ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012568
Parties:
| Complainant | Respondent |
Parties | Aisling Kinsella | Tom Heneghan |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00016669-001 | 08/01/2018 |
Date of Adjudication Hearing: 24/05/2018
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
Pursuant to Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
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 years a tenant in the house when she applied to be placed on the County Council housing list. She then became eligible to apply for the 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 and 1,161.29 euro is paid by the HAP scheme to the Landlord towards the Complainant’s monthly rent of 1,200 euro. |
Summary of Complainant’s Case:
The Complainant’s contract of employment concluded and became eligible for HAP. She was receiving rent supplement at the time of 657 euro. The Complainant was informed by the County Council the HAP would commence on 2nd October 2017. The property is owned by 2 co-owners. The Respondent’s co-owner 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 co-owner said the house was up for sale and will hopefully be sold by November. The Complainant was then liable for payment of the difference of 368.67 euro per month due to the Respondent’s refusal to accept HAP at short notice 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. She incurred financial loss of rental assistance of 2,210.22 euro and expenses. On 5th October 2017 she sent a Form ES1 to the Respondent and no response was received. 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. She subsequently received a valid notice of termination of the Tenancy in December and left the property in March 2018. The 2 co-owners of the property retained a managing agent to represent them in dealings with the Complainant. The Complainant says she was informed by the other co-owner that the Respondent 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. She has also lodged a complaint of discrimination against the Respondent’s co-owner in ADJ-00012567. |
Summary of Respondent’s Case:
The Respondent denies discrimination of the Complainant on the housing assistance ground or obstructing access to HAP. He says he has no involvement in the events outlined by the Complainant. He had no contact with the Housing Assistance Payments Department, nor contact from the Complainant regarding the HAP scheme. The Respondent says there were no questions on part 6 of the ES1 form and the dates are incorrect referring to 22nd September not 25 September 2017, and 1st January. There is no evidence of permission being sought from the Respondent to the HAP scheme, nor withdrawal of permission. The Complainant alleges that recipients of rent allowance are not allowed to seek employment but there is no evidence to support this. The Respondent says the Complainant gave evidence to the Residential Tenancies Board that he had informed her of a new scheme by the Department of Social Protection which paid rent directly to Landlords, and says this contradicts her claim of a personal bias against HAP recipients. He objects to the complaint being made as he says the Complainant is not on housing assistance. There are 2 co-owners of the property, and the other co-owner manages the lease on behalf of the Respondent. There is also a managing agent for the property. The Respondent says he is not aware of the day to day issues but the rent is to be paid on 22nd of each month. He met the Complainant to ask her to fix this, and moved it to the 1st of the month but it was still late again. The Respondent did not want the house to be sold. He had no objection to the HAP process. 3 notices of termination of the tenancy had been given to the Complainant but these were found to be technically incorrect by the Residential Tenancies Board. The Respondent’s last month’s rent was unpaid and maybe 1 more, and the rent was late. |
Findings and Conclusions:
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 the Respondent on 28 June 2018, and the Complainant on 9th July 2018. 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 and his co-owner in ADJ-00012567. 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. The Complainant was in receipt of rent assistance and then qualified for the Housing Assistance 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 on 1st October 2017. The Complainant provided evidence of an email from the co-owner of the Respondent to the County Council refusing to participate in the HAP scheme on 25th September 2017. She served a notice of her complaint on the Respondent on 5th October 2017 and did not receive a response. 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. I find a prima facie case of less favourable treatment has been shown by the Complainant due to the refusal of the Landlord’s co-owner who was managing the property to participate in the HAP scheme. This placed the Tenant under severe financial pressure and caused great difficulty paying rent, when compared to a Tenant not requiring HAP. The Respondent objects to the Tenant’s complaint and says she is not in receipt of housing assistance so does not come within the housing assistance ground in order to pursue this complaint. The Tenant has given evidence that she was in receipt of rent assistance during the months prior to trying to move to the Housing Assistance Payment scheme in September 2017. The High Court in G -v- The Department for Social Protection 2015 IEHC 419 describes the Equal Status Acts as a remedial social statute requiring liberal interpretation…”Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally”. In decision ADJ00004100 the Adjudication Officer interpreted the wording contained in Section 3 B of the Equal Status Act where the person is “in receipt of” Housing Assistance as encompassing qualified applicants deemed eligible for the payment of HAP once they have sourced a dwelling and all the conditions have been met. I am following the interpretation of the Adjudication Officer in this case, as to adopt any other interpretation would otherwise render the Act’s provisions futile. The Respondent says that he did not discriminate against the Tenant. He says his co-owner was instructed to act on his behalf in dealing with the Tenancy. He claims he was unaware of the Tenant’s application for a HAP payment and had no objection to this. He says he was not involved in refusing to participate in the HAP scheme, and did not want to sell the house. I do not accept these assertions. Both of the co-owners are service providers under S5 of the Act and are liable for any conduct in breach of the Act. I also note S2 of the Act which defines “refusal” as including a deliberate omission, and S2 (3) which provides that in any proceedings a Respondent is presumed, unless the contrary is shown, to fail to do something when- (a) the Respondent does an act inconsistent with doing it, or (b) the period expires during which the Respondent might reasonably have been expected to do it.” The Respondent’s omission to participate in the HAP scheme must be deemed a refusal. I find pursuant to S25 (4) of the Act that the Complainant has raised a prima facie case of discrimination on the housing assistance ground contrary to S3 and S6 of the Equal Status Act, which has not been rebutted by the Respondent. Prior to the Tenant seeking to move to HAP, a number of invalid termination Notices had been served on her commencing in July 2017 as the property was being put up for sale. Following the refusal of the Respondent’s co-owner to participate in the HAP scheme on 25th September 2017, the Tenant was due to pay rent on 1st October 2017. She was served with a 14 days Warning Notice for Rent Arrears on 2nd October 2017 threatening to terminate the tenancy which caused distress for her. She had difficulty in paying the rent as she thought she would be in receipt of HAP. The Tenant left the premises in March 2018 and has suffered financial loss and expense due to the conduct of the Respondent. I find the Respondent was entitled to serve a notice of rent arrears on 2nd October 2017 as the original payment date under the lease was 22nd of the month, and this does not amount to discrimination. The Respondent is a service provider under S5 of the Act as is his co-owner in the property. I have measured the culpability of the co-owners in assessing compensation for discrimination in each separate 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 2,500 euro to be paid by the Respondent in his capacity as co-owner to the Complainant for the effects of the prohibited conduct concerned. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Pursuant to Section 27 of the Equal Status Act 2000-2015, I order compensation of 2,500 euro paid by the Respondent in his capacity as co-owner to the Complainant for the effects of the prohibited conduct concerned. |
Dated: April 29th 2019
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
Receipt of housing assistance, omission to consent to HAP deemed refusal, liability of co-owners of property, |