Complainant

Respondent

Anonymised Parties

A Tenant

Landlord

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00023518-001

26/11/2018

An existing tenant under a fixed tenancy agreement claims she was discriminated against by her landlord on the basis that the landlord failed in her obligations to assist a Housing Assistance Payment (HAP) application resulting in a monetary loss to the Complainant and the consequential relinquishing of the tenancy by the Complainant. The Respondent denied the claim stating she never received HAP documentation from the Complainant and furthermore that the Complainant had not pursued the matter on the occasions when they met. The property owner’s mother, named as a co Respondent on the complaint form to Workplace Relations Commission, is referred to as the Respondent in proceedings below for clarity. The property owner resides abroad. I have used my discretion to anonymise the parties.

Preliminary Issue:

The Respondent’s representative raised a preliminary issue in that the claim was out of time under Section 21(2) of the Equal Status Acts where it is required that a complainant must notify the respondent in writing of the nature of the complaint within 2 months after the prohibited conduct is alleged to have occurred. Under the Acts the notification must do all the following:

(i)      be in writing

(ii)    give details of the nature of the complaint

(iii)   state the complainant's intention to seek redress under the Equal Status Acts if there is no satisfactory response.

In the original complaint form submitted to the Workplace Relations Commission (WRC) the Respondent pointed out that the notification sent to the respondent on 11/10/2018 was 10 days outside the 2-month statutory requirement if the last act of discrimination was 01/08/2018, as declared by the Complainant in the Complaint Form.

The Complainant in response said that the this was an error on the Complaint Form and should have read 31/08/2018 which was communicated subsequently to the WRC in correspondence some months prior to the hearing. The Complainant submitted that that the last act of discrimination was in fact the 31/08/2018 as this was the date of the handing up of the keys of the property to the Respondent and where the Complainant asserts that she stated to the Respondent that the loss of the HAP payment was the reason for the termination of the tenancy. The Respondent denied that the Complainant said to her on that date and instead said that the reason given by the Complainant was the dust and disruption caused by nearby construction works.

Decision on Preliminary Issue.

There is an obvious conflict of evidence as to what was said in the actual conversation on the 31/08/18 but the overarching fact is that was the date that the tenancy ended. I accept that the content of the form was suitably rectified in subsequent correspondence before the hearing but more importantly the direct evidence on the day makes me conclude that the complaint was validly submitted for adjudication under the Act in that the Complainant had inadvertently put in the wrong “last date” of perceived discrimination and I declare the preliminary point made by the Respondent to be overruled.

The Complainant asserted that she was discriminated against by the Respondent under the Equal Status Act based on the Respondent’s refusal to sign the HAP form as was required, putting her in a very difficult financial situation and compelling her to eventually to move out of the property.

The Complainant commenced occupation of the Respondent’s property with her young children as a single divorced mother under a fixed tenancy agreement from the beginning of February 2017 until the end of August 2018. On the signing of the lease the Complainant was informed by the property owner’s mother that whilst the property was owned by her daughter, and that as her daughter resided abroad, that she (the mother) would be the point of contact for all dealings related to the property. She further stated that the property owner’s mother manages the property on behalf of her daughter but that her daughter would have the final say in all matters. The Complainant was informed that all contact with the Respondent would be by email and/or telephone. Six weeks after taking up the tenancy the Complainant was approved for Social Housing. In and around March 2017 the Complainant was approved for the HAP payment scheme and she contacted the Respondent by email with the attached HAP forms to be signed by the Respondent. She followed this up with a text on the same day. In a subsequent phone call the Complainant stated that the Respondent said she was having none of it as it would incur a visit to the property by the Council who would have to inspect the house to ensure that the building was of a required standard.

The Complainant submits that she brought the issue of the non-signing of the HAP form to the attention of the Respondent on the 17th of April 2018 on the renewal of the lease, and again on the giving of one months’ notice of termination of the lease at the beginning of August 2018. She said she stated to the Respondent at this time, and later that month at the time of final inspection of the property, that the compelling reason for vacation of the property was the financial hardship caused by the Respondent’s refusal to sign the HAP form.

The Complainant said she never missed a rent payment of €1200 a month but had to take on two jobs to continue to afford the rent which meant that she was working up to 70 and 80 hours per week. Her parents lived nearby as the village where the house was situated was also her original homeplace. The Complainant’s parents assisted in childcare duties. She submitted that the HAP payment would have substantially eased her financial burden. The Complainant estimated her loss at €950 per month over the period of tenancy. She stated that affordability was the main reason for leaving the property and that she had to move her family to a nearby town thus discommoding her children regarding access to their schools and which also discommoded her parents who needed now to travel the extra distance to assist with childcare. She is now renting in that nearby town and is in receipt of the appropriate HAP payment.

The Respondent completely denies any discrimination or any accusation of refusal to assist the Complainant in accessing the HAP payment scheme. The Respondent in evidence said that when the Complainant commenced the Tenancy she was given the clear impression by the Complainant that she was comfortable in her means because she was in receipt of more than adequate maintenance payments that would cover the rent. No mention of HAP was made at the commencement of the Tenancy nor did she receive the email of March 6th of 2017 as alleged. She had no sight of any documentation pertaining to HAP. The Respondent said she did receive a text from the Complainant mentioning a form but said she enquired what it was in relation to, but she got the impression from the Complainant that she didn’t want to pursue the matter further. She completely rejected the statement from the Complainant that the Respondent, in relation to signing a HAP form said in a phone call words to the effect that there would be none of it because it would mean an inspection of the house by the local Council.

The Respondent said the next meeting she had with the Complainant was one convened for renewal of the lease on April 17th, 2018. The Respondent was accompanied at this meeting by her daughter and sister of the houseowner, Miss A, who said in evidence that the Complainant did not mention HAP at this meeting.

The Respondent said that the real reason for the Complainants termination of the tenancy was the issue of dust and disturbance. She was told this by the Complainant upon receiving notice of vacating the property and later at the time of final inspection of the property.

The Respondent further contends that the Complainant was ambiguous at the very least with her efforts to get the assistance from the Respondent in completing the form and that the Complainant could have pursued the matter with more fervour if she was genuine about HAP but chose not to do so.

The Law:

The Equal Status Act seeks to prohibit discrimination in the provision of services 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 the requirements for a landlord.

Section 3(1) of the Equal Status Act 2000, as amended provides:

“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,”

Section 3(3B) 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”).”

Section 6(1) of the Equal Status Act 2000 as amended provides:

“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”.

The burden of proof.

The burden of proof is set out in Section 38 of the Equal Status Acts 2000-2015 and requires that where facts are established by or on behalf of a Complainant from which it may be presumed that prohibited conduct has occurred, the burden of proof shifts to the Respondent. Then it is for the Respondent to prove the contrary. I find that the Complainant failed to receive a HAP payment that she was entitled to, due to the non-completion of the necessary application form by the Respondent. The consequential financial detriment is the less favourable treatment relative to a tenant not in receipt of housing assistance. I find the Complainant has established a prima facie case of discriminatory treatment on the housing assistance ground.

I must now consider if the respondents have rebutted the prima facie case raised by the Complainant. There was a clear conflict of evidence as to whether the Complainant furnished the Respondent with the HAP form. The Complainant produced documentary evidence of the request in an email with the form attached. In cross examination the Respondent categorically stated that she had not received the email but acknowledged that she was a user of email and had in fact previously used such a medium when receiving earlier documentation from the Complainant. I found the Respondent’s responses to be implausible on this issue and I therefore find that on the balance of probabilities she did receive the email with the corollary that there was a refusal to sign the form which points to the fact that prohibited behaviour had occurred.

The Respondent argued that the HAP application wasn’t followed up with vigour and that there was an obligation to do so. The Complainant rightly pointed out that there is no legal obligation under the law for the Complainant to do so and furthermore that the Complainant was in fear of losing the tenancy had she been more vehement in pursuing the Respondent on the issue, with strong evidence given by her of the negative effect that leaving the village would have on her family. She refuted the evidence of Miss A on the meeting of April 17th where she said that Miss A had been on the phone a lot of the time during the meeting and would have missed her protestations on the HAP application. Miss A in cross examination said she had to take some calls for business reasons that day.

Though the Complainant submitted documentary evidence of a text exchange nearer the time of vacating the property, she doesn’t give reasons in those texts for her proposed actions nor does she mention the HAP application. I do accept that she suffered undue hardship because of not receiving the HAP assistance. However, though there was no legal obligation on the Complainant to pursue the matter with fervency there is a reasonable expectation that some degree of persistence could have been applied during the 18-month tenancy with some more dialogue and correspondence being pursued. The reluctance of the Complainant to pursue the matter more thoroughly earlier on in the tenancy, probably contributed to a longer period of paying rent without rental assistance.

Fundamentally I found the evidence of the Complainant to be more cogent than the Respondent on the matter of sending the HAP form to the Respondent and a subsequent phone call where it was stated the Respondent in effect gave a reason for refusal of a signature to support the HAP process. There was an element of complacency in the subsequent pursuit of the matter by the Complainant, though I do accept that she raised it on at least two other occasions. It seems the Respondent chose to let matters lie but a somewhat timid approach by the Complainant in vindicating her right cannot be an excuse for disregarding a lawful duty which led to a detriment, and discrimination for the HAP applicant. I don’t believe the Respondent adequately rebutted or justified the prohibited action.

I conclude that the claim is well founded.

I have considered all the circumstances of the case and I award the Complainant €5000 compensation for the effects the prohibited conduct had on her.

The complaint is well founded therefore pursuant to Section 27 of the Equal Status Act 2000-2015, I order compensation of €5,000 to be paid by the Respondent to the Complainant for the effects of the prohibited conduct.

Housing Assistance Payment