Complainant

Respondent

Parties

Mark Power

Aodhan O'Shea

Complainant

Respondent

Anonymised Parties

A prospective tenant

A landlord

Act

Complaint Reference No.

Date of Receipt

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

CA-00023305-001

16/11/2018

The complainant said that he and his partner viewed the advertised dwelling. The viewing went well, and the respondent landlord said that they could rent the property. They discussed getting the dwelling painted but they did not want it to be furnished. They checked with the local authority whether it was okay to rent the property when it was not in the respondent’s name; they said that there was no problem. The respondent asked whether they wanted the electricity account in their names. The respondent asked for the HAP forms but then emailed on the 19th September 2018 to say that the dwelling had been rented to someone else.

The complainant did not reply to the respondent’s email. He was upset as they had been going to viewings for months and lost hope after this set back. It was not a nice thing to do. The complainant sent the ES1 form to the respondent on the 18th October, and this was replied to on the 20th October. The respondent referred to HAP requiring that the landlord have title which he does not have and there are fire regulation and repair issues for the building. The complainant outlined that he was now sofa surfing and his girlfriend is back with her parents.

The respondent outlined that complainant viewed the dwelling with his girlfriend and his baby. The respondent told the complainant that he had no problems with HAP. The complainant sent him information about HAP and the respondent explained that electricity would be on top of rent. The respondent showed the dwelling to others. The respondent said that there no agreement between him and the complainant to rent the property. While the complainant had sent the forms, they had not been signed. The respondent said that he may have given too much information about why he had chosen a different prospective tenant.

The respondent had not meant to discriminate and wished the complainant and his family the best of luck. He received the correspondence and replied to the email. The respondent said that there was an issue with the title on the apartment and this was a requirement for HAP. There were ongoing fire regulation issues. The respondent could not meet the requirements for HAP. The respondent said that there was no discrimination in the email and they got on well. He just explained his decision. The respondent was able to achieve a higher rent and rented the dwelling to the highest bidder.

The complaint relates to discrimination on the housing assistance ground. The complainant and his partner sought to rent accommodation from the respondent. The complainant outlined that he and the respondent reached an agreement to rent the dwelling; the respondent said there was no agreement. Whatever the difference between the parties’ accounts, it is clear that the matter of the prospective letting moved beyond viewing to the complainant sending the HAP forms to the respondent. The respondent did not rent the dwelling to the complainant and instead rented it to someone else, who was not reliant on HAP. The respondent’s email of the 19th September 2018 states “I got that paperwork thanks, managed to get a read on them this morning. Unfortunately, I don’t see a huge benefit to me in going the HAP route. Would be three years before I can claim the relief on mortgage interest. Not to mention a couple came in last evening and offered €2200 per month, 2 months up-front and a three year lease… difficult to turn down… You guys seemed great and I do wish you all the best in your search for a new home Kind Regards.”

As amended, section 3B of the Equal Status Acts 2000-2015 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”).”

As amended, section 6(1) and 6(1A) of the Acts provide:

“6. (1) 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.

(1A) 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 38A of the Acts applies to all complaints of discrimination under the Equal Status Acts and requires, in first instance, that the complainant establish facts from which discrimination may be inferred. Where such a prima facie case has been established, the onus shifts to the respondent to rebut the inference of discrimination.

The Equal Status Act seeks to prohibit discrimination in the provision of services. From its outset, the Act prohibited discrimination in the provision of accommodation. The ambit of the Act was extended to include discrimination on the housing assistance ground, i.e. a claimant’s reliance on a social welfare payment. This includes the Housing Assistance Payment (HAP) as provided by Part 4 of the Housing (Miscellaneous Provisions) Act, 2014, which sets out requirements on a landlord. What the Equal Status Act tackles is less favourable treatment of a HAP applicant when compared to a tenant not in receipt of HAP. Discrimination involves less favourable treatment and will not always “be ill-intentioned” and could be “based on an assumption that "he or she would not have fitted in." (see King v Great Britain China Centre [1992] I.C.R. 516).

Assessing the evidence in this case, it is clear that the respondent read through the HAP documentation and decided that the scheme was not for him. He did not progress the letting with the complainant and his partner. He rented the dwelling to someone else, who was not reliant on HAP. This is the differential treatment the Equal Status Act seeks to prohibit. It follows that the complainant has established a prima facie case of discrimination, which the respondent has not rebutted.

In assessing redress, I note that this prevented the complainant from being able to rent the dwelling and unfortunately, he has not found an alternative place to live. I note also that this case takes place against the widespread shortage of rented accommodation, in particular at affordable rents. This, of course, is not the respondent’s doing. In the circumstances, I award redress of €1,000.

CA-00023305-001

I find that the respondent discriminated against the complainant on the housing assistance ground and I award redress of €1,000.

Equal Status Act / housing assistance ground

HAP scheme / requirements set out in the Housing (Miscellaneous Provisions) Act

Discrimination need not be ill-intentioned