THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2011-045
PARTIES
Mary Carthy
(represented by John Lanigan and Nolan, solicitors)
-v-
Thomas Brennan
File Reference: ES/2009/021
Date of Issue: 24th October, 2011
Equal Status Acts, 2000-2008
Decision No. DEC-S2011-xxx
Mary Carthy
-v-
Thomas Brennan
Key words
Equal Status Acts - Section 3(2)(i), Traveller Ground - Section 6(1), provision of accommodation - keys - deposit - Rent Allowance - Traveller characteristics
1. Delegation under the relevant legislation
1.1. On 27th February, 2009, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 9th March, 2011, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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, on which date my investigation commenced.
1.2. Written submissions were received from both parties. A hearing of the complaint was held on 1st July, 2011. Further documentation was sought from both parties and final correspondence in this respect was received on 2nd August, 2011.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Traveller community ground contrary to the Equal Status Acts in terms of Sections 3(1) and 3(2)(i) of the Equal Status Acts and contrary to Section 6(1) of the Equal Status Acts in that the respondent treated her less favourably with respect to the provision of named accommodation.
3. Summary of the Complainant's evidence
3.1. The complainant, a member of the Traveller community, stated that she sought to rent a named property from the respondent. She said she met him and viewed the house with him and he asked for a deposit of €750 per month. She said that she gave him €320 of the deposit from her own funds and told him that she would have to go to the Department of Social and Family Affairs (D/SFA) to get the remainder. She said she asked him if she could have the keys to move in and he gave them to her. The complainant said that the respondent met her that evening to show her how to use the gas. She described her husband, who was present at that stage, and, in particular, described some of his physical characteristics which she said were characteristics which would have clearly identified him as a Traveller. She said she and her family stayed in the house that night.
3.2. The complainant said that, on the following day (18th November, 2008), she went to D/SFA to obtain the balance of the deposit. She said that she received a text from the respondent saying that there was something wrong with the sewage in the back garden and she would have to leave the house. She said that when she returned to the house the locks had been changed.
3.3. The complainant said that the respondent met her and her husband that evening to "get the stuff out". She said that he told her that the sewerage problem would take two weeks to fix to which she replied that she would wait the two weeks to move back in. She said that his response was that there were plenty of places around and she did not have to wait for two weeks. She said that she started packing her stuff and did not say anything else to him. She denied that either she or her husband verbally abused the respondent and denied the respondent's description of her husband's behaviour on the evening in question.
3.4. The complainant stated that the items she had moved in included nappies, food and a cot. She said it seemed extraordinary that someone should arrive at a house to demonstrate how the gas works, make no reference to the issues arising and then, knowing people are in residence, change the locks without notice. She also said that it was extraordinary that the fair offer that she would be quite happy to wait to return to the house after the work on the sewage was completed was not taken up. She stated that there was an absence of any solid explanation as to what had occurred in the context of this complaint other than her membership of the Traveller community. She stated that she also considered this to be the reason for the respondent's behaviour as "he was grand" when talking to her at the front door but he was constantly staring at her husband, particularly his tattoo.
3.5. With respect to the respondent's submission as to why she came to the house assuming she was qualified for rent allowance when she did not have a completed rent allowance form, she said that the D/SFA had told her if she "got a rented place" she is entitled to rent allowance. She said that the deposit she had obtained for a previous landlord had been returned to the D/SFA (thus explaining why she did not have it at the time of her first meeting with the respondent). She agreed she had only "verbal proof" but asked why if the respondent did not believe her in that respect he would give her a lend of the keys to the house. She accepted that "her dates could be mixed" (i.e. meaning mixed up), adding that she said she was not a good reader or writer.
4. Summary of the Respondent's case
4.1. The respondent stated that he was the owner of the property in question and he is a property surveyor focussing on leasing but has not worked in that respect since 2007. He stated that he dealt with property (other than his own) from 1991 to 2006.
4.2. The respondent said he showed the complainant the property and that, while she looked at the garden, it was only a cursory look. He said that she asked him if he accepted Rent Allowance and he said of course he did. He said that she paid a booking deposit of €320 on 13th November, 2008, and she said she would need to get the rest from the D/SFA. He said that he filled out a Rent Allowance Form for her and she said it would probably be the following Tuesday before she would have it to him. He said that he told the complainant about the problems with the house that he was aware of at the time (he was not aware of any problems with the garden at that stage).
4.3. He said that on Monday, 17th, she asked for "a lend" of the keys as she wanted to move in some small items to the house. He said that he told her this was only for "a lend" and that she still had to prove she qualified for Rent Allowance. He said that she said she would drop the keys back to him, but that she did not do so. He said that he also reiterated that the lease would have to be drawn up and signed before a tenancy would commence and that the deposit would have to be paid in full. He said that he would not let anyone into the house without a lease agreement being signed.
4.4. The respondent said that the complainant rang him about how to work the heating and he went over to show her. He said that she was still putting things into the house at that stage. He said that her husband was there but he had not been introduced to him. He said that he was busy unwrapping stuff such as picture frames. He said that these items were wrapped in newspaper and he did not give any thought to them as she had said it was only a few things she was moving in.
4.5. The respondent said that, as he was leaving the apartment that evening, he bumped into the next-door neighbour who asked if he knew that there was a stench coming from the garden. He said that he did not but would check it out. He said that he returned the following morning, knocked and opened the door. He said he went through the house to the back door. He said the key had always been in this door previously but he opened it and it was totally open. He said that he went out the back and did get smells, which smelled like something rotten. He said that he made several attempts to call the complainant but her phone was switched off. He said that since she had not handed him back the keys he changed the locks to secure the property. He said he then sent her a text to say there was a problem with the sewage and the locks.
4.6. The respondent said that he later met with the complainant and her husband and he told them about the problem and that it would take two weeks at least to repair . He said that at that stage the complainant's husband started verbally abusing him and he described that alleged abuse. He said that he did apologise for the "briefness of it" and said he knew they were upset, but that "it needs to be sorted" and that he would not want them to live in a house with more sewage. He said that it was only after this that they asked could they move in after the two weeks.
4.7. The respondent said that he returned the deposit and had the sewage problem fixed at the cost of €200. He said that the problem was repaired about a week after it happened. He said that he told the complainant she would have to seek alternative accommodation only after he had made the decision to withdraw the tenancy and that he was entitled to change his mind based on the behaviour of the complainant's husband when they were on his property. When asked why he did not avail of the reasonable suggestion from the complainant that she could move out for two weeks he said that he changed his mind after the verbal abuse.
4.8. The respondent queried the complainant's submission that she was entitled to Rent Allowance and raised similar issues with respect to her deposit. He raised questions in this respect in light of what he knew about the policies of the relevant Local Authority and the D/SFA with respect to Rent Allowance. In particular, he raised a question as to why she came to the house assuming she was qualified for rent allowance when she did not have a completed rent allowance form.
4.9. The respondent also stated that the complainant "had the wrong dates" and outlined why he considered that to be the case, and read from his diary in that respect. He accepted he was probably naïve to lend her the keys. He said that at no stage did he know that the complainant was a member of the Traveller community and he would totally refute any insinuation that he would make an assumption that he would know her husband was a Traveller because of what he was wearing, such as a vest.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. In summary, the substance of the complainant's submission was that the respondent changed his mind about renting the apartment in question to her when he realised that she was a Traveller, which occurred when he saw her husband whose physical appearance and demeanour displayed characteristics that were usually associated with a member of the Traveller community. In summary, the substance of the respondent's submission was that he was never aware that the complainant or her husband were Travellers and that he changed his mind about renting the property to them after Mr Carty became verbally abusive to him and not before. These are mutually exclusive submissions and this case turns on which of these submissions I find to be the more credible.
5.3. It is quite clear from the evidence of both parties that the respondent made the decision not to continue with the complainant's tenancy when he told them about the alleged sewage problem and before the alleged verbal abuse took place. In those circumstances, the question that must then be answered is whether the reason for this decision, as alleged by the complainant, was that the respondent realised, having seen the complainant's husband, that he and the complainant were Travellers. Having considered all the evidence of the parties, both oral and written, I find that the preponderance of that evidence supports the complainant's submission in this respect. Therefore, I am satisfied that the respondent did not proceed further with the complainant's tenancy of the property in question because she was a Traveller and his decision in that respect was discriminatory on the Traveller ground.
6. Decision
6.1. Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:
6.2. I find that the complainant has established a prima facie case of discrimination on the Traveller ground in terms of Sections 3(1)(a), 3(2)(b) and Section 6 of the Equal Status Acts which the respondent has failed to rebut.
6.3. I order the respondent to pay to the complainant the sum of €1,250 in respect of the distress caused to her as a result of the discrimination.
_____________
Gary O'Doherty
Equality Officer
24th October, 2011