DEC-S2018-029

EQUAL STATUS ACTS 

DECISION NO. DEC-S2018-029

PARTIES

Mr. & Mrs. S & their children

(represented by Heather Rosen) 

-v- 

Clare County Council

(represented by John P. Shaw, Michael Houlihan & Partners Solicitors) 

&

Department of Social Protection

(represented by Mark Finan BL, on the instructions of Chief State Solicitors Office)

File reference: ES/2011/0146 & ES/2011/0147

Date of issue: 12 December 2018

1      Background to the Claim

1.1       The complainants referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts on 21 September 2011. On 10 January 2018 in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Valerie Murtagh, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 14 May 2018.

1.2       This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84(3) of the Workplace Relations Act, 2015. Given the sensitivities of the issues connected with the complaint, I have decided to exercise my discretion to anonymise the identities of the complainants.

2. Dispute

2.1       The dispute concerns a claim by the complainants that they were discriminated against by the respondents on the grounds of race and membership of the Traveller community in terms of Sections 3(1) and 3(2) contrary to Section 5 of the Equal Status Acts in relation to (i) rent allowance being cut off from family members and the effect this had on their accommodation situation (ii) forced to accept a house in an area they did not wish to live and (iii) that they were subjected to harassment.

3. Summary of the Complainants Case

3.1       The complainants submit that they are members of the Traveller community and have been discriminated against by the above named respondents. It was submitted on behalf of the complainants that in Summer 2010, Mrs S and her children left their accommodation at a Traveller Group Scheme in Co. Clare because she found the conditions of life there intolerable and subsequently remained in a refuge in Limerick for a few months. Mrs S states that she was subsequently granted rent allowance for a house in Shannon. She states that her husband then sought to be reconciled with her and the children and he surrendered the tenancy of the Group Scheme in Co. Clare. The complainants submit that in late July 2010, rent allowance for the family was stopped and they became homeless. The complainants submit that after 4/5 weeks of no rent being paid, the letting agent wanted them out of the property in Shannon. They visited the Council offices to seek assistance. The complainants submit that, in mid August, homeless payments were made conditioned upon them signing for a tenancy at location C. They stated that in accepting this accommodation, they were at risk of threats against them. The complainants submitted that they feared if they did not take the house in question that their payments would be stopped. The complainants state that at a meeting in September 2010, they were treated in such a manner as to make them feel they were not good enough for the house in question despite being forced to live there. The complainants submit that they were spoken to by officials, in a degrading and humiliating manner. The complainants also contend that they were informed that they could not have a pet dog at the accommodation at location C and they were told that the tenancy would be on a trial basis.

4. Summary of the Respondents Case.

4.1   The respondents objected to the hearing going ahead on the basis that there had been an inordinate delay from the time the case had been referred to the date of hearing and that the complaint is an abuse of process and should be dismissed as frivolous and vexatious.

4.2   In relation to the substantive elements of the complaint, it was submitted on behalf of the respondents that the family had been housed in Traveller specific accommodation in a named location. It was submitted that Mr. S was drinking and the situation resulted in Mrs S and her children leaving the location and they sought accommodation at a refuge in Limerick. Following a number of months at the refuge, Mrs S found accommodation in the private rental sector and moved into a house in Shannon with her children. It is submitted that shortly afterwards, Mr S sought to be reconciled with his wife and children and he stated that he surrendered the tenancy of the Traveller Group Scheme. However, the respondents submitted that he had been informed that if he surrenders the tenancy without good cause, it would adversely effect the entitlement to rent supplement payments. The respondents state that Mrs S while in the accommodation in Shannon was informed that she would receive a visit from an official in due course and be assessed for rent allowance. She had informed the official that her husband was no longer living with her. On 1 June, Mrs S was assessed for rent allowance by the appropriate officials. She confirmed that her husband was now living with her, however the respondents maintain that Mr. S still had the tenancy at the Traveller specific accommodation. Counsel for the Department of Social Protection submitted that the complainants were refused rent allowance on 1 June on that basis and received a letter in that regard. It was submitted that the complainants had the opportunity to appeal to the Community Welfare Officer (CWO) but no appeal was made. Counsel for the Department of Social Protection reiterated that Mrs S was never granted rent allowance contrary to her assertions in this regard but that she did receive exceptional needs payments from the CWO.

4.3  An official Ms. M, (Housing Officer) gave direct evidence at the hearing. She stated that she received a telephone call from P (who is a sister of the complainant) in May 2010, stating that Mr. S had moved out of the Traveller specific accommodation and that herself and her husband and children had moved in. P also stated that Mr. S surrendered the tenancy on the basis that he was going to England. It was submitted that on 13 August the complainants presented as homeless as they had to vacate the house in Shannon. The complainants attended at the homeless clinic and were given exceptional needs payments which is at the discretion of the CWO. It was further submitted that on 18 August the complainants were formally offered the accommodation in location C. Counsel for the Department of Social Protection submitted that the CWO never put any pressure on the complainants to accept the accommodation on the basis that they would have to withdraw emergency payments. An official (Ms. W) who was involved in the pre-tenancy meetings with the complainants gave direct evidence on the day of the hearing. She stated that she has 25 years experience in the area. She denies the allegation that the complainants were informed they could not keep pets at the accommodation at location C. She stated that pursuant to the tenancy agreement, the complainants were advised that they could not keep anything other than domestic pets at the accommodation. The respondents refute the allegations of harassment and threatening behavior by officials at the pre-tenancy meetings. In relation to one of the instances of threatening behavior alleged by the complainants relating to a request for one of the parents to step outside the room with the children; it was submitted by the official in question that the meeting room is small with no windows and given the noise level and in order to have a productive meeting, this request was made and in a comparable situation, the same request would have been made of a family from the settled community.

4.4  In conclusion, Clare County Council submits that the complainants were offered reasonable accommodation and did so within their statutory framework and met its requirement in this regard. Counsel for the Department of Social Protection submitted that there was no withdrawal of homeless payments and indeed €1700 in exceptional needs payments were provided to the complainants over a two week period. It was submitted, that on 27 July, Mrs S confirmed that she wanted to take the house at location C but that subsequently when the complainant’s representative became involved, she seemed to be putting them off said accommodation and was objecting to location C. It was submitted that while the complainants were reluctant to move into the accommodation at location C, the fact that they have lived in that accommodation for the past 8 years happily and without incident vindicates the decision to relocate them to that accommodation. In conclusion, the respondents refute the allegations of discrimination and submit that there is no basis for same. The respondents also refute the allegations of the complainants in relation to claims of harassment.

5. Conclusions of the Equality Officer/Adjudication Officer  

1. 5.1 The issues for decision by me are (i) whether or not the respondents discriminated against the complainants, on grounds of membership of the Traveller community and ethnic origins in terms of Sections 3 of the Equal Status Acts and (ii) whether or not the respondents subjected the complainants to harassment contrary to Section 11 of the Equal Status Acts.

2. 5.2 In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.

1. Discriminatory Treatment     

      5.3       I will firstly consider whether or not the alleged treatment amounted to discrimination within the meaning of Section 3(1) of the Equal Status Acts. Section 3    (1) of the Acts provide:

1. “(1) 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’ … “

1.  Section 3(2) of the Acts provide that:                  

“(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are:

1.          ……    …..

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”).

5.4       I must first consider whether the existence of a prima facie case has been established by the complainants. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. It is only where such a prima facie case has been established that the onus shifts to the respondents to rebut the inference of discrimination raised.

5.5       The present complaint of discrimination has been grounded on both the Traveller community and race grounds. It was not in dispute that the complainants are members of the Traveller community and I am therefore satisfied that they are covered by the Traveller community ground. The complainants also claim that they were subjected to discriminatory treatment on the grounds of their ethnic origins as a member of Traveller community when compared to the manner in which a person of a different ethnicity, such as an Irish national, who is not a member of the Traveller community was or would have been treated in a comparable situation. Having regard to the fact that members of the Traveller community are recognised as a distinct ethnic group within the Irish nation, I am therefore satisfied that the complainant, being a member of the Traveller community, is also covered by the race ground for the purpose of this complaint.

5.6       The complainants have claimed that discrimination occurred when their rent payments were cut off and the effect this had on their accommodation situation and that they were forced to accept a house in an area they did not wish to live. Having adduced the evidence in the matter, I am satisfied from the letter submitted at hearing by Counsel for the Department of Social Protection that the complainants were refused rent supplements for the house in Shannon on the basis that the tenancy at the Traveller Scheme had not been surrendered by Mr. S. However, I note that Mrs S received exceptional needs payments at this juncture from the Community Welfare Officer. I am cognisant that while the complainants’ representative stated that the complainants had serious reservations about taking the house in location C, I note that at the hearing they stated that they have lived at this location for the past 8 years without incident and are contented with same. In the specifics of the claim before me, I conclude that no evidence has been presented by the complainants through their representative to demonstrate a nexus in relation to their treatment and their race or membership of the traveller community. I am satisfied that the respondent acted in the same way that they would have done to anyone regardless of their race or whether or not they were members of the traveller community. Accordingly, having regard to the totality of the evidence adduced in this matter, I find that the complainants have failed to establish a prima facie case of discrimination within the meaning of Section 3 of the Acts against Clare County Council or the Department of Social Protection.

Harassment

5.8       The complainants also claimed that they were subjected to harassment by the respondents contrary to Section 11 of the Equal Status Acts. In order to raise an inference of harassment the complainants must establish that they were subjected to unwanted conduct by the respondent within the meaning of Section 11(5) of the Equal Status Acts which had the effect of violating their dignity and creating a hostile, humiliating or offensive environment for them. I heard direct evidence from a number of witnesses on behalf of the respondents who had interaction with the complainants. I have found their evidence to be cogent and compelling in terms of their interaction with the complainants and I am satisfied that they did not engage in any conduct towards the complainants which could be construed as harassment within the meaning of Section 11 of the Acts. 

5.9       Having regard to the totality of the evidence adduced, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the complainants were subjected to harassment contrary to section 11 of the Acts. Accordingly, I find that the complainants have failed to establish a prima facie case of harassment within the meaning of Section 11 of the Acts against Clare County Council or the Department of Social Protection.

6. Decision

6.1       In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and I find that:

i    The complainants have failed to establish a prima facie case of discrimination on the race or Traveller community ground within the meaning of Section 3 of the Acts.

ii   The complainants have failed to establish a prima facie case of harassment within the meaning of Section 11 of the Acts.

Accordingly, I find in favour of the respondents. 

_________________

Valerie Murtagh

Equality Officer/Adjudication Officer

12 December 2018