Equal Status Acts 2000 - 2008
Decision DEC-S2010-035
John, Winnie, Mary and Linda McDonagh
V
Kerry County Council
Key words
Equal Status Acts - Direct discrimination, section 3(1)(a) - Victimisation, section 3(1)(j) - Traveller Community ground, section 3(2)(i) - Supply of goods and services, section 5(1) - Application for Housing
1 Delegation under the Equal Status Acts
The complainants referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 -2004. On the 7 October 2009, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to myself, Brian O'Byrne, 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, 2000-2008 on which date my investigation commenced. As required by 25(1) and as part of my investigation, I proceeded to Hearing on the 20 January 2010 with final correspondence being submitted by 14 May 2010.
2 Complainants Evidence at Hearing
2.1 John and Winnie McDonagh state that they have lived on the side of the road in caravans in the Ballyduff area of Kerry for over 40 years with their family. They were located in one location for many years on the bend of a road in Ballyduff. They say they were comfortable there as neighbours used to support them by allowing them to use their washing facilities and providing them with the use of some land to keep their horses.
They say that all their family went to school locally in Ladyswalk and Ballyduff in Kerry. The couple are originally from County Mayo.
2.2 In early 2005, they visited Dublin for a few months following a family bereavement. On their return, they found that the owner of the land where they usually camped had closed off the bend preventing them from parking their caravans on their regular site. As a result they were forced to park a mile further up the road in an open and unsuitable location with no access to their settled neighbours' facilities.
Because of the unsuitability of their current living conditions, the family decided in 2005 to apply to Kerry County Council for accommodation. At that point, they were living with their daughter-in-law, Mary McDonagh and their niece Linda McDonagh, the other two complainants.
They say that when the applied for accommodation, they specified that they would require a site rather than housing accommodation. This was because Mr. McDonagh had always kept horses (with numbers ranging between 6 and 13 over the years) and needed somewhere to keep them. Winnie McDonagh explained that she herself wanted a site rather than a house as she had never lived in a house and wanted to continue living in a caravan on a site provided by the Council.
2.3 Before they made their first formal housing application in 2005, they say that they had been offered a place in a Halting Site in Ballybunion six or seven years earlier but did not look at it as they did not want to live on a Halting Site with other Traveller families who were not known to them.
Since 2005, they say that the Council made them a few offers but none suited their needs. The houses they were offered did not include space to keep horses. At one point, they identified a suitable local site that was up for sale but say that the Council rejected this because of the planning issues that would be involved
3 Respondents Evidence at Hearing
3.1 Kerry County Council have four dedicated Halting Sites for the Traveller community, two each in Tralee and Killarney. There is no provision in the County Council's Traveller Accommodation Plan for any additional Halting Sites in Kerry.
In addition to Halting Site accommodation, the Council also house Travellers in social housing schemes although there are no Traveller-specific housing schemes in Kerry.
Only family pets are permitted in Council accommodation. The Local Authority is not obliged to provide accommodation for horses. Tralee has its own Horse Project which allows horse owners to stable their animals.
3.2 The McDonaghs formally applied for accommodation from Kerry County Council in 2005. Since then several housing options have been explored with them and a number of offers have been made, none of which came to fruition. History to date is a follows:
2005 - Offered placements on existing Halting Sites in Tralee and Killarney. Offer turned down as the McDonaghs were not willing to move away from Ballyduff or to abandon their horses.
2006 - 2007 A local man was to offer some land in Ballyduff to the Council to house the McDonagh family but no formal offer was made. However, the Council did review the proposal but deemed it unsuitable as the land was open and exposed and there was inadequate provision for effluent treatment on the site. The Council were also mindful that previous planning permissions for development in the area had been turned down by the planning authorities.
2008 - McDonagh family offered a 3 bedroom two-storey semi-detached in Benmore Estate Ballyduff in February 2008. This was rejected as the family did not wish to live in a house.
In September 2008, they were offered a cottage in Lixnaw on the understanding that they house their horses elsewhere. The cottage was on about 3/4 acre of land which would have accommodated a mobile home alongside it. This offer was also rejected as it was regarded as being too far away from Ballyduff and horses were not permitted.
2009 - McDonagh family offered local authority house in Bishops Court but offer rejected. At the Hearing, John McDonagh said that only his son had been offered that house but said that he himself would not have accepted it if offered to him as it was not suitable.
3.3 More recently, the respondents state that the option of other houses in Aghamore and Listellick were discussed with the McDonaghs but were not deemed acceptable to them on the basis that the accommodation offered was unsuitable or too far away from Ballyduff.
The respondents also referred to the Council's Traveller Accommodation Program in which there is no provision for additional halting sites outside of Tralee and Killarney. The Council also stated that as the program had only recently been introduced that the Council members would not be prepared to entertain any amendment to the program to provide for additional halting sites in Ballyduff or anywhere else.
Overall, the Council state that they are very conscious of the complainants' need for suitable accommodation and are still very anxious to provide them with acceptable accommodation. However, for this to happen, the Council state that the McDonaghs must be prepared to "meet them half way" and recognise that their demands for local accommodation for themselves and their horses is simply not achievable in the current climate.
4 Conclusions of the Equality Officer
4.1 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it may be presumed that prohibited conduct has occurred. On establishment of these facts, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
4.2 In the case before me, the complainants maintain that they were discriminated against on the Traveller community ground in not being provided with suitable accommodation by Kerry County Council. They also claim that the Council victimised them for taking an equality complaint by deliberately offering them "culturally inappropriate accommodation" after the complaint was lodged.
In considering the evidence before me, I have taken into account the following:
- The complainants are seeking a dedicated Halting Site to be built for their extended families in Ballyduff. They have already refused an offer of accommodation in existing Halting Sites in Tralee and Killarney and the Council's Traveller Accommodation Program does not provide for more halting sites.
- The complainants have been offered several houses but have deemed them unsuitable because they cannot house their horses there. The Council have suggested that the horses be housed in official Council Horse Projects but this is not acceptable to the family.
- Mrs McDonagh has specifically stated that she will only live in a caravan yet when the complainants were offered a cottage in Lixnaw on almost an acre of land, with space beside it to accommodate a caravan, it was refused because it was old and horses would not be permitted.
In considering the above points, I consider that Kerry County Council have been quite reasonable in their dealings with the McDonagh family in recent years and that the reason the family are still without Council accommodation is attributable more to their specific demands than to the Council's unwillingness to provide them with accommodation.
In order to establish their case, the complainants must show that they were less favourably treated in the provision of housing. Any applicant, Traveller or non-Traveller, can make specific requests in their housing application, which the respondents may not be able to fulfill. However, given that the respondents made alternative offers to the complainants, having being unable to fulfill the specific requests, I find that the complainants have not established a case of less favourable treatment and that Kerry County Council have not discriminated against the complainants with regard to the provision of housing.
4.3 The complainants also maintain that the Council victimised them for taking an equality complaint by deliberately offering them "culturally inappropriate accommodation" after the complaint was lodged. In order to establish a case of victimisation, the complainants must show that they were subjected to adverse treatment after they lodged their complaint. The evidence before me indicates however that, after they lodged their complaint, other housing offers were made to them. Even if they were unhappy with the offers made, the fact that other offers were made indicates to me that they were not adversely treated. Accordingly, I do not consider that the complainants suffered victimisation at the hands of the Council.
5 Decision
In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I issue the following decision. I find that the complainants have not established a prima facie case of discrimination or of victimisation. Accordingly, I find in favour of the respondents in the matter.
Brian O'Byrne
Equality Officer
21 July 2010