Complainant

Respondent

Anonymised Parties

A Tenant

A Landlord

Representatives

Rudi Neuman B.L., instructed by Robert Emmet Bourke & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00019747-001

19/04/2018

The complainant is claiming that he was discriminated against on the housing assistance ground under Section 3(3B) and in terms of Section 6(1)(c) of the Equal Status Act 2000, as the respondent did not accept tenants on housing assistance payments.

The complainant saw an advertisement on a property website for a one room apartment for rent. On the 8th March 2018, he emailed the contact person named on the advertisement saying that he was very interested in the property and he would like to arrange a viewing. He enquired if the HAP scheme would be accepted saying he was passed for HAP and he had all his paperwork in order. He went onto say that once the paperwork was signed by the landlord, the deposit and the first month’s rent would be paid in to the landlord’s bank within 48 hours.

He received a response saying, “Apologies we do not accept HAP at the minute.” The complainant said that he had been sending emails about renting an apartment since 2016 but he never received a response like the one he received from the respondent.

The respondent said that she had a studio built at the side of her house for her husband who was disabled. Her husband passed away in 2011 and in 2017 the complainant retired and decided to rent out the studio apartment to supplement her pension.   Her daughter assisted her with advertising the property on a property website. She got several responses, including one from the complainant, seeking to view the property. She said that she believed that she had to register for HAP and she was not set up at that time to take HAP applicants. She instructed her daughter to email the complainant to say she was not accepting HAP at the moment. The respondent said that she withdrew the advertisement and asked an agency to handle the letting. The studio was eventually rented to a non-HAP tenant.

The respondent said that it was not her intention to discriminate against the complainant because he was in receipt of HAP and she went on to say that her own son is renting a property under the HAP scheme.

Legal Submission

The legal representative for the respondent submitted that the property came within the exception in Section 6(2)(d) of the Equal Status Act. The occupant of the studio would have full access to the respondent’s private house.

The issue for determination in 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), in relation to accepting applicants on rent housing assistance payments. 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(3B) provides:

“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”).”

Section 6(1) of the Equal Status Act 2000 as amended provides: “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.”

Section 6(2) provides for a list of exclusions from this provision including:

“(d) 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,”

The respondent submitted that the exclusion applied in this case as the place the respondent was seeking to rent was part of her home and it would affect her private and family life.

I note the advertisement described the property as a separate self-contained studio built as an extension to the family home. Access to the studio is through the front door of the family home, but the accommodation is a private quarter and fully self-contained. The accommodation consists of a living room with a bed, full bathroom facilities and a fully equipped kitchen. I note that the estate agent advertised the property as a studio/granny flat. I am satisfied having reviewed the evidence, that the exclusion in S. 6(2)(d) does not apply. It is clear that the accommodation is in a separate and fully self-contained unit attached to the home and that the tenant has no necessity to use any other part of the home other than the front door and hallway to gain access to the door of the accommodation.  

The next matter I must consider is whether the complainant was discriminated against on the housing assistant ground.  

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.

The complainant is a qualified applicant for housing assistance payment (HAP) and is therefore covered by the prohibited ground per Section 3(3B) cited above. It is clear from the respondent’s email response that she did not accept tenants on HAP at that time. The respondent’s refusal to accept the HAP Scheme meant the complainant could not rent the property. I am satisfied that the complainant was treated less favourably than a prospective tenant not requiring the financial assistance of HAP. I find therefore 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 said that she believed that she had to register for HAP.   I note that the complainant’s email of the 8th March 2018 stated that he fully qualified for HAP and he went on to explain the procedures for paying the deposit and the rent applied by authorities. He also asked to view the property and asked if HAP was accepted. I note that the respondent replied within 10 minutes of that email to say that she did not accept HAP. If the respondent was unsure of the terms of HAP and if she believed that she was required to register for the scheme surely, she would have made some enquires before refusing the complainant. I also note that in the advertisement the respondent was looking for a friendly professional/student to rent the property to and it is my view, that the respondent was of the view that a person on a HAP scheme would not fit this description.

The legal representative submitted that the property was not rented at that time to anybody, therefore the complainant has failed to establish less favourable treatment. He also submitted that saying HAP was not accepted was not a positive refusal to rent the property and the complainant failed to follow up on the email from the respondent. I cannot accept this argument as the complainant, who is homeless, was relying on HAP to pay his rent, and if the respondent did not accept HAP, there was no point in him following up on the email. Furthermore, prospective tenants seeking to view the property and who were not relying on HAP would not have received such an email. I also note that the property was eventually rented to a non-HAP tenant.

For all of the above reasons, I am satisfied that the respondent’s email to the complainant saying that she did not accept HAP constitutes discriminatory treatment on the housing assistance ground contrary to Section 6 of the Act. I am satisfied therefore, that the respondent has failed to rebut the prima facie case raised by the complainant.

I have concluded my investigation of this complaint and for the above reasons I find, pursuant to Section 25(4) of the Acts, that the complainant has established a prima facie case of direct discrimination on the housing assistance ground which the respondent has failed to rebut.

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."

Under the above Section the maximum amount of compensation I can award is €15,000. In considering the amount of compensation that I should award, I have noted the effects of the discriminatory treatment has had on the complainant. I note the complainant said he is stressed as he is living in homeless accommodation which is a difficult environment and despite being approved for HAP he is unable to source accommodation and refusals like this has added to his stress. In the circumstances, an award of €2,000 is appropriate.

I order the respondent to pay to the complainant the sum of €2,000 (two thousand euro) compensation for the discriminatory treatment.

Equal Status Act 2000, discrimination, housing assistance ground.