ADJUDICATION OFFICER DECISION/RECOMMENDATION 

Adjudication Reference: ADJ-00002629

Parties:

Complaint(s):

Date of Adjudication Hearing: 27/06/2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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’)

The Complainant having sent an ES1 Notification to the Respondent on 4th April 2016 and the Respondent replied by letter dated the 13th April 2016 in which they rejected the complaint. This complaint was referred to me by the Director General for hearing and determination pursuant to Section 25 of the Equal Status Acts.

I proceeded to hear this case on the 27th June 2017and gave the Parties an opportunity to be heard and to present any relevant evidence. All oral and written evidence and submissions presented have been taken into consideration in arriving at my decision.

Note.

The complaint is dealt with under CA-00003655-001 all other Ca’s are deemed to have been deal with accordingly

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 1st January 2016] which introduced the ‘housing assistance ground’ and prohibits discrimination in the provision of accommodation. The Complainant is a nurse who at the relevant time suffered from a disability which caused her to be unable to work. These circumstances meant that she was living in emergency accommodation and required rent supplement to obtain her own private accommodation from the Respondents.

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 1st 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.  

Evidence of the Complainant

On the 30th March 2016, the complainant telephoned the Estate agent, an employee of the respondents, in relation to the property, that had been advertised as a property to let on properties to let.ie.

Respondent number 1 were the owners and it was managed by respondent number 2.

During the initial telephone conversation the Estate Agent, asked the complainant about her personal circumstances. The complainant explained that she had been working as a nurse up until 2014 when she had to take time out due to ill health. She went on to explain that she co-owned a property with her sister but that it became unsustainable for her to live there due to the fact that she was no longer working and that her sister had moved out of the property when she had married. The complainant informed Estate Agent that she was in receipt of rent supplement under extenuating circumstances as her mortgage was in arrears.

During this telephone conversation, the Estate Agent informed the complainant that rent for the property was €600.00 plus a deposit of €600.00.

He also explained that she would need written proof that she was in receipt of rent supplement and also information on how much rent support she would receive from the Department of Social Protection. At this point the complainant informed the Estate Agent that she had a letter stating that she had been awarded rent supplement however, she explained that the letter did not include the exact figure but that she had previously discussed this matter with her Community Welfare Officer-, and she had informed the complainant that she would get the said amount.

The complainant states that the property was advertised that morning, and it was 10.00 am when she called the Estate Agent. It was stated that the Estate Agent was informed that it was not possible to acquire a letter from the Community Welfare Officer in such a short space of time outlining the exact amount of money that she would get.

However, she decided to contact the Homeless Service Community Welfare Officer to inquire as to whether she could issue the complainant with a letter. The Complainant stated that she was advised to tell the Estate Agent to fill out the rent supplement form and that they would process the application as quickly as possible. The Estate Agent was telephoned by the complainant who explained this and further reiterated her wish to view the property. The complainant stated that the Estate Agent agreed, albeit reluctantly, to this.

The complainant states that she arrived at the property at 11.50 am and met with the Estate Agent thanking him for the viewing, she went upstairs and having viewed the property said she would take it. The Complainant stated that she was the first potential tenant to view the property. She gave the Estate Agent a copy of the letter from the Department of Social Protection stating that she had been awarded rent supplement.   The complainant had all the other necessary documentation in a folder, however, the Estate Agent did not ask to see this documentation. The Estate Agent then asked to speak to the complainant’s Community Welfare Officer. Although the complainant felt that this was inappropriate, she agreed in circumstances where she states that she was desperate to secure accommodation as she was living in emergency accommodation. The complainant having spoken to the Community Welfare Officer who stated that it was not something they do, however, she felt if it helped secure the property she would do it. The complainant gave the phone to the Estate Agent.

The complainant stated that the following was said:

The Estate Agent asked the Community Welfare Officer how much money the complainant would get and stated that he would not be willing to hold the property for her while the application was being processed. The Community Welfare Officer asked the Estate Agent if he would cancel the rest of the viewings for the property if she gave him a decision over the phone and he (The Estate Agent) said "I have people downstairs willing to pay cash" and that he would not be willing to hold the property for the complainant while the application was being processed, even though the Community Welfare Officer assured him that the Department of Social Protection would also pay the deposit. The Complainant stated that the Estate Agent raised the requirement to pay a non­ refundable €300.00 deposit during this telephone conversation.

After the viewing the complainant contacted the Community Welfare Officer and inquired as to whether she could leave the rent supplement form with her to be processed which was agreed. The Complainant states that the Community Welfare Officer informed the complainant that her application would be approved, and she signed a form giving Community Welfare Officer permission to lodge the deposit into Estate Agent's account that day. The complainant called the Estate Agent straight away to inform him that her application had been processed. Estate Agent informed her that the property had gone. The complainant's complaint concerns discrimination in the provision of accommodation on the housing assistance ground. The complainant states that she is making this complaint for two reasons: first, on a personal level, as she was discriminated against and second because she states that this type of scenario is something she has encountered on a continuous basis from landlords in accessing housing. She states that this type of discrimination is making it virtually impossible for homeless service users to be able to free themselves from the cycle of homelessness.

Respondents

The representative of the respondent advised the hearing that the employee (Estate Agent) was no longer in their employment

He also submitted that the respondents have a substantial number of rental properties and they have approximately 50% tenants with rent allowance. They do not discriminate against any person on rent allowance.

Evidence from Community Welfare Officer

The Community Welfare Officer gave evidence confirming the assistance she provided to the Complainant. She also confirmed that approval would be given within 3 days

Findings and Conclusions:

The sole issue for determination of this complaint is whether the Respondent discriminated against the Complainant under the ‘’ contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended), its ongoing refusal to accept payment of her rent allowance. 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.

It is of assistance to firstly outline the relevant legislative provisions as follows:

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(8) defines ‘rent supplement’ for the purposes of the Act.

I must consider whether the Complainant has established a prima facie case of discrimination. Section 3B of the Equal Status Acts 2000 to 2015, as inserted by Section 13(b) of the Equality (Miscellaneous Provisions) Act 2015 provides “for the purposes of section 6(1)(c), the discriminatory grounds shall (in addition to the grounds specified in subsection (20 include the ground that as between any two persons, that one is in receipt of rent supplement (within the meaning of section 6(8.)

Having considered the Complainant’s evidence in this case I find it to be wholly credible and undisputed.

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 defense. Even if the Acts provided for such a defense, I find that the Estate Agent was not present at the hearing to give evidence and the fact that he is no longer in the employment of the respondent has to be taken into account.

I find based on the evidence that when the Estate Agent spoke with the Community Welfare Officer that this action in itself this cast aspersions on the credibility of the complainant. 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.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint 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 a prima facie case of direct discrimination on the rent allowance ground contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended), which has not been rebutted by the Respondent.

Having regard to all the circumstances and pursuant to Section 27(1)(a) of the Acts, I deem it appropriate to order the Respondent to pay € 2500 to the Complainant in compensation for the effects of the prohibited conduct concerned.

I order the respondents to ensure that all employees acting as their Estate Agents are provided with the proper appropriate training in relation to all provisions of the legislation.

Dated:   7/11/17

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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