Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00017152-001

30/01/2018

The complainant is alleging that he was discriminated against by the respondent on grounds of the housing assistance payment. He is also alleging that he was victimised by the respondent in that he was subjected to a notice of termination of tenancy by the respondent after it refused to co-operate and complete the HAP forms.

The complainant entered into a tenancy agreement with the respondent to rent a property. Rent was agreed at €1000 per month. The complainant states that he and his family moved into said property on 27 July 2012. The complainant submits that in May 2013, he lost his job and commenced receiving job seekers allowance. The complainant asserts that at that juncture, he requested the respondent to sign forms for the purposes of applying for rent supplement. The complainant contends that the respondent said it needed to consider the issue and would revert to the complainant. The complainant states that circa two months later, the respondent informed him that they were not willing to sign the said forms.

The complainant states that he paid full rent until November 2013 but by then his account balance had significantly depleted and he sought advice from Threshold. The complainant states that he commenced paying less rent of €700 per month which was as much as he could afford to pay from his job seekers allowance income. The complainant states that he received a termination notice from the respondent at that time on the basis that the landlord required the accommodation for their own needs. The complainant asserts that in May 2015, he started working again and increased his monthly payments to the due €1000 plus €50 in order to pay arrears. The complainant submits that in March and April 2016, he developed acute back pain and was confined to bed. He states that he has not been able to work since that time but continued to make part-payments of rent as best he could until September 2017. The complainant asserts that he also requested the respondent to sign rent supplement forms in or about 24 June 2013 and 5 November 2014 but to no avail.

The complainant states that in March 2016, the respondent came to the complainant’s accommodation and the complainant again requested the respondent to sign the forms so that he could be granted rent supplement but the respondent again refused to do so and requested the complainant to vacate the premises. The complainant asserts that on 24 January 2017 he further requested signage of the HAP form by the respondent but to no avail. The complainant states that he went to Dublin City Council in August 2017 to apply for the HAP payments (which have now replaced rent supplement payments). He was informed that these needed to be signed by his landlord. The complainant states that upon further requests to the respondent, they continued to refuse to sign said documents. The complainant states that the respondent commenced proceedings in the Residential Tenancies Board (RTB) seeking payment of rent arrears and possession of the said property on 19 July 2017. The RTB, by determination order dated 23 January 2018 upheld the validity of the termination notice served on the complainant (based on the reason of rent due and owing), and ordered repayment of arrears of rent in the sum of €11,645.92 and ordered the complainant to vacate the premises within 56 days of the order.

The Tenancy Tribunal on appeal upheld this order and updated the rent arrears due to the sum of €12,370.89 and ordered the complainant and his family to vacate the premises within 28 days of the order. The respondent sent the complainant pre-litigation letters and a summons for enforcement proceedings before the Circuit Court on 15 June 2018 in respect of this determination order. On 15 June 2018, these enforcement proceedings were adjourned to 21 June 2018. The complainant states that he has made efforts to secure alternative accommodation for himself and his family but has not been successful in this pursuit. He has been supported by Focus Ireland in this regard. The complainant states that in addition to seeking advice from Threshold and Focus Ireland, he has also attended his local legal advice clinic on a number of occasions. The complainant submits that he has four children, 13, 11, 7 and 2 years old. He states that three of his children attend school which is in close proximity to their accommodation. The complainant states that he is very concerned to safeguard their health, safety and welfare and to ensure their education is not disrupted.

The complainant asserts that in addition to his underlying health issues, he has suffered considerable stress and anxiety as a result of the respondent’s failure to accept HAP and his resulting arrears of rent and order for repossession against himself and his family made by the Tenancy Tribunal. The complainant states that he sent an ES 1 form to the respondent on 9 November 2017 but he received no reply to this notification.

The complainant has cited the following caselaw in support of his complaint in relation to remedial statutes to be construed widely and liberally; G v The Department of Social Protection [2015] IEHC 419, Bank of Ireland v Purcell [1989] 1 IR 327 and M, X v Health Service Executive [2012] 3 I.R. 254.

The complainant submits that in the adjudication decision Tenant A v A Landlord ADJ-00004100, the Workplace Relations Commission clarified that the protection of the “housing assistance” ground applies to sitting tenants as well as prospective ones. The complainant asserts that it was further confirmed that “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”. In that decision, it was held that the landlord had “treated her 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 her avail of the HAP scheme in accordance with her statutory entitlement and, more broadly, refusing to participate in the HAP scheme at all”.

The complainant alleges that he has been victimised by the respondent by reason of the fact that he repeatedly sought the cooperation of the respondent in respect of the rent supplement payments/ HAP, which the complainant submits amounts to opposing by lawful means an act which is unlawful under the legislation, within the meaning of 3(2) of the Equal Status Act as amended. The complainant states that on each occasion he requested completion of HAP forms, he and his family were served with a termination notice. The complainant asserts that while these notices purported to be based on the reason that the respondent required the dwelling for their own use and for non-payment of rent, the complainant submits that the context of its delivery establishes a prima facie case that one motive of considerable weight was as a reaction to the complainant seeking the cooperation of the respondent in respect of rent supplement/HAP payment. The complainant argues that the termination notice would not have issued but for these actions of the complainant. The complainant asserts that the respondent raised no issue with the residence of the complainant and his family in the premises from 27 July 2012 to May 2013, then from May 2015 to March 2016. On two occasions, the termination notices issued days after the complainant had asked the respondent to complete the rent supplement (now HAP) forms. The termination notice was initially based on the reason that the landlord required the premises for its own needs. The complainant submits that upon questioning on this in the RTB, the respondent withdrew this reason and confirmed that the termination notice was solely based on the reason of rent due and owing.

In relation to the issue of victimisation, the complainant highlights the following caselaw in support of his claim; Watters Garden World Ltd. v Panuta, EDA098, the Department of Defence v Barrett EDA 1017, O’Donoghue v Redcar & Cleveland Borough Council [2001] EWCA Civ 701 and the Labour Court decision in Toni & Guy v O’Neill HSD095. The complainant further states that in Batt v Palmece Ltd. DEC-E2010-126, victimisation was not included as a ground by the complainant, however the Equality Tribunal saw fit to include this ground of its own volition having heard evidence grounding this claim.

In conclusion, the complainant highlights that the following are notable effects of the prohibited conduct concerned under both the housing assistance ground and the victimisation ground.

(i)                  The complainant has been found liable for rent arrears to the sum of €12.371 on the date of the Tenancy Tribunal determination order of 23 January 2018; Dublin City Council has confirmed that HAP cannot cover these arrears but only future rent payments;

(ii)                The complainant has travelled on a number of occasions for appointments with Threshold, Blanchardstown legal advice clinic and Focus Ireland for advice in respect of his accommodation difficulties arising from the actions of the respondent in refusing to accept rent supplement/ HAP;

(iii)               In addition to the complainant’s underlying health issues, he states he has suffered from considerable stress and anxiety as a result of the respondent’s failure to accept rent supplement/HAP and his resulting arrears of rent and order for repossession against himself and his family made by the Tenancy Tribunal;

(iv)               The complainant asserts that his stress and anxiety has caused secondary stress and anxiety to his four minor children aged between 13 and 2 years old.

The respondent states that the tenancy of the property in question commenced in or around 2012 and was a 12 month fixed term tenancy. The respondent asserts that the first notice of termination was served on 19 November 2013. The tenant refused to vacate the property and the matter proceeded to adjudication on 11 July 2014 before the Residential Tenancies Board RTB. The respondent states that the adjudicator held that the landlord’s notice was valid and the tenant was ordered to vacate the property and to pay arrears in the sum of €11,645.92 which the tenant failed to comply with. The respondent states that a further notice of termination was served on 16 February 2017 due to rent arrears. The respondent asserts that the complainant failed to vacate the property and the matter was dealt with by adjudication in the RTB on 9 October 2017. The respondent states that the complainant appealed the decision to the RTB Tribunal which was heard on 2 January 2018. The respondent states that the RTB Tribunal held in favour of it, as landlord. The respondent states that the complainant was ordered to vacate the property and pay arrears in the sum of €12,370.89, however the respondent submits that the complainant has failed to comply with the order.

The respondent states that the complainant has failed to make any rental payment to it in circa 2 years and it had no alternative but to issue proceedings in the district court to enforce the order for termination due to lack of co-operation from the complainant. The respondent states that the complainant only requested the landlord to sign the HAP application forms after the RTB adjudication process where the complainant was ordered to vacate the property. Accordingly, the respondent submits that the landlord was entitled to refuse to complete said forms.   The respondent refutes the allegation of discrimination and maintains that the complainant is frustrating the landlord to avoid having to vacate the property even in circumstances where there are rent arrears in the sum of €20,825 as at 17 April 2017.

The issue for determination in the instant complaint is whether the respondent discriminated against the complainant under the “housing assistance ground” contrary to section 3 and 6 of the Equal Status Act 2000 (as amended) by refusing to complete the HAP Application Form and its refusal to accept payment of their rent under the HAP Scheme and by subsequent termination of the tenancy agreement.

The Equal Status Act 2000 was amended with effect from 1st 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”)

Section 38A of the Act requires the complainant to establish, in the first instance, facts from which the discrimination alleged can be inferred. It is only where such a prima facie case has been established that the burden of proof shifts to the respondent to rebut the inference of discrimination.

Having carefully considered all the evidence adduced, I am satisfied that the complainant requested the respondent landlord to complete the appropriate forms in order to avail of HAP. Documentary evidence was submitted in relation to texts sent from the complainant to the landlord on 26 January 2017 following up on earlier requests where the complainant asked the landlord to sign the HAP forms. However, the respondent landlord stated at the hearing that no such requests were made to it. The complainant submits that following his requests for signage of HAP documentation and the landlord’s refusal of same, he and his family received a Notice of Termination on 16 February 2017. In the circumstances I find that the complainant has established a prima facie case of discriminatory treatment on the housing assistance ground.

I must now consider if the respondent has rebutted the prima facie case raised by the complainant.   The respondent states that the complainant only requested the landlord to sign the HAP application forms after the RTB adjudication process where the complainant was ordered to vacate the property and that it was entitled to refuse to complete said forms on the basis that the complainant was frustrating the landlord to avoid having to vacate the property, in circumstances where there were rent arrears in the sum of €20,825 as at 17 April 2017. Having carefully examined the documentation submitted, I am satisfied that the complainant had requested the respondent to complete the HAP documentation in text messages and orally when the landlord attended the property, however the respondent landlord would not agree to sign the HAP forms. I do not accept the respondent’s argument that it was entitled to refuse HAP in circumstances where there were rent arrears. Having adduced the evidence, I am satisfied that the respondent landlord was inconsistent and contradictory in its evidence at hearing and gave varying statements on the issue of the request for the HAP documentation to be completed. In contrast, I found the complainant to be consistent in his evidence and presented as a cogent and credible witness. I am cognisant of the complainant’s documented health issues and that he and his family suffered considerable stress and anxiety as a result of the respondent’s failure to accept rent supplement/HAP and his resulting arrears of rent and order for repossession against himself and his family. I am also mindful of the stress suffered by the complainant in trying to source alternative accommodation particularly as he has four young children aged between 13 and 2 years old who are linked into local facilities and schools in the area. In conclusion, I find that the complainant has raised a prima facie case of discriminatory treatment by the respondent landlord under the housing assistance ground. Accordingly, I find that the respondent breached its obligations under the Equal Status Acts when it refused to participate in the HAP scheme as requested by the complainant.

In relation to the complaint of victimisation, the complainant submits that upon repeatedly seeking the co-operation of the respondent in respect of the HAP scheme (which the complainant submits amounts to opposing by lawful means an act which is unlawful under the Act) he was served with a termination notice that this amounts to victimisation within the meaning of the Act. The definition of victimisation contained in section 3 of the Acts contains essentially three ingredients. It requires that (i) the complainant had taken action of a type referred to as a protected act (ii) the complainant was subjected to adverse treatment by the respondent and (iii) the adverse treatment was in reaction to the protected action having been taken by the complainant. Having carefully examined claim of victimisation, I find that the complainant has not established a prima facie case in this regard on the victimisation ground and dismiss this element of the claim.

I find that the complainant has established a prima facie case of discriminatory treatment by the respondent landlord on the housing assistance ground.

I find that the complainant has failed to establish that he was subjected to victimisation within the meaning of the definition as set out in the Acts.

Under Section 27(1) of that Act, redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:

“the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a)    An order for compensation for the effects of the prohibited conduct concerned; or

(b)    An order that a person or persons specified in the order take a course of action which is so specified.”

In considering the amount of compensation that I should award, I have considered the effect the discriminatory treatment has had on the complainant and his family. 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 €7000 to the complainant in compensation for the effects of the prohibited conduct concerned.