Complainant

Respondent

Parties

Claire O'Donohue

Cian Rowlands

Complainant

Respondent

Anonymised Parties

Representatives

Conor Sheehan BL Cormac O'Ceallaigh & Co. Solicitors

Enda O’ Toole, Mallin O'Toole Law Firm Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00013036-001

08/08/2017

The Tenant rented a property from the Respondent for 1 year from 1st May 2016 to 30th April 2017 at a monthly rent of 1,600 euro.

The Complainant informed the Landlord when entering the lease that she was entitled to rent supplement and the Landlord completed the form SWA RS1. The Complainant had an option to extend the lease for 1 further year.

On 13th August 2016 the Complainant received a Notice of Termination of the lease accusing the Complainant and her partner of multiple breaches of the lease, which she denies. On 30th August 2016 the Landlord carried out viewings at the apartment without their consent.

The Complainant discovered the property was advertised on Daft for a monthly rent of 1,750 euro by the Landlord. The Respondent called to the apartment, and left a threatening voice-mail saying he has the right to end the tenancy within the first 6 months.

The Complainant lodged a complaint with the Residential Tenancies Board in relation to the Notice of Termination. The Notice of Termination was found invalid. The Complainant learnt the Landlord denied signing the SWA RS1 form. The Landlord notified the Department of Social Protection that the tenancy was ending on 16th September 2016. The Complainant received a threatening letter from the Landlord’s solicitor.

The Tenant received a further threatening letter from the Landlord saying she would be responsible for losses incurred by new Tenants who were planning to rent the apartment in October 2016, and was extremely distressed. The initial Notice of Termination was withdrawn by the Landlord. The Department of Social Protection sought verification from the Landlord that he signed the SWA RS1 form.

On 21st November 2016 the Complainant received another Notice of Termination advising that the lease will terminate on 31 December 2016. The Department of Social Protection advised the Landlord informed them that Rent Supplement would only be accepted until 31 December 2016. The timing of the Notice of Termination so close to Christmas caused further distress for the Complainant.

The Tenant lodged a further complaint with the Residential Tenancies Board claiming the second Notice of Termination was invalid. She received further complaints from the Landlord regarding alleged breaches of the lease.

On 2nd January 2017 at 4am the Complainant received an email from the Landlord serving a 14 day warning notice of rent arrears. The delay in paying rent on 1st of the month was due to the bank holiday Monday on 2nd January. The Complainant says rent was always paid on time.

The Department of Social Protection then informed the Complainant that due to the Landlord denying he signed the SWA RS1, rent supplement cannot be paid. This also resulted in a delay in payment of other benefits. An appeal was lodged with the Department of Social Protection. The Department of Social Protection refused to pay rent supplement for 1st February 2017.

The RTB found the second Notice of Termination was invalid, which was appealed. On 15th February 2017 the Complainant received a third Notice of Termination. This was subsequently withdrawn on 8th March 2017. The Complainant advised the Landlord of their intention to remain in the apartment under S195 of the Residential Tenancies Act 2004 in April 2017. This was disputed by the Landlord who submitted a complaint to the RTB of overholding.

The Complainant received the signed SWA RS1 form on 16th April 2017 filled out by the Landlord for the following year’s Rent Supplement saying “This SWA RS1 Part B was previously completed in May 2016 and I’m advised by tenants that social welfare services require it to be completed again” .

The Complainant received a fourth Notice of Termination on 5th May 2017 that the property is required for the Landlord’s brother and a statutory declaration of the Landlord. The Notices of Termination of 21st November 2016 and 5th May 2017 were found invalid by the RTB.

The Complainant denies all allegations of breach of tenancy obligations. She found the actions of the Landlord hugely distressing and distracted from her new start-up business. This put a lot of pressure on her professional and personal life requiring extensive visits to the Dept. of Social Protection, appeals and consequent lack of attention to her business.   She suffered from stress related health problems. She has also been defamed by the Respondent to the Dept. of Social Protection.

The Complainant issued an ES1 complaint form on 13th March 2017 alleging unlawful discrimination by the Landlord on the grounds of housing assistance and referring to 2 letters she received from Dept of Social Protection dated 28 November 2016 and 20th January 2017. The letters notified the Complainant that the Department were refusing to pay rent supplement to the Complainant after 31 December 2016 as the Landlord was refusing to accept rent supplement after 31 December 2016, refusing to validate his signature on the 2016 SWARS1 form and the termination of the tenancy by the Landlord.

The Complainant lodged a complaint of discrimination to the Workplace Relations Commission on 4th August 2017 alleging discrimination on the housing assistance ground, stating the first incident of discrimination took place on 13 August 2016 and most recent act of discrimination was on 5 May 2017. The Respondent replied to the ES1 on 13th April 2017. The Landlord stopped the Complainants rent supplement on 4 occasions by falsely declaring he did not sign the SWA RS1, and refusing to accept rent allowance on a number of occasions.

A Preliminary issue was raised by the Respondent in relation to two matters alleging (i) The Complainant’s claim is statute- barred due to delay and (ii) the Complainant’s claim is Res Judicata.

(i)                  The Complainant’s claim is statute-barred due to delay.

The Complainant rejects this assertion and says that the discrimination was continuous from 13th August 2016 to 5 May 2017 and the time-limit for making a discrimination claim runs from the last date of discrimination. The Complainant relies on Clare County Council v The Director of the Equality Tribunal [2011] IEHC 303.

..”The Act sets a time-limit for referral of six months from the most recent act of discrimination, not from the first such act of discrimination. That time limit runs from the end of a period of time where the act constituting discrimination extends over a period”…

Without prejudice to the foregoing, the Equal Status Act 2000-2015 allows for an extension of time. The Complainant relies on ADJ-00006866 where it is stated:

“In relation to the time-limits the Equal Status Act states:

Subject to subsection (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(7) if, on application by the Complainant, the Director is satisfied that exceptional circumstances prevented the Complainant’s case from being referred within the time-limit specified in subsection (6)-

(a) the Director may direct that, in relation to that case, subsection (6) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction.”

The Complainant submitted her form on 4th August which is within 6 months of the last act of discrimination on 5th May 2017. She applies for an extension of time in relation to submission of her complaint of discrimination up to within 12 months of the last act of discrimination, if required on the exceptional grounds set out below.

The form ES1 was served on the Respondent on 13th March 2017. The Respondent replied to the ES1 on 13th April 2017. The ES1 was served within 2 months of the prohibited conduct which was 2 letters received from the Dept of Social Protection of 28 November 2016 and 20 January 2017. The Complainant seeks an extension of time pursuant to S21 (3) of the Equal Status Acts 2000-2015 to extend the time for notification of the ES1 to 4 months or alternatively if required, now applies to dispense with the notification requirement of the ES1 as exceptional circumstances apply as set out below.

The first date of discrimination is 13th August 2016, the discrimination was ongoing, and there were exceptional circumstances which prevented the Applicant from taking the claim earlier. These include:

• The Applicant did not have independent legal advice and she was on Back to Work Enterprise Allowance and rent supplement and she referred a number of Notice of Termination to the Residential Tenancies Board some of which were invalid.
• Various Notices issued by the Respondent were withdrawn. There were accusations of breach of the lease, requests for inspections and allegations these were not being facilitated.
• The Complainant’s rent supplement was stopped on 4 occasions as was her Back to Work Allowance as a consequence of the receipt by the Dept of Social Protection of letters and correspondence from the Respondent. The Complainant was obliged to engage in extensive correspondence with the Dept of Social Protection to lodge an appeal and refer the Notice of Termination to the Residential Tenancies Board.
• The Complainant represented herself at 5 hearings and was unable to afford legal representation. It is submitted that the factors are exceptional circumstances which warrant an extension of time if necessary and that the Respondent is not prejudiced by any purported delay.

(ii)                The Complaint is Res Judicata.

The Complainant notes the raising by the Respondent of Res Judicata on the basis of the previous hearings and decisions of the Residential Tenancies Board in relation to the property.

The Respondent relies on the decisions of the Court of Appeal in Crowley v Zurich Assurance [2016] IECA 381 and Murphy v Canada Life [2016] IECA 128.

“All three decisions are unanimously of the view that a disappointed litigant cannot re-litigate a matter which has been the subject of an adverse decision from either the Pensions Ombudsman (in the case of Murray) or the FSO (in the cases of O’ Hara and Crowley) by reason of the principle of res judicata. ..”

Hogan J says the rule is not absolute and is subject to exceptions. The Complainant denies re-litigating matters which are the subject of a final determination. The complaints were made under the Residential Tenancies Acts which is an entirely separate statute to the Equal Status Acts, a different relief is sought and a separate remedy under the Equal Status Acts. There is no bar to taking a separate claim under both acts even if based on the same factual matrix. The Complainant in addition relies on S196 of the Residential Tenancies Act 2004, which provides that nothing in the Act operates to prejudice the powers under Part III of the Equal Status Act to award redress in the case of conduct prohibited by S6 of the Equal Status Act 2000-2015.

The Respondent admitted in his ES1 reply that the disputes engaged in before the RTB are entirely different complaints regarding use of the apartment, complaints from the management company and breaches of the tenancy agreement. Social welfare payments are not part of those disputes.

The Complainant says that the Respondent was happy to accept rent until he found out rent supplement was being paid. He arranged for another tenant to let the apartment in October 2016.He claimed he never signed the SWARS1 form and his signature was obtained by deception, he wanted higher rent, his behaviour was designed to cause or induce as breach of the lease by placing the Applicant in financial peril by insisting rent be paid despite being on notice that rent supplement had been stopped as a result of the Respondent’s contact with the Dept of Social Protection. He purported to reclaim possession on the basis that his brother wanted to use the apartment, despite the signed lease with the tenant and 1 year extension.

The Complainant says that she was treated less favourably by the Respondent and he acted to stop her rent supplement on 4 occasions and refused to accept rent supplement. A prima facie case of discrimination has been established.

A Preliminary issue was raised by the Respondent in relation to two matters (i) The Complainant’s claim is statute- barred due to delay and (ii) the Complainant’s claim is Res Judicata.

The Respondent says a Lease was executed between the parties for rental of an apartment on 1st May 2016. Shortly thereafter he began to receive serious complaints from different neighbours in the building. This was followed by a formal letter from the management company detailing serious issues that were having a significant and detrimental effect on other residents of the building and outlining serious breaches of the Lease.

This included:

1.       Creating a fire hazard on the roof.

2.       Parking in other resident’s car parking spaces.

3.       Damaging property with paint.

4.       Allowing dogs under the control to foul the communal areas.

5.       Running a dog-minding business from the apartment.

As a result the Landlord issued a Notice of Termination on 13th August 2016, effective on 13th September 2016. The Complainant was disappointed, and wanted to extend this to 30th September 2016. The Tenants agreed to cease running the animal minding business, pay rent on time and facilitate viewings of the apartment so it could be rented from 1 October 2016. It was agreed between the parties that they would vacate the property at the end of September 2016.

The Respondent then advertised the apartment for rent from 1st October 2016. The property was to be leased to a couple moving to Ireland from 1st October 2016.   On 12th September 2016 the Respondent says he was contacted by residents describing threatening and intimidating behaviour by the Complainant’s father. They were concerned they were targeted as they are on the Board of the Management Company. The Respondent was repeatedly contacted by the Complainant’s father and he told him he would only deal directly with the tenants. The Respondent had difficulty arranging an inspection of the property to arrange return of the deposit. The Respondent was informed that the Tenants had raised a dispute with the Residential Tenancies Board. The new Tenants who had planned to take the property in October were informed which caused upset.

The Respondent withdrew the first Notice of Termination following mediation. There were further complaints from residents and a second written complaint from the Management Company stating the Tenants were causing a serious nuisance to other residents. A further Notice of Termination was issued on 21st November 2016 effective 31 December 2016. The complaints were ongoing regarding the Tenants.

Rent in January 2017 was not paid on time, which was the second time in 6 months, and a 14 day warning notice was served 2nd January 2017. Additional letters were sent to the Tenants requesting compliance with the Lease to no avail. There was a continuing nuisance by the Tenants and anti-social behaviour against other residents. There were repeated breaches of the Lease.

A Preliminary issue was raised by the Respondent in relation to two matters (i) The Complainant’s claim is statute- barred due to delay and (ii) the Complainant’s claim is Res Judicata.

(i)                  The Complainant’s claim is statute-barred due to delay.

The Respondent says that the Complainant submissions show that she had the benefit of legal advice all along. The Respondent objects to the Complainant’s submissions as an attempt to try to introduce evidence in chief after the first day of hearing when the Complainant’s evidence was completed, and says the factual submissions should be disregarded.

The statute provides that the complaint must be referred within 2 months after the prohibited conduct. The Respondent wrote to the Department of Social Protection on 16th September 2016 and 7th November 2016, but the ES1 of the Complainant was dated 14th March 2017 and is out of time. Pursuant to S21 (2) of the Equal Status Acts the Complainant can apply for an extension of time, but did not do so. No evidence of exceptional circumstances were adduced by the Complainant in order to justify an application for an extension of time, and no application for an extension of time was made by the Complainant.

The Complainant has stated in her complaint form that the most recent act of discrimination was on 5th May 2017. The Respondent says no discrimination took place on 5th May 2017 and this was the date a notice of termination was issued by the Respondent. The notice of termination was deemed valid by the Residential Tenancies Board on 27th October 2017.

(ii)                The Complainant’s claim is Res Judicata.

The Complainant’s submissions accept the doctrine of Res Judicata is not absolute and exceptions may exists, but nothing is offered as to what this might be or how this applies.

The Complainant submits that Res Judicata does not apply as the Complainant is prosecuting a complaint under a different statute and it must follow that it cannot be Res Judicata. Res Judicata arises where there is an attempt to re-litigate a matter which is ostensibly different but in substance not different. The Respondent relies on the ruling by the Court of Appeal in Murphy v Canada Life Assurance, where there was an attempt to re-litigate the same matter under the guise of separate proceedings. The exception to this is where the first decision or Judgement given is obtained by fraud.

The Residential Tenancies Board determined that there was conduct of the Respondent in correspondence with the Dept of Social Protection which warranted an award of damages. The damages were awarded and paid. The notice of termination of 5th May 2017 was served lawfully and was found to be valid by the Residential Tenancies Board.

The Complainant in this complaint of discrimination is relying on exactly the same subject matter which was presented to the RTB, and in particular the action of the Respondent in writing to the Dept of Social Protection in relation to rent supplement due. The Respondent says the Complainant relies on the same evidence and has already received compensation for distress caused by the temporary suspension of rent supplement but she has no actual financial loss. At the RTB hearing the Complainant never alleged that she was discriminated against on the housing assistance ground, but that this was an act of penalisation or reprisal.

The Respondent objects to the request for a third days hearing in order to reconvene to hear further evidence as the Complainant had legal advice and assistance all along in relation to the complaint but opted not to have legal representation until the second day of hearing, and to the request to include a recording of a voice message and to give evidence as to how this made her feel. No transcript was produced to the WRC. The Respondent does not consent to the use of this recording and says it is not material.

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 first day of hearing on 31 January 2018, the evidence of the Complainant concluded at the end of the first day. The hearing was adjourned on the application of the Complainant to obtain legal advice in relation to submissions to be made. The second day of hearing took place on 21st June 2018. Detailed written submissions were made by the Complainant’s legal representatives on 20th June 2018, 5th July 2018, and 3rd September 2018. The Respondent furnished Replying submissions on 17th July 2018.

I have considered the further legal submissions of the parties, and I am satisfied that sufficient arguments have not been made in order to justify a third day of hearing. I also cognisant of the Supreme Court’s view of the purpose of the Employment Tribunal which is set up to relieve people of what is regarded as the undue technicalities of courts, expense and delay, and which is intended to be somewhat informal as set out in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal and Anor [1990] I.L.R. M 293

The Complainant complains that she has been discriminated against in terms of S3 and S6 of the Equal Status Act 2000-2015 in the provision of services related to accommodation by the Respondent on the housing assistance ground from 13th August 2016 to 5 May 2017. In particular, she alleges discrimination in relation to access to Rent Supplement and Back to Work Enterprise Allowance which was terminated on 4 occasions due to the actions of the Landlord who informed the Department of Social Protection that he refused to accept rent supplement, denied signing a SWA RS1 form, and served a Notice of Termination on 5th May 2017. This resulted in delays, appeals and lengthy correspondence with the Department of Social Protection.

The Complainant was in receipt of rent supplement when she entered into a lease with the Respondent on 1st May 2016. The evidence of the Complainant (which is disputed by the Respondent) is that the tenants informed the Landlord of this and the SWA RS1 form was signed by the Landlord at their first meeting.

A Form ES1 was sent to the Respondent on 14th March 2017, and alleges prohibited conduct occurred on 28th November 2016 and 23rd January 2017 when the Complainant was notified by the Department of Social Protection that the Respondent denied signing the SWARS1 form required to be completed by the Landlord. This meant the Department of Social Protection was unable to pay further rent supplement to the Complainant. In addition, the ES1 referred to a letter dated 28th November 2016 from the Department of Social Protection which stated the Landlord would not accept rent, so rent supplement could not be paid.

The WRC complaint form was sent to the Workplace Relations Commission on 4th August 2017.The last act of discrimination being service of a Notice of Termination of the lease alleged to have occurred on 5th May 2017. However, the form ES1 alleges discrimination occurred on 28th November 2016 and 23rd January 2017 when the rent supplement was stopped and the Landlord refused to accept this.

The Complainant’s representatives have sought an extension of time in relation to lodgement of the WRC form if required pursuant to S21 (6) (b) of the Equal Status Act 2000-2015, based on exceptional circumstances set out. These are that the Complainant did not have independent legal advice, she was on Back to Work Enterprise Allowance and rent supplement so was unable to afford this. Various Notices issued by the Respondent were withdrawn or found to be invalid. There were accusations of breach of the lease by the Complainant, requests for inspections and allegations these were not being facilitated. The Complainant was obliged to engage in extensive correspondence with the Dept of Social Protection to object to the withdrawal of rent supplement on 4 occasions, to lodge appeals and refer the Notice of Termination to the Residential Tenancies Board.

The grounds for extension of time are set out in Cementation Skanska v Carroll DWT0425 and it is for the Applicant to explain the delay and set out justifiable grounds to excuse this. The delay in lodging the complaint form is short and is approximately 2 weeks as this form should have been lodged by 22nd July 2017. Lack of legal advice is not sufficient grounds to explain and justify delay. However, it is clear from the evidence of the Complainant that the failure of the Department of Social Protection to pay rent supplement for a period following notification on 23 January 2017 caused severe financial pressure and upset. It also caused a significant administrative burden for her in appealing withdrawal of rent supplement. Given the short period of delay, in the circumstances, bearing in mind that the Complainant was not legally represented at the time, I find there is reasonable cause to direct that time be extended to 12 months pursuant to S21 (6) (b) of the Equal Status Act 2000-2015.

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 Back to Work Enterprise Allowance of the Complainant does not fall within this ground.

S21 (2) of the Equal Status Acts 2000-2015 provides:

Before seeking redress under this section, the Complainant-

(a)    Shall, within 2 months after the prohibited conduct 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 the Act……

S(3) On application by a Complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may-

(i)                  For reasonable cause, direct that in relation to the Complainant subsection ( 2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii)                Exceptionally, where satisfied that it is fair and reasonable in the particular circumstances of the case to do so direct that subsection (2) shall not apply in relation to the Complainant to the extent specified in the direction,

And, where such direction is given, this Part shall have effect accordingly.

(b)    In deciding whether to give a direction under paragraph (a) (ii) the Director of the Workplace Relations Commission or, as the case may be the Circuit Court shall have regard to all the relevant circumstances including-

(i)                  The extent to which the Respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii)                The extent of any risk of prejudice to the Respondent’s ability to deal adequately with the complaint.

The Respondent has raised a preliminary objection to the complaint stating that it is out of time. It is clear from S21(2) of the Equal Status Acts 2000-2015 that only in exceptional circumstances can I waive the requirement for notification of the prohibited conduct to the Respondent within 2 months of the last act of alleged discrimination on 5th May 2017.

The ES1 notification was sent on 14th March 2017 to the Respondent regarding allegations that his actions contributed to the withdrawal of rent supplement for the Complainant dating back to 28th November 2016 and 23rd January 2017. The response was received on 13th April 2017. The Complainant’s WRC complaint form was lodged on 4th August 2017. The difficulties had been ongoing from August 2016, there had been lengthy correspondence between the parties by March 2017, rent supplement withdrawn on 4 occasions and 3 Notices of Termination served by the Respondent at that point.

The Complainant submits there are exceptional circumstances justifying the granting of an exemption, that she did not have independent legal advice and she was on Back to Work Enterprise Allowance and rent supplement. Various Notices issued by the Respondent were withdrawn or found to be invalid. There were accusations of breach of the lease, requests for inspections and allegations these were not being facilitated. The Complainant was obliged to engage in extensive correspondence with the Dept of Social Protection to object to the withdrawal of rent supplement on 4 occasions, and to lodge an appeal and refer the Notice of Termination to the Residential Tenancies Board.

In Dec S2010-031 the Adjudication Officer considered applicable grounds for a waiver of the notification requirement:

1.       That the Respondent is notified of the nature of the allegations.

2.       That the Respondent is notified of this within 2 months of the alleged incident in question.

3.       That the Respondent is provided with at least a month to respond to the allegation.

4.       That the Complainant indicates to the Respondent his intention of invoking the provision of the Acts with regard to the matter viz. bringing a complaint to the Tribunal.

All of the foregoing have been complied with by the Complainant in relation to the ES1 form served. Of note is that the Complainant was unrepresented at the time, and was not in a position to afford legal advice. Her rent supplement had been withdrawn on 4 occasions causing difficulties for her in paying her rent and time spent resolving this. The Complainant served an ES1 in relation to prohibited conduct in March, but did not lodge her WRC complaint until 4th August 2017. The WRC complaint form refers to the last act of discrimination occurring on 5th May 2017. There has been no prejudice shown by the Respondent due to the failure of the Complainant to serve a further ES1 regarding allegations of discrimination from 24th January onwards. The Respondent was aware of the nature of the complaints from the ES1 form. I am satisfied that given the nature of the dispute between the parties that the Respondent was very much aware of the Complainant’s disgruntlement and that he was on notice that she intended to take matters further and it is fair and reasonable in the circumstances to do so. Therefore, I am dispensing with the requirement on the Complainant to issue a notification in accordance with Section 21 (3) (a) (ii) of the Acts in relation to the alleged prohibited acts of discrimination from 24 January 2017 to 5 May 2017.

The Respondent has raised a second preliminary issue that the Complainant’s claim is Res Judicata in that all of the material raised in her complaint was previously presented to the Residential Tenancies Board, and an award was made in the Complainant’s favour which was paid.

In a determination of 2nd June 2017 a Tenancy Tribunal of the Residential Tenancies Board found on appeal, that the Landlord was in breach of obligations under S12 (1) (a) of the Residential Tenancies Act 2004, by interfering with the peaceful enjoyment of the dwelling by the Tenants and the Landlord was ordered to pay a sum of 1,600 euro in respect of the breach. Section 12 (1) (a) of the Act provides that a landlord of a dwelling shall allow a tenant to enjoy peaceful and exclusive occupation of the dwelling. The Landlord was found to have breached this in his contact with the Department of Social Protection which resulted in stopping the rent supplement on 4 occasions. One month’s rent of 1,600 euro was found to be appropriate damages for this loss, inconvenience and interference with peaceful occupation of the dwelling.

Submissions have been made by both parties in relation to the application of Res Judicata in this case.

The complaint made under the Equal Status Acts 2000-2015 by the Complainant is of discrimination or less favourable treatment due to the Complainant being in receipt of rent supplement. This is a   separate statute to the Residential Tenancies Act 2004 and separate causes of action. All Tenants irrespective of receipt of rent supplement are entitled to peaceful enjoyment of their Tenancy when compliant with the terms of their lease. However, only Tenants who access housing assistance or social welfare benefits come within the housing assistance ground under the Equal Status Acts 2000-2015. In addition, S196 of the Residential Tenancies Act 2004, provides that nothing in the Act operates to prejudice the powers under Part III of the Equal Status Act to award redress in the case of conduct prohibited by S6 of the Equal Status Act 2000-2015.

In Crowley v Zurich Assurance Plc [2016] IECA 381 Mr. Justice Ryan describes the jurisdiction of the Court relating to Res Judicata;

“It is not in doubt that res judicata does not prevent a party from bringing an action in which he seeks to set aside a judgement previously obtained on the ground that it was done fraudulently. ..The High Court held that Mr. Crowley had invoked the jurisdiction of the FSO in dealing with the claim; that the Ombudsman had adjudicated upon the matter in a formal and final manner subject to appeal to the High Court under the statutory scheme provided for that purpose; that Mr. Crowley had not availed himself of the option of appealing and that the matter was in the circumstances the subject of res judicata.”

The decisions in Crowley and Murphy v Canada Life Assurance Ireland Ltd & Anor [2016] IECA 128 which the Respondent relies on relate to decisions of the Financial Services Ombudsman not appealed to the High Court pursuant to the statutory scheme, but where the dissatisfied claimants then issued separate proceedings in the High Court. The Respondent in this case already exercised his right of appeal unsuccessfully.

In G v The Department of Social Protection [2015] IEHC 419 O’ Malley J referred to the objectives of the Equal Status Acts which is described as a remedial statute, that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. She stated that It follows that it must be widely and liberally construed. Given, the above I am not satisfied that Res Judicata applies in this case.

The complaint form alleges that the first incident of discrimination took place on 13th August 2016 when an invalid Notice of Termination was served on the Complainant. The Complainant submitted a transcript and audio of a telephone call which I accept into evidence in accordance with the best evidence rule. The Complainant alleges that the last act of discrimination took place on 5th May 2017 when the Respondent served a Notice of termination of the lease. This notice of termination was subsequently found to be valid by a Tenancy Tribunal of the RTB.

The Complainant’s representatives say that the complaint is a continuum of acts of discrimination dating back to 13th August 2016. All acts of discrimination found to form part of the continuum will be regarded as having occurred within time as found by the High Court in County Louth Vocational Educational Committee v Equality Tribunal [2011]1 ICLMD 24.

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 actions of the Respondent in notifying the Dept. of Social Protection on 4 occasions that he was refusing to accept rent, and notification of the termination of the Tenancy to the Department. In addition, the Respondent denied signing the SWA RS1 in 2016 on a number of occasions but then accepted that he did sign this in 2017.

The Respondent is entitled to serve Notices of termination of the Lease and these can be challenged. This applies for all Tenants, whether on housing assistance or not. The Respondent has adduced some evidence of breaches of the terms of the Tenancy by the Complainant, but this is not substantial. 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.

Undoubtedly, the cancellation of rent supplement placed the Tenant under severe financial pressure, caused great difficulty continuing to pay rent, and involved her in numerous appeals to the Dept. of Social Welfare when compared to a Tenant not requiring rent supplement.

Pursuant to Section 27 of the Equal Status Act 2000-2015, I order compensation of 5,000 euro to be paid by the Respondent to the Complainant as compensation for the effects of the prohibited conduct.

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.

Pursuant to Section 27 of the Equal Status Act 2000-2015, I order compensation of 5,000 euro to be paid by the Respondent to the Complainant as compensation for the effects of the prohibited conduct.

Delay, Res Judicata, dispensing with notification requirement, continuum of discrimination.