THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC-S2011-032
PARTIES
Thomas and Elizabeth Burke (and on behalf of their five children)
(represented by Kerry Travellers
Development Project)
and
Kerry County Council
(represented by Ms. Rosemary Cronin, Solicitor,
Kerry County Council)
File Reference: ES/2009/105
Date of Issue: 3rd August, 2011
Equal Status Acts, 2000-2008
Equality Officer Decision DEC-S2011-032
Elizabeth & Thomas Burke (and on behalf of their five children)
(represented by Kerry Travellers
Development Project)
and
Kerry County Council
(represented by Ms. Rosemary Cronin, Solicitor,
Kerry County Council)
Keywords
Equal Status Acts, 2000-2008 - Direct discrimination, Section 3(2)(g) - Race Ground, Section 3(2)(h) - Traveller community Ground, Section 3(2)(i) - Harassment, Section 11 - Discrimination by a Housing Authority, Section 6(1)
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 25th September, 2009 under the Equal Status Acts, 2000 to 2008. On 15th April, 2011, in accordance with his powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, 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 May, 2011.
Dispute
1.1 The complainants, Elizabeth and Thomas Burke, claim that both they and their five children were discriminated against by the respondent on the grounds of their race and membership of the Traveller community in terms of sections 3(1), 3(2)(h) and 3(2)(i) in not being provided with a service which is generally available to the public contrary to Section 6(1) of the Equal Status Acts. The complainants also claim that they were subjected to harassment by the respondent within the meaning of section 11 of the Equal Status Acts.
Summary of the Complainants' Case
2.1 The complainants, Elizabeth and Thomas Burke and their five children, are members of the Traveller community and they were forced to leave their home in Waterford in September, 2008 after it had been attacked and set on fire with a petrol bomb. The complainants submitted that they were forced to surrender the lease on their local authority house in Waterford, due to fears for their safety, and the family spent time travelling in County Cork and eventually ended up in Tralee, Co. Kerry in October, 2008. The family approached the Homeless Unit in Tralee (which comes under the authority of the respondent) in early October, 2008 and they were put up in temporary accommodation that the respondent uses to accommodate homeless people (i.e. a Bed & Breakfast). The complainant, Elizabeth Burke, stated that her family was afforded temporary accommodation by the respondent on three separate occasions between October, 2008 and March, 2009. Mrs. Burke accepted that the family had left the temporary accommodation on two of these occasions (in October, 2008 and November, 2008) without notifying the respondent or providing it with a reason as to why they were leaving the accommodation. Mrs. Burke stated that the family left the temporary accommodation on both of these occasions to move to Bantry, Co. Cork in order to provide care for her son who was ill at that juncture.
2.2 The complainants moved back to Tralee in February, 2009 and were accommodated again in temporary accommodation by the respondent for a further period of time. Mrs Burke stated that Mr. A, the respondent's Traveller Liaison Officer called to their temporary accommodation on 23rd March, 2009 and informed her that the family would have to leave the accommodation. She stated that Mr. A called to their temporary accommodation again on 26th March, 2009 and informed her that the family would have to leave the accommodation. Mrs. Burke stated that she informed Mr. A that her children were about to start school in Tralee and that the family had no other accommodation available to them at that juncture; however, she claimed Mr. A replied that "you have no business putting them to school tomorrow because you won't be left here. You are only putting the kids in school because you want to be left here". Mrs. Burke stated that Mr. A refused to accede to her request that he contact the Visiting Teacher for Travellers, who had made the arrangements for her children to attend school, and/or his supervisor in the Council in order to discuss the matter. Mrs. Burke stated that Mr. A threatened her that the Gardaí would remove the family from the accommodation if they did not agree to leave. She claims that this amounted to harassment contrary to the Equal Status Acts.
2.3 Mrs. Burke stated that the family's accommodation was paid for by a sympathetic non-Traveller for the following few nights who did not want them to have to sleep in the car with five children but they had to leave that accommodation the following Wednesday. Mrs. Burke stated that the family had to sleep in the car on Wednesday and Thursday (1st and 2nd April) but they acquired funding from St. Vincent de Paul and were booked into another B&B in Tralee for one week. After that the family were forced to sleep in their car again for a period of time until they were found to be eligible for rent allowance on disability grounds. It was submitted that a number of representations were made to the respondent on behalf of the complainants to be recognised as homeless; however, none of these requests were successful.
2.4 The complainant submitted that it was known to the respondent's Housing Department that their home in Waterford was no longer available to the family and that they had to surrender this property out of concerns for their welfare and safety. However, it was submitted that in spite of this situation the respondent refused to recognise the family as homeless or to confirm their need for local authority housing. The complainants submitted that a settled family would not have been treated in such a manner and they claimed that the respondent prevented the family from accessing both emergency accommodation and rent allowance with the aforementioned consequences and thereby effectively created an emergency situation for them. The complainants submitted that the manner in which they were treated by the respondent amounted to discrimination on the grounds of the membership of the Traveller community and race contrary to the Equal Status Acts.
Summary of the Respondent's Case
3.1 The respondent submitted that the complainants presented as homeless to the Homeless Unit in Tralee for the first time on 1st October, 2008 and they were accommodated in emergency B&B accommodation until 3rd October, 2008 when the family left the accommodation without notification to either the Homeless Information Centre or Kerry County Council. The family re-presented to the Homeless Unit on 31st October, 2008 and was again accommodated in emergency B&B accommodation; however, the family would not say where they had been from 4th October until 31st October, 2008. The family remained in the emergency accommodation until 20th November, 2008 when they again left the accommodation without notification to the Homeless Information Centre or Kerry County Council. The respondent stated that the whereabouts of the family was unknown for the period 20th November, 2008 until 23rd February, 2009 when they presented for the third time to the Homeless Unit seeking accommodation. The family was again accommodated in emergency accommodation at that juncture. The respondent stated that the role of the local authority is to determine whether a person (or family) has a housing need, and is therefore homeless, and in order to do so it is normal procedure to carry out an investigation into the personal circumstances of that particular person (or family). The respondent stated that the complainants failed to co-operate fully with its investigations when they presented as homeless and they would not disclose any information regarding their whereabouts or housing situation during the periods that they were not in Tralee.
3.2 The respondent submitted that the complainants were tenants of Waterford City Council and that that local authority had determined a housing need for the family in Waterford City and had made accommodation available to the family. It submitted that when this accommodation became uninhabitable as a result of a petrol bomb, Waterford City Council retained the responsibility to address the housing needs of the complainants. The respondent contacted Waterford City Council regarding the matter during the course of its investigations into the complainants housing situation and it indicated that they were willing to deal with the complainants both on an emergency and long term basis and wrote to the family to invite them to submit a housing application for inclusion on their housing list. The respondent submitted that by surrendering their property on 12th September, 2008 to Waterford City Council and leaving Waterford, the complainants rendered themselves homeless. The respondent submitted that it had reason to believe that the complainants continued to collect social welfare payments in Waterford City and had alternative accommodation available to them which they accessed during their unexplained absences from Tralee. The respondent formed the opinion that the complainants had strong linkages to Waterford City and consequently, their housing need should have been addressed by Waterford City Council at that juncture.
3.3 The respondent submitted that on 6th March, 2009 an interagency meeting was held and it was agreed that the Homeless Unit would not accommodate further presentations from outside of Kerry that resulted from conflict situations and where a housing need had already been established in another local authority area; that existing clients who were at that juncture accommodated in temporary accommodation as a result of conflict situations and were not from Kerry would be asked to leave and present to the homeless unit in their county of origin. The respondent submitted that Mr. A, Traveller Liaison Officer, met the complainants on 9th March, 2009 and advised them of the outcome of the interagency meeting (which had taken place on 6th March, 2009) regarding presentations to the Homeless Unit that resulted from conflict situations from outside the county and informed the family that the respondent would not be in a position to continue to pay for their temporary emergency accommodation. Mr. A agreed to re-book the emergency B&B accommodation in Tralee to allow the family time to make arrangements and make contact with the Homeless Unit in Waterford City Council to make them aware of their situation. The respondent stated that the family was afforded in excess of two weeks (i.e. from 9th to 25th March, 2009) to make contact arrangements to return to Waterford and it submitted that any emergency situation that developed subsequent to the departure of the family from emergency B&B accommodation resulted from their failure to act on advice from its officials and was therefore a situation created by the complainants themselves. The respondent denied that it prevented the complainants from accessing emergency accommodation and it submitted that such accommodation was provided each time the family presented to the Homeless Service in Tralee.
3.4 The respondent also denies that it prevented the complainants from availing of the Rent Allowance Scheme and it submitted that it does not administer this scheme. The respondent stated that it does not have any jurisdiction in relation to the payment of rent supplements and that any decision in relation to the granting of these payments rests with the Community Welfare Officer (who acts on behalf of the Health Service Executive). The respondent stated that the role of the local authority is to determine whether a person has a housing need (and is therefore homeless) and it confirmed that a person must be declared as having a housing need or homeless in order to qualify for payments such as rent supplement.
3.5 The respondent denies that the complainants were subjected to harassment during the course of its dealings with the family and it submitted that Kerry County Council went out of its way to accommodate the family by providing them with an additional three weeks accommodation. The respondent also denies that Mr. A harassed the complainants, as alleged, and it submitted that he treated the family with courtesy and respect at all times and in the same manner that he deals with all other clients. It submitted that Mr. A was sympathetic to the complainants' situation at all times and that he endeavoured to afford the family time to make alternative accommodation arrangements and he explained the reasons for any decisions made by the Council.
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 Complainants. 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 complainants to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. 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.
Issue of Jurisdiction in relation to the name of the respondent
4.2 The complainants referred the present case against a named official of Kerry County Council (i.e. Mr. D, Director of Housing and Services) and Kerry County Council itself. At the commencement of the hearing an application was made by the solicitor for Kerry County Council to have the named respondent changed to Kerry County Council. In considering this issue, I have taken into consideration the provisions of section 42(1) of the Equal Status Acts regarding vicarious liability which provides:
"Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval."
The named official (Mr. D) is an employee of Kerry County Council and acted in the course of his employment with the Council in terms of his interaction with the complainants in the preset case. Having regard to the foregoing and the provisions of section 42(1) of the Acts, I am satisfied that Kerry County Council, and not the named official, is the correct respondent for the purposes of this complaint.
Traveller community ground - Direct Discrimination
4.3 It was not in dispute between the parties that the complainants, Mr. and Mrs. Burke and their five children are members of the Traveller community. The complainants have claimed that the respondent subjected them to discrimination on the grounds of their membership of the Traveller community in terms of the manner in which it dealt with their application for a declaration of homelessness and its ultimate refusal to recognise the family as homeless or to confirm their housing needs. The respondent denies that the complainants were subjected to discrimination on the grounds of their membership of the Traveller community and it submitted that their application for a declaration of homelessness was dealt with and processed in accordance with its normal practice and procedures and that the decision not to deem the family homeless was in no way attributable to their Traveller status. Therefore, the question that I must decide in relation to this issue is whether the complainants were treated less favourably than another person or family would have been, in similar circumstances, on the grounds of their membership of the Traveller community in terms of the manner in which the respondent dealt with their application for a declaration of homelessness.
4.4 The respondent in the present case is a housing authority within the meaning of the Housing Acts and it therefore has responsibility under those Acts for determining whether or not a person (or family) is homeless. In the present case, it was not in dispute that the complainants presented as homeless to the respondent on three separate occasions (i.e. in October, 2008, November, 2008 and February, 2008) and that they were accommodated in emergency temporary accommodation on each of those occasions. The respondent gave evidence that in such a situation it is obliged to carry out an investigation into the circumstances of the family that is seeking a declaration of homelessness before any decision can be made in relation to the application. The respondent gave evidence that the complainants failed to disclose any information regarding their whereabouts when they returned to its jurisdiction on the latter two occasions and that they would not co-operate with the investigation which the Traveller Liaison Officer was conducting in relation to their housing needs. I note that Mrs. Burke accepted in her evidence that the family left the temporary emergency accommodation on the first two occasions without notifying the respondent in advance of their departure as to the reason why they were leaving or where they were going to reside thereafter. The complainants' evidence was that the family had moved to another location in Co. Cork after leaving Tralee on each of these occasions in order to take care of another family member who was experiencing ill-health at that time.
4.5 The respondent also gave evidence that it became aware during its investigation into this matter that the complainants had held the residency of a local authority house in Waterford City which they had voluntarily surrendered (in September, 2008) after the property had been subjected to a petrol bomb attack as a result of an ongoing feud within this jurisdiction. The respondent stated that it made contact with the Housing Section in Waterford City Council during the course of its investigations and it was confirmed by that local authority that it was prepared to deal with the complainants' housing needs both on an emergency and long term basis. This evidence was corroborated at the oral hearing by Mr. A, Tenancy Investigations and Estate Management Officer with Waterford City Council, who confirmed that Waterford City Council were willing to deal with the complainants housing needs at that juncture and that it had written to the complainants in March, 2009 and May, 2009 in relation to this mater. Based on the evidence adduced, I am satisfied that the respondent followed its normal procedures in the present case and that it carried out an investigation into the circumstances of the complainants' claim that they were homeless. On balance, I accept the respondent's evidence that the complainants failed to fully co-operate with the respondent in relation to this investigation and I am satisfied that this lack of co-operation frustrated the respondent in its attempts to determine whether or not they were, in fact, homeless. Having regard to the foregoing, I am satisfied that it was not unreasonable for the respondent to conclude in such circumstances that the complainants may have had alternative accommodation available to them at that juncture (either in Waterford or elsewhere).
4.6 It is clear that the respondent, having completed its investigations into the complainants housing situation, took the decision that they were not homeless (within the meaning of the Housing Acts) and that the responsibility for addressing their long term housing needs rested with Waterford City Council. The respondent subsequently informed the complainants (through its Traveller Liaison Officer) on 9th March, 2009 that it was no longer in a position to provide them with temporary emergency accommodation and they were advised to return to Waterford and it initiated contact with the Homeless Unit in Waterford City Council to advise them of the situation. The complainants claim that they could not return to Waterford at that juncture because of fears for their safety arising from the ongoing feud which resulted in them having to vacate their local authority house in that jurisdiction. They claim that the respondent's decision to refuse to declare them homeless was discriminatory on the grounds of the membership of the Traveller community.
4.7 In order for the complainants to succeed in their claim of discrimination under the Equal Status Acts they must be able to establish that they were treated less favourably than a family of non-Travellers would have been in similar circumstances. Having regard to the evidence adduced, I cannot accept that the respondent's decision not to recognise the complainants as homeless was attributable to their Traveller identity or that it would have arrived at a different decision if it had been dealing with a family of non-Travellers in a similar situation. I am satisfied that this decision was based purely on the information which came to light as a result of its investigations into the complainants' housing needs. In coming to this conclusion, I have taken note of the respondent's evidence that a number of other Traveller families who had moved to Tralee from Waterford around that time as a result of an ongoing feud in that jurisdiction were subsequently deemed homeless by the respondent following investigations into their individual housing needs and that they were ultimately afforded local authority housing. I accept the respondent's evidence that the reason the complainants' application for a declaration of homelessness resulted in a different outcome to that of the other Traveller families was directly attributable to two main factors, firstly, that the complainants failed to fully co-operate with the respondent's investigation into their housing needs and secondly, that Waterford City Council had indicated that it was in a position to deal with their housing needs at that juncture. I have also taken into consideration the evidence adduced on behalf of the respondent (by Ms. A, Community Welfare Officer and an employee of the HSE) that the complainants were in receipt of weekly social welfare payments amounting to a significant sum of money around the time that the respondent took the decision to discontinue the payment of their temporary emergency accommodation. In this regard, I note that the complainants did not adduce any evidence to suggest that they did not have the financial means to cover the cost of their temporary accommodation after the respondent had taken the decision to discontinue the payment.
4.8 I would also like to make the point at this juncture that I do not have any jurisdiction to make any findings in relation to the fairness or otherwise of the manner in which the respondent implements its housing policies and the consequences that the implementation of this policy may have upon a person (or family). The only remit that I have under the Equal Status Acts in the present case is to determine whether or not the respondent's housing policy was applied in a less favourable manner to the complainants because of their Traveller identity. I have carefully considered the evidence presented in relation to the manner in which the respondent, as a housing authority, was obliged to implement its housing policy in accordance with its obligations under the Housing Acts and I have found no evidence to suggest that these policies were applied in a less favourable manner to the complainants on the grounds of their Traveller identity in the circumstances of the present case.
4.9 Having regard to the totality of the evidence presented, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the complainants were subjected to less favourable treatment on the grounds of their Traveller status in terms of the manner in which they were treated by the respondent in the circumstances of the present case. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination on the Traveller community ground.
Harassment
4.10 The next element of the complaint that I must consider relates to the complainants' claim that they were subjected to harassment by the respondent contrary to the provisions of Section 11(5) of the Equal Status Acts, 2000 to 2008. The complainants claim that they were subjected to harassment by the Traveller Liaison Officer, Mr. A, in terms of the nature of his interaction with them when he visited their temporary B&B accommodation on 26th March. 2009. Mrs. Burke gave evidence that Mr. A called to their B&B accommodation at approx. 8:50 a.m. on this date and informed the family that they would have to leave their accommodation. Mrs. Burke stated that she informed Mr. A the family had nowhere else available to reside and that her children were due to commence school that day; however, she claims that Mr. A informed her that the Gardaí would be called to remove her and her family from the B&B if they did not leave of their own accord. The complainants gave evidence that they were forced to sleep in their car for a number of nights after they were forced to leave the temporary emergency accommodation by Mr. A.
4.11 The Traveller Liaison Officer, Mr. A vehemently denies that he engaged in any such behaviour and he stated that he acted in a professional manner on all occasions during the course of his interaction with the complainants. Mr. A stated that he visited the complainants at their temporary emergency accommodation on three separate occasions (i.e. on 9th March, 16th March and 23rd March) to advise the family that the respondent was no longer in a position to pay the cost of their temporary emergency accommodation. The respondent stated that the complainants were afforded in excess of two weeks to make arrangements to return to Waterford and contact Waterford City Council which had indicated that it was in a position to deal with their housing needs. Mr. A stated that he visited the complainants B&B for the final time on 26th March, 2009 after he had been made aware that the were still residing there and he informed them again that they would have to leave the temporary accommodation. Mr. A strenuously denied that he threatened the complainants with the Gardaí or that he engaged in any type of behaviour that could be deemed to amount to harassment on this or any other occasion that he had engaged with them.
4.12 Based on the evidence adduced, I have found the evidence of Mr. A to be more compelling in relation to this issue and I am satisfied that he did not engage in any behaviour during the course of his interaction with the complainants which could be construed as harassment within the meaning of section 11 of the Equal Status Acts. In coming to this conclusion, I have taken note of the investigation reports that Mr. A completed on each occasion that he had an interaction with the complainants and I have not found any evidence in these reports to suggest that he had engaged in any behaviour which could have been considered hostile or intimidating towards the complainants. Based on the evidence presented, I am of the view that Mr. A engaged with the complainants in a professional manner in an effort to try and resolve their housing needs and this is evidenced by the fact that he made arrangements on three separate occasions to have temporary accommodation made available to them after they had presented as homeless in Tralee. Having regard to the foregoing, I find that the complainant has failed to establish a prima facie case of harassment within the meaning of Section 11(5) of the Equal Status Acts.
Race Ground
4.13 The complainants have also claimed that they were subjected to discrimination on the grounds of their race in terms of the manner in which their application for a declaration of homelessness was dealt with by the respondent. It was submitted that the complainants, as members of the Traveller community, are members of an ethnic minority which resides within the State and accordingly, that they are covered by the definition of race within the Equal Status Acts. Having considered this aspect of the complaint, I find that the complainants have failed to adduce sufficient evidence to establish that they are covered by the race ground within the meaning of the Equal Status Acts. Accordingly, in the current context I find it unnecessary to consider this point further.
Decision
5.1 On the basis of the foregoing, I find that the complainants have failed to establish a prima facie case of discrimination on the Race and Traveller community grounds in terms of sections 3(1), 3(2)(h) and 3(2)(i) of the Equal Status Acts. I also find that the complainants have failed to establish a prima facie case of harassment within the meaning of section 11 of the Equal Status Acts. Accordingly, I find in favour of the respondent in the matter.
Enda Murphy
Equality Officer
3rd August, 2011