Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00025157-001

21/01/2019

The complainant filed his complaint on 21 January 2019.   On 24 April 2019, the Director General delegated the complaint to me, Stephen Bonnlander, for hearing and decision. A written submission was received from the complainant on 13 May 2019.   The respondent provided its written submission at the hearing of the complaint. On 16 May 2019, I held a joint hearing with the parties in respect of the above matter. Both parties were in attendance.

Both in his written submission, and at the hearing of the complaint, the complainant’s representative made wide-ranging allegations as to the respondent’s presumed intentions in its dealings with the complainant, which are not at all within my jurisdiction and which mostly remained at the level of assumptions, anyway. Insofar as evidence was presented on matters on which I have the power to adjudicate, it can be summarised as follows:

The complainant applied to the respondent for completion of a HAP application at the beginning of May 2019. The respondent refused because as the respondent’s staff member, Mr S., told the complainant, notice of eviction would be served on him soon, as the owner of the apartment complex in which the complainant still resides was planning to carry out building works. However, the eviction notice was only served in November 2018, and was subsequently found to be invalid due to a faulty planning permission.   It was then rescinded, and the complainant received notice from the local authority of the processing of his HAP application in mid-March 2019, some eleven months after the application process had been started.

The complainant’s representative also pointed out that the HAP application process was only completed once formal notification pursuant to S. 21 of the Equal Status Acts, of the complainant’s intention to bring a complaint to the WRC, was served on the respondent.

The complainant stated that whilst he enjoys and continues to enjoy a rent significantly below market value – at the time of hearing, he was still living in the apartment from which he was to be evicted – the delay in the processing of his HAP application nevertheless caused him significant financial hardship.

The complainant also states that once contacted by Threshold, Mr S. accepted that the length of the tenancy had no bearing on a HAP application and that therefore the planned notice of eviction would have been immaterial and should not have caused a delay in processing the landlord part of the HAP form.

The respondent is a long-established firm in the Dublin property market in particular. It provides valuations, sale and purchasing services, property management and letting services for both commercial and residential clients. It has 18 staff of which Mr S. is one. Mr S., who stated that he has been a property professional for ten years, provides the day-to-day management of the apartment block in which the complainant resides for the owners, a family group. The complex has 137 apartments and three commercial units. In particular, Mr S, for the respondent, handles all leases in the complex on delegated authority from the owners.   Mr S. stated in evidence that this amounts to a significant workload, especially once the owners decided to extend three of the four blocks by an extra storey, to add another 26 apartments. Mr S. was instructed to terminate the leases of the tenants on the existing top floors, of which the complainant is one, to facilitate the building works.

It was Mr S.’s evidence that the problems surrounding the planning permission for the building works and the delays and workload which arose in connection with this, are the main reason for his delay in processing the complainant’s HAP application.   He stated, and submitted written evidence in this regard, that several tenants in the complex are in receipt of HAP.   He denied discriminating against anyone based on their receipt of, or eligibility for, housing assistance. He accepted that he had been mistaken about the fact that there is no connection between HAP and the length of a tenancy agreement or the termination thereof and offered his apologies in the hearing for this fact.

The issue for decision in this case is whether the long delay in completing the complainant’s HAP application constitutes less favourable treatment on the housing assistance ground in the Equal Status Act 2000, as amended.

The Law:

Section 3 of the Equal Status Acts states that:

3.— (1) 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 would 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,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

[…]

(3B) 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 ” ).

Specifically, on vicarious liability, the Acts state that:

42.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employe’s knowledge or approval.

Neither party sought to challenge my jurisdiction on the basis that a sitting tenant was making the HAP application, and I will follow the jurisprudence contained in decision ADJ-00004100 in this regard. Neither did the respondent seek to argue that its vicarious liability for Mr S.’s actions did not apply. However, the provisions on vicarious liability are somewhat relevant in this case for reasons I will explain shortly.

In the within case, I am satisfied that the delay which the complainant experienced in getting his HAP application completed by Mr S. was inordinate and caused him financial detriment. I also note the complainant’s evidence that only when he served notice under the Equal Status Acts, did the respondent proceed to complete his application. I am therefore satisfied that the complainant has established a prima facie case of less favourable treatment under the housing assistance ground.

This brings me to Mr S.’s explanations. I note that he accepted of being in error about the fact that processing of a HAP application is independent of the length of a tenancy, and that he sought to apologise for this. I also accept that Mr S. was facing a significant workload because of the building project in the complex.     However, the reason I am not prepared to accept this explanation as a valid rebuttal of the complainant’s case is that I strongly believe this is not an acceptable level of service provision on the part of the respondent, given the size, age, and reputation of the business. According to the second witness for the respondent, Mr C., the respondent has been in the business of managing lettings and tenancies for many years.   Doing so creates obligations for the respondent towards tenants on behalf of their landlord clients.   The HAP scheme has been in operation for long enough for corporate knowledge to accumulate and be shared within the respondent organisation.

For all these reasons, it is only fair for the respondent to assume liability for Mr S.’s actions as set out in S. 42 of the Equal Status Acts. I therefore find that the respondent has not rebutted the complainant’s case and that the complainant is entitled to succeed.

For the reasons set out in detail above, I find that McNally Handy discriminated against Mr Luca Leo on the housing assistance ground, contrary to S. 3B of the Equal Status Acts, in terms of the wholly unacceptable delay in processing his application for housing assistance.

I therefore order, pursuant to S. 27(1)(a) of the Acts, that the respondent pay the complainant €2,500 in compensation for the violation of his rights.   This is taking account of the fact that whilst both the delay and the steps which the complainant felt forced to take to assert his rights were distressing to him, he nevertheless continued to reside in his apartment at a rent which is significantly below market levels.

Equal Status Acts – HAP – housing assistance ground – inordinate processing delay – prima facie case – standard of service provision not acceptable from long-established property firm.