Complainant

Respondent

Anonymised Parties

A Tenant

A Landlord

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019810-001

17/06/2018

The complainant is alleging that she was discriminated against by the respondent on grounds of the housing assistance payment.

The complainant moved into the rented property owned by the respondent landlord in August 2017.   The complainant submits that in November 2017, the respondent landlord attended at the complainant’s accommodation. The complainant stated that she discussed with the landlord the financial difficulties herself and her partner were experiencing and issues in relation to the HAP scheme and she provided the respondent landlord with the relevant documentation relating to HAP. The complainant submits that the landlord listened to her issues but stated that he was uncertain if he wished to participate in the scheme and needed to discuss it with his sister who is co-owner of the property. The complainant states that the landlord then left the property and brought the documentation regarding HAP with him. Two weeks later, the complainant’s partner texted the respondent landlord asking him had he time to think over if they could avail of the HAP scheme to which the respondent replied that he had discussed it with his sister and they were not willing to accept the HAP scheme.

Following this turn of events, the complainant went to Threshold to seek advice. She states that they informed her that it is illegal for a landlord to refuse to participate in the HAP scheme. The complainant submits that after multiple attempts of trying to contact the respondent landlord via text message on 24 March and 26 March 2018 to which he received no response. The complainant stated that she texted the landlord on 4 April 2018 “Are you still not interested in taking HAP” to which the landlord replied “That’s correct”. The complainant maintains that these text messages were in reference to a previous verbal conversation between them. The complainant submits that on 11 April 2018, the respondent landlord called down to the property to discuss repairs and this lead to a further conversation about HAP. The landlord stated that his sister said no to HAP but he would discuss it with her again. The complainant states that a couple of weeks passed and they still had not heard back from the landlord so she attempted to contact the landlord again on 22 April and 30 April 2018 via text message to which she received no response. The complainant submits that on 10 May 2018, she sent by registered post completed ES 1 forms and included ES 2 form for the respondent landlord to reply. Following this, there was no contact with the landlord until 5 June 2018 when the complainant received a typed official response stating ”Dear Owen, I refer to your correspondence. I spoke to my sister and she has agreed that you can avail of the HAP scheme to assist you in paying the rent.” However, in response to this, the complainant contacted the landlord to arrange to meet him so that she could give him the HAP application form; the landlord responded and requested the complainant to drop it into his letter box which she did on 6 June 2018.

The next contact the complainant had with the landlord was when he called down to the house on 11 June 2018. The complainant submits that he produced an incomplete and inaccurate HAP form and the complainant requested that he complete the form correctly. The complainant states that the landlord refused to correct the form on the basis that he was not aware that the HAP scheme is a two year contract and stated that his sister is not willing to accept HAP and that she is considering moving back into the property when the lease expires on 4 August 2018. The complainant states that the last contact they had with the landlord was a telephone call on 13 June and after a brief discussion, the landlord confirmed that his sister was not keen on accepting HAP and they will not be renewing the lease after 4 August 2018 as his sister intends to move back into the property. The complainant submits that the respondent landlord is doing everything to push them out of the property so he does not have to accept HAP.

The complainant submits that she has pleaded with the landlord to accept HAP to help them through the tough financial time they are currently experiencing. The complainant states that the landlord’s refusal to participate in the HAP scheme is having a detrimental effect on her mental health causing increased stress levels, panic attacks and anxiety in fear of being left homeless with a two year old daughter. Her medical condition has been recognised and diagnosed by her GP and she was prescribed anti-depressant medication for same. The complainant contends that all of this could have been avoided if the landlord had not discriminated against them in relation to the HAP scheme. A notice of termination was served on the complainant on 16 July 2018 on the basis that a family member would require the property. The complainant states that the Residential Tenancies Board found the termination notice to be invalid but the respondent has appealed this decision.The complainant submits that the respondent landlord is buying himself time to avoid accepting HAP at all costs.

The respondent states that he never had any problem with the concept of HAP. He states that the difficulty was, by entering HAP it resulted in a situation where the tenants were going to be extending their tenancy way beyond the finish date originally agreed with them (4 August 2018) and that was not going to work for him. The respondent states that the property was the family home where he grew up and where his late father lived into his old age. He states that when his late father died in June 2016, he left the property to himself and his sister. The respondent states that the property adjoins where he lives with his family and the plan was that his sister was going to sell her home in Skerries and move in beside him. The respondent submits that she needed time to get her finances in order to make the move and in the meantime the respondent suggested that they should rent out the house and this was agreed to. By June 2018, the respondent’s sister had come to a decision following discussions with her husband that she had decided not to move as initially planned.

The respondent contends that this background explains why they were initially reluctant to commit to anything that might take them beyond 4 August 2018. The respondent said it was not about being against the HAP scheme. The respondent submits that when his sister told him she was not going to move in, he wrote to the tenants on 5 June 2018 stating that they had no problem accepting the HAP scheme. However, he states that he did not know at that juncture that in accepting the HAP scheme, it would involve tying up the house for two years. The respondent submits that when he was informed that in accepting HAP he would be tying up the house for two years, he was not happy with this length of time but it had nothing to do with being against assisted rent. He states that his difficulty was that he wanted to keep the house in the family for whenever any of them may want it.

The respondent states that there has been ongoing discussion in their house since last Christmas about his daughter wanting to move out. The respondent states that neither himself or his wife were in favour of her moving out and when his sister said she was not going to move into their late father’s house, it was the perfect opportunity to let their daughter move out but still be close to them. The respondent states that she was happy with the arrangement and was looking forward to it. The respondent submits that he then served notice of termination on the tenants and they reacted by claiming that the notice was invalid and they did not really want the house for their daughter but were discriminating against them based on not wanting to accept HAP. The respondent contends that he has no issue with HAP or never did. He states that the real problem is that he wanted the old family home back and that the tenants have a problem with this. He states the tenants have gone to the Residential Tenancies Board about it and informed them that it is all invalid. The respondent submits that the Board has now declared his Notice of Termination invalid. He states that he is disputing this and has appealed their determination. The respondent submits that to make matters worse, his daughter could not wait for the issue to be sorted out and has now moved out and is living in a flat in Dublin, a situation he wanted to avoid. The respondent reiterates that he did not discriminate against the tenants on the HAP ground.  

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 its refusal to accept payment of their rent under the HAP scheme and its subsequent notice of termination to the tenants.

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 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 be 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 swelling- (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.

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 in the instant case. I am satisfied that the complainant had a discussion with the respondent landlord in November 2017 in relation to HAP and requested the respondent to complete the appropriate forms in order that they could avail of HAP. The complainant continued to ask the respondent landlord to complete the necessary documentation over the following months but to no avail. The respondent landlord initially stated that his sister wanted to move back into the house but then he said she changed her mind. Subsequently the respondent landlord tentatively agreed to sign the HAP documentation but when it became known to him that the HAP would require a commitment of two years, he did not want the house tied up for that length of time.

The complainant submits that she received a notice of termination on the property which was served on 16 July 2018. The complainant submits that on this occasion the purported reason of the notice of termination was on the basis that the landlord’s daughter wanted to move into the property. I note that the Residential Tenancies Board has now declared the landlord’s notice of termination invalid but that this matter has been appealed.

Having adduced the totality of the evidence in the instant claim, I find that the complainant has established a prima facie case of discriminatory treatment on the housing assistance ground which has not been rebutted by the respondent. I found the complainant to be a cogent and credible witness. In contrast, I found the respondent to be inconsistent in his evidence. I am cognisant of the complainant’s documented health issues and that she and her family have suffered considerable stress and anxiety as a result of the respondent landlord’s failure to accept rent supplement/HAP. Accordingly, I find that the respondent breached its obligations under the Equal Status Acts when it refused to participate in the HAP scheme.

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

Under Section 27(1) of that Act, redress may be ordered where a finding is in favour of the complainant. In considering the amount of compensation that I should award, I am mindful of the effect the discriminatory treatment has had on the complainant and her 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.