Complainant

Respondent

Parties

Malgorzata Gasiorowska

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-00022172-001

26/09/2018

The Complainants Representative outlined that the Complainant and her 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 Representative entered the identical submission as entered by the complainant in ADJ 17106 into the record.

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 her Partners 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, she was informed that her household was eligible to apply for HAP. This letter was copied to the Respondent post hearing but did not illicit a response.

The Complainants representative outlined that in April 2017, the Household had been informed by the   Landlords Representative that HAP was acceptable.

The Complainant stated that her Partner 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 was served with notice to leave the property in June, which was initially found to be invalid and was revised to October 2018. The Complainants partner 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. She contended that the notice to leave was directly attributed to asking for HAP. She 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 her and her family in an unenviable position.

The Complainant submitted an ES1 form, conjointly with her Partner in ADJ 17106 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 she had not raised the topic of HAP during the Tenancy Agreement in March 2017. She confirmed that she was a co tenant with her partner.

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 her Partner. The Property was sold in February ,2019. The Complainants partner 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 Complainants partner 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 her 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 the Household failure to obtain HAP and the Respondent as they believed that the kindness and prompt supports extended through the tenancy and the support of good references during relocation were not appreciated by the Complainant.

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

During my investigation, I reviewed the ES1 submitted by the Complainant for the purposes of this case. Both parties in ADJ 17106 and ADJ 17107 were named on the first part of the form. While the Complainants name is listed on the ES1, she has not signed it or identified herself as the complainant in the case.

Both complainant and Respondent exhibited the identical ES1 and no other was submitted during my investigation. Page 7 of the ES1 at Section 4 advices a prospective complainant to keep a copy of the notification served. If several persons are considering complaining about the same incident, then each complainant should send a notification.

Section 21 of the Equal Status Act 2000 as amended places an obligation on a Complainant to serve an ES1 or its equivalent. I am not satisfied that the complainant in this case has satisfied the provisions of Section 21 of the Act as I do not have before me an ES1 or equivalent signed by the complainant. The sole ES1 made available to me carried the ADJ 17106 complainants name nad signature . I have not found any grounds to waiver Section 21 as provided for in Section 21(3)(a) (ii) of the Act.

I find that, unfortunately, the complainant has not served a valid complaint.

Redress in respect of prohibited conduct.

21

21.— (1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission.

If the grounds for such a claim as is referred to in subsection (1) arise —

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11) , the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commission under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).

(2) Before seeking redress under this section, the complainant —

(a) shall, within 2 months after the prohibited conducted 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 this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or the Circuit Court, question the respondent in writing to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

[ (3) (a) On application by a complainant the Director of the Workplace Relations Commission or 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 circumstance 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 a 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 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.

As the complainant has not submitted an ES1 or its equivalent in her own name, she has not served a valid complaint in accordance with the terms of Section 21 of the Act.

I lack the jurisdiction to advance the complaint.

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.

I have found that the complainant has not submitted an ES1 form or its equivalent in her own name and has not satisfied the pre cursor requirements of Section 21 of the Act.

I have found that I do not hold the jurisdiction to advance this complaint.