ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004073

Complaint for Resolution:

Date of Adjudication Hearing: 19/12/2016

Workplace Relations Commission Adjudication Officer: Stephen Bonnlander

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant submits that he contacted the respondent by email about viewing a particular apartment, which the respondent, being a letting agent, had advertised online.   The respondent reverted to him asking him where he was working.   When the complainant replied that he was currently in receipt of social welfare, the respondent replied: “No rent allowance accepted”.

The complainant contends that this constitutes discrimination on the housing assistance ground. The emailed exchange, which took place on 22 March 2016, was submitted in evidence. Post-hearing, proof that the complainant is in receipt of rent allowance from the Department of Social Protection was also submitted.

In addition, counsel for the complainant highlighted during the hearing how important it would have been for the complainant to obtain the apartment in question, as he was living with his wife and one child in quite cramped conditions, and the couple were expecting a second child. For all of these reasons, they were anxious to move to a larger apartment which would have been closer to other family members.

Respondent’s Submission and Presentation:

The respondent’s managing director did not dispute that he refused to show the complainant the apartment because the complainant was in receipt of rent allowance.   Instead, he argued both in the hearing and in his written submission that he was acting under instruction from the relevant landlord. According to the respondent, the landlord had told him he would not be able to obtain insurance if he accepted a tenant on rent allowance, as the insurance company would not accept rent allowance as valid income and hence not cover the landlord for loss of rent. The respondent stated that he felt obliged to act on the landlord’s instructions as, in his words, “he’s the one paying me”.

The respondent further stated at the hearing that his company does not discriminate against tenants on rent allowance and has in fact several properties rented out to such tenants.

In cross-examination by counsel for the complainant, the respondent accepted that he had never asked to see his client’s insurance policy.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 25 of the Equal Status Act, 2000 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Issues for Decision:

The issue for decision is whether the complainant was discriminated against by the respondent under the housing assistance ground.

Legislation involved and requirements of legislation:

Section 3B of the Equal Status Acts 2000-2016, as inserted by S. 13(b) of the Equality (Miscellaneous Provisions) Act 2015, states that

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”).

Similarly, S. 6(1)(c) of the Equal Status Acts 2000-2016 was amended by S. 14(4) of the Equality (Miscellaneous Provisions)Act 2015 to read that

[S]ubject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities. [Emphasis added].

In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 38A of the Acts. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. 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 coming to my decision, I have considered all oral and written evidence presented to me by the parties.

From the evidence provided by the complainant, I am satisfied that he was in receipt of rent allowance at the material time and therefore has standing to bring a complaint. In addition, I note that the receipt of rent allowance was imputed to him by the respondent when he notified the respondent that he was in receipt of social welfare.

Furthermore, there is no doubt from the evidence adduced that the complainant was refused a showing of the apartment in question because the respondent imputed the receipt of rent allowance to him. As noted above, the respondent did not dispute this. Lastly, I am satisfied that the respondent, as a letting agent, is providing an accommodation-related service within the meaning of S. 6(1)(c) cited above.   Accordingly, I am satisfied that the complainant has established a prima facie case of discrimination on the housing assistance ground and that the burden of proof therefore shifts to the respondent.

The question therefore shifts to whether the unexamined (by the respondent’s own evidence) assertions of his landlord client regarding insurance, coupled with an instruction by the client not to accept tenants in receipt of rent allowance, compel the respondent in any way to conduct his business unlawfully by carrying out this instruction, and therefore constitute a valid defence.

I cannot accept this argument. First of all, I am satisfied that as a letting agent, the respondent is a service provider in its own right within the provision of S. 6(1) of the Equal Status Acts, as amended. It is clear and undisputed that the respondent refused a service when he refused to show the complainant the apartment, solely on the basis that the respondent believed that the complainant was in receipt of rent allowance.

Further to the above point that the respondent is a business and service provider in its own right which provides property-related services, including letting services, to property owners for consideration, I am satisfied that the respondent is at no time obliged to act unlawfully on behalf of a client, as the respondent asserts was the case here.   In terms of basic contract law, if an act is illegal under statute, then a contract to do that act will also be illegal and unenforceable.  

The case of Gray v. Cathcart (1899) 33 I.L.T.R 35, sets out this principle. The defendant in that case had taken a lease of an insanitary house in Belfast. The Belfast Corporation Acts made it an offence to occupy insanitary premises. The landlord’s action to recover arrears of rent failed. Johnston J. said:

Everyone commits a misdemeanour who does any act forbidden by a statute; accordingly when these parties entered into an agreement to occupy a house which had been condemned it was a contract to do what the statute says you could not do. It was a contract to do an illegal thing, and though the parties might go through the form yet such a contract is not binding and cannot be sued upon. [as quoted in Clark, Contract Law in Ireland, 5^th edition, p. 383, “Statutory Illegality”]

In other words, from the moment discrimination on the housing assistance ground became unlawful, any contractual obligation on the part of the respondent to accept an instruction to reject tenants in receipt of same from its clients became likewise illegal, and hence cannot avail the respondent as a defence.

Accordingly, I find that the complainant is entitled to succeed.

Decision:

Based on all of the foregoing, I find pursuant to S. 25(4) of the Equal Status Acts, that the respondent discriminated against the complainant on the housing assistance ground. In accordance of section 27(1)(a) of the Acts I order the respondent to pay the complainant €1500 in compensation for the effects of the discrimination.

Dated:   20 March 2017