ADJ-00019436

Complainant

Respondent

Anonymised Parties

Tenant

Accommodation provider

Representatives

Gary Keogh & Company Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00025054-001

15/01/2019

This dispute involves a claim by the Complainant brought pursuant to Sections 3 and 6 of the Equal Status Act 2000 as amended by the Equality (Miscellaneous Provisions) Act 2015 with effect from 1^st January 2016 which introduced the ‘housing assistance ground’ and prohibits discrimination in the provision of accommodation. The Complainants contend that she has been discriminated against by the Respondents in their refusal to accept the Housing Assistance Payment (hereinafter also referred to as ‘HAP’) Scheme towards the payment of her rent, being eligible for the payment of same.

I have decided to exercise my discretion to anonymise this decision.

The Complainant submits as follows:

Having been three months in the rented shared accommodation owned by the Respondents she received a letter of termination of the tenancy on 23^rd November 2018 following her request to the landlord to fill in the forms necessary to apply for HAP.

The Complainant argues that she was the only person out of five who was asked to leave, and she believes this was directly related to her application for HAP.

The Complainant submits that she moved into a room in the Respondent’s house on 1^st September 2018. On 21^st November 2018 she sent a text message to the landlady informing that she was now eligible for HAP and asking if the landlady could fill out the landlord part of the application form for her. The landlady responded after a repeated text the following day asking to meet with the Complainant. The Complainant sent a text message on 23^rd November 2018 suggesting meeting on either Saturday or Sunday. There was a notice of termination under the Complainant’s door on the afternoon of 23^rd November 2018.

The Complainant claims that on 24^th November 2018 the landlord visited the house allegedly to check a new fridge. She claims that he would have known that she would be alone in the house as the other tenants (all students) return to their homes for the weekend. She felt harassed and victimised by the landlord as he was aggressive in asking if she had received the Notice of Termination. The Complainant informed him that she did not want to have this conversation at that time and left to go to her room.

The Complainant submits that she is particularly vulnerable as she suffers from autistic spectrum disorder. She claims that the Respondents would have been aware of her condition. She claims that the stress this situation has caused her was so overwhelming that she was unable to handle the normal stresses and couldn’t cope with the demands of her employment at the time. Consequently, she was dismissed from her job on 2^nd December 2018 and has been unable to provide for herself and is in receipt of Social Welfare benefits and cannot afford rent. She claims that at the time of the submission of the WRC Complaint form she was staying with a friend.

The Complainant sent form ES1 to the Respondents on 12^th December 2018 and received ES2 reply on 2^nd January 2019.

The Complainant is seeking compensation.

In her direct evidence the Complainant confirmed that there were some minor issues with the other tenants but they were resolved. She stated that she was in receipt of social welfare job seeker’s benefit when she obtained the tenancy. At the time she had no work and did not study. On 1^st October 2018 she started to work part-time and on 8^th October 2018 she commenced a course with the local Education and Training Board (through the Department of Employment Affairs and Social Protection).

The Complainant stated that she was not asked any questions at all about her background, employment etc. by the Respondents. She just gave her name and phone number. She said that the advertisement made no mention of students and insisted that had she been asked she would have told the Respondent that she was unemployed.

The Complainant insisted that all “these things” said by the Respondents are untrue.

The Complainant stressed that her condition as well as the stress she suffered caused that after the termination of tenancy she lost her job and had to drop out of the course. However, when prompted, she confirmed that, in fact, her condition has never been medically diagnosed but insisted that when she says she has it should be accepted as a fact.   

She stated that she moved out of the house on 2^nd December 2018 and moved in with a friend. As a result of the termination of tenancy she dropped out of the course on 10^th December 2018 and lost her job. She then on 17^th December 2018 travelled to London to visit her parents. She returned on 10^th January 2019 when she signed on with the DEASP. She secured accommodation in a shared house from 12^th May 2019. She confirmed that the new landlord was not told about her HAP eligibility.

The Respondents wholly and utterly reject any allegations of discrimination. They argue that the Complainant’s tenancy was terminated for reasons totally unconnected to HAP Scheme.

The Respondents submit as follows:
In over 20 years of letting rooms to people they have never had one complaint made to them or against them. They have been thanked by their tenants as thorough, thoughtful and fair landlords. They pride themselves in this fact. To have these false and damaging claims made against them is horrifying and has caused them much worry and stress.

The Respondents have no animosity towards the Complainant and would like this situation to be resolved. Their preferred route was through mediation to air and resolve concerns. The Complainant forced everybody into the WRC Adjudication route without even once having a conversation with the Respondents at any point since the notice was served. When the landlord tried to have a conversation with the Complainant she refused and said that the only way she would communicate was in writing. There is very little the Respondents could have done to resolve this situation and avoid taking the steps that the Complainant has chosen to take.

The Respondents submit that they did not discriminate against the Complainant. At no point did the Complainant inquire why they had terminated her tenancy. The Respondents claim that the tenancy was terminated by reasons totally unconnected to HAP. The Respondents exhibited a document outlining their concerns with the Complainant as a tenant in their house and the reasons why they concluded that she was not suitable tenant in their shared house.

Factual reasons for issuing termination letter:

1.       The Complainant’s text of 21^st November 2018 at 2.33pm (prior to any HAP conversation) confirmed that there had been issues between the Complainant and the other tenants. This text rang alarm bells as it suggested that the Complainant was not compatible with the shared accommodation the Respondents offered, as it confirmed that there were ongoing issues with the Complainant the Respondents had not been aware of. The text also confirmed that issues still exist, and issues were likely to continue as the Complainant had not resolved them in the three months she had been there.

2.       It had become clear in the Complainant’s text of 21^st November at 2.33pm that she had only considered her own interest and did not regard herself as having to fulfil tenant obligations until it suited her. This suggests that it would be likely she would have left when it suited her regardless of any financial damages the Respondents would incur when she did leave.

3.       Given the above the Respondents went back over previous interactions with the Complainant and concluded that there had been an ongoing history of issues. This re-confirmed that she was not compatible to living in the shared accommodation they offered.

4.       It had become clearer that the Complainant had not been fully open with the Respondents, in particular when she misrepresented herself as a student when viewing the house.
The house was advertised and presented as being a house suitable for, preferably, mature students. This has always been the Respondents’ preference as they prefer the house to be vacated in summer months to enable renovations. There were mature students the Respondents rejected as the Complainant had been in “first to view” group. Had they known that the Complainant was not a student, or was unlikely to continue as a student, they would have rented it to someone else. The reason they offer the rooms to students is that the house is 5 mins walk from a named university so in the catchment area for the university where there is a great demand for students needing suitable accommodation. The Respondents’ experience is that students are more compatible with other students than working people as it is a shared house with shared facilities so people with similar lifestyles and routines have been a more successful mix.

5.       The Respondents were concerned that the Complainant was not complying fully with the terms of her tenancy. Tenants complained that the Complainant had unknown guests in the house that they did not know when they met in the hall (it was all girls in the house when the Complainant rented), they felt uncomfortable and concerned (the matter is referenced in Tenancy House Rental Conditions given to the Complainant when she moved in).

6.       It had also become clear that the Complainant had not been open and/or honest with the Respondents when she inquired about PRTB status. In particular her text of 21^st November 2018 2.33pm did not mention HAP but by a very coincidental and unlikely scenario she had received the letter by 21^st November 2018 6.27pm (after the normal post delivery time). Neither of the Respondents have any concerns or issues whatsoever with people on social welfare of any kind as is demonstrated by the fact that they have had and continue to have people renting on housing benefits for years. However, the Respondents do expect open and honest communication with tenants and they believe the Complainant was not open and honest in her sequence of requests in this matter and her subsequent handling of the matter.

7.       In relation to HAP the Respondents submit as follows:

(a)    The Respondents had no prior knowledge whatsoever of the HAP scheme. The Complainant did not offer any explanation of the HAP scheme or her situation. She merely pressurised them to complete forms. This constituted yet another example of the Complainant’s unreasonable behaviour by only considering her own interests.

(b)    After a subsequent brief review of the HAP scheme it seemed a good scheme to help people with specific needs to obtain rental accommodation. It appears similar to Housing Benefit Scheme. Consequently, the Respondents had no reason not to fill in the forms. However, it was entirely reasonable that the Respondent did not complete these forms immediately until they understood what they were signing.

(c)     At no point did the Respondents refuse to accept the HAP forms. The landlady agreed to take and look at the forms. The Complainant never provided the forms, so the Respondents have never seen her HAP forms.

(d)    At no point did the Respondents refuse to complete HAP forms.

(e)    The Respondents had no objections to the Complainant remaining until late December 2018, while serving her notice, and during that period she could have been in receipt of HAP. The Complainant was requested to leave the forms and did not exercise this option. 
The Respondents facilitated the Complainant’s request to leave at start of December. In doing so they suffered a financial loss as they did not charge the Complainant for utilities and did not receive any rent for December. Additionally, the Complainant’s room has been vacant while this dispute is active thus depriving the Respondents their rental income (total loss of €3,206.63)

(f)      The Respondents have an extensive history, over 8 years, of accepting tenants with specific needs that receive Housing Benefits, to subside their rent. The Respondents are willing to give people opportunities in life. A letter from the Respondents’ agent confirms that the Respondents had entered into a rental agreement with an alcoholic and a single mother in receipt of social welfare benefits.

(g)    The Respondents felt that the Complainant was aggressive in sending further texts and suggesting she visit their home without at least explaining the situation.

Given the facts outlined above it appeared to the Respondents that the Complainant was only concerned with her own interest, that she would continue to have ongoing issues with other tenants and that she may not vacate the room if problems continued, after she had reached 6 months initial tenancy. The Respondents advised PRTB of their concerns and were advised that they are entitled to terminate the Complainant’s tenancy without reason within the first 6 months if things were not working out. It was the Respondents’ understanding, having received PRTB advice, that they were within their rights to take steps they took to end the Complainant’s tenancy in their house.
The Respondent subsequently followed PRTB advice and issued a Termination Letter, using a format that PRTB recommended.

Since that time the Respondent’s concerns have been reinforced because:

(a)    Details given in the Complainant’s WRC form are not truthful and it contains misleading, false and unsubstantiated accusations. These will be addressed in detail below.

(b)    When other tenants learnt that the Complainant was leaving they elaborated on the issues she was causing and these issues were more serious and widespread than the Respondents previously were aware of.

(c)     The Complainant could have disputed the termination of tenancy with PRTB, that she knew she was registered with, but she preferred to pursue a financial claim with the WRC.

(d)    The Complainant has shown no regard for stress, worry and financial loss to the Respondents and family as a result of her frivolous claim and false, unsubstantiated accusations, which additionally the Complainant has sent to a neighbour which was a complete invasion of privacy and very distressing.

(e)    It should be noted that the Respondents indicated that they were prepared to enter mediation to speedily resolve this dispute. However, the Complainant refused to participate in mediation thus prolonging stress and worry to the Respondents.

In respect of the Complainant’s WRC Complaint form, the Respondents submit as follows:

Details given in the form are not truthful, and it contains misleading, unsubstantiated accusation such as:

1.       “Landlord visits the house, he would have known as I was alone in the house as other tenants…”

The Respondents totally and utterly reject this assertion as the landlord had no way of knowing if anyone was in the house or knowing if the Complainant was in the house or not. The landlord had no way of knowing if the Complainant had someone with her or not or whether any of the other 4 tenants were in the house or not. The landlord rang the doorbell as he wanted to ask any of the tenants if the new fridge, installed a day or two before was working, the Complainant answered the door. The landlord asked if the fridge was working. The Complainant confirmed it was. As it was the Complainant that answered the door and the landlord was aware that she had been given the termination letter the day before, he reasonably asked her if the Complainant had received a letter and if she understood it.

2.       “he was aggressive in asking if I had received the Notice of termination”

The Respondents totally and utterly reject this accusation. The landlord was not aggressive, he only talked to the Complainant in a normal tone and volume. The landlord asked if the Complainant received a letter and understood it. The Complainant stated that she received the letter and did not wasn’t to discuss the letter and would only correspond in writing.

3.       “he allegedly came to check a new fridge”
The Respondents totally and utterly reject the implication that the landlord did not come to check the fridge. The landlord did come to check that the new fridge was working and that tenants were now happy. The Complainant’s own texts of 18^th and 19^th November 2018 refer to a fridge issue. The new fridge was installed on 22^nd or 23^rd November 2018.

4.       “I feel particularly vulnerable in these type of situations [the Respondents] were aware of my condition (Autistic Spectrum Disorder)…”

The Respondents totally and utterly reject this assertion as they had never heard of Autistic Spectrum Disorder prior to receiving the complaint form. Consequently, they did not know what, if any are the implications. The Complainant did not mention the disorder at the initial house renting in September 2018 or in any subsequent conversations, texts, phone calls or written correspondence. Other tenants never mentioned any knowledge of the disorder to the Respondents. The Complainant did not mention the disorder on 24^th November 2018 when the landlord visited to check the status of the fridge.
Additionally, the Complainant did not mention Autistic Spectrum Disorder in her initial complaint, ES1 form dated 12^th December 2018.
This is consistent with the Complainant attempting to cloud the facts of the case by implicating Autistic Spectrum Disorder after the event. The Respondents believe this represents a disservice to others who have Autistic Spectrum Disorder.
The Respondents submit that it is not reasonable or fair to infer they should not exercise their legal rights, especially when they had no knowledge of the disorder or its implications.

5.       “stress this situation has caused me was so overwhelming I was unable to handle the normal stresses…consequently dismissed from my job”

The Respondents totally and utterly reject this as being relevant as the Respondents have no idea of the reasons for the Complainant’s dismissal. The Respondents argue that they have no idea what other factors may have caused the Complainant stress and that the Complainant being unable “to handle the normal stresses” is not in the Respondents’ control. Neither of the Respondents has any knowledge of this and it is not reasonable to expect landlords to be medically aware of any disorders any tenant may have or any other personal matters.

6.       “being unable to provide for myself in the manner as before as I am in receipt of Social Welfare and cannot afford rent”

The Respondents totally and utterly reject this assertion as being relevant as they believe that the Complainant is trying to exaggerate her case possibly in an attempt to obtain a financial reward. The Respondents accept that they had tenant/landlord responsibility, as outlined in PRTB. The Respondents note that the Complainant did not appear to accept her tenant obligations. However, the Respondents have no responsibility for a previous tenant’s future financial status. It is not reasonable nor fair to attempt to project a duty of care for previous tenants onto any landlords, especially for an undefined period. The Complainant should be able to provide for herself as she herself admits that she is in receipt of Social Welfare.

The Respondents exhibited a table outlining list of interactions with the Complainant during her tenancy. It detailed some 15 events from 18^th August 2018 onwards. Examples of these include:

August 2018 –
The Complainant started her tenancy on 1^st September but asked if she could move her stuff in a few days earlier. The Respondents agreed. The Complainant moved in her stuff, she did not introduce herself to other tenants and proceeded to taking a shower without asking the landlord or the tenants. Tenants were concerned as they did not know who was in the house and using the shower.

September 2018 –
There was a renovation of a communal bathroom carried out. The Complainant was asked verbally and in writing not to use this bathroom as paint and tiles were not dry. She had exclusive access to another ensuite. She ignored this request and used the shower. This resulted in the bathroom being repainted. Moreover, the plumber complained that the Complainant was constantly “watching over him” and making unnecessary comments.
The Complainant reported that the bathroom flooded. The Respondents called the plumber on an emergency call only to find out that the floor was flooded as the Complainant had not used a shower curtain. This was an additional unwarranted request causing the Respondents trouble and expense.

The Complainant moved into the room she had been shown and agreed to rent. She removed a mirror from another room that was allocated to someone else.

Within a few days of moving in she asked for a double bed for her single room. The Respondents claim that they should have realised that this was a warning that the Complainant was intending to share the bedroom.

Within a few days of moving in she asked for faster internet. No other tenant had any problems with the internet use. It was an additional unwarranted request.

October 2018 –
The Complainant sent multiple texts to the Respondents complaining that all other tenants were “against her”. This shows that the Complainant was having issues with living in a shared house.

There was an unknown person seen in the house by the landlord and other tenants confirmed he was with the Complainant and was present in the house even when the Complainant was not there. The tenants expressed concerns at this situation.

The Respondents supplied a cleaner to help maintain the house in order. The cleaner complained that the Complainant had been abrupt and rude, she criticised her work and “followed her around”.

November 2018-
A fridge broke down (a second fridge was available during this period). The Complainant was the only tenant complaining about food going off. The other 4 tenants accepted that the fridge broke unavoidably, and it would be replaced rapidly. This is an example of the Complainant’s poor interaction with others.

When the Complainant left, a tenant recalled an incident when at some stage between September and November 2018 the Complainant came to the house extremely late. She went to the back garden to smoke and returned to the house leaving the back door wide open all night. The tenant was clearly annoyed at the situation. It is an example of the Complainant’s poor interaction with others and lack of concern for co-tenants and property.

The Complainant showed no appreciation and her only response was to ask for more equipment. She showed disregard for others.

The Respondents in their direct evidence emphasised that they were not aware that the Complainant was not a mature student. She presented herself as one at the initial viewing of the house. They noted that, from their experience, having students and a non-student in the house creates difficulties due to non-compatible lifestyles, working hours etc. They said that the advertisement stated that the room is “particularly advised for students” and that during the initial meeting with interested prospective tenants they asked about the background, job, course they do etc.  They said that they have a lot of people to chose from. They accept people with similar lifestyles. The Respondents stated that they did not know that the Complainant was working until November when she told them she works full-time.

The Respondent stressed that the Complainant could have stayed in the house until the expiry of her tenancy on 21^st December 2018 on HAP. However, she never presented the forms. The Respondents argued that they have no difficulty with any social welfare schemes and presented a letter from their letting agent confirming than one of their tenants is a single mother on social welfare benefits.

The Complainant decided to leave earlier without talking to the Respondents. She did not pay her last month’s rent and utility bills. The Complainant did not discuss the matter of her losing the job and having issues with her course, if she did they would have helped her out.

The Respondents clarified the timing of the termination of the tenancy agreement. Firstly, they were advised by PRTB that in the first 6 months of tenancy they can serve a notice of termination in writing providing no reason. Secondly, as a single wage family with three children and a mortgage, the Respondents could not afford not having a tenant for a semester. Therefore, the tenancy was terminated mid-semester in a hope that another tenant would be secured.

The sole issue for determination of this complaint is whether the Respondents discriminated against the Complainant under the ‘housing assistance ground’ contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended), by refusing to complete their section of the HAP Application Form/s and/or their refusal to accept payment of her rent under the HAP Scheme and by subsequent termination of the tenancy agreement. 

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 6(1A) provides: “Subsection (1)(c) is without prejudice to- (a) any enactment or rule of law regulating the provision of accommodation, or (b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.”

Section 6(2) provides for a list of exclusions from this provision including: “(a) the disposal of any estate or interest in premises by will or gift, (c) any disposal of such an estate or interest, or any provision of accommodation or of any services or amenities relating to accommodation, which is not available to the public generally or a section of the public,

(d) the provision of accommodation by a person in a part (other than a separate and self-contained part) of the person’s home, or where the provision of the accommodation affects the person’s private or family life or that of any other person residing in the home, or

(e) the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender.”

In relation to the applicable burden of proof, Section 38A 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 evidence of both parties is totally at variance with each other.

The Complainant’s case is that she agreed to a tenancy commencing on or around 1^st September 2018. The Complainant was eligible for housing assistance, therefore, she is covered by the prohibited ground per Section 3(3B) cited above. She claims that she first notified the Respondents that she is eligible for HAP on 21^st November 2018. The Complainant claims that on 23^rd November 2018 the Respondents delivered a Notice of Termination by hand.

I find the Complainant has established a prima facie case of discriminatory treatment on the housing assistance ground.

I must now consider if the Respondents have rebutted the prima facie case raised by the Complainant.

The Respondents accepted that they received a text message in respect of the HAP form from the Complainant on the evening of 21^st November 2018. The text stated: “I just got a letter confirming that I’m now eligible for HAP Scheme, could you fill out the Landlord part of the application form for me”.

The Respondents claim that they had a number of ongoing concerns in respect of the Complainant and contacted PRTB on 22^nd November 2018 for advice. The landlady explained the background and outlined the concerns they had. PRTB advised the Respondents that they were entitled to terminate the Complainant’s tenancy as she had been a tenant for less than 6 months.

On 22^nd November 2018 the Complainant texted the landlady again: “…I haven’t heard from you yet. Shall I bring the forms over, or will you stop by at the house?”.  The landlady replied: “…I’ll stop by the house. When are you there?”.
The Complainant replied with the details of her availability. She then said: “Or I could leave the paperwork on the counter cellotaped for you to pick up when best?”.

The Respondents submitted that, having obtained advice from PRTB they decided to terminate the tenancy. This decision was unrelated to the HAP request and at no stage did they refuse to fill out the forms for the Complainant. The Respondents submitted that the Complainant could have stayed in the house until 21^st December 2018 while on HAP but she simply did not give them the relevant forms. The Complainant confirmed that she never gave a copy of the HAP form to the Respondents for completion. It appears that, following the termination notice the Complainant refused to have any communication with the Respondents. She left the house on 2^nd December 2018, despite her tenancy terminating on 21^st December. She did not discharge her obligations in respect of the last month’s rent and bills.

The Respondents argued that the house was suitable for students and the Complainant presented herself as one at the initial viewing of the house. The Complainant denied that. In relation to the issue of whether or not the Complainant told the Respondents that she was a student there are two scenarios. One is, as argued by the Respondents, that the Complainant did tell the Respondents that she was a student and obtained accommodation on that basis. The other one is that, as claimed by the Complainant, she did not say that she was a student. I find it unlikely that, as claimed by the Complainant, she was not asked any questions at all but her name and a phone number. It is not plausible, in my view that a landlord or a landlady would not ask any questions at all in terms of a potential tenant’s background. Therefore, in the second scenario, as per Complainant’s own evidence, when asked she would have informed the Respondents that she was unemployed and in receipt of the DEASP benefit. If that was the case, I find it implausible that the Respondent would have accepted an unemployed person in receipt of job seeker’s benefit and subsequently terminate her tenancy due to her being eligible for HAP. In that regard, I find that the Complainant’s evidence was not credible.

The parties confirmed that there were some issues with the Complainant’s conduct and interactions with other tenants. I note that the Complainant argued that they were “minor”.  However, for the Respondents they appeared to be more worrying.

I also note that the Respondents were informed by the PRTB that when tenancy commences, the law provides for six-month probationary period. Within the first six months a landlord can serve a notice of termination in writing without providing any reason. It has to be stressed that this provision does not in any way relieve the landlords from their obligations under the Equal Status Acts.

I note that the Complainant had secured new accommodation in a shared house in May 2019. She confirmed that, as of the date of the hearing she did not make the current landlord aware of her HAP eligibility.

I find the evidence of the Complainant to be unconvincing. I find that the evidence of the Respondents was compelling and that, on the balance of probability the reason why the Complainant’s tenancy was terminated was unrelated to HAP.

I find that the complaint is not well founded.

Equal status act – HAP