Complainant

Respondent

Anonymised Parties

A Tenant

A County Council

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021001-001

03/08/2018

This complaint relates to alleged discrimination on the disability ground.

Naming the parties

Given the sensitive nature of this complaint, I have decided to exercise my discretion and anonymise the parties in this decision.

The complainant stated that he has significant health difficulties and is currently living in an apartment on the third floor of his apartment block. The complainant stated that he requires a ground floor apartment as he has difficulties climbing stairs and is at risk of falling due to neck and back problems. The complainant also outlined other issues relating to his accommodation such as noise from the main road which affects his sleep. The complainant has been seeking a transfer to more suitable accommodation which would meet his needs. The complainant contends that the respondent, by failing to supply a suitable ground floor dwelling to him, is discriminating against him on the grounds of his disability.

The respondent refutes that it has discriminated against the complainant. The respondent stated that the complainant applied for Social Housing and accepted the offer of an apartment in November 2012. The respondent outlined that the complainant sought a transfer in 2016 to more suitable accommodation on the basis of his health and alternative offers were made to him in 2016 and 2018 but were refused as being unsuitable. The respondent stated that the complainant’s needs have been noted and an alternative will be offered to the complainant as soon as a suitable dwelling becomes available. The respondent contends that it has not treated the complainant any less favourably on the basis of his disability. The respondent’s position is that it is making every effort to facilitate the complainant within its available resources.

The Applicable Law

Discrimination:

Discrimination on the grounds of disability is defined under Section 4 of the Equal Status Acts 2000-2015 as follows:

4.(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

Burden of Proof:

Section 38A of the Equal Status Acts, 2000-2015 provides as follows in relation to the Burden of Proof:

38A. (1) Where in any proceeding’s facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

The Burden of Proof in cases of discrimination rests initially with the complainant. If the Complainant raises facts from which an inference of discrimination can be drawn, the burden of proof then shifts to the Respondent.

The burden of proof is dealt with by the Labour Court in the decision of Southern Health Board v Mitchell [2001] ELR 201 where it determined that:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In the instant case, the complainant stated that he was discriminated against on the grounds of his disability when the respondent did not provide him with a ground floor apartment to meet his needs. The respondent noted the complainant’s health difficulties and his need for a ground floor apartment and has made efforts, within its available resources, to provide the complainant with suitable alternative accommodation. On that basis, I do not find that the complainant has established facts from which an inference of discrimination can be drawn. Accordingly, I find that the complainant has failed to discharge the burden of proof in relation to his complaint.

Having considered the submissions of both parties to this complaint, I find that the complainant has failed to establish a prima facie case of discrimination. Accordingly, I declare that the complaint is not well founded.

Discrimination, Disability