Complainant

Respondent

Parties

Angelica Radionova

Maurice G. Nelligan

Representatives

No Appearance By or on behalf of the Complainant

Celina Sheehan, representative

Act

Complaint Reference No.

Date of Receipt

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

CA-00018139-001

20/03/2018

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

CA-00018139-002

20/03/2018

The Complainant lodged a complaint of Discrimination, Harassment, Victimisation and Refusal of reasonable accommodation against both her and an unnamed child on 20 March 2018. Extensive written documentation followed which was shared with the Respondent in accordance with fair procedures. This complaint is conjoined with ADJ 13797.

The Complainant submitted that she had been discriminated against on grounds of family status, Housing Assistance and on being of Eastern European origin. The Respondent denied the claim and submitted extensive documentation of parallel proceedings before the Residential Tenancy Board.

From my perusal of the documentation, the complainant took issue with the Respondents refusal to sign a Housing Assistance Payment (Rental support payment) in 2016, 2017 and March 2018.

The Complainant was invited by the WRC to attend a hearing of her case on October 3rd, 2018. This followed two previous adjournments. In advance of the hearing, the Complainant made an extensive submission to the Director General of WRC seeking that the Adjudicator would “determine on the desk by imposing submissions on the parties to save time and money “. This request was vetoed by the WRC and the complainant was invited to attend for hearing set for 14 November last. This was to facilitate the submission of direct evidence in the case. The Complainant also took issue at the WRC schedule of providing hearings in ADJ 1397 and ADJ 13787 sequentially on the same day. The Respondent accepted the time tabling and attended the con joined hearing on November 14, 2018.

The WRC went further by renegotiating the start time to facilitate the logistics of public transport for the complainant and her child. On November 8, 2018, the Complainant communicated that she would not be attending the hearing and issued a further instruction to cancel the Russian Interpreter requested.

My obligation to investigate the complaints arose once I received this case from the Director General of WRC on October 3, 2018. This is the day my investigation commenced. I have read the entire file and have considered both parties submissions both written (Complainant and Respondent) and Oral (Respondent at hearing).

I will now move to synopsise both party’s positions.

Arising from the successive written submissions, the Complainant submitted that her Landlord, the Respondent in this case, had refused to sign the necessary forms to enable her to receive a rent supplement referred to as a Housing Assistance Payment (HAP) over the course of three calendar years .2016, 2017 and 2018.

The Complainant submitted complaints in her own name as detailed at the title of this decision and about her unnamed child, who she stated had an Intellectual Disability and Complex needs. The Complainant submitted that both parties had been harassed by the Respondent his Agent and his legal team. Both parties were submitted as having been victimised and denied reasonable accommodation.

The Complainant did not submit details of her prior notification to the Respondent (ES1 form) or any details of information sought prior to the hearing.

The Complainant devoted a considerable amount of her written submissions to detailing deficits in the standards of her then accommodation operated by the Respondent and the variety of interventions from Trades people, County Council and Tusla.

The Complainant communicated her decision not to attend the hearing of her case on November 8. She had sought an outcome based on written submissions alone. This had been refused by the WRC and some flexibility had been permitted to facilitate her attendance at hearing. The Complainant was notified of this flexibility but did not attend and did not furnish reasons for her nonattendance at any time after the hearing.

The Respondent is an elderly and frail gentleman who is resident on an Island in the farther reaches of this Country. He was represented by his Agent who confirmed that he provided the complainant accommodation through a Rental Agreement via a Circuitous route. The Respondents representative submitted that the primary tenant had been the complainant’s son and she had come to stay in the winter of 2015 and stayed on until she was placed on notice of eviction in June 2017 and finally evicted some 3-4 weeks before the hearing.

It was the Respondents understanding that she shared this accommodation with her Daughter and a Medical Doctor. This was the reason given for a reluctance and refusal to complete the HAP form as insufficient details were made available on the third occupant in the apartment. The Respondent had made efforts to secure the PPS number of the third occupant of the apartment without success.

The Respondent had supported a previous application for rental supplement as the Agent had expressed concerns for the complainant and her daughter as bone fides tenants. the Agent had completed an application for rent allowance as she had sympathies for the complainant who said at the time that she was subsisting on carers allowance. The Respondent detailed a chronology of his participation in a parallel litigious process undertaking against him by the Complainant which had resolved on her eviction. This extended process had been injurious to his health. The property is currently unoccupied.

The Respondents representative had written to the WRC in advance of the hearing submitting that the complainant had failed to comply with the obligatory prior notification procedures in accordance with the Equal Status Acts. They denied having received a document to that effect and argued that the case was not properly before the WRC.

The Respondent gave evidence to the hearing that he was an elderly man with multiple medical conditions compounded by a serious illness. He was the owner of many apartments rented by many people of ethnic origin who had expressed that they were happy with their accommodation. The properties were managed by his Agent and chosen representative.

He submitted a Testamentary letter from a current tenant, Ms A dated 16 May 2018 which stated that she had submitted her HAP application to him on the advice of her Community Welfare Officer in May 2018. The letter detailed that the Respondent had refused to sign the form and the tenant accepted that he had exercised his discretion and she had accepted this outcome.

The Respondent had placed the complainant on notice of eviction in June 2017 and she had vacated the apartment some three weeks before the hearing. The Respondent expressed a direct apprehension that the process of the complaints under the Equal Status Act would mirror that of the Superior Courts involvement in the Residential Tenancy issue. He expressed an exhaustion from his association with the complainant and denied discrimination, harassment, victimisation and refusal of reasonable accommodation.

I have taken time to consider the entire file in this case. I am satisfied that the complainant was properly on notice of the WRC invitation to attend a hearing in her case dated 3 October 2018. I am satisfied that considerable efforts were made to facilitate her attendance on 14 November 2018. I delayed the start of the hearing, (already extended) to allow for a late arrival or even a notification of a reason for the nonattendance. I was aware that the Respondent was near the hearing room from early morning having travelled from the same area of origin as the complainant had indicated on her complaint form.

I held a hearing in the case as I am obliged to under Section 25 of the Act. My primary goal was to establish the presence or otherwise of the obligatory statutory notification as set down in Section 21 of the Act. My secondary goal was to allow the parties a chance to present their cases, call witnesses and to cross examine the evidence adduced. The hearing was held in private.

I could not establish the complainant’s compliance with Section 21 of the Equal Status Acts 2000-2015. This provides that a person who claims that prohibited conduct has been directed against her may subject to Section 21(1) seek redress via the WRC or the Circuit Court. The Complainant is obliged to:

1.      Before seeking redress under the Act, she shall within 2 months after the prohibited conduct is alleged to have occurred notify the respondent in writing of –

2.      The nature of allegation, the complainant’s intention if not satisfied with the response to seek redress under the Equal Status Acts.

3.      Provision is made for the complainant to request material information from the Respondent to assist her claim.

I did not have the benefit of either a standard ES1 form or an equivalent document which satisfied the strict criteria of this aspect of the legislation. I did not have the benefit of evidence from the complainant which may have clarified this issue. The September 2017 WRC Guide to Equal Status Acts for the complainant provides guidance to a prospective complainant.

Along with the complaint form, you should send us a copy of the letter you sent to the respondent, proof of postage and a copy of any reply you received.

The Respondent was categorical that the first notification of the claims arose via the primary complaint dated March 20, 2018 and not before. The Respondent submitted that he did not receive carriage of an ESI form or its equivalent from the complainant.

I have reviewed the file and cannot establish the presence of any documentation consistent with the requirements set down in Section 21(2) of the Act. I have not received submissions seeking to waiver the application of Section 21(2)

Title of the Complainant:

I have detailed that the complaints before me are in the complainant’s own name, yet refer to a claim concerning an unnamed child.

Section 20 of the Act refers to the definition of Complainant as a person referred to in Section 21(1) of the Act or where such a person is unable, because of an intellectual or psychological disability, to pursue effectively a claim for duress under this Part, his or her parent, guardian or other person acting in place of a parent.

I must accept that the complainant was made in the name in the title of this decision, Ms Angelica Radio nova and the complaints are silent on the name of any child.

Burden of Proof:

Section 38 (A) of the Equal Status Acts 2000-2016 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely on in asserting that prohibited conduct has occurred in relation to her claims lodged under SS 3 and 4,11 of the Act.

Section 6(1) of the Act prohibits discrimination in providing accommodation or any services or amenities related to accommodation or cessation of provision of accommodation.

The Complainant sought to vary her claim to include discrimination under family status, and nationality later in the body of her submissions. This was a departure from the presiding complaint form dated March 20, 2018. I am not able to accept this variance.

The Complainant was invited to attend the hearing in her case. She did not attend. As a result, and in the absence of any particularisation of the claim or direct evidence, I must find that the complainant has not satisfied the burden of proof in this case. I find that I must exercise my discretion contained in Section 22(1) of the Act and dismiss the complaints before me as misconceived as

1 The complaints have not been prefaced by the obligations on the complainant set down in Section 21 of the Act on prior notification.

2 The complaints are lodged in one name of the complainant.

3 The Complainant has not satisfied the burden of proof set down in Section 38.

Submission of ES1 form, Burden of Proof, Discrimination, Reasonable Accommodation