The Equality Tribunal
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2012-006
Parties
A Complainant
(with the assistance of Pavee Point)
V
Dublin City Council
Case refs: ES/2011/0015 to 0017
Issued: 20 February 2012
Keywords:
Equal Status Acts 2000 to 2004 - Discrimination - Disposal of Premises and provision of Accommodation Traveller Community ground - Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Three local authority residents referred claims to the Director of the Equality Tribunal under the Equal Status Acts on 26 January 2011. The respondent was notified of these complaints in accordance with the Acts on 11 November 2010. The complainants received no reply. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, 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 17 November 2011. An oral hearing, as part of the investigation was held in Dublin on 24 January 2012. The complaints by the first and second complainants were withdrawn at the hearing as it became apparent that they were not official tenants of the local authority. The investigation thus proceeded in relation to complaint ES/2011/0017 only. It was agreed to keep the identity of the complainant anonymous.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the Traveller status ground. The complainant submitted that Dublin City Council (hereafter "the respondent") discriminated and continues to discriminate against her by providing a centralised housing support service to residents living in Traveller specific housing. The complainant maintained that the service that she receives is inferior to that received by persons residing in standard local authority housing. In any case, it was submitted, the provision of a segregated service is discriminatory.
3. Case for the complainant
3.1. The complainant is a Traveller who has lived in a Traveller specific site since 2004. She submitted that she wishes to avail of the respondent's service in her local area. Maintenance is currently contracted out by the respondent to a private maintenance company. However, the administration of rent payments and maintenance requests is done by the Traveller Unit in the respondent head office or on site through the caretaker service.
3.2. The complainant submitted that should she require repairs or maintenance in her home she must contact the respondent Traveller unit in the city centre. She is unable to avail of the localised service in the manner that her neighbours who live in standard local authority housing. She submitted that in order to avail of the service she has to travel past the local community centre to reach the Traveller unit in the Dublin City Council.
3.3. The complainant objected to the respondent's submission concerning the difficulties of providing services in halting sites due to the anti-social behaviour of some residents. It was submitted that in standard local authority housing problem tenants are deal with individually while in Traveller specific housing all families are tarnished with the same brush.
3.4. The complainant relied on Reilly v HSE DEC-S2007-059. This decision found that the refusal to pay Supplementary Social Welfare Allowance to Travellers from local centres was discriminatory.
4. Case for the respondent
4.1. The respondent is the largest local authority in Ireland. It provides a number of services to the area including housing, waste and water management, culture, business and community services. The respondent works to meet the accommodation needs of the Traveller Community as well as other issues, such as community development. Since 1968, Traveller specific accommodation has available and the respondent currently manages five Traveller specific sites in the local authority area.
4.2. The respondent rejected the complainant's claim and submitted that the service provided to the Traveller community is superior to that available for persons living in standard local authority housing. It was submitted that there is no need for any tenant to travel to the Traveller unit in Wood Quay. A call can be lodged with the unit and a contractor with a responsibility for maintenance on Traveller sites will be informed of the request within minutes (pens and magnets with these details were distributed to the tenants). It was submitted that the standard turn around for maintenance calls is in the region of 48 hours. It was submitted that this is much faster than it is in standard local authority housing.
4.3. In relation to concerns about refuge collection in the area it was submitted that these are affecting everyone regardless of housing type.
4.4. Furthermore, it was submitted that Traveller specific housing benefits from:
1. A caretaker service that is not available in standard local authority housing estates;
2. There are 5 Social workers providing services for Travellers who chose to live in Traveller specific housing. The rest of the local authority's tenants - over 20000 of them - are served by 16 social workers. The Traveller specific social workers work from the community centres in a similar manner as other social workers; and
3. It was argued that as the work was contracted out to a private business the work was completed more efficiently and any individual difficulties that could emerge between some families and service providers would not have the same impact as they would if the same issue arouse with local authority staff.
4.5. The respondent refuted the claim that the complainant has to pay her rent in a different manner than other tenants. It was accepted however that it is possible that people residing in Traveller specific housing may not be informed of water, etc disruptions in the same manner as people living in standard local authority houses.
4.6. It was submitted that the Traveller unit has more favourable terms for Travellers who behind on their rent payments than exist for all persons residing in standard local authority housing. For example, a person who is behind on their rent payments for a period of six week cannot avail of the maintenance services while the same applies to Travellers living in Traveller specific accommodation only after 10 weeks. It was submitted that the service is at rather substantial additional cost to the local authority for providing this service.
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. 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.
5.2. It is clear that the Travellers who reside in standard local authority housing must avail of the service as provided by the local offices. Therefore, I find that it is only Travellers who avail of Traveller specific housing who are affected by the service complained of. It is clear that it is the type of housing availed of that dictates the nature of the service. Traveller specific housing, by its very nature, is separate and different from the standard local authority housing.
5.3. Section 6(6) of these Acts provides that Local Authorities, such as the respondent, are allowed to provide different treatment to persons based on the membership of Traveller community. Section 6(6) has been consistently been interpreted by this Tribunal as giving the respondent discretion - provided that such discretion is systematic and transparent - in the manner in which it manages its housing stock. This means that a local authority is entitled by law to manage its housing stock as efficiently as possible while allowing the respondent the discretion to treat some groups differently (emphasis mine) from others. This means that in certain circumstances there may be an onus on the local authority to adapt some of its policies when addressing different need arising from an existing or prospective tenant's family size, family status, marital status, disability, age or membership of the Traveller community. Such need could justify the use of preferential treatment.
5.4. It is clear that the current case is very different from Reilly. In Reilly it was clearly established that the service complained of was inferior than that provided to the settled community; a decision in principle had been made some 14 years earlier to revert the service back to local areas; and the transition was approved by all stakeholder groups. I also find that community welfare services are services that persons must attend in person in order to avail of such services. This is not necessarily the case in relation when making maintenance requests. It is also clear that the complainant is able to pay her rent in the same manner as a tenant residing in standard local authority housing.
5.5. While it is clear that the complainant would prefer to avail of the services in the manner that her neighbours living in standard local authority housing do, and that she considers the service to be inferior to that that is received by the settled community, it is equally clear that the facts do not support the perception that the service - while different - is inferior or less favourable to Travellers. I note that the complainant claimed that she had to wait longer than 48 hours to have maintenance work done in her home but admitted that she could not remember the details of this incident and could not say whether she had been in rent arrears at time.
5.6. The issue of whether having separate service provision - in relation to any of the protected grounds - is in itself discriminatory is an interesting question. It is generally acknowledged that equality of opportunity cannot be achieved in circumstances where every person is treated the same and the legislation itself provides for a number of exemptions in relation to the right to maintain separate services in appropriate circumstances. I am satisfied that the service complained of is separate to best accommodate a distinct housing policy designed for Travellers. The Traveller Housing Act, 1998, necessitates the existence of such programmes and gives legal recognition to different housing needs of Travellers.
5.7. In the circumstances, I cannot deem the maintenance service of Traveller specific accommodation to be less favourable treatment. I would however encourage the respondent to engage in a proactive manner with the Traveller community in relation to the nature of a service that the community would prefer. I note that the complainant acknowledged that an immediate transition to receiving the same service provided to the standard local authority housing would be problematic for some members of the community. The Traveller Housing Act 1998 provides for mechanisms by which the community must be consulted and involved in decision making concerning Traveller housing issues (including maintenance of sites). The respondent must be open to the possibility that some time in the future there will be no need for such separate service.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. I find that the complainant has not established a prima facie case of discrimination on the Traveller status ground. Therefore, this complaint fails.
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Tara Coogan
Equality Officer
20 February 2012