ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00004705

Parties:

Complaint:

Date of Adjudication Hearing: 15/03/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Complainant referred a complaint under Section 21 of the Equal Status Acts 2000-2015 (also referred to as ‘the Acts’) to the Workplace Relations Commission (hereinafter ‘WRC’) on 19^th August 2016, the Complainant having sent an ES1 Notification to the Respondent on 4^th August 2016 and the Respondent having sent an ES2 Reply on 5^th August 2016. This complaint was referred to me by the Director General for hearing and determination pursuant to Section 25 of the Equal Status Acts. As this complaint was submitted in duplicate, File Reference ADJ-00004707 stands closed.

When this complaint first came before me on 16^th January 2017, the Respondent was not legally represented and two members of Management attended on its behalf. Given the precedential nature of the claim and the potential consequences of the outcome to the Respondent and other landlords/agencies, I adjourned the matter to enable the Respondent to obtain legal representation and for the Parties to obtain any relevant expert evidence and make submissions. I proceeded to hearing on 15^th March 2017 and gave the Parties an opportunity to be heard and to present any relevant evidence. As this is one of three identical claims from tenants in the same complex against the same Respondent (save for minor details), with the consent of the Parties, all three matters were heard together. There was also consent on behalf of the Respondent to having its name amended in line with the lease. All correspondence referred to herein was with its Managing Agent who was initially named. Both Parties were legally represented with Solicitors and Counsel at the substantive hearing. In addition to the evidence adduced, oral and written submissions were received from both Parties. Having invited the Parties to make additional submissions regarding naming of the Parties and considered same, I do not deem it appropriate to name the Parties. All oral and written evidence and submissions presented have been taken into consideration in arriving at my decision.

Background:

This complaint is brought pursuant to Sections 3 and 6 of the Equal Status Act 2000 [as amended by the Equality (Miscellaneous Provisions) Act 2015 with effect from 1^st January 2016] which introduced the ‘housing assistance ground’ and prohibits discrimination in the provision of accommodation. The Complainant is a long-term tenant of the Respondent Landlord and contends that he has been discriminated against by the Respondent in its ongoing refusal to accept the Housing Assistance Payment (hereinafter also referred to as ‘HAP’) Scheme towards the payment of his rent, being eligible for the payment of same. The Respondent contends that it is not lawfully obliged under the amended legislation to accept the HAP Scheme on behalf of existing tenants and is effectively testing the new legislation. Along with the other two claims, this appears to be the first such claim relating to the refusal by a landlord to accept the HAP Scheme under the new legal regime.

Summary of Complainant’s Case:

Counsel for the Complainant firstly outlined the legislative background to this complaint. Specifically, this complaint is brought under Section 6(1)(c) of the Equal Status Act 2000 which prohibits discrimination in the provision of accommodation or any services or amenities related to accommodation under all of the protected grounds. By virtue of Section 3(3B) of the 2000 Act [as inserted by the Equality (Miscellaneous Provisions) Act 2015 with effect from 1^st January 2016], discrimination in the provision of accommodation under Section 6(1)(c) may occur on the ‘housing assistance’ ground, that is on the ground that as between two persons, one is in receipt of Rent Supplement, Housing Assistance or other payment under the Social Welfare Acts and the other is not. This new ground outlaws discrimination on the housing assistance ground at all stages in the provision of rental accommodation- in advertising and making offers of new tenancies, in bringing existing tenancies to an end and in the treatment of tenants during the term of an existing tenancy.

Part 4 of the Housing (Miscellaneous Provisions) Act 2014 made legal provision for the Housing Assistance Payment (HAP) Scheme. The provisions of the Act were commenced and extended on a phased basis by various Regulations and in particular by S.I. No. 404 of 2014 - Housing (Miscellaneous Provisions) Act 2014 (Commencement of Certain Provisions) Order 2014. S.I. No. 407/2014 - Housing Assistance Payment Regulations 2014 made provision for details of the Scheme (as updated by latter Regulations including S.I. No. 40 of 2016 on the maximum monthly rent limits). Under S.I. No. 427 of 2014 - Housing Assistance Payment (Section 50) (No. 2) Regulations 2014, the HAP Scheme was extended to the Complainant’s Local Authority with effect from 1^st October 2014.

The practical operation of the HAP Scheme was also outlined and public information booklets on the Scheme were furnished at the hearing, comprising of a summary leaflet, a Tenant Information Booklet and a Landlord Information Booklet explaining the operation of the Scheme in lay terms. The Rent Policy for the Local Authority in question was also furnished. In summary, the HAP Scheme was introduced as a form of social housing support aimed at supporting low income families in the rental sector whilst enabling them to remain in employment. From a public policy perspective, it is intended that the HAP Scheme will replace the Rent Supplement Scheme for those with long-term housing needs in the rental sector. To avail of the HAP Scheme, applicants must firstly qualify for social housing support by their local authority and go on the social housing waiting list. Applicants must also source their own rental accommodation within the private rental sector. The HAP payment is calculated as per the differential rent scheme operated by each local authority. In respect of the Complainant’s Local Authority, the calculation is based upon 10% of net income plus €1 with 50 cent deducted for each dependent child. This amount represents the rent contribution that an eligible tenant pays the local authority and thereafter, the balance of the rent payment is met through the HAP payment, which is paid directly by the local authority to the landlord on a monthly basis. Tenants must provide certain information, pay their contributions to the local authority and not engage in antisocial behaviour. The HAP Shared Services Centre administers the collection and payment of rental payments. Landlords undertaking the HAP Scheme are obliged to meet certain requirements which include registration of the property with the Residential Tenancies Board, certifying ownership of the property, provision of a valid Tax Clearance Certificate confirming tax compliance, and the property in question meeting certain minimum standards for rental accommodation under the requisite Regulations and being subject to a local authority inspection. Non-compliance by either of the Parties in relation to their respective obligations can lead to payments under the HAP Scheme being suspended or stopped. The tenancy relationship is not affected by the HAP Scheme and remains governed by the Residential Tenancies Acts.

The information booklets furnished also outline various advantages of the Scheme to both tenants and landlords which emphasise its progressive nature. For the tenant, it allows recipients to work full-time whilst still in receipt of housing support; it links the rent supplement a household must pay to the household income and the ability to pay; it will help to regulate the private rental sector and improve standards of accommodation; recipients can if they want avail of other social housing supports and options through the local authority’s transfer list and local authorities will be the single point of contact for all social housing supports. For landlords, the benefits include direct payment by the relevant local authority at the end of each month electronically (subject to the HAP recipient paying the local authority their weekly rent contribution); there will be no need for rent collection from tenants who are HAP recipients leading to administrative savings for landlords and subject to certain conditions, landlords may avail of increased tax relief on their mortgage interest.

A two-part HAP Application Form was furnished and comprises of a Section A to be completed by the tenant and Section B to be completed by the landlord. Section A seeks the applicant’s and his/her spouse/partner’s details (address, contact details, PPS No., etc.), details of the intended rental property and rent on same, children, dependents and any other household members and their income, and requires a signed declaration by the applicant and his/her spouse/partner. Section B seeks the landlord’s details and requires tax reference numbers, landlord or nominated agent’s name, address, contact details, bank details for payment, Tax Clearance details, property details and applicable rent. It also requires a signed declaration including certification that the property is in a lettable condition that meets statutory requirements and understanding that a contractual relationship is not established. Supporting documentation is required from both parties, on the applicant’s part pertaining to the legal custody of any household members if relevant and vouching income, and on the landlord’s part, a Tax Clearance Certificate (within 5 months), header from a Bank Statement and proof of ownership. The ‘Applicant Checklist’ requires the tenant to “Return a completed Landlord Section B (if this is not being returned directly by the landlord.)”

Evidence of the Complainant

The Complainant gave evidence confirming that he and his wife have been long-term tenants in an apartment complex under a tenancy agreement with the Respondent. He resides there with his wife who was pregnant at the time of the hearing. He also confirmed that at all material times, he had honoured his legal obligations under the tenancy agreement and has always discharged his rent in a timely manner. As at the date of the hearing, he pays rent of €1200 per month or €276.92 per week. He is unable to work owing to a back problem and depends upon Disability Allowance and his wife’s income from her job as a general operative in a laundry (which was due to reduce owing to her pregnancy / maternity leave). The Complainant confirmed he is currently retraining with a view to returning to paid employment. The reckonable family weekly income is circa €458 (averaged).

Correspondence was furnished confirming that the Complainant and his family had applied for Council Housing and by letters dated 13^th June 2016 and 23^rd January 2017 (along with other correspondence confirming their place on the social housing list), the Local Authority for the rental property in question confirmed their place on the waiting list for social housing and eligibility for HAP as follows: “At present, the Council is not in a position to allocate a dwelling to you and therefore you have been placed on the waiting list for social housing. When any accommodation that is suitable for your housing needs becomes available in your areas of preference, you will be considered for same together with all other qualified applicants. You are now eligible to apply for the Housing Assistance Payment (HAP) Scheme. I enclose a HAP Information Pack, if you wish to apply please complete and return to the Housing Allocations at (your Local Authority), once you have sourced suitable accommodation within the rent caps and suitable to your household needs.”

The Complainant needed to avail of the HAP Scheme as he was struggling to meet the rent from his family’s income. He and his wife had forwarded an Application Form (with the Applicant’s Section A completed) to the Respondent, requesting completion of the Landlord’s Section B. They received a letter dated 15^th June 2016 from the Respondent and/or Managing Agent returning the incomplete Form, stating: “We regret to inform you that (the Respondent) will not be participating in the HAP Scheme. The only payments we are willing and required to accept is Rent Supplement. Unfortunately, we must return the incomplete forms to you. If our stance changes on this matter in the near future, we will inform you on same. However, we cannot aid in your application at this time.” The Complainant emailed a Manager for the Respondent and/or Managing Agent on 4^th July 2016 stating that he had received advice from several public information bodies to the effect that the refusal of HAP was illegal and discriminatory and sought reasons for same. By emailed response of the same date, the Manager responded: “The landlord is not participating for various reasons, some include: Increased administrative workload, Payments are received in arrears, not advance which is a breach of all the letting agreements, Added restrictions on maintenance issues enforced by council, etc., etc. As you can see, this is not directed at any individual, but as a whole. Therefore does not fall under any discriminatory breaches under the equality act. We refute your claims that we are discriminating against you due to your income. We have no details of your income.” The Complainant replied by email dated 5^th July 2016 with publicly available information seeking to appease the Manager’s concerns, pointing out that both HAP and Rent Supplement are paid one month in arrears but that HAP is paid directly by a local authority to the landlord and therefore is quicker and safer. In response, the Manager from the Respondent and/or Managing Agent replied: “Please have your solicitor contact us directly. We will not be commenting further as we have already clarified our stance on this and this is now considered counterproductive.” There was a further exchange of correspondence between the local Citizen’s Information Centre (who were assisting the Complainant at the material time) and a Manager for the Respondent and/or its Managing Agent as outlined by the Information Officer below. Notwithstanding clarification of the legal position, the Respondent has maintained its position that it is entitled to refuse the HAP Scheme on the basis that it does not consider itself bound by the amended Equal Status Acts.

On 4^th August 2016, the Complainant sent an ES1 Notification to the Respondent stating that the Respondent had treated him unlawfully by refusing to participate in the HAP Scheme. On 5^th August 2016, the Respondent sent an ES2 Reply to Notification to the Complainant accepting the factual situation as stated by the Complainant and stating its reason for doing so as: “It is the landlords right not to participate in the H.A.P. This applies to all tenants, not just the complainant”. Consequently, the Complainant referred this complaint to the WRC on 19^th August 2016. If the Complainant and his family were able to avail of the HAP Scheme, they would only have to pay €53.50 (representing 10% of net income) towards their €276.92 weekly rent. However, as they have been unable to avail of the HAP Scheme, they have had to meet the €223.42 shortfall with loans from family members and from their income. This represents an actual loss from the date of the Respondent’s refusal of HAP on 15^th June 2016 to date of circa €13,405 (60 weeks as at the date of issue of decision rounded down). The Complainant gave examples of the consequent financial hardship and detriment suffered which compromised their quality of life as a family and expressed a fear of becoming homeless. As of the date of hearing, his family had not been allocated social housing by the Local Authority in question. No issue was taken with the aforesaid evidence on behalf of the Respondent, save than it was suggested that the Complainant would be eligible to apply for Rent Supplement, in response to which he said that he would not be so eligible if he returned to work as intended.

Evidence of Information Officer from the Citizens Information Centre

The Information Officer from the Complainant’s local Citizens Information Centre gave evidence confirming the assistance he provided to the Complainant in relation to this matter and his knowledge of the HAP Scheme and its operation as set out above. He expressed the view that the HAP Scheme was administratively more favourable, with landlords now receiving direct payment from the relevant local authority when previously there had been three routes of payment under the Rent Supplement Scheme. He outlined an exchange of correspondence with the Managing Agent regarding a number of tenants affected by its refusal to participate in the HAP Scheme.

In emails dated 22^nd July 2016, 27^th July 2016 and 29^th July 2016, a Manager of the Respondent and/or its Managing Agent emailed the Information Officer stating that it was his understanding that it is the landlord’s right as to whether or not it participates in the HAP Scheme and posed various questions including: “Can you confirm this and/or provide supporting evidence that proves / disproves this interpretation?”, “If landlords are required to be compliant legally by law, please furnish the information in writing?”, “We are aware of the legislation regarding discrimination and equality. If a landlord does not breach the legislation, is it still their right not to participate in the scheme.”, “Can you please clarify if there is any circumstance where a landlord has no requirement to participate in the HAP Scheme?” and “Can you confirm if it is mandatory for landlords to accept all HAP payments?” In an email dated 29^th July 2016, the Information Officer provided a detailed response stating his understanding of the legal position as: “Since 1 January 2016, following an amendment to the Equal Status Acts, landlords cannot discriminate against tenants because they are getting Rent Supplement or any other social welfare payment, or a Housing Assistance Payment (HAP). This means that landlords can no longer state when advertising accommodation that Rent Supplement (or HAP) is not accepted and they cannot refuse to rent you accommodation because you are getting Rent Supplement, HAP or a social welfare payment.” The response set out the requirements for the HAP Scheme and also confirmed the difference between the HAP and Rental Accommodation Scheme (RAS), noting that unlike RAS which required a landlord to enter into a long-term contract with a local authority, participation in the HAP Scheme does not affect the tenant / landlord relationship which is governed in the normal way under the Residential Tenancies Acts.

Under cross-examination, it was put to the Information Officer that based upon the publicly available information and interpretation of the relevant legislation, that the obligation to participate in the HAP Scheme only applies to prospective tenants and not to existing or ‘sitting’ tenants such as the Complainant. In response, he expressed the view that it also applied to existing tenants, pointing out that the HAP Application Form specifically makes provision for existing tenants.

Submissions

Counsel for the Complainant argued that notwithstanding the coming into force of the amendments to the Equal Status Act 2000 from 1^st January 2016, prohibiting direct discrimination in relation to the HAP Scheme as a new standalone ground, at all material times and despite being informed of the legal position, the Respondent has maintained its position that it is legally entitled to refuse to participate in the HAP Scheme. There was no lawful justification for such refusal either under the legislation or by virtue of any breach of the tenancy agreement. In the circumstances, it is submitted that the Respondent has discriminated against the Complainant on the housing assistance ground insofar as it has treated him less favourably than other tenants who do not have to rely upon Social Welfare to discharge rent, by repeatedly refusing to complete the necessary paperwork to enable him to avail of the HAP Scheme in accordance with his statutory entitlement and, more broadly, refusing to participate in the HAP Scheme at all. Specifically, it was contended that he is being treated less favourably than a tenant who is in a position to discharge their rent in full without the assistance of the HAP Scheme thus making it more difficult for him to discharge his rent than for the other tenants not in receipt of HAP, giving rise to a significant financial detriment. In other words, it is the mode or method by which rent is received that gives rise to the less favourable treatment. As the weekly shortfall has had to be met with other sources of income, it was submitted that the discrimination suffered has given rise to a real economic detriment causing financial hardship to the Complainant and his family and could ultimately place the tenancy in jeopardy.

The Respondent’s position was also particularly difficult to justify in circumstances where it has indicated a willingness to accept Rent Supplement but not HAP, when Rent Supplement is being phased out and replaced by HAP and where HAP has distinct advantages for landlords. Section 3(3B) also treats both payments likewise under the ‘housing assistance ground’. The legislation was intended to prevent landlords from refusing Social Welfare payments including HAP because of its detrimental consequences for tenants such as those experienced in the instant case, and applied in equal measure to existing tenants such as the Complainant as it did to prospective tenants.

In the circumstances, it was submitted that the Respondent had discriminated against the Complainant under the housing assistance ground and he is entitled to redress under Section 27 of the Equal Status Acts. In particular, the Complainant seeks compensation for the effects of its ongoing discriminatory conduct to include a sum reflecting the direct financial loss suffered by reason of the Respondent’s non-participation in the Scheme and a direction that the Respondent takes the necessary steps required to enable the Complainant to participate in the HAP Scheme (including completion of the Form) and bring an end to its refusal to participate in the HAP Scheme.

Summary of Respondent’s Case:

At the hearing, the core argument put forward on behalf of the Respondent is that the legislation in question is worded and/or framed in such a manner that it does not apply to existing tenancies or ‘sitting’ tenants such as the Complainant and therefore does not legally compel or bind the Respondent. It was contended that discrimination in relation to “providing accommodation or any services or amenities related to accommodation” under Section 6(1)(c) of the Equal Status Acts (as amended) could only arise in relation to prospective tenants and not existing tenants when interpreted in line with Section 3(3B) of the Act which provides: “as between any two persons, that one is in receipt of rent supplement (within the meaning of section 6(8)), housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014) or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”).” It was submitted that the wording required a tenant to be in receipt of HAP and have had acceptance of that payment refused by a prospective landlord at the point of entry into a tenancy agreement before discrimination in relation to the provision of accommodation could arise. It followed that as the Respondent was already providing accommodation to the Complainant before he became eligible for and/or applied for HAP, there could be no discrimination. It was further submitted that by refusing to accept HAP on his behalf as an existing tenant, the Respondent is not treating him any differently and thus less favourably than any of its other existing tenants not in receipt of HAP. In order to succeed under the Acts, it is necessary demonstrate less favourable treatment against an appropriate comparator and the Complainant has not demonstrated same.

Counsel for the Respondent further submitted that unlike the position in relation to the Rent Supplement Scheme, acceptance of the HAP Scheme was voluntary and in this respect, reliance was placed on a public information leaflet on the HAP Scheme which stated: “The landlord must agree to rent their property to the HAP recipient.” In response to the contention that a landlord was legally obliged to accept HAP from an existing tenant, she also suggested that this would legally alter the existing tenancy agreement. She also agreed that the logical conclusion to his position was that the Complainant would have to break his tenancy and then apply for the HAP Scheme in respect of a new tenancy with the Respondent in order to legally compel its acceptance, notwithstanding the practical consequences of taking such a course including the loss of accumulated tenancy rights.

Managers from the Respondent and/or Managing Agent were in attendance at the hearing but did not offer any substantive evidence and the facts were not in dispute. They were unable to point to any particular difficulties with the Local Authority, any other impediment to accepting the HAP Scheme or any available defence under the legislation. It was also confirmed on behalf of the Respondent that the Rent Supplement Scheme was accepted on behalf of its other existing tenants. Other arguments contained in written submissions were not pursued and the initial reasons given to the Complainant for the Respondent’s refusal to accept the HAP Scheme were not advanced.

Findings and Conclusions:

The sole issue for determination of this complaint is whether the Respondent discriminated against the Complainant under the ‘housing assistance ground’ contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended), by refusing to complete its section of his HAP Application Form/s and/or its ongoing refusal to accept payment of his rent under the HAP Scheme. In relation to the applicable burden of proof, Section 38A of the Acts applies to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. 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.

There is no issue that this complaint is properly before the WRC and has been brought within the requisite time-limits provided by Section 21 of the Acts, including those for giving notice of a complaint and referring the complaint. Rather unusually the facts in this case are not disputed and there is no question that the Complainant’s household is a ‘qualified household’ within the meaning of Part 4 of the Housing (Miscellaneous Provisions) Act 2014 and thus eligible for the HAP Scheme. The Respondent stands over its refusal to complete the Complainant’s HAP Application Form and participate in the Scheme on the basis that it is not so legally bound. It is effectively challenging the relatively new and untested legislative provisions and contends that they are worded or framed such that they do not apply to existing or ‘sitting’ tenants such as the Complainant. The fundamental issue for determination is therefore one of statutory interpretation. In this respect, I consider the correct approach to firstly consider whether the provisions in question apply to a tenant in the Complainant’s position and if so finding, proceeding to consider whether a prima facie case of discrimination has been established and if so, whether the Respondent has rebutted that inference.

Consideration of whether the legislative provisions in question apply to a tenant in the Complainant’s position entails an examination of their wording and construction for the purposes of interpreting same. It is of assistance to firstly outline the relevant legislative provisions as follows:

Section 6(1) of the Equal Status Act 2000 [as amended by the Equality (Miscellaneous Provisions) Act 2015 with effect from 1^st January 2016] provides (with the most relevant provisions underlined): “A person shall not discriminate in- (a) disposing of any estate or interest in premises, (b) terminating any tenancy or other interest in premises, or (c) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities. Section 6(1A) provides: “Subsection (1)(c) is without prejudice to- (a) any enactment or rule of law regulating the provision of accommodation, or (b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.” and has no particular application to the instant case.

Section 6(2) of the Act also provides for an exhaustive list of exclusions from this provision, namely the disposal of any estate or interest in premises by will or gift, any disposal of such an estate or interest, or any provision of accommodation or of any services or amenities relating to accommodation, which is not available to the public generally or a section of the public, the provision of accommodation by a person in a part (other than a separate and self-contained part) of the person’s home, or where the provision of the accommodation affects the person’s private or family life or that of any other person residing in the home, and the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender. Section 6(3) clarifies the scope of Section 6(2). Section 6(4) has been deleted and Section 6(5) provides for further exclusions from this provision where any premises or accommodation are reserved “for the use of persons in a particular category of persons for a religious purpose or as a refuge, nursing home, retirement home, home for persons with a disability or hostel for homeless persons or for a similar purpose,” Section 6(6) allows for housing authorities and certain approved bodies to provide, in relation to housing accommodation, different treatment to persons based on family size, family status, civil status, disability, age or membership of the Traveller community. Section 6(7)(a) allows for differential treatment in relation to housing accommodation provided by or on behalf of the Minister for Justice, Equality and Law Reform on the same grounds in so far as there is no derogation from the State’s EU legal obligations. Finally, Section 6(8) defines ‘rent supplement’ for the purposes of the Act.

Section 6(1) of the Equal Status Act 2000 (as amended) has to be read and interpreted in conjunction with Section 3 of the Act which gives meaning to ‘discrimination’ in general across a broad spectrum of grounds and defines the new ‘housing assistance ground’. Specifically, Section 3(1) provides: “For the purposes of this Act discrimination shall be taken to occur- (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which- (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,” Section 3(1)(b) provides for discrimination by association and Section 3(1)(c) provides for indirect discrimination. Section 3(2) lists the protected grounds and identifies the respective comparators for each ground. Section 3(3B) provides that discrimination in relation to Section 6(1)(c), namely providing accommodation as set out above, is prohibited under all of the existing protected grounds and inserts the new ‘housing assistance ground’ as follows: “For the purposes of section 6(1)(c), the discriminatory grounds shall (in addition to the grounds specified in subsection (2)) include the ground that as between any two persons, that one is in receipt of rent supplement (within the meaning of section 6(8)), housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014) or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”).” The remaining provisions contained in Section 3 of the Act have no application to the instant case.

As referred to in Section 3(3B) of the Equal Status Act 2000 (as amended), Part 4 of the Housing (Miscellaneous Provisions) Act 2014 made legal provision for the Housing Assistance Payment (HAP) Scheme and it is also helpful to set out the main provisions. Of particular relevance to the instant case, Section 35 of that Act provides for the interpretation of various terms including the following:

“In this Part—

“housing assistance” means the payment by a housing authority of rent for a dwelling to a landlord on behalf of a qualified household in accordance with this Part;

“landlord” means the person for the time being entitled to receive, otherwise than as agent for another person, the rent payable under a tenancy in a dwelling in respect of which housing assistance is provided;

“qualified household” means a household qualified for social housing support in accordance with section 20 of the Act of 2009, in respect of whom housing assistance under this Part is an appropriate form of social housing support;

“rent contribution” means the payment to the housing authority by a tenant who is a member of a qualified household of a contribution in respect of the rent for a dwelling paid by the authority to a landlord on behalf of the tenant’s household;

“social housing support” shall be read in accordance with section 19 of the Act of 2009;

“tenancy” includes a periodic tenancy and a tenancy for a fixed term, whether oral or in writing or implied, and includes a subtenancy, and cognate words shall be read accordingly.”

Section 39 of the Act provides for the provision of HAP by a local authority to a ‘qualified household’ within the meaning of the Act and specifies the conditions pertaining to same as follows:

“(1) A housing authority may, subject to subsection (3), provide housing assistance to a qualified household in accordance with this Part.

(2) In order for housing assistance to be provided under this Part to a qualified household in respect of a dwelling-

(a) that household shall source the dwelling in respect of which it seeks housing assistance,

(b) the dwelling concerned shall meet the conditions set down in section 41,

(c) the landlord shall comply with the conditions set down in section 42,

(d) the member of the qualified household who is the tenant of the dwelling occupied by that household shall pay a rent contribution to the housing authority in accordance with section 44, and

(e) the housing authority shall be satisfied that the tenancy concerned is or would be a tenancy in good faith.”

The remaining Sections in Part 4 of the Act which have commenced set out the conditions in relation to dwellings and landlords and include other miscellaneous provisions in relation to the operation of the HAP Scheme. Various Regulations made under the Act provide for the minutiae including S.I. No. 407/2014 - Housing Assistance Payment Regulations 2014 (updated by further Regulations) in relation to the information required from applicants for HAP (as reflected in the HAP Application Form), time periods and rent limits. Notably the wording of the legislation throughout is neutral as to tenancy status and does not distinguish between prospective and existing tenancies.

The starting point in relation to the interpretation of any Act or Statutory Instrument of the Oireachtas is the Interpretation Act 2005. Section 5 of that Act provides: "In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)-(a) that is obscure or ambiguous, or(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of [the Oireachtas]....the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole." Words should therefore be construed literally, utilising their plain and ordinary meaning unless to do so would fail to give effect to the intention of the legislature as ascertained from the Act as a whole or give rise to an obvious absurdity.

I am also guided by the purposive approach to what are termed as ‘remedial social statutes’ adopted by the Superior Courts. The title to the Equal Status Act 2000 describes it as: “An Act to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access, to provide for investigating and remedying certain discrimination and other unlawful activities...” In G -v- The Department for Social Protection 2015 IEHC 419, Para 161, Ms Justice O’Malley referred to the Equal Status Act 2000 as being a ‘remedial social statute’ requiring liberal interpretation as follows: “…the Act is intended to cover a broad range of human life and activity, and that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally.” In this respect, she was guided by Dodd (2008) on Statutory Interpretation in Ireland, Para 6.52: “‘Remedial social statutes’ and legislation of a paternal character favour a purposive interpretation and are said to be construed as widely and liberally as can fairly be done within the constitutional limits of the courts' interpretive role. This formula has been repeated in a number of cases [citations at fn. 82 p.179]…Remedial social statutes are enactments which seek to put right a social wrong and provide some means to achieve a particular social result.” Dodd cited Bank of Ireland -v- Purcell [1989] 1 IR 327 at 333, where Mr Justice Walsh in the Supreme Court referred to the Family Home Protection Act 1976 as a ‘remedial social statute’ stating: “This statute is not to be construed as if it were a conveyancing statute. As has been frequently pointed out remedial statutes are to be construed as widely and as liberally as can fairly be done. The first consideration in construing s. 3 is to ascertain the purpose of the section.”

The Equal Status Act 2000 was amended with effect from 1^st January 2016 as outlined above such that discrimination in relation to “providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities” is now prohibited under the new ‘housing assistance ground’ which provides that “as between any two persons, that one is in receipt of rent supplement (within the meaning of section 6(8)), housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014) or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”).” It was not disputed on behalf of the Respondent that as a matter of principle, landlords are prohibited from discriminating in relation to the provision of accommodation or related services and amenities. In so far as I can understand the arguments made on behalf of the Respondent, the contention that the provisions in question could only apply to a prospective tenant arises from the requirement that for discrimination to arise, as between any two persons, one “is in receipt of” HAP and the other is not. An interpretation of the wording “is in receipt of” is therefore required.

Section 3(3B) of the Act requires housing assistance to be “construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014”. It is clear from Section 39(2) of that Act that certain minimum conditions have to met by a ‘qualified household’ before HAP becomes payable as follows: “(2) In order for housing assistance to be provided under this Part to a qualified household in respect of a dwelling- (a) that household shall source the dwelling in respect of which it seeks housing assistance, (b) the dwelling concerned shall meet the conditions set down in section 41, (c) the landlord shall comply with the conditions set down in section 42,” A qualified applicant must therefore firstly source a dwelling which meets certain minimum conditions and the landlord for that dwelling has to comply with various conditions before an application can be considered and payment under the HAP Scheme made. Therefore, the wording “in receipt of” has to be interpreted as encompassing qualified applicants deemed eligible for the payment of HAP once they have sourced a dwelling and all the conditions have been met. To interpret the wording otherwise would render the Section 6(1)(c) provisions nugatory not only in relation to existing tenants but also in relation to prospective tenants. In this respect, an interpretation of the wording “in receipt of” in any other sense would be absurd and/or would fail to reflect the plain intention of the Oireachtas.

Adopting a purposive approach to the Act which requires a wide and liberal interpretation and taking the provisions as a whole, it is clear that the Oireachtas intended to legislate for a wide gamut of possible discrimination that could arise in relation to the provision of accommodation including the manner in which rent is accepted. In particular, I note the all-encompassing nature of the wording contained in Section 6(1)(c) as prohibiting discrimination in relation to: “providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities”. The inclusion of the word ‘ceasing’ would appear to envisage that discrimination under any of the prohibited grounds can arise in relation to existing tenants. I am also of the view that although the Oireachtas could not possibly legislate for every conceivable discriminatory scenario arising, had it intended to exclude any particular tenancy status, it would have done so explicitly, particularly as Section 6 of the Equal Status Act 2000 (as amended) clearly sets out any exclusions. For the same reasons, I also reject the Respondent’s reliance upon the public information leaflet on the HAP Scheme stating: “The landlord must agree to rent their property to the HAP recipient.” Notwithstanding the fact that there was no evidence as to whether this leaflet post-dated the legislation in question, I am satisfied that this along with any other officially generated documentation has to be read in line with the applicable legislation.

Having satisfied myself that the legislative provisions in question apply to prospective and existing tenants alike, I must consider whether the Complainant has established a prima facie case of discrimination. This requires him to show that he had been treated “less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds”, in this case the ‘housing assistance ground’, “…which requires that as between any two persons, that one is in receipt of… housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014)… and the other is not.” There is no issue in the instant case that the relevant comparator is a tenant of the Respondent not in receipt of HAP. As observed by Walsh upon her review of the significant case law on this point: “Significantly, ‘less favourable treatment’ does not just arise where people in comparable situations have not been treated in the same manner, it may also comprise failure to afford different treatment to persons who are differently situated. (Reynolds, 2008)” [Judy Walsh (2012) Equal Status Acts 2000-2011 – Discrimination in the Provision of Goods and Services), Pages 94-95]. Likewise, in the instant case and having considered the Complainant’s evidence which I found to be wholly credible and was not disputed, I am satisfied that the Respondent’s ongoing refusal to complete the HAP Application Form and/or accept HAP towards payment of his rent by way of direct payment from the Local Authority in question amounts to less favourable treatment. Owing to his particular financial situation, the Respondent’s refusal to participate in the HAP Scheme has the direct effect of placing him in a detrimental financial situation potentially placing the tenancy in jeopardy, when compared with a tenant not requiring HAP.

Having satisfied myself that the Complainant has established a prima facie case of discrimination, I must consider whether the Respondent has rebutted same. In this respect, the Respondent has not been able to identify any legal defence. Even if the Acts provided for such a defence, I reject the argument that the HAP Scheme in any way legally alters the tenancy agreement. It does not require any interference with the terms of the lease including the conditions, length or the amount of rent payable. I also note the absence of any other factors impeding compliance and no difficulties have been cited in relation to the dwelling in question or the relevant Local Authority. No reasons have been proffered as to why the Respondent is prepared to allow applications for Rent Supplement (which would prevent the Complainant returning to work) but not HAP. Under the HAP Scheme, rent is simply discharged directly by the local authority, a mode that is apparently advantageous to the landlord. Additionally, Section 3(3B) of the Equal Status Act 2000 (as amended) treats both payments likewise under the ‘housing assistance ground’. It is difficult to understand the Respondent’s reasons for persisting with its refusal of HAP on behalf of its tenants after the Citizens Information Centre clarified the legal position. The Respondent’s attitude towards the Complainant in this case is also very difficult to understand in circumstances where he has been a model tenant and always paid his rent and honoured the terms of his tenancy. I am therefore satisfied that the Respondent has failed to rebut the inference of discrimination. Overall and quite simply, the Equal Status Acts compels compliance by all those who may be subject to its provisions including landlords and their agents, just as they are bound by any other applicable Statute including the Residential Tenancies Acts and Housing (Miscellaneous Provisions) Act 1992 and Regulations made thereunder.

Decision:

Section 25 of the Equal Status Acts requires that I make a decision in relation to this complaint, and if finding in favour of the Complainant to do so in accordance with the relevant redress provisions under Section 27 of that Act. I have concluded my investigation of this complaint and based upon the aforesaid, I find pursuant to Section 25(4) of the Acts, that the Complainant has made out a prima facie case of direct discrimination on the housing assistance ground contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended), which has not been rebutted by the Respondent.

Given the real and tangible effects of the Respondent’s ongoing refusal to participate in the HAP Scheme including the financial hardship suffered by the Complainant and his family along with the absence of exonerating factors save that the Respondent seeks to test the legislation, I consider this discrimination to be at the more serious end of the scale. To date, the Complainant has suffered an actual financial loss of circa €13,405 since the Respondent’s refusal to accept HAP on his behalf. I am constrained by the maximum award of €15,000 which by virtue of Section 27(2) is fixed at the maximum District Court civil jurisdiction, and in my view does not reflect the seriousness of the discrimination. However, I also have to nominally allow for a theoretically more serious situation such as where eviction has resulted. Having regard to all the circumstances and pursuant to Section 27(1)(a) of the Acts, I therefore deem it appropriate to order the Respondent to pay €14,405 to the Complainant in compensation for the effects of the prohibited conduct concerned.

Also of concern is the continuing breach of the legislation so pursuant to Section 27(1)(b) of the Acts, I direct the Respondent to take such steps as are required to enable the Complainant to participate in the HAP Scheme (including completion of the Application Form and compliance with any necessary conditions) and accepts HAP payments from the relevant Local Authority forthwith.

Dated:   9^th August 2017

Key Words: Key Words: Equal Status Acts - Remedial Social Statute - Part 4 of the Housing (Miscellaneous Provisions) Act 2014 - Provision of Accommodation - Housing Assistance Ground - Housing Assistance Scheme (HAP) - Statutory Interpretation - Statutory Interpretation Act 2005