ADJ-00012567

Complainant

Respondent

Parties

Aisling Kinsella

Maureen Shortall

Representatives

Dermot Morahan Oliver P. Morahan & Son

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00016668-001

08/01/2018

The Complainant claims that she has been discriminated against in terms of S3 and S6 of the Equal Status Acts 2000-2015 on the housing assistance ground. She was almost 4 consecutive years a tenant of the Respondent when she applied to be placed on the County Council housing list. She then became eligible to apply for Housing Assistance Payment “HAP” pursuant to Part 4 of the Housing (Miscellaneous Provisions) Act 2014. The Scheme operates so that Tenant pays a rent contribution. In this case 1,161.29 euro is paid by the HAP scheme to the Landlord towards the Complainant’s monthly rent of 1,200 euro.

The Complainant’s applied for County Council housing and was then eligible for the HAP. She was receiving rent supplement during this period of 657 euro.

The Complainant began the HAP application and was informed by the County Council this would commence on 2nd October 2017. The Respondent is one of 2 co-owners of the property which the Complainant was renting. The Respondent informed the Housing Assistance Payments Department by email that she did not wish to proceed with the HAP scheme on 25th September 2017, a few days prior to the HAP payment being made. The Respondent said the house was up for sale and will hopefully be sold by November.

The Complainant was then unable to move to HAP from rent supplement. She was liable for payment of the difference of 368.67 euro per month due to the Landlord’s refusal to accept HAP from October onwards. She was on maternity-leave at the time and in a vulnerable situation with a young baby. This had a serious detrimental impact on her personal situation. It restricted her from returning to work, and says if she returned to work she would lose her benefits. She incurred financial loss of 2,210.22 euro as a result of this refusal.

The Complainant provided evidence of payment of rent consistently at the beginning of each month. Following the refusal of the HAP payment she paid the difference in 2 instalments on 3rd and 6th October 2017. She received a notice of rent arrears on 2nd October 2017 from the Landlord requiring payment in 14 days or eviction. On 5th October 2017 she sent a Form ES1 to the Respondent and no response was received.

She subsequently received a valid notice of termination of the Tenancy in December and left the property in March 2018. She has incurred expenses in pursuing her complaint.

There are 2 co-owners of the property, and they retained a managing agent to represent them in dealings with the Complainant. The Complainant says she was informed by the Respondent that the other co-owner was refusing to agree to the HAP payment. She claims she has been discriminated against by the Respondent obstructing and delaying her access to the HAP payment, and in being served with Notice of rent arrears on 2nd October 2017. 

The Respondent denies discrimination of the Complainant on the housing assistance ground or obstructing access to HAP. She says she replied to the form ES1 and made every effort to sign up to HAP. She sent on the ownership details and her personal bank account and on 11th September 2017 confirmed she would participate in the scheme. The difficulty was that HAP would not put the rent into 2 different bank accounts and the co-owner would not agree for all the rent to be paid to the Respondent nor would he allow his bank details to be sent to the Revenue for the rent to go to his account only. This Respondent engaged with the process and did everything possible to allow this to proceed, she should not be penalised for the co-owner’s failure to comply with his obligations.

The house was due to be sold in November 2017. The Respondent informed their letting agent that they did not intend to renew the lease as the house was to be sold.

The Respondent denies discrimination, and seeks details of the alleged discrimination on 1st January 2018. The Respondent accepted rent assistant payments. The Respondent ultimately directed the County Council to close their file, this was only done once all avenues had been exhausted and as the tenancy was due to expire on 22 November 2017. As the October date had been missed by the co-owner, the next HAP payment date would be 29 November 2017 after the tenancy expired and this is why the Respondent emailed the Council to confirm there was little point in the application proceeding.

The Respondent denies discrimination in serving a rent arrears notification as the original lease specified the payments to be made on 22nd of the month. The Respondent was unaware of the change to 1st month agreed by an agent and thought the rent was 10 days in arrears when the notice was served. The full amount of the arrears was not paid until 9th October and she was entitled to do this.

The property was put up for sale out of financial necessity. The claim is frivolous and vexatious and is causing the Respondent great stress.

In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I enquired into the complaint and gave the parties an opportunity to be heard by me and to present any evidence relevant to the complaint.

I heard the submissions made by the parties at the hearing and considered the written submissions made by parties.

The Complainant complains that she has been discriminated against in terms of S3 and S6 of the Equal Status Act 2000-2015 due to her receipt of housing assistance payment, in the provision of services related to accommodation by the Respondent. In particular she alleges she was discriminated against in relation to her access to the Housing Assistance Payment which was obstructed and delayed, and being served with a Notice of rent arrears on 2nd October 2017.

S5 of the Equal Status Act 2000 as amended provides that:

“A person shall not discriminate in disposing of goods to the public generally or a section of the public, or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 3 (1) of the Act 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 world 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,

………………………………………………….

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

……………………………………

(3B) For the purpose of section 6(1) (c ) the discriminatory grounds shall (in addition to the grounds specified in subsection (2d) 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”)

The burden of proof is set out in Section 38 of the Equal Status Acts 2000-2015 and requires that where facts are established by or on behalf of a Complainant from which it may be presumed that prohibited conduct has occurred, the burden of proof shifts to the Respondent. Then it is for the Respondent to prove the contrary.

The Complainant was in receipt of rent assistance and then qualified for the Housing Assistant Payment which would reduce her rent payment by 368.67 euro monthly. The first payment of Housing Assistance was due to be paid to the Respondent who is a co-owner on 1st October 2017. The Complainant provided evidence of an email from the Respondent to the County Council refusing to participate in the HAP scheme on 25th September 2017. She says she served notice of her complaint on the Respondent on 5th October 2017 and did not receive a response. There is a letter of 3rd November 2017 in reply from the Respondent saying that she had done everything possible to facilitate HAP but the co-owner would not provide his bank account details to HAP nor agree to the Respondent accepting the rent from HAP which has frustrated the process. The Complainant has also lodged a complaint of discrimination against the other co-owner in ADJ-00012568.

The Respondent has evidenced information being furnished by her to the County Council to proceed with HAP, together with requests to her co-owner to revert with bank details for the Council in order to progress the application. This was not furnished by the co-owner. A notice of termination of the lease had been served by the Landlords and the Respondent says she understood that the tenancy would expire on 22nd November 2017. It was in those circumstances that the Respondent says she emailed the Council to withdraw consent to the HAP application. The other co-owner had not furnished his details to the County Council so the application could not be progressed. The withdrawal of consent to the application on 25 September 2017 by the Respondent caused the Complainant 2 months financial loss. The notice of termination of the lease was subsequently found invalid and in fact the Complainant did not vacate the property until end of February 2018. This gave rise to 5 months of financial loss for the Complainant. No attempt was made to revisit the application for HAP by the Respondent when the tenancy was extended.

I find pursuant to S25 (4) of the Act, a prima facie case of discrimination on the housing assistance ground contrary to S3 and S6 of the Equal Status Act has been shown by the Complainant, due to the withdrawal of the Respondent from HAP scheme. This placed the Tenant under financial pressure when compared to a Tenant not requiring HAP. I take into account the Respondent’s agreement to HAP and attempts to facilitate this prior to 25 September 2017. I find the Respondent was entitled to serve a notice of rent arrears on 2nd October 2017 and this does not amount to discrimination.

The Respondent is a service provider under S5 of the Act as is her co-owner in the property. I have measured the culpability of the co-owners in assessing compensation for discrimination in each complaint of discrimination. The Complainant has suffered financial loss of 2,210.22 euro.

Pursuant to Section 27 of the Equal Status Act 2000-2015, I order compensation of 1,000 euro to be paid by the Respondent in her capacity as co-owner to the Complainant for the effects of the prohibited conduct concerned.

Pursuant to Section 27 of the Equal Status Act 2000-2015, I order compensation of 1,000 euro paid by the Respondent in her capacity as co-owner to the Complainant for the effects of the prohibited conduct.