ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023862
Parties:
| Complainant | Respondent |
Parties | Evita Baikova | Fingal Letting and Property Management Limited |
Representatives | Owen Duggan Threshold |
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Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00030512-001 | 26/08/2019 |
Date of Adjudication Hearing: 20/11/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This Notice in writing shall be brought within two months of the said prohibited conduct or the last instance of same.
A Respondent may choose to reply with an explanation for the treatment by returning the attached ES 2 Form.
Pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me by the Director General for the purpose of investigation into claims of discrimination and I have heard (where appropriate) interested parties and have considered any relevant documentation provided in advance of the hearing and in the course of the hearing. At the conclusion of any such investigation I shall make a decision and if in favour of the Complainant I shall provide for redress (s.25 (4)).
Generally, discrimination under this Act is taken to have occurred where a person is treated less favourably than another person is (or would be) treated and by reason of any of the discriminatory grounds (as specified).
Broadly, the Equal Status Act prohibits discrimination in the context of buying and selling goods from and to the public (or a section thereof) and also in the context of using and providing services available to the public (or a section thereof).
In relation to the applicable burden of proof, section 38A of the Acts is applicable to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which a discrimination can be inferred. It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.
Under Section 27(1) of the Act redress may be ordered where there has been a finding in favour of the Complainant. Redress can include compensation for the effects of the prohibited conduct concerned or can take the form of an order that persons specified take a specific course of action.
Providers of accommodation services are prohibited from discriminating against someone on the “housing assistance” ground i.e. on the ground that they are in receipt of a rent supplement, housing assistance payment or other social welfare payment. The housing assistance ground protects anyone who has applied for and is eligible to receive such payments and applies to existing tenants and those looking for accommodation. Discrimination may take the form of refusing to allow a person look at or to rent a property, refusing to accept the rent supplement or a refusal to complete the appropriate forms etc.
The maximum amount of compensation which can be awarded herein is €15,000.00. In assessing compensation, I can consider the effect that the discriminatory treatment has had on the Complainant.
Background:
The Complainant herein is claiming discrimination by reason of a refusal to complete the appropriate HAP forms. |
Summary of Complainant’s Case:
I heard directly from the Complainant. The Complainant representative did not prepare a legal submission in advance of the hearing but did make oral submissions regarding the liability attaching to the Letting company acting for and on behalf of the property owners.
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Summary of Respondent’s Case:
The Respondent company was represented by its two Directors. They gave evidence on their own behalf. The Directors maintained that they were not liable for the actions of the Landlord herein and had at all times tried to ensure that the Landlords recognised their obligations. The Directors stated that they should not be the nominated Respondent (company) as they had not discriminated against the Complainant and had advised the Landlord not to act in such a way as might cause a discrimination to occur. The Respondent sent a Solicitor’s letter on the 18th of November setting out the legal position as perceived by the Respondent but this letter has arrived too late to be taken into consideration as the Complainant has not had the chance to consider and reply to same. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant and her Husband and two children have lived in a rental accommodation (the subject matter of this complaint) since in and around July of 2018. The Complainant advised me that she has been on the Housing list for some time and that her local County Council advised her last summer that she would qualify for the Housing Assistance Payment scheme. The Complainant made the appropriate application and was forwarded the relevant paperwork which needed to be filled out by her and her landlord in order that she would qualify. The Complainant had originally let this property directly from the owners of the property Ms.D and Mr. OB. By July of 2019 the property was being managed by the Respondent herein and any and all queries in relation to the property were to go through the letting agent. In or about the end of July 2019, the Complainant sent the relevant paperwork to the Respondent looking for information as required by HAP administration. At a meeting held on either the 12th or 13th of August 2019 the Respondent notified the Complainant that the Landlord was not willing to sign the HAP documentation as provided. The Complainant was greatly upset at this decision and believed she had been discriminated against on the grounds of being a HAP recipient which is specifically contrary to and prohibited under the Equal Status Acts. The Complainant issued her ES1 form in the ordinary way and directed it to the Respondent herein as the person or body which she believed discriminated against her and/or treated her unlawfully. The Respondent in turn appears to have sent the ES1 form to the actual Landlords and owners of the property Ms.D and Mr. OB who, in turn, filled out the ES2 stating categorically that they: “Cannot accept HAP at this stage as we do not meet the terms and conditions of HAP with reference to Section 4(2) of the HAP Landlord information booklet (Tax compliant)..once we have resolved these issues with the relevant parties we are happy to address the proposed HAP application” The Complainant issued her Complaint form on the 26th of August 2019 seeking redress under the Equal Status Acts for the discrimination visited on her. She named the letting agent as the Respondent. The question now is whether the Complainant’s complaint lies with the Respondent letting agent or the Landlords/owners for making the decision to refuse to fill out and complete the HAP paperwork (as articulated in the ES2 form). The Complainant representative has urged me to accept that the Respondent letting agent is the correct Respondent and has suggested that the Respondent’s presence before the WRC is indicative of the Respondent being here on instruction and/or as an acceptance of their liability for the actions of the Landlord. It should be noted that the Respondent representative made his submission ex tempore and argued that it is usual for a letting agent to be nominated where all dealings go through the letting agent. I can accept that this may well happen much of the time, but the circumstances of this particular case are not the same as many other cases (or at least not the same as the WRC decisions that the representative drew my attention to in the course of this hearing). The difference here is that the Respondent herein has consistently and robustly denied that it has acted so as to discriminate against the Complainant and has consistently stated that the complaint should be directed at the Landlord. I find that this is borne out by the evidence presented to me. On the 24th of July the Respondent wrote to the Landlords Ms.D and Mr. OB stating “Your tenant has just called into the office with an application for Housing Assistance Payment… There is no other change to the lease or agreement… Being Honest you do not really have a choice whether you accept this scheme or not, if tenants are entitled to it you cannot refuse it…. The Respondent notified the landlords of the complaint by email dated the 15th of August “Please see attached complaint from your tenant along with the paperwork for your response” The response from the Landlord/owner is provided per the ES2 form above dated the 19th of August. In other correspondence, when the Complainant issues the complaint through the WRC, the Landlords note that they have not been nominated as Respondent in an email dated September 9th “We have read the attached, however it states that the Complaint/Dispute is between [the Complainant] and [the Respondent]… our understanding is that this has nothing to do with [T] or I” There can be no doubt that the Landlords are washing their hands of this matter. On the 1st of November 2019 the Respondent wrote a comprehensive letter to the WRC outlining its position as the Landlords agent and not as the decision maker - “.. this adjudication comes as a surprise especially under circumstances that the owner/landlord specifically stated in his response that they cannot accept HAP at this stage…” It is quite clear from this letter of the 1st of November – which was forwarded by the WRC to the Complainant representative on the 4th of November – that the Respondent letting agent is and always has been open to working with people with HAP and draws no distinction. The decision to refuse in these circumstances lay with the Landlord. It is worth noting that when forwarding the letter of the 1st of November the WRC even highlighted that: “the issue of the correct Respondent in the complaint will be decided by the Adjudication Officer investigating and hearing the complaint”. It is quite clear to me that the Respondent herein is refusing to indemnify and/or accept liability for the Landlords decision and actions. It is also clear to me that this fact should have been known or was at least knowable to the Complainant either at the point that the Landlord filled out the ES2 form or when the letter of the 1st of November was forwarded. The Complainant’s representative argued that as the Landlord lived abroad (Australia) it is right and proper that the WRC should direct that the Respondent should be liable. I cannot accept this. The evidence is that no attempt was made to find the Landlord’s address and no request was made of the letting agency in this regard. It seems therefore clear to me that whilst the Complainant has a Prima Facie case under the equality legislation, she has failed to identify the correct Respondent. I cannot Order redress (to include compensation) against a party that I cannot find has, at any time, discriminated against the Complainant. It seems clear to me on the unchallenged evidence that the Complainant is at a loss of about €1,200.00 for each month that she is denied access to the HAP scheme. I regret I can do nothing to ameliorate this situation other than to make the observation that it does not seem fair or acceptable for a Landlord to rely on his own wrongdoing or non-compliance to deny a legitimate claim of an honest tenant. I would further note that this is a case where early submissions might have helped to clarify issues as between the parties. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 CA-00030512-001 – The Complaint against the Respondent herein fails
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Dated: 5th December, 2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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