Complainant

Respondent

Parties

Ekaterina Koneva

Tom Hickey

Representatives

Self

Mr. Jack Hickey BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017611-001

23/02/2018

The Complainant lodged her complainant with the WRC on the 23rd of February 2018. She claimed she was discriminated against by the Respondent (a landlord) by reason of her notification to his agent that she qualified for housing assistance payment (HAP) for a property he had available to rent.

She agreed to rent the property and paid a deposit of €600.00 to the landlords letting agent. Following her HAP notification, the letting was withdrawn, and the deposit was returned to her.

The Respondent denied these allegations.

The Respondent made a preliminary application about the ES.1 Form and failure to serve it in accordance with Section 21 (2) of the Equal Status Act 2000 -2018.

Section 21 (2) sets out:

“Before seeking redress under this section, the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or as the case may be the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

Section 21 (4) sets out:

“The Director of the Workplace Relations Commission shall not investigate a case unless he or she is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.”

The Respondent’s submission is that compliance with this Section has not been made by the Complainant. He never received an ES.1 form. The first notice he received of the complaint was the 9th of March 2018 when he received correspondence from the WRC.   He then received a letter by registered post 21st of January 2019 (3 days before the hearing) directly from the Complainant.

Counsel for the Respondent submitted that the investigation should not proceed because the two-month period as required under Section 21(2) was not complied with.

In addition to same, he made a preliminary application that the complaint was filed outside of time limits set out in the Equal Status Act with the WRC.   On the Workplace Relations complaint form, the question was asked

“What is it the date of the first incident of discrimination”

The answer given was “11th of August 2018”

The following question was asked

“What is the most recent date of discrimination?”.

The answer given was “24th of August 2017”.

The Complaint was lodged on the 23rd of February 2018.

Counsel for the Respondent submitted that the Complainant was trying to “date the case” to suit the time when she lodged her complaint with the WRC.

In the ES.1 form she submitted to the letting agent she set out the date of the unlawful treatment as “the 11th of August 2017, in the morning”.

The Complainant’s reply was that she and her agent dealt exclusively with the letting agent and didn’t have the name of the Respondent at the time she was engaging with him. She only ascertained the name of the Respondent in 2018. She submitted that the letting agent was the Respondent’s agent in his dealings with her and she had served his agent with the ES.1 form in accordance with the legislation. She referred to her text to the letting agent on the 24th August 2017 after 17.25 p.m. advising him that she had dropped a letter (containing the ES.1 form) into him to start the complaint process to the Workplace Relations Commission against the landlord for discrimination. In the text she set out

“do inform the owner about this. He can still avoid a dispute procedure if he will follow the promise by agreement reached between us several weeks ago”.

As regard the time limits for lodging a complaint, the Complainant’s case was that the discrimination was a continuous act from the 11th August 2017 through to 16th August 2017 and on to the 24th August 2017 when she was finally refused the accommodation due to her notification that she qualified for the HAP scheme.

I reserved my decision regarding the preliminary applications.

The Complainant’s case was that she was looking for a house to rent as her existing lease was ending. She was abroad for part of the rental search. Her friend offered to help her and as her agent he called to different auctioneers in the town enquiring as to rental properties.

A local auctioneer / letting agent advised him that there was a house available for rent, but it was not advertised.

The Complainant’s friend viewed this house on the 20th of July 2017 for the Complainant. She was happy to take the house and her friend paid a deposit of €600.00 on the 26th of July 2017 to the letting agent.

Following same, the Complainant sent several emails and texts to the letting agent.   She didn’t receive a response.

On the 11th of August 2017 her friend advised her that the letting agent had made contact with him and told him to collect the Complainant’s deposit from his office because the landlord was not happy to deal with HAP and wouldn’t rent the house to her.

Her friend then informed the letting agent that she would pay the rent from her own resources and not apply for HAP.

The Complainant and her friend continued to email and text the letting agent.   On the 16th August 2017 her friend rang his office 8 times. During one of the conversations, the agent asked for a reference letter from her current landlady.

On the same day, the letting agent contacted the Complainant by text and requested she give him a call when convenient.  The Complainant rang the letting agent and had a 7-minute telephone conversation with him. This was her first direct contact with him. He asked her to provide a reference from her current landlady. He also told her that the landlord did not wish to deal with a HAP tenant on the advices of his accountant. The Complainant gave evidence that the letting agent promised her that he would encourage the landlord to take her on as a tenant with her rent being paid under the HAP scheme.

The Complainant returned to Ireland on the 19th of August 2017 and planned to meet the letting agent between the 21st and 22nd of August 2017 to sign the letting agreement.

Over the next number of days, the Complainant tried to contact the letting agent without any response.

On the 24th of August 2017 she received a text from the letting agent saying that the landlord had sourced a tenant himself. Earlier that day she had delivered an ES.1 form to the letting agent by hand.

The Complainant submitted a receipt for €600.00 deposit for the house received from the letting agent dated 26th of July 2017. Handwritten on the receipt was “security deposit Garbally School house via Gary Higgins”.

She also submitted emails between herself and the letting agent and screenshots of texts.

The Complainant’s friend gave evidence. His confirmed that his involvement was only at the start of the negotiation process. He was unsure of the dates that events happened, and he admitted he couldn’t remember who told him that HAP was going to be a problem. His evidence was that it was either the letting agent or his secretary.   He agreed that this was the no reference in the texts or emails to HAP. He confirmed that this property was the only property for rent in the town and the Complainant was desperate to secure accommodation for herself and her son. He agreed that he was advised of the nursing home involvement in the letting of property but not in the way the Respondent was claiming.   His evidence was that he was only told that staff from the nursing home had rented the property in the past.  

The Complainant wrote again to the letting agent on the 26th of October 2017. She received a reply from him on the 8th of November 2017 advising that he had responded to her ES.1 form but to her earlier address than she was currently living in.

The Complainant was able to find accommodation eventually, but she had to incur additional costs in her son’s delayed return to Ireland. She wanted to be compensated for same and the effects of the discriminatory conduct on her.

The Respondent’s evidence was that he knew nothing about the letting agent and the interactions with the Complainant.

He had a tenant in the property up until the end of July 2017 and while he did have some interaction with the letting agent Mr. Corcoran, he hadn’t given him exclusive authority to rent the property.

The Respondent’s wife worked in the local nursing home and he had previously rented the property to her co-employees. His evidence was that he had an ‘obligation to the Nursing Home’ to rent the house to any of its staff who were in need of accommodation.

The Respondent himself was out of the country for ten days during the period the subject of this complaint, due to a family bereavement and on his return, he was told by his spouse that the letting agent had a “client to take the house”.

Around that time, the nursing home contacted him to ask if the house was available as three staff members were travelling from India in August 2017 and would need accommodation.

As nothing had been signed with the letting agent’s client, the Respondent decided to rent the property to the nursing home staff.

The Respondent denied that he discriminated against the Complainant. He explained how has never refused any tenant in receipt of the Housing Assistance Payment. He denied that he was advised by his accountant about the HAP scheme and was astounded by the Complainant’s submission on that point.

His evidence was that the house is outside of the town - in the countryside - and he would prefer it to be rented than to be unrented. He was self-employed and had a mortgage on the property.   All income was declared for tax purposes and he was registered with the PRTB.

The Respondent’s evidence was that he knew nothing about the deposit paid for the house on the 26th of July 2017 or an arrangement being set up to sign the letting agreement with the letting agent.

The letting agent gave evidence on his involvement in the events set out above. He confirmed that he was instructed by the Respondent to view the property and line up a possible tenant if the Nursing Home didn’t require the property for their employees. He had no involvement in the negotiations with the Nursing home as the Respondent was dealing directly with them himself.

He confirmed that the property was never advertised as being for rent and he informed the Complainant’s friend and agent during the viewing process and thereafter that there was no certainty that the property would be available as he hadn’t confirmation that the Nursing home didn’t require the property. His evidence was that he was told that the Complainant was desperate for the property and she wanted to pay a deposit to hold the property “in the event that it did become available”.

The letting agent confirmed that up until the 11th August 2017 and beyond the Respondent was “holding out” on making a decision until he had confirmation from Nursing home that they did or did not require the house. His evidence was that this was conveyed to the Complainant and her friend and agent on numerous occasions.

As regards the allegation that the decision not to proceed with the letting was due to her HAP eligibility, the letting agent was very forceful in his evidence that at no time was HAP an issue for him or the Respondent. Neither he or his secretary would have advised the Complainant or her agent any differently. His secretary was not available at the hearing to confirm likewise due to his business need to keep his office open on the day of the hearing.

He submitted that if HAP was such a pertinent matter in the negotiations between the parties for the period 26 July to 24 August 2017, why was there no reference to same in any of the text messages or emails over that period.

His evidence was that he appreciated that the Complainant was desperate to arrange accommodation, but the decision not to rent the property to her was not related to her HAP qualification.

This complaint is against the landlord of a rental property. The Complainant brought a separate complaint against the letting agent for discrimination also.

The Respondent gave evidence that the letting agent was not instructed by him in relation to this letting and that he was out of the country and unaware of the interactions between the letting agent and the Complainant and her friend /agent. This is somewhat at variance with the evidence given by the letting agent.   Under cross examination, the Respondent agreed that the letting agent had leased the property for him before and on this occasion had offered to ‘line up tenants’ for him.

In those circumstances I find that the letting agent was acting as agent of the Respondent albeit on a somewhat non-exclusive basis.

The issue for determination in this complaint is whether the respondent discriminated against the complainant under the ‘housing assistance’ (HAP) ground contrary to Sections 3 and 6 of the Equal Status Act 2000 -2018, in relation to her seeking accommodation to rent.

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 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 was in receipt of HAP for the house she was previously renting. Her household is a ‘qualified household’ within the meaning of Part 4 of the Housing (Miscellaneous Provisions) Act 2014 and she is covered by the prohibited ground as per Section 3(3B) as mentioned above.

I have considered the preliminary application of the Respondent. As set out above, I accept that the letting agent was acting as agent of the Respondent and that the Complainant did not know the name of the landlord at the time of service of the ES.1 form on the letting agent. Therefore, I find that the service of the ES.1 form was made in accordance with Section 21 (2) of the Equal Status Act 2000.

In the circumstances of where the Complainant paid a booking deposit to rent a property and on advising the Respondents letting agent that she was a HAP recipient, had her booking deposit returned, I find that the complainant has established a prima facie case of discriminatory treatment on the “housing assistance ground”.

I find that the acts complaint of by the Complainant continued over the period 11th August 2017 to the 24th August 2017. Similarly, to the law on employment discrimination, in the context of the Equal Status Acts, I accept that an act will be regarded as extending over a period and so treated as done at the end of that period, if a Respondent maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse impact on the Complainant.

I must now consider if the Respondent has rebutted the prima facie case raised by the Complainant.  

There is no issue in this case that the tenants of the nursing home were not in receipt of a housing assistance payment or rent supplement.

Two different versions of events were presented to me at the hearing with some minor overlap between them.

I have no doubt that this was a very stressful time for the Complainant and the risk of being homeless was a big fear for her.

I found the agent and friend of the Complainant to be a willing witness to assist the investigation as best he could.

I found the letting agent to be a credible witness and I preferred his evidence as to what information was provided to the Complainant and her friend as to what was said during the various telephone calls.

Having considered the evidence presented to me in its entirety (both oral and written) I find on the balance of probabilities that the Respondent has rebutted the prima facie finding of discrimination.

I accept that the Respondent had a special letting relationship with the Nursing home through his wife working there and that whether the Complainant was in receipt of HAP or not, she would have been treated the same in the circumstances of the case.   The Respondent was very much “hedging his bets” and in doing “strung the Complainant along”, however I accept his evidence that his actions were not related to whether the Complainant was in receipt of HAP or not.  

I find that the Complaint is not well founded.

Housing Assistance Payment. Discrimination