EQUAL STATUS ACTS
DECISION NO: DEC-S2016-013
PARTIES
Thomas McMenamin
And
Donegal County Council
File Reference: ES/20013/0089
Date of Issue: 15th February 2016
Keywords
Equal Status Acts, 2000 to 2008 - Section 3(1) - Direct discrimination, Section 3(2)(i) - Traveller community – Disability – Marital Status. Disposal of premises and provision of accommodation, Section 6(1).
1. Delegation under the Equal Status Acts, 2000-2008
1.1 These complaints were referred to the Director of the Equality Tribunal on the 15 August 2013 under the Equal Status Acts. In accordance with powers under Section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, Emile Daly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008.
This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 30 September 2015 in Harvey’s Point Hotel, Donegal Town, Co. Donegal.
Those present at the hearing were:
Thomas McMenamin – Claimant
Kathleen McGrory – Claimant’s sister
Fergus McAteer – Traveller Accommodation Officer in Donegal County Council
Patrick McLaughlin – Divisional Manger for Housing Services
Paul McGill – Area Manager for Housing and Corporate Services
The Claim
Claimant claims that he was discriminated against on grounds of disability, marital status and membership of the travelling community.
The Claimant states that the Respondent has refused to accommodate him and his family, in a specific property; namely a cottage on the Bog Road in Ardara, Co. Donegal and this decision amounts to a failure to provide him and his family with reasonable accommodation that this is discriminatory.
The Dispute
There is no dispute that the Claimant’s application to live in the Bog Road Cottage has been denied by the Respondent. The defence raised by this Respondent is that, while there is a duty to arrange for accommodation for those that cannot afford it under provisions of the Housing Act 1988 -2009, there is no legal obligation on a local authority to provide accommodation in a specific house.
Evidence
1. The Claimant stated that there was a close family connection between the Cottage on the Bog Road, Ardara and his family.
2. He explained the background as follows:
(a) The Claimant and his family were brought up living on a caravan site on the Bog Road, Ardara, Co. Donegal.
(b) When he married, the Claimant moved to Lifford and has not lived in the Ardara area since. However his parents and siblings remained living on the Bog Road caravan site, in poor living conditions.
(c) After Owen McMenamin Snr (the Claimant’s father) separated from his wife Mary McMenamin, he and his son Josie McMenamin (brother of Claimant) applied to Donegal for housing assistance
(d) A specific instance cottage was built for the benefit of Owen McMenamin (Snr) and Josie McMenamin in 2002 however, prior to completion, in 2000, Owen McMenamin (Snr) died and thereafter, Josie McMenamin was registered as the sole occupant
(e) Around this time; Oweny McMenamin (a brother of Claimant) and his mother Mary McMenamin moved into the cottage to live with Josie
(f) In 2005 Josie McMenamin died and Oweny McMenamin vacated the cottage. Bernadette Boyle (sister of Claimant) moved into the cottage to live with her mother, Mary McMenamin.
(g) Kathleen McGrory (sister of Claimant) moved into the cottage and Mary McMenamin moved out to live in a house in Lifford. Bernadette Boyle then vacated the cottage.
(h) Kathleen McGrory was appointed as a sole tenant of the cottage in 2006. Her brother Oweny McMenamin moved back into the cottage. At this point the two McMenamins living in the cottage were Kathleen and Oweny. However, due to an argument between Oweny and Kathleen, in 2008, Kathleen moved out of the cottage.
(i) At this point there is a conflict in the evidence. The Claimant claims that Kathleen McGrory attended the Respondents’ Offices in Dungloe and signed the tenancy of the cottage over to her brother Oweny. This transaction was signed and was witnessed by third parties. The Claimant further claims that Oweny McMenamin was evicted from the cottage by the County Council and thereafter he took his life.
(j) The County Council denies that the tenancy was transferred by Kathleen McGrory in the County Council Offices in Dungloe, or at all. They state that it would not have been possible to do so. They say rather, that in 2008 they were on notice that Kathleen McGrory had vacated the cottage. Later in 2008 it came to their attention that the cottage had been abandoned and was in a state of disrepair. They boarded it up. Subsequently the cottage was renovated and in 2010 a couple were moved into the cottage who have resided there since.
(k) The Claimant is of the view that the reason that his brother Oweny took his life was, in part, due to the illegal eviction of him from the cottage.
Evidence of the Respondent
The Respondent deny that there was any obligation to provide a specific house under legislation. They further deny that the refusal to give the cottage to the Claimant was a decision taken on discriminatory grounds. They point to the fact that the house was built in the first instance for a traveller family and that only members of that family had ever lived there.
They state that there are succession rules that apply. They submit that co-tenants may apply to succeed a tenancy, if one tenant dies. They deny that this is a right or an entitlement to succeed and that succession of tenancy is within the discretion of the Local Authority, to provide or not, as the case may be. However they accept that a co-tenant has the right to apply under its succession rules in a policy known as the Scheme of Letting Priorities. This is a policy operated by local authorities nationally. Some schemes differ from others but the succession rules applied by Donegal County Council are as follows:
Succession Rules under Donegal County Council Scheme of Letting Priorities
Under the Donegal County Council Scheme of Letting Priorities a tenant may succeed the tenancy if the following conditions are met.
1. That the succeeding tenant must have lived in the household of the deceased tenant for 2 years prior to the death of the deceased tenant
2. That the succeeding tenant must be included on rent review documentation for 1 year prior to the death
The Respondent in applying these criteria to the Claimant found that neither of these criteria applied and on this basis they refused the application.
A secondary reason relied on by the Respondent for refusing the application was that, sometime after the application was first made, they received notifications from other family members in the wider McMenamin family which indicated that they would be unhappy if the Claimant was housed in the Bog Road Cottage. The County Council witness gave evidence that he believed that as a result of these objections, tensions might arise if the Claimant was housed in the cottage and, in the interests of good housing management, the cottage was allocated to applicants, other than the Claimant.
Decision
This is a case under the Equal Status Acts 2000-08.
In these cases the Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
This is not a case to determine whether there is a legal right to a house as there is no jurisdiction under the Equal Status Acts to determine such a matter. The case raises the following question; did the Respondent breach the Claimants rights under the Equal Status Acts 2000-08 by failing to accommodate him in the Bog Road Cottage?
In order to succeed in this claim the Claimant would need to establish the following:
1. That he had a right to be housed in the Bog Road Cottage
2. That in refusing him his request to be housed in the bog road cottage that the Respondent did so for reasons that were discriminatory; namely that he was refused relief either because of his marital status or because he was a member of the travelling community or because his wife suffered from a disability
3. In order to prove this alleged discrimination, the Claimant would have to demonstrate that a comparator (ie a person who was not of the same marital status as himself, did not suffer from a disability or was not a member of the travelling community) was treated in a more favourable manner to him
I do not find that the Claimant has discharged the burden of proof in this case. The relief under the Equal Status Act is limited to acts of discrimination, which has not been shown by the evidence provided. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
The primary reason that the application was refused was that the succession rules, did not apply to the Claimant and his family. The Claimant had not lived in the Bog Road Cottage at any stage, as he had left the Bog Road Caravan site when he got married, prior to the house being built. He did not come within the criteria in the Scheme of Letting Priorities, and as a result could not succeed the tenancy.
The secondary reason given by the County Council is more problematic for the defence. They gave evidence that for good housing management and fear that “trouble” would be caused as a result of the tensions between the members of the wider McMenamin family, if the house was given to the Claimant. When I posed the question to the Respondent if complaints were made by siblings in a case in which a non – traveller family was seeking to be housed, would the fear of “trouble” that be a consideration that the Respondent would take in account in refusing an application? The answer was that “good housing management” could take into account a likelihood of social tension, whether traveller family or not. The reason that I have some disquiet about this, albeit being a secondary reason for the decision, is that there appears to have been an assumption by the Respondent that trouble would have been caused and I am not sure that this would be assumed if the Claimant and his siblings did not come from a traveller background. However I did not hear evidence of the nature of the complaints made and therefore I cannot form a proper opinion as to whether this was an unfair assumption or whether the Respondent’s had a justified fear that there would be trouble between the family members, which may be a factor that the County Council should properly take into account.
However this is a secondary reason. The primary reason given for the decision was an objective application of the scheme of letting criteria to the facts. And even if the secondary reasoning is capable of being discriminatory, it was not that which led to the decision. In other words the failure to house the Claimant in the specific house would have happened even if the secondary reasons were not applied.
The Claimant has filed a number of files of documentation in support of his case. He has sent many emails all of which form part of the documentary evidence that the Equality Officer is obliged to consider. However the case file must be narrowed down in order to identify the relief that is being sought and this is that the Claimant says that he is entitled be accommodated by the local authority, in a specific house nominated by him. This is not something that he, nor indeed anyone, has a legal entitlement to.
At the hearing the Claimant said that he would be willing to accept alternative accommodation, namely a specific instance house in the Bog Road Area or he would also accept a house that was built for them in the Ardara area, as long as it was not in an housing estate. However I am confined to the case that was brought before me.
However; does he have a legal right to these specific alternatives? The answer again seems to be no. There is no right under the legislation to be provided with a specific house or a specific type of house in a specific area. No one has this as a right. And therefore unless he can prove that the failure to so provide occurred because he was a member of the travelling community, had a disability or because of his marital status, there can be no breach under the Equal Status Acts 2000-08.
I understand that there have been social difficulties for the Claimant and his family living in housing estates. I fully accept that this has arisen because of discriminatory conduct towards them by non-traveller families living in the estate. I have no reason to dispute this evidence and given the health conditions of the Claimant’s wife, I accept and understand that life must be extremely difficult under these circumstances. The Claimant stated that living in a house that is not within an estate, would ease their difficulties and I understand that the Respondent, who are now aware of this, will attempt to accommodate the family insofar as their management and budget will allow. However I have to state clearly that there is no entitlement to this, no right to a specific instance house. Just because one was built for the Claimant’s father and son in 2002 does not create an entitlement. That was a different time and different circumstances prevailed.
Decision
This is not a decision on whether the Claimant is entitled to be housed in the Bog road cottage, Ardara, Co. Donegal, because an Equality Officer does not have the jurisdiction to determine this matter. The decision is rather; did the Respondent in its refusal to provide accommodation to the Claimant in the Bog Road Cottage cottage, breach the provisions of the Equal Status Acts 2000-2008? I find that the Claimant has failed to discharge the onus of proof in this case and I find the case to be not well founded.
Accordingly, I find that these complainants have failed to establish a prima facie case of discrimination on the grounds of disability, marital status or their membership of the Traveller community in terms decision of the Respondent to refuse to house them in the specific property sought.
______________________
Emile Daly
Adjudication Officer/Equality Officer
15th February 2016