Complainant

Respondent

Parties

Maciej Dziurbejko

Daygrove Properties Limited

Representatives

Daniel Snihur

Conor O Connell

Act

Complaint Reference No.

Date of Receipt

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

CA-00022170-001

26/09/2018

The Complainant is a Polish National and has raised a complaint that both he and his partner experienced discrimination in the provision of goods and services when his application for Housing Assistance Payment was refused by the Respondent.

The Respondent is a small property company and has denied the claim. Both parties were represented at hearing.

The Hearing was supported by a Polish Interpreter.

The Complainants Representative outlined that the Complainant and his Partner had been long term Tenants of the Respondent. The Rent for the Property had varied from €1100-€1250 and the property had hosted a third tenant who had moved back to Poland in May 2017.

The Complainant understood that there would be no difficulty in securing the Landlords approval for HAP when first requested in April 2017.

The Complainant had since been repeatedly refused in his requests to fill out a housing assistance payment as Financial support. This was a contravention of Section 6(1) (C) of the Equal Status Acts. He contended that the complainant had been discriminated against and sought redress in the form of compensation. The Complainant undertook to locate the Local Authority authorisation of clearance for eligibility to apply for HAP.

The Complainant produced this document shortly after the Hearing and referred to an April 4, 2017 application for Social Housing. The Complainant received approval for Social Housing on 9 May 2017 and was placed on a waiting list. On the same date, he was informed that he was eligible to apply for HAP. This letter was copied to the Respondent post hearing but did not illicit a response.

The Complainant outlined that in April 2017, he had been informed by his Landlords Representative that HAP was acceptable.

The Complainant stated that he forwarded the City Council approval for the first time on 18 May 2017. He gave the application form for HAP to the Landlord, who told him that HAP was not being accepted on that property. The application form, while signed by the Complainant was retained by the Respondent.

The Complainant submitted that the projected value of the HAP payment was to be €891 per month against the total rent. He explained that he was the sole worker in the house and this financial support would have benefitted his family greatly.

The Complainant submitted copies of texts which appeared to confirm that HAP had also been refused in January 2018. The Complainant enquired about Rent supplement and that was also refused. He did not advance the matter any further from fear of eviction. His family were about to have their second child.

The Complainant was served with notice to leave the property in June, which was initially found to be invalid and was revised to October 2018. The Complainant submitted a text of 20 July:

“ …. Must ask again about HAP. We have three months left in that house what that means for us is €3,000 from HAP. HAP is movable to another house if we find one in that time if not we will have to go back to Poland and the HAP will be cancelled in that stage. If not, I will need a letter from you that you are not accepting HAP ….”

The Complainant submitted that the Landlord had rung back again refusing the HAP. He contended that the notice to leave was directly attributed to asking for HAP. He had not contested this as the Property was deemed as going for sale. The Complainant left the property on 30 October 2018. The refusal to receive Hap had placed him in an unenviable position where he struggled with a skin condition.

The Complainant submitted his ES1 form on 13 August 2018 and it was signed in acceptance.

The Complainants Representative submitted that the Complainant had been treated less favourably than a tenant not reliant on HAP. He quoted extensively from ADJ 4100,4101 and 4705.

He also advanced that there was no lawful justification for the continuing refusal of HAP and Rent Supplement by the Respondent Landlord by law or by any breach of the tenancy agreement.

The Complainants Representative pointed to a disparity in another house in the Respondent Portfolio was covered for HAP but not the Complainants rental property. The Respondent clarified that that house was not part of the Respondent company. The Complainant confirmed that HAP had not been discussed during the Viewing of the property.

The Complainant confirmed that he had not raised the topic of HAP during the Tenancy Agreement in March 2017.

The Respondent is a Family Run Business comprising of 2 rental and 1 commercial properties. The Respondent in rebutting any claim of discrimination expressed a disappointment in attending the hearing.

The Respondents Solicitor had written to the WRC dated 16 October,2018, confirming that the property had never been registered for HAP and rejecting all claims of discrimination.

The Respondent bought the house in 2005 for the purposes of onward sale. This proved not viable and the property was rented long term. In October 2013, the property was rented to three people, one of whom was the complainant. On 2 September 2016, the Complainant and his partner viewed and were offered another house around the corner which was registered for HAP, but they refused it.

The Respondent submitted that rent was collected monthly by a family member and employee of the company and this was always conducted in a friendly atmosphere. A Photograph of the Rental Property was exhibited.

The Respondent delivered a “Notice of Termination for Vacant Possession “on 11 June 2018. The selling market had improved, and the property was going for sale.

“The reason for the Termination of the tenancy is since the landlord intends within three months of the termination date, to enter into an enforceable agreement for the transfer to another, for full consideration, of the whole of his interest in the dwelling or the property containing the dwelling “

The Respondent received a notification from Threshold that this notification was invalid, and it was reserved on June 27, 2018 giving the Complainant and his partner 126 days’ notice rather than the legal requirement for a tenancy short of 2 years of 42 days.

The Respondent confirmed receiving 3 texts date 20,26 and 30 July asking for a decision on HAP. This overlapped with her annual holidays. On her return she reaffirmed that the property was being sold.

The Respondent submitted that they were familiar with HAP scheme and the Tax relief element. However, this required the property to be made available to qualifying tenants for at least 3 years. The Respondent was not able to give this undertaking, the House was bought for eventual resale purposes and the Owner wished to sell. This was explained to the Complainant and his Partner. The Property was sold in February ,2019. The Complainant refused to give a forwarding address and stated that he was moving in with a friend.

The Respondent submitted that it was only after the notice of termination was served in June 2018 that the Complainant became persistent on the topic of HAP. The Respondent had no recollection of receiving an application form for HAP from the complainant.

The Respondent contended that they were model landlords and had not discriminated against the complainant.

A new House letting Agreement was issued to the Complainant and his partner in February 2017 when two tenants moved out. This agreement ran from 1 March 2017 to 1 March 2018. The rent was €1125 per month and the contract was signed on 14 March 2017 with provision for roll over, contingent on one month notice of termination by either party.

The Respondent had an understanding that the Complainant had sub-let one room but did not make an issue of it. The Respondent submitted that they had not seen any evidence that sanction for HAP had issued in the Complainants case.

I have considered both parties oral and written submissions in this case. The case was hotly contested by the Respondent and there remained several disputed facts at the end of the hearing. The case served as a cause of distress for both parties, the complainant due to his perceived financial setback from his failure to obtain HAP and the Respondent as they believe that the kindness and prompt supports extended through the tenancy and the support of good references during relocation were not appreciated by the Complainant.

An undisputed fact is that a response was not filed to the ES1 served on 13 August 2018 and I have had to draw inferences from that. I appreciate that it may have overlapped in time with the Notification served to leave and the Respondents annual leave, however, it is a standalone document served under the Equal Status Act 2000 and it deserved a response in the requested time limit of 13 September 2018.

This case is conjoined with ADJ 17107 who was a co-tenant.

I received a copy of the Letter from City Council dated May 9, 2017, which I hoped would serve as a grounding to the chronology in the case. I am grateful for its receipt one day post hearing. It is a letter which confirmed eligibility for Social Housing for the Complainant his Partner and one child. The family was placed on a waiting list with weekly postings. This letter confirmed the following:

“You are now eligible for HAP and if you wish to apply, contact the County Council “

The Complainant submitted a copy of a text/email message dated 17 May 2017 which confirmed that a HAP application had been posted out to him. The Complainants evidence was that he then submitted the form with his part completed to the Respondent. He did not retain a copy of the form and the respondent has no recollection of this. They submitted that they checked the files and there is no record of this application form. The Respondent vehemently refuted receiving an application form for HAP.

I had some difficulty in extrapolating the facts from the Complainant on the change in circumstances which warranted a HAP application in the first instance. I accept that the other co tenants moved out in Spring 2017 and together with the Respondent, I was struck that the HAP payment did not form a basis for discussion at the inauguration of the new lease in March 2017. The Complainant understood that he had an open invitation to apply for HAP from April 2017. I found that to be a misplaced view.

I have found that the complainant’s reference to rent supplement was not accompanied by a real time application for same as the complainant stated that he was working full time.

I have reviewed the HAP scheme in terms of Regulations 2017 and the HAP Booklets produced for Tenant and landlord. Both parties relied on the contents of these documents respectively. I have also had the opportunity to review the Citizen Information Service September 2017 by Dr Kathy Barry a Brian Harvey who conducted this review, making key findings and recommendations on this fledgling social housing support received by 27, 000 Households by the end of 2017.

The major difference between this case and ADJ 4100 centres on the role played by the HAP application form and a completed ES2 form. From the ADJ 4100 case note, all applications for HAP were accompanied by an application form and responded to by letter. The Respondent accepted Rent Supplement and filed an ES2 response to the ES1 submitted.

I note that the CIS review recommends that an Online Templated Application form ought to be made available on line. I also note that they recommend that opportunity for review/ appeal of refused /disqualification should follow at HAP level, separate and distinct from the Housing needs assessment.

In this case, the complainant has submitted that he gave the Respondent the HAP application form in May 2017. He stated that he never received it back and the supplementary texts referred to the same form throughout this case. I found this unusual. The Complainant or his partner met the Respondent every month on rental collection day and I found it unusual that the parties had not conversed on the topic of HAP during these 14 periods prior to the submission of ES1 in August 2018. In addition, given the importance of datelines for HAP, the initial form would have been administratively out of date from May 2017 to July 2018.

I appreciate that the Complainant had relied on an interpreter for the purposes of the WRC hearing but his text messages and ES1 recorded in English were correctly structured.

I have considered the Respondent evidence on the HAP form, it struck me that she practiced a high level of administrative competence in her role. All matters of house maintenance were addressed, and the rent was collected in a timely manner.

On the other hand, the complainant states that he received the HAP application from the City Council in May 2017 and submitted it partially completed to the Respondent. I have concluded that this form must have been mislaid in May 2017 or shortly afterwards. It is not referred to by the Complainant as being part of any subsequent mention of HAP pursuance. All contacts after this were in text format which in my opinion were formatted as queries on HAP or Rent supplement.

I have carefully considered the text message of 20 July 2018; which post-dated the Notice to terminate the rental agreement. The text seeks access to HAP as it would grant a financial assistance over 3 months of €3,000 to the Family . I accept that this constituted an application for HAP, albeit without the requisite application form to be completed part A by the Tenant and part B by the Landlord prior to submission to City Council , the ultimate decision maker prior to the electronic payment being made to the Landlord .

The Complainant pointed to the portability of HAP, if granted, to carry to another property. This conflicted with the Respondent viewpoint that HAP could only be granted in a static format for a duration of 3 years which conflicted with the Respondent plan to place the property on the market and which has been since sold early 2019.

The Complainant is correct in his statement. HAP is portable in certain circumstances. Acceptance of HAP payment appears to remove the family from the Housing list save through an application for Transfer within a finite period following HAP acceptance. The Complainant did not suffer a detriment by this exclusion.

However, I cannot accept the Complainant submission that he did not challenge the first refusal of HAP in May 2017 based on fear of termination. Neither have I found any evidence to link the Respondent plan to sell the house to any retaliatory action directed towards the complainant. Based on the Respondents evidence, I accept that the House was incubated for eventual sale throughout the tenancy. The House went to market as house prices rose.

I had a difficulty with the lack of an administrative trail for the Hap application in July 2018. By then it was clear to the complainant that he was facing closure on the rental agreement on 31 October 2018. I would have expected a corresponding written administration of the application in January 2018 and July 2018.

Section 38A of the Equal Status Acts 2000 establishes the burden of proof of discrimination firmly on the complainant. He is required to establish, in the first instance, facts from which the discrimination alleged may be inferred Once this burden is met the Respondent is called on to rebut this inference.

The Complainant has submitted that he was discriminated against as a “sitting tenant” when he was refused HAP in May 2017 and July 2018. He contends that this is a prohibited conduct under Section 6(1) of the Act in line with Section 3(3) (b) where “as between two persons, that one is in receipt of rent supplement, housing assistance or any payment under the Social Welfare Acts and the other is not.

I have taken note of the parallel communication entered by the parties on the request for references for relocation purposes. I note that the turn around time on this was one day 7-8 August 2018, Whereas, I accept that the Complainant did not have an answer from the Respondent on the HAP request dated 30 July by the time the ES1 was submitted in August 2018. I have reflected on this.

The complainant was refused HAP in January 2018 and July 2018. Notwithstanding, the lack of co -existing administrative records, I am satisfied the that the complainant has attained the burden of proof to infer discrimination. This was prohibited conduct.

I found that the Respondent had a prior working knowledge of HAP and had administered same in the past. I note that the Rental Agreement was of 1 Year duration. I have found that had the Respondent been met with material application forms during January and July 2018 rather than text messages in isolation, I believe that it is likely that they would have responded accordingly in writing. All other communication between the parties was documented.

I appreciate that the HAP is ideally to be granted where the tenancy is due to run on for 2-3 years. This is the point relied on by the Respondent as the main reason for not agreeing to HAP in the complainant’s case. However, both parties accept that this reason was not advanced at any time between the parties. The Complainant knew that the house was for sale, it could be viewed that he was merely seeking to protect his families interests by obtaining HAP which would travel with them on relocation. This was not discussed between the parties either.

This leaves me to decide in the case. I found the complainant reticent with information on the background to the circumstances to the case.This caused me to doubt some aspects of his evidence.

I found the Respondent argument were clear and chronologically sound outside a response to the ES1 form. However, they were mistaken that the Rental Property had to be made available to qualifying tenants for at least three years as grounding for release of HAP. This criterion referred to the basis for qualifying for tax relief as a Landlord and was not incumbent on the complainant. The property must also be registered with the Residential Tenancies Board.

I understand that the Respondent was preparing the property for sale, however the refusal to grant HAP for the final months of the complainant tenancy did place a financial hardship on the complainant who explained that he was the sole worker outside the home as his family was expanding. While the complainant mentioned experiencing illness , no medical evidence was adduced .

I have found that he was treated less favourably on Housing assistance grounds . The Respondent has not managed to rebut the inference of discrimination.

The claim is well founded.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I have concluded my investigation of this complaint. I have found that the Respondent has not managed to rebut the inference of discrimination in the face of their refusal to sanction an application for Housing assistance payment in 2017 and 2018. Both Tenant and landlord signatures are required on the application form. The City Council is the ultimate arbitrator of the application .

However, while I have established that the prohibited conduct occurred, I have found that the Complainant fell far short of how I would expect a tenant to conduct an application process in the face of a defined financial need. The situation required dialogues and discussions and there were none outside some random texts which did not respect the gravity adduced in the Complainants evidence.

Having regard for all the circumstances and mindful that the complainants placing on the Social Housing List was not compromised in this case, and in accordance with my powers under Section 27(1) (a) of the Act, I order the Respondent to pay the complainant compensation of €800.00 in compensation for the effects of the prohibited conduct.

Finally, I direct the Respondent to obtain a Template of a completed HAP form from the national office in Limerick. This template should be referred to in the case of any other disputed HAP applications.

I believe that it would be of benefit to both parties to familiarise themselves with the updates in Residential Tenancies Legislation 2019.

Housing Assistance Payment