The Equality Tribunal
3 Clonmel Street
Dublin 2
Phone: 353-1-4774100
Fax: 353-1-4774141
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Website:www.equalitytribunal.ie
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2011-004
Mr Desmond Mc Greal
(represented by Siobhan Phelan BL instructed by the Equality Authority)
-v-
Cluid Housing
(represented by O'Dowd Solicitors)
File Refs: ES/2009/90 and ES/2010/32
Date of Issue: 20 January 2011
Keywords: Equal Status Acts 2000-2008 - Section 3(2)(f), age ground - Section 3(2)(g), disability ground - prima facie case - direct discrimination - indirect discrimination - victimisation - harassment - provision of housing
Delegation under the Equal Status Acts, 2000 to 2008
These complaints were referred to the Director of the Equality Tribunal on 10 August 2009 and 23 February 2010 under the Equal Status Acts, 2000-2008. In accordance with his powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, 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 26 May 2010 my investigation commenced. As required by Section 25(1) and as part of my investigation, oral hearings were held on 1 September 2010 and 6 October 2010. Both parties were in attendance. Correspondence continued to be exchanged following the second hearing and this process was concluded on 8th November 2010.
1. Dispute
This dispute concerns a claim by Mr Mc Greal, a tenant (hereafter "the complainant") that he was discriminated against, discriminated against by association, harassed, and victimised by his landlord, Cluid Housing Association (hereafter "the respondent") on the grounds of age and disability in terms of Sections 3(2)(f) and 3(2)(g) of the Equal Status Acts, 2000-2008. In summary the complainant claims that he had ongoing issues with Cluid, which has resulted in them pursuing to date an attempt to terminate his tenancy.
In addition to the oral evidence given, there was a very large volume of correspondence submitted by both parties to this case, which covered the 6 years of interaction between the parties. I have carefully reviewed all of the written and oral evidence; however for the purposes of clarity, it is proposed to deal with only the substantive issues in this written decision.
Summary of the Complainant's Case
2.1 Complainant's evidence
2.1 (a) Background
The complainant Mr Mc Greal is a tenant of the respondent, Cluid Housing, since 2004. He was 73 when he took the first of the Equal Status complaints and he is now 74 years old. The complainant is originally from the Tuam area, but had previously been living and working in London for 50 years, latterly as a mechanical and electrical foreman whose job included responsibility for fire safety, health and safety and security issues. He had maintained contacts in Tuam while he lived in London and when he retired, he decided to return to the area as part of the "Safe Home" scheme. This is a scheme which assists Irish emigrants to return and live in Ireland in their retirement. He was able to secure a place in the Cluid housing scheme which was designed to provide sheltered accommodation to tenants who were referred by the Local Authority or as part of the Safe Home scheme, or both.
In 2004 before he moved in, the complainant took part in a pre-tenancy course organised by the respondent. He did not recall in detail the topics covered at this course, but thought that they mainly talked about paying rent. He stated that he was not aware of the "no-cause eviction" which was provided for in his tenancy agreement and he did not seek legal advice before he signed the agreement. He assumed that Cluid Housing Association were acting in his best interest and that he therefore had no need to seek legal advice.
2.1. (b) Discrimination
Complaints
During the 5 years from 2004 to 2009, the complainant raised a number of complaints with the management of his building, St Jarleth's Court, (hereafter SJC). The complainant states that these complaints can be summarised into 3 categories; fire safety concerns, security issues and lack of transparency in the residents association accounts. Briefly the complainant described his issues as follows:
(i) With respect to fire safety, the complainant points out that he worked for the Department of the Environment in the UK and has a particular knowledge about health and safety issues. It has therefore been a source of ongoing annoyance to him that the standards of fire safety in SJC are not adequate in his opinion. He submits that the residents have a wide range of physical and mental abilities and that particular care needs to be given to fire safety. He submits for example that in his time there, he has seen about 20 fire drills and in his opinion not one of them resulted in all the residents leaving the building.
(ii) The next issue concerns security in the building; in summary the complainant has been involved in a long-running issue regarding security alarms on the doors. He says that early in his tenancy some belongings went missing and that he experienced problems with people hanging around in the carpark at night beside his apartment. He believes Cluid did not handle this issue well - in the first place they tried to isolate him by saying that he was the only one making this complaint - however he pointed out that he was the only one living on the ground floor at the time and therefore he was the only person who could have been affected by it. He says that they did get the alarm issue sorted out and it worked very well for a couple of years, but then the alarm was removed on spurious grounds which he considers to be harassment.
(iii) The third issue concerned the residents' committee accounts. In late 2007, the complainant, together with 20 other residents, complained that there were no annual accounts published for the residents' committee. They argued that this was unacceptable since the committee was in receipt of public money. The complainant says that they never tried to imply that there was any dishonesty involved in the management of the accounts; simply that, as a matter of good practice, there was a need for transparency. A long and bitter dispute followed and was eventually resolved the following year, but the complainant submits that this had the effect of "demonising" him in the eyes of the management and certain residents.
Elder Abuse Allegation
Shortly after the dispute about the residents' accounts, there followed a significant issue, which the complainant believes may have contributed to the respondent's decision to issue him with a notice to quit. Around April 2008, he and four other fellow residents met with the HSE to discuss their concerns about the management at Cluid. The issue was initially characterised by the HSE as a complaint of elder abuse and communicated to the respondent as such. The respondent interpreted it as a complaint specifically against the then Scheme Manager, Ms A. The complainant later asked the HSE to clarify to Cluid that no complaint of elder abuse against Ms A had been made and that the residents were simply seeking help to mediate with the respondent regarding their general concerns. This clarification was made to Cluid in June 2008. The complainant was called to a meeting with the respondent Area Manager, Ms B, regarding the issue in August 2008. During the meeting with Ms B, the complainant was told it was a tenancy review but he did not know what that was. He assumed the main topic for discussion was the alleged complaint of elder abuse and he told Ms B that he could not speak to her about it, because Ms A had said she was considering taking a case against him for making false allegations of elder abuse against her. As a result of this potential legal issue, he was advised by his solicitor not to discuss the matter with Ms B. As a result the meeting lasted just a few minutes. About a month later, he received notice to quit his home.
The complainant accepts that he has made a significant number of complaints, but denies that he complains just for the sake of it. He submits that all the complaints boil down to just three issues and the reason that he keeps raising them is because they are never properly dealt with the first time. He submits that there is no genuinely effective complaints procedure at SJC; despite the fact that he goes through each management level, the final answer he gets from the top is to pass it back down to the local level again. Therefore he feels that he is stuck in this loop which he cannot break out of. He believes that although there were others involved in some of these complaints, he has been particularly singled out by the management. As a result, he submits that other residents are now too afraid to complain about anything, since they have seen what has happened to him. He submits that he is the only person ever in the SJC Housing Scheme to be subject to eviction proceedings.
Tenancy Agreement
Regarding his tenancy agreement, the complainant submits that he was unaware that he had the opportunity to "upgrade" his agreement in Spring 2008. This upgrade would have removed the "no-cause eviction" and given him greater security of tenure, which would have avoided the problems he now faces. He submits that the reason he was unaware of the opportunity was because the notice was placed in the Cluid Spring Newsletter. He agrees that a copy of the newsletter was available to him, but says that, like most people, he never reads it and he certainly would never have expected it to contain such important information about his contract. He submits that, at a minimum, the tenants should have received a letter advising them that they had a right to sign a new agreement and providing full details of that agreement. The complainant eventually found out from one of the other tenants that there was a new agreement in place and at that point he asked whether he could sign the new agreement. The respondent refused on the basis that they had issued proceedings against him under the old agreement and it would not be in their interest to allow him to sign the new agreement. The complainant says that it is extraordinary that they did not give him better notice of such an important document, especially considering the relevance which they are now attaching to it.
2.1 (c) Harassment
The complainant claims that the respondent has harassed him within the meaning of the Acts. He says the fact that they removed the security chain (which had greatly improved his safety and peace of mind) is evidence of their harassment of him. He further submits that the way Cluid have handled meetings and potential mediations with him is harassment in itself. He says that they repeatedly offer to meet with him at too short notice and/or without a third party present. As a result, he declines the meeting and they then say that he is being obstructive by refusing to meet with them. He says that this is not true and he is simply not willing to meet without having time to prepare and/or get a third party to attend as witness.
He submits that the way they singled him out regarding the residents committee accounts is harassment. He says that Cluid Management asked all the committee members to step down as a result of his complaint about the lack of transparency in the accounts, and this had the effect of making the committee members angry and directing their anger at him. He says that he never sought to abolish the committee - he simply wanted to see the accounts published.
The complainant submits that he likes his accommodation very much and has no desire to leave. He believes the management to be "wanting" and he believes that they could have dealt with his concerns in a more humane and fruitful way. He believes they have adopted a ruthless approach. He submits that the proceedings against him have had a very severe effect on his health. Prior to the Notice to Quit in September 2008, he had enjoyed excellent health. He is now attending a psychiatrist for the first time and is suffering from panic attacks. As a result he now takes 6-7 drugs on an ongoing basis. He is not sleeping well and has developed a breathing complaint which his doctor attributes to the stress of the legal proceedings against him and the fear that he will lose his home. He says that Cluid have sought to give an impression that alternative accommodation will be made available to him, but it has been confirmed to him that the Local Authority will not be obliged to accommodate him if he is evicted.
The complainant states that prior to the issues with Cluid, he has been a person of unblemished character. He says that he gets on well with the majority of tenants at SJC, with the exception of 4-5 tenants who do not like him. He says that he prefers to lead a quiet life and not get involved with the social activities which are organised. He says that he should be entitled to live independently and not be forced into group activities.
2.2 Witness for the complainant - Dr Padraic Kenna
Background
The witness Dr Padraic Kenna is a lecturer in Law at NUI Galway and an expert in housing law. He has written the main Irish text on housing law entitled "Housing Law and Policy in Ireland" and he has written a large volume of papers and lectured extensively to a wide variety of bodies in Ireland and England. He has worked with a range of statutory and other agencies in the UK and Ireland in an advocacy role and he has also worked in the development and management of housing. Dr Kenna established, with others, the FEANTSA Expert Group on Housing Rights, in 2004 and he is a member of the Editorial Advisory Board of both the International Journal of Law in the Built Environment and the Irish Human Rights Law Review. He was one of the Irish Legal Experts Group for the EU Fundamental Rights Agency (FRALEX) until 2010. The witness became involved in this case, when he was asked by the complainant to mediate with the respondent. The mediation attempts were not successful, but Dr Kenna did attend the District and the Circuit Courts on behalf of the complainant.
Tenancy agreement
Dr Kenna gave evidence that the clause in the complainant's tenancy agreement esentially provided for a "no-cause eviction" under Deasy's Act. This meant that the respondent could terminate the complainant's tenancy by only giving him the minimum notice required (ie: no reason was required). In the complainant's case, he believed that this was exactly what happened and he was not aware of the parties engaging in any process leading up to this termination notice.
Dr Kenna gave evidence on what in his opinion would be considered good practice by a housing authority who were considering a termination of tenancy. He said that generally in such cases of landlord-tenant problems, the parties engage in an ongoing process. This process would generally begin with letters to the tenant outlining the difficulties and there would be a series of meetings to discuss the issues. In the event that matters did not improve, there may be warning letters and follow-up meetings. This may be followed by a notice of intention to terminate the tenancy, which is effectively a final warning. He submitted that the termination of the tenancy would be the last resort and he stressed that each of the stages outlined above would involve progressively moving up the chain of authority of the housing body. He said that the termination of a tenancy is a huge step and would generally go to the board level of an organisation, as it has such an impact of the tenant's life. It is not something which would ever be considered a day-to-day operational matter and he would have expected, at a minimum, a report to the Board seeking their permission to take legal action against a 74 year- old man. There was no evidence that this had happened in this case. As far as he was aware, the respondent had decided to take this action as an operational matter because they believed the complainant was simply taking up too much of their time.
Dr Kenna stated that the use of the no-cause clause conflicts entirely with the principles of social housing. When he was helping to prepare for the complainant's Circuit Court case, he did some research and found that there was no evidence of any other case where a tenant of a housing authority was evicted under Deasy's Act. He stated that housing authorities are regularly faced with extreme forms of anti-social and criminal behaviour, but any resulting evictions would follow a process similiar to that outlined above; in short he said that drug-pushers would be better treated than the complainant. Dr Kenna stated that only an amateur organisation would attempt to evict someone so suddenly without working through an appropriate process. In the present case, Dr Kenna submitted that every single step of the entire process had been missed.
Impact of Notice to Quit
Dr Kenna submitted that the impact of this eviction threat on someone of Mr McGreal's age is very severe. The complainant had moved to this house with the expectation of living there for the rest of his life. Even aside from the fear of being unable to secure alternative accomodation, it would be devasting for the complainant to have to leave his home at his stage of life. Dr Kenna submitted that the impact of moving in such circumstances, was considerably greater to the health and life of an older person than that to a younger person. As a final comment, Dr Kenna wished to strongly emphasize that in his entire career he had never come across a situation where a person of 74 years of age was being evicted in such circumstances.
2.3 Witness for the complainant - Mr Y
Mr Y was previously a Town Councillor in Tuam and has known the complainant for 40 years. He has attended four meetings between the respondent and the complainant to help deal with issues at SJC. He says that the location, facilities and houses at SJC are excellent, but believes more could be done on the management side. He agrees that the complainant tried to arrange a mediation with the respondent over a long period, but it never happened. He says that they were promised mediation by Cluid management, a promise he believes to have been genuine. However the mediation never happened and he thinks this is possibly due to staff turnover and lack of follow-though. He describes the relationship between the complainant and the respondent over the years as one of "brinkmanship" and "extreme stubbornness on both sides", and he strongly believes that the parties could hold a mediation and resolve this whole issue, but they would both need to show more flexibility.
2.4 Witness for the complainant - Mr Z
Mr Z is an auctioneer in the town of Tuam and has known the complainant for 20 years. Prior to taking up residence at Cluid, the complainant rented accommodation from Mr Z. Mr Z described him as a model tenant who always paid in advance and was courteous to the staff. They were very pleased to have him as a tenant. Mr Z describes the complainant as a very decent, honest, transparent person, who is obsessed about details and hates sloppiness and mistakes. He said that the complainant might be difficult, but he is never incorrect. Over the years, he was in some cases a first-hand witness to the events at SJC and he said in general that he found the management response to the complainant's issues to be lacking. He said that they would promise to do something and then it would not happen. This was the type of behaviour which drove a perfectionist like Mr McGreal mad. In particular he believed the complainant's concerns about fire safety to be reasonable and he also disagreed with how the respondent handled the issue regarding the residents' committee accounts. He thinks that the respondent is inclined to run away from issues instead of dealing with them. He believed it should have been unquestionable that public money should be properly accounted for and he believes that it was Mr McGreal's raising this issue, which triggered the serious problems between the parties.
Mr Z said that the complainant's health had gone dramatically downhill since he had received the notice to quit. He said he found the respondent generally dismissive towards the complainant because he is an older man. He said that they did not expect to be questioned by Mr McGreal and they did not bother to respond to him. He said because he himself is a younger working man, he is very sure the respondent would not treat him the same way as they treated Mr McGreal. He attributes their treatment directly to the complainant's age and situation in life.
2.5 Legal Submissions on behalf of the complainant
2.5 (a) The complainant submits that the respondent is seeking to evict the complainant using an archaic procedure, which is disavowed by most housing associations, according to their expert witness (see full details above). They submit that this procedure is widely considered to be unlawful and amenable to challenge under both the Constitution and the ECHR. (They referred the Tribunal to Pullen v Dublin City Council and others [2008] IEHC 379, Dublin City Council v. Liam Gallagher [2008] IEHC 354 and Donegan v. Dublin City Council & Others [2008] IEHC 288, in which a similar procedure under S.62 of the Housing Act 1966 was found to be incompatible with the ECHR). They claim that the fact that the respondent chooses to use such a procedure, casts doubt over their bona fides with respect to their dealings with the complainant. They point out that there are two agreements which are in use at this housing development. The first, which the complainant is subject to, allows for eviction without cause. The second agreement does require due cause before a tenant can be evicted and this agreement is in place for newer tenants. They say that the complainant has been seeking to change to the second agreement since late 2008. They say that the respondent was not obliged by virtue of the provisions of the tenancy agreement to pursue a no-fault eviction and assert the rights they reserved in this agreement. They say that if the respondent was treating the complainant equally with its newer and generally younger tenants, the respondent could, right up to the hearing of the eviction proceedings before the Court, have elected to have the terms of the new tenancy agreement apply by agreement with the Complainant on the basis that it would have provided him with greater protection.
2.5.(b) Counsel for the complainant submit that the complainant has been singled out for treatment in a way which has never happened before. They submit that, in the absence of any apparent justifiable reason for the extraordinary steps taken by the respondent, the only remaining explanation is that the actions are discriminatory against the complainant on the grounds of age. They point out that the complainant feels ill-equipped to protect himself in the face of this unfair procedure because of his age, and the impact of the procedure on him is all the greater for this. They further state that this is not a one-off act, but has been sustained over time. It started with the decision to issue the notice to quit in Aug/Sept 2008 and continues, insofar as the respondent continues to maintain and pursue a no-fault eviction through the courts. This continuing state of affairs has aggravated the stress for the complainant.
2.5 (c) Counsel for the complainant also submitted that the alleged (but not substantiated) complaint of elder abuse was the trigger for the discriminatory actions of the respondent. They claim that this alleged complaint caused the respondent to completely lose all objectivity and independence in their dealings with the complainant. The complainant is an elderly man who was asked by a group of other residents to join them to speak to the HSE about their concerns. He was not the instigator of the complaint, rather he was a participant in it. The complainant submits that the concerns of this group were properly made before the appropriate authority and therefore it cannot be considered reasonable for the respondent to react to this complaint in such an adverse manner.
2.5 (d) Counsel for the complainant claims it has made out a prima facie case against the respondent on the grounds of age and therefore the burden falls on the respondent to disprove the allegation of discrimination. It was submitted that given that all the relevant information is within their control, they must show a cogent reason for their actions. It was submitted that they have failed to adduce any evidence to rebut the claim.
Summary of the Respondent's Case
3.1 Witness for the respondent - CEO
Background
The respondent CEO has worked for Cluid since 1995 and runs four regional offices, covering the whole country. They are a voluntary housing association who have evolved from general housing provision to specialising in sheltered housing and housing for the elderly. The objective of this type of housing is that elderly people can live independent lives there with minimum assistance. In total, they have up to 4,000 units and most tenants come from the Local Authority housing lists. Some tenants (such as the complainant) are referred from the Safe Home scheme, but all tenants must be approved by the Local Authority, regardless of the origin of the referral.
Complaints / Elder Abuse Allegation
The CEO said that when the complainant moved to SJC in 2004, there were problems immediately and they issued him with a notice to quit at an early stage. However they rescinded this notice, following a meeting between the complainant, a town councillor and the respondent. For the next few years there were ups and downs with the complainant, but generally the issues were resolved. However they found the constant involvement of outside parties (at the complainant's request) to be difficult and distracting. This came to a head in April/May 2008 when the complainant complained to the HSE. The CEO believes that this was a deliberate attempt by the complainant to undermine Cluid in the eyes of the HSE and thus to prevent contracts for further housing schemes being awarded to Cluid. This was a tipping point as far as the respondent was concerned. It became obvious to them that the complainant was not suited to SJC and they issued him with a notice to quit. The CEO submitted that they would have been prepared to re-house the complainant in more suitable accommodation. The CEO submitted that the complainant tried to say afterwards that the complaint to the HSE was never about elder abuse. However it is his belief that Mr McGreal had deliberately tried to give the impression that elder abuse was involved and that he only backed away from this allegation subsequently. The CEO submitted that the allegation caused considerable upset to his staff who had devoted their lives to the care of the elderly. He further submitted that the complainant's constant threat of involvement of outside parties such as politicians and the media, was in itself bullying, because it put fear in his employees and hampered them from doing their jobs effectively.
Tenancy Agreement
Regarding the specific issue of the complainant's tenancy agreement, the CEO said that when they got up-and-running in the 1990's, they simply used the standard housing agreement which was around at the time. This agreement allowed the respondent to evict the complainant without cause. The CEO agreed that this agreement was presented to tenants as a "fait accompli" and there was in practice no question of the tenants negotiating any of the clauses. In early 2008 a new agreement was made available to all existing tenants and it has become the standard agreement for all new tenants now. This agreement requires that the respondent must give due cause before it can issue a Notice to Quit to the tenant. The availability of the new agreement was notified to existing tenants in the Spring 2008 Newsletter.
3.2 Witness for the respondent - Regional Director - Ms B
The witness Ms B took up employment with Cluid in 2008 as Regional Director. She is responsible for 750 housing units in the North West region. When she commenced employment with the respondent, she was told there was a tenancy review of Mr Mc Greal in progress. She reviewed the files and submitted that in her 24 years of experience she had never seen so many complaints from one person. The review had been carried out by Ms C, who was based in an office in Sligo and was the line manager of SJC's housing manager, Ms A. Based on Ms C's review, a meeting was arranged with the complainant in September 2008. Ms B submitted that she hoped this meeting would give her an opportunity to get to the bottom of the issues and try to fix them. However the meeting was very unsuccessful and lasted less than ten minutes. According to Ms B, the complainant arrived and read a prepared statement saying that he could not discuss the matter without his solicitor present, because of the legal issues involved. He called her "the new kid" and said that she would not be able to sort this out. The witness was very surprised and could get no further with the meeting.
After this meeting, Ms B consulted with her manager, the CEO, and it was decided that the complainant should be issued with a notice to quit. The notice was issued in October 2008. Ms B submitted that her role is supposed to be strategic and that she should not have to get involved with operational matters like this. However the complainant's appeals to a variety of sources such as local councillors, TD's and MEP's have forced her to spend a great deal of time answering them and thus she was taken away from her regular work. She submitted that it was impossible to satisfy the complainant.
3.3 Witness for the respondent - Ms A , the Housing Manager of St Jarleth's Court
Ms A has worked for the respondent since 2004. Prior to that she worked on a scheme which provided a variety of services to isolated older people in rural areas. She has extensive experience of working with older people and when she started at SJC, she immediately set about trying to improve the social interaction between the residents. She felt that the atmosphere there was not good and she put considerable effort into encouraging social activities to ensure that people would not feel lonely.
Ms A found that, from the beginning of her employment at SJC, the complainant was constantly coming into to her office about fire safety issues. He took up a huge amount of her time, and although he may have had some good ideas, he was incessant about following them up. She found that there was nothing she could do to satisfy him, no matter how hard she tried. She submitted that the complainant did not get on with either residents or management and she believed that he was unsuited to living in an apartment. They offered him a house which was situated away from the scheme, but he refused. She submits that in the end, he was taking up all her time and he would berate her constantly. She had to bring work home, because she could not get it done in the office. She found the complainant to be aggressive and she started to feel sick going into work as a result of his behaviour. Finally after the complaint of elder abuse was made against her, she was extremely upset and decided she could take no more. She asked to be transferred to another Scheme. Her management facilitated the request and she no longer works at SCJ. She submitted that Cluid would never treat the matter of eviction lightly, but they did not have the resources to deal with all of the complaints made by the complainant.
3.4 Witness for the respondent - Receptionist at St Jarleth's Court
The witness stated that she started to work at SJC as a receptionist in October 2007 and she is the first point of contact for residents. She met the complainant on her third day in the job and he told her how bad things were there. She was present at most of the meetings between the Housing Manager and the complainant. She said that he would often be flushed and angry and behaved in a threatening and intimidating manner. She said that they tried to accommodate him, but it was not always possible.
She said that the Housing Manager would only be at the Scheme 2-3 days per week and that most of her time (the Housing Manager's) would be spent dealing with the complainant. They also had to deal with media and politicians and answer all their queries related to the complainant. As a result, she said that they did not have time to do their jobs effectively. She submitted that no resident was treated differently because of their age or disability and no employee of Cluid harassed or discriminated against the complainant.
3.5 Witness for the respondent - Chairperson of the SJC Residents' Committee
The witness is 68 years old and has been in the role of chair of the RC effectively since late 2007 onwards. He characterises SJC as high quality accommodation, which is well-maintained and has a majority of happy residents. Generally the relationship with the Scheme management is co-operative and the tenants get on ok, although there can be some disputes over noise.
He submits that most of the tenants participate in the residents association, with the exception of the complainant who only attended to complain about the accounts. He clarified that their association is separate to Cluid and not controlled by it in any way. He says that they manage themselves and are not afraid to take up issues with the Scheme management. He agrees that there may have been an issue with the accounts, but attributes it to the lack of experience of the members in dealing with such matters. He says that they held an open meeting to deal with the accounts issue, but the complainant denounced the meeting as rubbish. Additionally the association raised funds to improve their TV cable package and to buy gym equipment, but the complainant did not help at all. The witness gave other examples of what he sees as the difficult behaviour of the complainant. He believes that the complainant is obsessed by fire safety and takes things too far. The witness has never experienced any discrimination at SJC and believes, if there is any difference in treatment, it is to treat older residents with more care.
3.6 Witness for the respondent - Ms E, a member of the Sisters of Mercy Order and
resident of St Jarleth's Court
Ms E submitted that she had never said anything to the complainant about her Order providing the land for the housing scheme. She also denied that her Order had taken over the residents' committee, saying that only one sister was on the committee at any time. She said that the complainant had made complaints to the head of her Order about her presence in SJC, taking up a housing unit unnecessarily, but it was not her choice to live at SJC - she was sent there by her Order to maintain a presence. She said that the complainant does not speak to her and she is upset by him. She submits that she has never personally experienced discrimination at SJC and she is of a similar age to the complainant.
3.6 Legal submissions on behalf of the respondent
3.6 (a) Direct Discrimination
The respondent states that the complainant is obliged to raise a prima facie case in accordance with S.38 of the Acts. It contends that the following rebuttals of the complainant's allegations mean that it is not possible to raise a prima facie case:
With respect to the complainant's allegation that he was not given any explanation of the terms and conditions of his tenancy agreement in 2004, the respondent states that it provided a pre-tenancy course for all new tenants, so the complainant was not in a less favourable position to the others. It further states that the complainant's assertion that he did not understand the agreement, is particularly far-fetched, given the complainant's obvious intelligence and ability to call on the political system, the media, the Freedom of Information Act and the Data Protection Act to support his case. They also state that this point is supported by the evidence of the complainant's own witness to the Tribunal, Mr Joyce.
The respondent further refutes the complainant's claim that people who are under 65 years of age are offered greater security of tenure than he has. They state that all existing tenants were offered the new contract at the same time (in March 2008) and the complainant himself chose to ignore this correspondence. The respondent submitted a list of tenants, aged over 70, in other schemes, who have the new tenancy agreement.
The respondent submits that the complainant has made a list of complaints relating to security, fire safety and the resident's committee and that they have successfully rebutted each of these claims in oral evidence during the hearing. They further submit that none of these issues are connected with grounds under the Equal Status Acts.
The respondent further submits that the complainant has tried to link the issue of the alleged elder abuse complaint with the issue of age discrimination under the Acts. The respondent submits that contrary to his assertion to the Tribunal, the complainant did in fact make a complaint of elder abuse, which he later tried to retract. Secondly they submit that his claim was properly investigated and as far as they were concerned, the matter was closed in August 2008. They state that if their action had been taken solely on the basis of the elder abuse accusation, then the other couple (who were involved in the HSE complaint) would also have been issued with a Notice to Quit and this did not happen. The respondent submits that the other couple are elderly and direct comparators to the complainant.
3.6 (b) Legitimate aim of the Respondent
The respondent submits that their Notice to Quit and Ejectment proceedings against the complainant were pursued as a result of an objective and legitimate aim; namely the efficient running of the SJC Scheme, ensuring staff resources were properly allocated, and providing a safe and comfortable environment for their staff to work in. They submit that the complainant has caused untold difficulties throughout his time living there. There have been many complaints from members of staff about his behaviour, including one official complaint from a (now former) employee about her conditions of employment. In addition the respondent lost a very valued member of staff, when Ms A asked for a transfer out of SJC following the unfounded complaint of elder abuse against her. They submit that the residents of SJC have a lost a dedicated, kind and caring employee as a direct result of the complainant's behaviour. They further submit that the complainant seems to feel that he personally should be entitled to determine who should be housed at SJC, and that he does not wish any members of the Sisters of Mercy Order to be so housed. They submit that his behaviour towards the Sisters, in particular with respect to his information requests to the Residential Institutions Redress Board has been undermining and harassing, and that they cannot tolerate such behaviour within a sheltered housing scheme.
The respondent further submits that the means of achieving the legitimate aim were appropriate and necessary. To this end, they state that they had originally offered him a separate 3-bedroomed house away from the other tenants. Secondly they state that they went to considerable efforts to engage in mediation with the complainant, so that the issue could be dealt with without a Court Order. They submit that they sought adjournments on three separate occasions, so that they could try to mediate with the complainant. However the complainant did not cooperate with these attempts until the last possible moment, when he realised that he could be ejected from his accommodation. By this stage the respondent submits that it had given up trying to facilitate mediation. The respondent submits that their efforts to mediate with the complainant were made in good faith and went beyond what was reasonable.
The respondent says that it has been suggested by the complainant that the implementation of the termination clause would render him homeless, as the Local Authority would have no obligation to place him on a housing list. The respondent submits that this is an incorrect interpretation of the correspondence sent by the Galway County Council Housing Officer to the local TD. This correspondence states that if a tenant is "evicted" from a Local Authority or housing agency, then there would not be an obligation on the Authority to put the person on the list for re-housing. However the respondent states that the complainant is not being "evicted", and the "no fault" termination clause which they are using would be to the complainant's advantage, as he would not be omitted from future housing lists. The respondent states that the "no fault" termination clause is widely used by Local Authorities and Housing Associations and is essential for good estate management. It submits that the term is lawful and this Tribunal has no jurisdiction to determine otherwise. The respondent further submits that I should view the behaviour and motivation of the respondent in light of their bona fides as a charitable body with the stated intention of providing housing for the elderly, disabled and people in need.
3.6 (c) Harassment
The respondent denies all claims of harassment by the complainant and maintains that the complainant himself is the cause of all the difficulties which have been experienced between the parties. The respondent submits that the complainant is a very difficult, aggressive, intimidating man who happens to be elderly, and he has used this Tribunal in an attempt to punish the respondent for its actions and in an attempt to further undermine the respondent's reputation and resources.
(i) Fire Safety: The respondent denies that it has harassed the complainant with respect to the fire safety and security issues he has raised. It submits that it treated the complainants' issues at all times with courtesy and professionalism. It further submits that even if this were not the case, there has been no evidence that these incidents could constitute harassment on the grounds of age under the Equal Status Acts.
(ii) Elder Abuse Complaint: The respondent denies that it harassed the complainant with respect to how they handled the complaint of elder abuse. They deny that it was them who insisted on calling it elder abuse and that they harassed the complainant by investigating the issue with him. They state that the complainant was aware all along exactly what the subject matter of the complaint was, and the only reason he changed his story was because he was told that Ms A was considering legal action against him. They state that once a complaint of elder abuse is made, it is incumbent upon the respondent as a provider of sheltered housing to the elderly, to investigate such a claim. It cannot be considered harassment against the complainant for them to carry out this function. The complainant was properly invited to participate in an investigation of the matter, but he failed to cooperate with the investigation. Therefore they were obliged to conclude without his input. Following the investigation, they notified the complainant that the matter was closed. No action was taken against the complainant and the respondent refutes the allegation that the complainant was in any way "harassed or humiliated" during the investigation, as he claimed in his complaint to the Equality Tribunal.
(iii) Notice to Quit: The respondent disagrees that the issuing of a Notice to Quit can constitute harassment under the Acts. It submits that such a claim makes no reference to any of the protected grounds and further submits that this is a legal matter outside the jurisdiction of the Equality Tribunal. The respondent denies that the complainant is suffering ongoing harassment in the failure to allow him to complete a new tenancy agreement. It submits that the first time the complainant asked to change to the new tenancy agreement, he was no longer lawfully a tenant of the development, having been served with Notice to quit. Therefore, if the respondent acceded to his request, it would invalidate their Notice, which would clearly not be in their legal interest.
(iv) As a related matter, the respondent submitted that the failure to mediate cannot be construed as harassment by them, because they made considerable efforts to mediate and it was the complainant himself who continually frustrated these efforts.
3.6 (d) Victimisation
The complainant has made two claims of victimisation, both of which are denied by the respondent.
The first claim of victimisation on the grounds of age was made in the ES1 form in August 2009 and referred to the Notice to Quit, which had been issued in Oct 2008. The respondent submits that as the equality issue was first raised in July 2009, the complainant cannot have been victimised by an act which took place prior to that in October 2008.
The respondent claims that the second complaint of victimisation, dated February 2010, (on the grounds of age and disability) refers to the fact that they have pursued eviction proceedings against the complainant in the District Court and that they have refused the complainant's application for adjournment in that Court. The respondent claims that the matter of adjournment is exclusively within the power of the Court to decide (ie: it is not within the respondent's power) and that in any event, this entire matter is ultra vires the Equality Tribunal, as it refers to ongoing court proceedings.
Conclusions of the Equality Officer
4.1 I begin my conclusions by listing for clarity a very brief summary of the timeline of the issues between the parties:
2004 The complainant moved to St Jarleth's Court and raised issues regarding noise and security. A Notice to Quit was issued by the respondent, but later rescinded.
2004-2007 There was a series of disputes between the complainant and the respondent involving a number of issues, but primarily related to fire safety and security.
Nov 2007 There was a dispute between a large group of tenants (of which the complainant was one) and the resident's committee, relating to a lack of published and audited accounts for the committee. The issues were resolved around March 2008.
Apr 2008 The complainant and four other residents contacted the HSE to request help dealing with some issues which had arisen with the management at SJC. The complaints were initially characterised as elder abuse by the HSE and communicated to the respondent as such.
May-July 2008 there was a series of correspondence between the HSE, the complainant and the respondent regarding the allegations. An investigation was carried out by Cluid into the claims. Ms A said that she was thinking of taking legal action against the complainant, for making false allegations against her. The HSE later concluded that the complaints had been incorrectly characterised as elder abuse and should all along have been referred to as management/tenant issues.
Aug 2008 the respondent closed the investigation into the above matter.
early Oct 2008 the respondent issued a Notice to Quit against the complainant.
Aug 2009 the complainant made the first complaint (on the grounds of age) to the Equality Tribunal, citing the ongoing and earlier treatment of him by the respondent.
Jan 2009-July 2010 there were unsuccessful attempts to hold an independent mediation session.
Feb 2010 the complainant made the second complaint (on the grounds of age and disability) to the Equality Tribunal.
4.2 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) 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 he/she can rely in asserting that prohibited conduct has occurred in relation to him/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.
4.3 Discrimination on the grounds of age
4.3 (a) The respondent's case, in essence, is that the complainant was extremely difficult to deal with and made such a volume of complaints over the years that it became too difficult for their staff to manage. Therefore they decided to utilise their right to terminate the tenancy without cause. The respondent has argued that the issues between the parties were unrelated to the complainant's age and there can be no case under the Equal Status Acts because the all of the tenants of this Scheme were elderly and thus there is no comparator. However I note that the Notice to Quit against the complainant was made very shortly after the investigation into the alleged complaint of elder abuse concluded. Several of the respondent employees, including the CEO, gave evidence at the oral hearing and they were all very annoyed and upset by the complaint of elder abuse to the HSE. There had been many difficulties between the parties prior to that, but it was clear from the evidence given that this complaint was the tipping point for the respondent, and prompted their decision to terminate his tenancy.
In a case such as this, it may be very difficult for a complainant to demonstrate that a Housing Association which provides housing for the elderly and for disadvantaged groups, may in fact be acting in a discriminatory way towards someone from that very group. However a line of precedent establishing the concept of the shifting burden of proof was formally adopted by the Equality Act 2004. The Acts require the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. If such facts are established, the burden shifts to the respondent to rebut that inference of discrimination. Although the present case has been taken under the Equal Status Acts, I find there are parallels with the Labour Court case of Ntoko v Citibank EDA045. In that case, the complainant had been summarily dismissed for a relatively minor infringement of company policy. The Court found that the treatment of the complaint had been very extreme in the circumstances and it also found that there was a difference in race between the complainant and other employees in similar circumstances. The court found that the combination of the extraordinary treatment and the difference in race was sufficient to raise a prima facie case of discrimination and it therefore fell to the respondent to prove otherwise on the balance of probabilities. This case has been taken under the Equal Status Acts; however I find the reasoning of the Labour Court to be persuasive. Despite the fact that the respondent is a professional body providing services for elderly people, it appeared that they could not tolerate the elder abuse complaint which was properly made before the appropriate statutory authority. In a similar way to the Citibank case, the respondent Cluid Housing, took a very severe action (issuing a notice to quit), following an incident with the complainant (his alleged complaint of elder abuse to the HSE). Elder abuse, which is defined as having a lowest age of 65 years, is clearly and intrinsically a complaint which can only relate to an older person and could only have been made by one of Cluid Housing Association's older tenants. Given that it was this specific issue which provoked the extraordinary action of the respondent, I find that the complainant has established facts which have raised an inference of discriminatory treatment on the grounds of age. The complainant has shifted the burden of proof and it therefore falls to the respondent to rebut this inference.
4.3 (b) The respondent has made a number of rebuttal arguments which I will consider in turn:
(i) The Termination Clause in the Complainant's Tenancy Agreement
With regard to the specific clause of the contract, which allows for the tenancy to be terminated without cause, the complainant has argued that this is an extraordinary and extremely unfair provision to utilise against a tenant in social housing. Indeed the respondents themselves have now removed this clause from all new tenancy agreements, which indicates their acceptance of this fact. Despite this, they sought to justify using it against the complainant on the basis that:
(a) he was not under any obligation to sign the original agreement back in 2004, and he could have got his own legal advice if he had had concerns about it
(b) he chose not to upgrade to the new contract when they made it available in Spring 2008
(c) it would have been entirely contrary to their interests to allow him to sign a new agreement once they had decided to utilise the clause in the old agreement, to terminate his tenancy.
I will deal with each of these arguments in turn. (a) I do not accept the argument that the complainant could have chosen not to sign the agreement. The respondents are providers of social housing and a number of considerations flow from this fact. In the first place, a recipient of social housing is clearly not in the same position, as a private tenant, to pick and choose their accommodation. Secondly all the tenants of the respondent (and particularly the tenants of this scheme) are by definition (age, disability, finances) in a more vulnerable position with respect to their ability to negotiate terms in their own favour. Finally the respondent CEO agreed during the oral hearing that the contract was presented to the tenants as a "fait accompli" and there was no question of making any individual changes to it. Therefore I find it entirely unreasonable to suggest that the complainant had any real choice in the matter. In fact I find that the complainant had every reason to expect that a fair and balanced agreement would be provided to him by a voluntary charitable organisation in receipt of public monies.
(b) The respondent claims that the information about the new tenancy agreement was made available in their Spring 2008 Newsletter and that this was sufficient notice to the tenants. A number of points undermine this claim, not least the complainant's contention that no-one, including himself, actually reads the newsletters. Having carefully read the notice which appeared in the newsletter, I find that it does not encourage tenants to change their agreement; on the contrary it appears to specifically discourage them from looking into the possibility. (For example it says in large bold type at the beginning of the article that "existing tenants are not affected!!"). On questioning during the hearing, the respondent said that they did not wish to draw a lot of attention to the new contract, as tenants tended to be suspicious of any changes. Given that not a single tenant of the scheme in question has actually upgraded their agreement, even though it is in their best interest to do so, leads me to conclude that they were not genuinely on notice. The behaviour of the respondent with respect to the new agreement can only lead to the conclusion that they were at best indifferent as to whether the tenants signed it, and at worst they did not actually want them to sign it. In this specific case, it is clear that the complainant has faced enormous consequences as a result of not signing the new agreement. On this basis, the respondent's lack of action with respect to the new agreement appear unreasonable in the circumstances.
(c) The respondent claims that it would have made no sense for them to offer the complainant a new agreement, once they had decided to terminate his tenancy based on the old agreement. Logically this is true, as it was clearly contrary to their own interest. However I return again to the respondent's status as a charitable provider of social housing. It must be expected in circumstances where there is a great imbalance of power, where the tenant is in a vulnerable position and where the landlord professes to be fulfilling a social need, that such a landlord would attempt to provide some equality of arms or fair procedures. If the respondent had allowed the complainant to avail of the second tenancy agreement, they would still have been able to seek termination of his tenancy, but they would have been obliged to prove that there was due cause. In summary I find that the use of the no-cause termination clause against the complainant, although contractually sound, was very heavy-handed in the circumstances, and it does not assist the respondent in rebutting the inference of discrimination which has been raised by the complainant.
(ii) Cluid's complaints management system
The respondent contends that the complainant is an impossible man to deal with and he has made life miserable for the staff of Cluid. In support of this, they presented a number of employees, of whom Ms A was key witness. Ms A presented as a very credible witness with a genuine concern and interest in the people she cared for. However I found that a number of factors (unconnected with the complainant himself) appear to have contributed to her experiencing difficulty with him. Firstly, although Ms A has extensive and excellent experience of working with elderly people, she had no experience of Housing Management, prior to taking up the position of Housing Manager at Cluid. The expert witness Dr Kenna has stated, which I accept, that housing management is a very specific and demanding role, even irrespective of the specialised requirements of this job. Secondly Ms A's role was part-time only which limited the time available to her to deal with tenants' issues. Thirdly she had to rely on her line management structure which, based on the oral evidence given at the hearing, appeared to be incapable of giving her the support she needed and incapable of dealing with complaints effectively.
(iii) The respondent has stated that the complainant made too many complaints throughout his entire time at SJC and it was impossible to satisfy his demands. As a result they claim that they were unable to give sufficient attention to other tenants, because the complainant took up so much time. The complainant has argued that the majority of his complaints boil down to just three issues and the only reason he kept making the complaints was that they refused to deal with them properly in the first place. He said that he was stuck in a loop, instead of having an escalation path. It is clear to me, based on the oral evidence and the written submissions that the complainant did in fact make a very large volume of complaints. However I also noted from the written responses that there was a consistent note of hostility from the respondent towards the complainant. It is not my role to determine who was right or wrong in these disputes; rather to assess whether the respondent has shown that there was no less favourable treatment on the ground of age. In assessing that, I have taken note of the technique of complaint handling used by the respondent and in the specific case of the complainant, I find it to be lacking in objectivity. I find that while Cluid may well have good reason to label the complainant as extremely difficult, they appear to me to lack a professional distance which would allow them to deal with tenants more objectively. The alleged complaint of elder abuse is the most stark example. Given the fact that the complainant himself did not personally instigate this claim, and the fact that this group of residents were fully entitled to bring their concerns to the HSE, as the appropriate authority, I find that the sense of outrage which appears to have been personally directed at the complainant by the respondent, to have been excessive. Therefore I do not accept as a rebuttal, their argument that the complainant was simply too difficult to retain as a tenant. It is my opinion that considerably less drastic actions could have been taken to resolve the issues.
(iv) Respondent's bona fides
The respondent has submitted that they are a charitable not-for-profit organisation whose goal is to provide housing for those in need, in particular the elderly, the disabled and the displaced. Therefore their bona fides must be construed in the light of these objectives. I understand this to mean that I should consider that any action they have taken against the complainant to have been motivated by their concern for the common good. While I do not dispute that this may indeed be the case, I also note that the respondent is a professional housing organisation in receipt of public land and public monies to fund their activities. The complainant has argued (which I accept) that the respondent in this case is considered a public authority insofar as housing provision is concerned. This is evident from the fact that tenants are identified from the local authority housing list and accommodated only with the approval of the local authority. Therefore I find it is insufficient for me to only consider their good intentions, given that this is a large organisation fulfilling a public role.
(v) Investigative Procedure
The respondents have stated that every action they have taken is lawful in a contractual sense and it is not for this Tribunal to determine otherwise. However I also note that the expert witness Dr Kenna, a recognised authority on housing law, stated unequivocally that he had never in his entire career seen an elderly tenant, over 70 years of age, be pursued for ejectment without any investigative procedure whatsoever or without any of the normal causes (failure to pay rent, extreme anti-social behaviour), notwithstanding the fact that it is in most cases legally possible for landlords to do so. I have considered this issue in light of the proceeding paragraph about the appropriate standards in a case such as this. I observe that in the case of a large, essentially public body, it is clear that all the power lies with that party, and therefore the onus must be on that party to discharge its functions in a way which is fair. This is particularly true when the matter concerns an issue of such huge importance as housing. In the present case the respondent persists in acting as though this was a simple contractual matter and there was equality of arms between the parties. However this is patently not the case. They have repeatedly made reference to the fact that they were simply exercising their legal rights and that the complainant could have taken legal advice before signing the tenancy agreement. All of this ignores the fact that the respondent is a provider of social housing, the complainant is a recipient and the power balance therefore is in their favour. In these circumstances it would appear unfair to operate this clause against the weaker party, without giving any warning whatsoever and without holding any sort of investigation. The expert witness Dr Kenna agreed that many other Local Authorities and Housing Associations would also have the benefit of similar "no cause" eviction clauses, but he stressed that the norm in all circumstances is to have some sort of investigative procedure, which gives the tenant the opportunity to defend his position. No such opportunity was provided in this case. The complainant has pointed to the fact that the special position of the home and its heightened protections are long and well established by law, as outlined by Hardiman J in the Supreme Court decision of DPP v Barnes [2006] IECCA 165:
"....a dwelling house is a higher level, legally and constitutionally, than other forms of property. The free and secure occupation of it is a value very deeply embedded in human kind and this free and secure occupation of a dwellinghouse, apart from being a physical necessity, is a necessity for the human dignity and development of the individual and the family"
The well-recognised special protection of the home makes it all the more extraordinary that the respondents would attempt to take it away from the complainant without due process.
4.4 (c) In addition to considering the defences put forward by the respondent above, I have also taken note of a number of other factors which I find to be persuasive:
(i) The complainant has put forward the cases of Pullen, Gallagher, and Donegan (see para 2.5(a)) in support of his case. In each of these cases, the Superior Courts found that the fundamental rights of the plaintiffs had been breached contrary to the Constitution and the ECHR, in respect of the evictions which were being pursued against them by Local Authorities. The common thread in each of these cases was that the Local Authorities in question were not required to justify the proposed evictions. As a result the tenants had no opportunity to defend themselves against the action. I also note in these cases, that the Authorities did in practice go through an investigative procedure with the tenants, but the Courts found those procedures lacking compared to the gravity of the subject matter (housing). While I have no jurisdiction as an Equality Officer, to make any finding under the ECHR, I am influenced by the fact that the Superior Courts have in these cases expressed the view that an appropriate procedure/investigation should be followed before action is taken against tenants. In the instant case, there can be no analysis of the thoroughness of the procedures, since the respondent produced no evidence whatsoever of any procedure being followed before the notice was issued.
(ii) The respondent also failed to provide any evidence that the decision to issue the Notice to Quit had been taken at the highest possible level within their organisation. According to the expert witness, Dr Kenna, it would be expected that such a serious matter would go to the respondent's Board. In fact the evidence given by Ms B at the oral hearing suggested that it was a mere operational matter, the result of a discussion between herself and the CEO, and not a decision requiring any scrutiny or review by the Board of the respondent.
(iii) One of the witnesses for the complainant Mr. Z, who is familiar with the situation, stated clearly (see para 2.4) that he believed a younger working man like himself would not have been so badly treated by the respondent. He believed that there was less respect given to the complainant because of his age and the respondent therefore treated his complaints in a dismissive way. I find this statement to be persuasive given the credibility of the witness and his knowledge of the parties. It also concurs with my own observation of the interaction of the parties during the oral hearing.
(iv) The complainant claims that the respondent should have used the guidelines provided by the Irish Council for Social Housing (ICSH) with respect to the procedures involved in the termination of tenancies. The respondent claims that these are not guidelines, but simply advice from an advocacy group and there is no onus on them whatsoever to take this advice. However I note that Cluid have in fact changed their tenancy agreements to reflect what is considered good practice by the ISCH, so it is clear that they accept this is good practice, but they are not prepared to allow the complainant to benefit from it.
(iv) Dr Kenna, a witness for the complainant, stated during the oral hearing, that in his personal opinion, the particular impact of an eviction on a man of the complainant's age would be extremely severe in comparison with a younger person. In the complainant's particular case, he had left his life in London to return to Ireland under the Safe Home Scheme and he would have had a natural expectation that he would be able to live the remainder of his life in this home. Dr Kenna stated that the impact on anyone whose tenancy was terminated in these circumstances would be devastating, but as the complainant was 74 years old, retired and dependant on sheltered housing, the impact would be even worse. There was no guarantee that he would be able to secure any sort of alternative accommodation and he would face the prospect of becoming homeless at 74 years of age. The complainant himself also gave details of the severe impact the ongoing proceedings are having on his mental and physical health. I fully accept the evidence given in this regard and accept that the proceedings being taken against the complainant are all the more severe as a result of his age.
4.4 (d) Having evaluated each of the respondent's arguments in turn and considered each of the additional factors noted above, I conclude that the respondent has not been successful in rebutting the prima facie case of discrimination, on the basis that their rebuttals have simply not been convincing. The complainant has successfully shifted the burden of proof to the respondent and they have been unable to rebut it. They been unable to demonstrate that their actions were untainted by discrimination on the grounds of age. Therefore I find that the respondent did discriminate against the complainant on the grounds of age, in terms of their decision to issue him with a notice to quit and in terms on their ongoing treatment of him in this matter.
4.5 Discrimination on the grounds of Disability
The complainant added the ground of disability in his second complaint to the Equality Tribunal, but as neither side made any substantive submissions on this issue, I have focussed exclusively on the issue of age.
4.6 Victimisation
The complainant made a claim of victimisation in both of his complaints to the Equality Tribunal; however neither complaints were followed up at the oral hearing and I note that no evidence was provided of any incident of victimisation as defined in the Acts. The Acts define the ground of victimisation as between any two persons at S.2(j) as follows:
(j) that one-
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv)
and the other has not ("the victimisation ground")
Regarding the first complaint of victimisation, the respondent has argued that there cannot possibly be victimisation with respect to their Notice to Quit, because this notice preceded any of the actions specified at S.2(j) taken by the complainant. I accept the respondent's arguments on this point and find that the complainant's first claim of victimisation does not succeed.
The second complaint of victimisation refers to the issue of granting adjournments in the District Courts. The complainant has claimed that the respondent refused to grant an adjournment, in retaliation for the complainant taking a claim to the Equality Tribunal. However I find that the issue of whether or not an adjournment was granted is exclusively a matter for that Court and I can have no jurisdiction in this matter. Therefore the second claim of victimisation also fails.
4.7 Discrimination by Association
The complainant withdrew this aspect of the complaint at the oral hearing.
4.8 Harassment
The Equal Status Acts define harassment under S.11(5)(a) as follows:
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds and.....
being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person"
The complainant has made a complaint that he was generally harassed by the respondent in his dealings with them. Specifically during the hearing he referred to their handling of the security chain issue, the fire drill issue, the resident's accounts issue and their failure to mediate with him. I have examined the large volume of correspondence submitted by both sides in relation to these issues and I have found that both sides, but particularly the complainant himself, approached these issues in an aggressive manner which was more likely to provoke than resolve the issues. The complaints of harassment referred mainly to day-to-day landlord-tenant issues between the parties and the on-site employees gave credible evidence that they were regularly upset and intimidated by the complainant when they tried to help him. One of the complainant's witnesses at the oral hearing described both parties as "extremely stubborn" and characterised their relationship as one of "brinkmanship". Having reviewed the correspondence, I would have to agree with this description. I cannot find a prima facie case of harassment, where the issues were primarily related to landlord-tenancy issues (rather than age or disability related) and as an additional point, it clear that there was an extremely fractious relationship between the parties, to which the complainant himself was, at the very least, an equal contributor.
Decision
5.1 On the basis of the foregoing, I make the following findings:
(i) that the complainant has not established a prima facie case of victimisation
(ii) that the complainant has not established a prima facie case of harassment
(iii) that the complainant has not established a prima facie case of discrimination on the grounds of disability
(iv) that the complainant has established a prima facie case of discrimination on the grounds of age, and this has not been rebutted by the respondent.
5.2 Therefore I award the complainant 6349 euros for the discrimination on the grounds of age. This represents the maximum award which can be made under the Equal Status Acts, in recognition of the seriousness of the subject matter of the complaint.
5.3 I further order that the respondent conduct a review of its policies and procedures to ensure that they are in compliance with the Equal Status Acts 2000-2008.
Elaine Cassidy,
Equality Officer
20 January 2011