respondent stated that the allocation of individual dwellings is determined in accordance with the Scheme of Letting Priorities which has been adopted in accordance with its obligations under the Housing Acts, 1966 to 1992. The respondent stated that points are awarded to applicants based on factors such as the condition of his/her present dwelling, overcrowding, medical or compassionate grounds, persons living in institutional care and financial considerations relative to the applicant. The number of points awarded to an applicant determines their position on the housing list and offers of accommodation are made to applicants in order of priority on this list. The respondent stated that an applicant can be awarded up to a maximum of 25 points for medical grounds.
3.4 The respondent stated that it accepts the complainant has a disability and it confirmed that his application has been categorised in the Medical/Compassionate Need category as part of the assessment of housing needs that was carried out in March, 2008. The respondent confirmed that the complainant has been awarded 4 points on medical grounds based on the medical certificates which he has submitted in relation to his disability. The respondent denied that the complainant has been subjected to discrimination on the grounds of his disability and it stated that by virtue of his inclusion within the Medical/Compassionate category he is being afforded a higher level of priority than many other applicants who do not qualify to be included in this category. The respondent stated that the demand for local authority housing in any given period is far in excess of the number of units that are at it's disposal for allocation. The respondent stated that it has a very limited housing stock at it's 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 stated that it currently has a total of 1,124 applicants awaiting to be housed within it's jurisdiction and it confirmed that it has only been possible to allocate approx. 200 housing units each year since the complainant's initial application was received in 2005.
3.5 The respondent stated that the race of an applicant is not taken into consideration when assessing applications for local authority housing and it submitted that once an applicant is deemed to have a valid need for housing his/her application is treated the same regardless of race or nationality. The respondent also stated that gender of an applicant is not taken into consideration when assessing and allocating applications for housing. The respondent denies that it has discriminated against the complaint on any of the grounds claimed in terms of the manner in which it has dealt with his application for housing.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A 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 she can rely in asserting that prohibited conduct has occurred in relation to 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, both written and oral, made to me by the parties to the case.
4.2 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 gender, marital status, race and/or disability in terms of the policy which the respondent had in place up to December, 2007 of not accepting the housing applications from persons who were residing outside of its jurisdiction.
2. Was the complainant subjected to discrimination on the grounds of his gender, marital status, race and/or disability in terms of the manner it has dealt with his application for housing after it amended the above policy and accepted his application in December, 2007.
4.3 In considering the first question identified above, I note that it was not in dispute between the parties that when the complainant made his initial application for housing in September, 2005 the respondent was implementing a policy whereby it would not accept applications for housing from persons who were residing outside of its area of jurisdiction i.e. Waterford City. The respondent subsequently amended this policy following the issuance of guidelines from the Department of the Environment in December, 2007 and from that point onwards it accepted applications from persons not resident in Waterford City. Having regard to the evidence adduced, I am satisfied that the aforementioned policy was applied uniformly and in a non-discriminatory manner to all applicants who resided outside of the respondent's area of jurisdiction regardless of their gender, marital status, race or disability (or indeed any of the other nine discriminatory grounds). I am therefore satisfied that the applicant was not treated less favourably on any of the discriminatory grounds claimed within the meaning of the Equal Status Acts in terms of the respondent's policy of not accepting his application on the basis that he was not resident within its area of jurisdiction.
4.4 In considering the second question identified above, I note that in cases relating to the provision of local authority housing 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.
Gender and Marital Status Grounds
4.5 In considering this issue, I note that the complainant has claimed that the reason he has not been allocated local authority housing by the respondent is because of the fact that he is a single male. It was not disputed between the parties that the complainant's current application was not accepted until December, 2007 when the respondent amended it's policy in relation to the acceptance of applications from person who were residing outside of it's jurisdiction. The respondent denies that it has discriminated against the complainant on the grounds of his gender or marital status and it claims that the complainant's application has been assessed in the same manner as all other applicants in accordance with it's Scheme of Letting Priorities. Having regard to the statistical evidence presented by the respondent, I note that it presently has a total of 1,124 applicants who are awaiting to be housed within it's jurisdiction. The respondent has only been in a position to allocate approx. 200 housing units each year since the complainant made his initial application in 2005 and it is therefore evident that the demand for local authority housing far exceeds the supply that is available for allocation by the respondent.
4.6 Based on the evidence adduced, I am satisfied that the housing requirements of all applicants are assessed by the respondent in accordance with the criteria outlined in its Scheme of Letting Priorities. As I have already stated above, I am satisfied that the provisions of Section 6(6) of the Equal Status Act facilitates a housing authority to prioritise in favour of the categories of persons identified therein and that such prioritisation does not constitute discrimination. The complainant has not adduced any evidence to show that the housing needs of any person who has been allocated housing by the respondent since December, 2007 was not more urgent than his, at the particular time, or any evidence from which I could conclude that this was the case. Accordingly, I find that the reason the applicants who have been 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. 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 gender or marital status in terms of the manner in which his application for housing was dealt with by the respondent.
Race Ground
4.7 The complainant has claimed that the respondent has provided preferential treatment to refugees and non-Irish nationals in terms of the manner in which their applications for local authority has been dealt with by the respondent. In considering this issue, I accept the respondent's evidence that all applicants who are deemed to have a genuine housing requirement are assessed in accordance with its Scheme of Letting Priorities and that the race or nationality of an applicant is not a factor that is taken into consideration in this assessment. The complainant has not adduced any evidence from which I could reasonably conclude that this is not the case or that he has been treated less favourably than other applicants for housing on the ground of his race. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination of the grounds of his race in terms of the manner in which the respondent has dealt with his application for housing.
Disability Ground
4.8 The complainant has been diagnosed with a congenital back ailment and depression and I am satisfied that these conditions constitute a disability within the meaning of the Equal Status Acts. The complainant has claimed that the respondent has failed to take his disability into consideration when assessing his application for housing. The respondent claims that it has, in fact, recognised the complainant’s disability and it denies that it has discriminated against the complainant on the grounds of his disability. It claims that the complainant's housing application has been (and will continue to be) assessed in accordance with the same objective criteria as all other applications. I note that the Scheme of Letting Priorities 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 can be awarded up to a maximum of 25 points in accordance with this policy. I am 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 I note the respondent's evidence that the complainant has been assessed as having a medical need for housing and that his application has been included for consideration within the Medical/Compassionate Needs category. I also note that applicants who are included in this category are afforded a higher level of priority than many other applicants who do not qualify to be included in this category. It is clear from the statistical evidence presented by the respondent that of the 126 people who are included within the Medical/Compassionate Needs category that 86 of these people (i.e. 68%) have been on the waiting list for housing for a longer period of time than the complainant i.e. for a period of three years or longer. Having regard to the evidence presented, I am satisfied that the respondent has been made fully aware of the precise nature of the complainant’s disability and that it has recognised the complainant is, in fact, a person with a disability for the purposes of assessing his application for housing. Furthermore, I accept the respondent's evidence that the complainant's disability has been and will continue to be taken into consideration in accordance with its Scheme of Letting Priorities when accommodation becomes available for allocation in the areas of his stated preference. 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 are objectively greater than his. 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 nor had a different disability.
Reasonable Accommodation
4.10 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 in accordance with the provisions of section 4 of the Equal Status Acts. 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”
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 has 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, places an obligation on the respondent to give due consideration to the complainant’s disability as part of the overall assessment of his application 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 the respondent has accepted and recognised that the complainant has a disability and in this regard, I note that his application was included in the Medical/Compassionate Needs category as part of the assessment of housing needs that was carried out in March, 2008. As already stated in para. 4.9 above, the Scheme of Letting Priorities 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 can be awarded up to a maximum of 25 points in accordance with this policy. I note from the evidence adduced by the respondent that there was an delay in terms of it's assessment of the medical certificates submitted by the complainant which in turn resulted in a delay in medical points being awarded in respect of his application. However, based on the evidence presented, I note that the complainant has now been awarded a total of 4 points on medical grounds following an assessment of his medical condition by the Area Medical Officer. In doing so, I am satisfied that the respondent has provided reasonable accommodation in it's assessment and consideration of the complainant's application for housing.
4.12 Notwithstanding the foregoing, and having regard to the evidence presented I am satisfied that the delay in assessing the complainant's medical certificates was not motivated by any malicious or discriminatory intent on the part of the respondent but rather that it arose as a result of an unintentional administrative oversight within the respondent organisation. Furthermore, I am satisfied that this delay has not, to date, negatively impacted, in any way, on the overall assessment and consideration of the complainant's application for housing. In reaching this conclusion, I have taken into consideration that the assessment of the complainant's medical condition by the Area Medical Officer was deemed to warrant a relatively low award of points (i.e. an award of 4 points out of a total of 25 points) which has resulted in a relatively low placing of his application within the Medical/Compassionate Needs category. I have also taken cognisance of the fact that approx. 68% of the applicants within this category have been awaiting housing for a period of time in excess of the complainant i.e. for a period in excess of three years. In the circumstances, I find that it is reasonable to conclude that the only reason that the complainant has not been allocated housing by the respondent is as a consequence of the number of applicants for housing who have been deemed to have a more urgent need for housing than his based on an objective assessment carried out in accordance with its Scheme of Letting Priorities. Accordingly, I find that the respondent has not failed 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 gender, marital status, disability and race grounds in terms of Sections 3(1)(a), 3(2)(a), 3(2)(b), 3(2)(g) and 3(2)(h) of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
18th January, 2010