ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00019824

Parties:

	Complainant	Respondent
Anonymised Parties	A Citizen	A Property Owner.

Representatives

Self - Represented

Des Foley ,Solicitor of John M Foley & Company Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00026248-001	12/02/2019

Date of Adjudication Hearing: 07/10/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Background:

The issue in contention refers to the alleged refusal of the Respondent Property owner to accept HAP Payments from the Complainant in relation to an accommodation offered.

1: Procedure:

In accordance with Section 25 of the Equal Status Act, 2000,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

1:1 Publication of Decision

It was agreed by the Parties, following discussion, that the Decision would be on an Anonymous basis when published publicly on any WRC Website or other WRC publication.

2: Opening legal Issue / Jurisdiction / Status of Accommodation /Mobile or Fixed.

2:1 Respondent Arguments

The Respondent Legal Advisor put forward the argument that as the Accommodation was in a “Mobile Home” i.e. not a “fixed premises” the Equal Status Act 2000 could not apply as regards the acceptance or non-acceptance of HAP payments. It was necessary, as a preliminary, that the accommodation being offered be a “Dwelling” as defined in the Residential Tenancies Act ,2004 (for convenience abbreviated to RTA,2000)

He cited Section 4 of the Residential Tenancies Act 2004 where a “dwelling” is defined as

“dwelling” means, subject to subsection (2), a property let for rent or valuable consideration as a self-contained residential unit and includes any building or part of a building used as a dwelling and any out office, yard, garden or other land appurtenant to it or usually enjoyed with it and, where the context so admits, includes a property available for letting but excludes a structure that is not permanently attached to the ground and a vessel and a vehicle (whether mobile or not);

As the Accommodation in question in this case is a Mobile Home it is clearly not a “fixed” dwelling and as such is not covered by the RTA 2004 Act and by extension the HAP elements -Section 3 of the Equal Status Act,2000.

Accordingly, the Adjudication Officer did not have proper Jurisdiction to proceed with the complaint.

2:2 Complainant Arguments

The accommodation being considered is clearly “fixed” to the ground and has been for many years. It has full water & sanitation services together with an external Electricity supply.

While it may originally have been a “Mobile Home” this description clearly no longer applies. The Equal Status Act, 2000 must apply.

2:3 Adjudication Officer decision.

Determining the status of a property and particularly whether it is a fixed or a mobile structure is not within the remit of an Adjudication Officer operating under the remit of the Equal Status Act ,2000.

The function of an Adjudication Officer is to determine whether or not Discriminatory acts occurred irrespective of the actual legal definition of an “accommodation”.

Section 3 (3)b of the Equal Status Act,2000 cites

(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”

I decided that I did have proper jurisdiction on the Equal Status grounds and let the complaint proceed.

3: Summary of Complainant’s Case: Written and Oral

The Complainant entered into an accommodation arrangement with the Respondent in mid-October 2018. She asked for a formal lease. In late December a request for assistance with a HAP application for the property was made by the Complainant to the Respondent.

The Respondent did not provide her with a formal lease and told her, in reply to the HAP request, that

“I don’t plan on going down that road of rent allowance”.

A copy of a Text message to this effect was produced in evidence.

The Complainant was clearly discriminated against on the HAP refusal.

In addition, since raising these issues the Complainant has been Harassed by the Respondent in regard to frequent cutting off the water supply to the Accommodation and numerous interruptions to the Electricity supply. Issues of personal privacy, proper rubbish disposal, accumulations of back bags of rubbish etc also arise.

Compensation is warranted for the HAP issue and the subsequent Harassment.

4: Summary of Respondent’s Case: Both Written and Oral

The Respondent stated via his Legal Representative that a very loose arrangement was made between the parties in late 2018 in regard to an old Mobile Home on his farmyard. He was effectively doing the Complainant a favour and it was always informal. There never was any suggestion of a formal lease or anything of that nature.

It was an old Mobile Home on a Farm Yard and it was being rented out for a very modest rent that he was passing to his Daughter to help offset forthcoming wedding costs.

As stated above it was a “mobile structure” and as such outside the remit of the Equal Status Act, 2000.

Any Harassment of the Complainant was vigorously denied. The water and electric supply were common to the main Farm House (where he resided) and the Mobile Home. The supply was sometime interrupted, and evidence was given of ESB outages in the general area. Water came from a well on the premises and the pump had become faulty. Documentary evidence was given of water Pump Service Engineer visits and ESB outages. There was no campaign of harassment as alleged.

The Complainant had stopped paying any rent in October 2018 and he had served Notice to Quit on her in January 2019. The Complainant was also pursuing an action against the Respondent via the Residential Tenancies Board. RTB for convenience.

The Equal Status Act,2000 Act complaint was in effect really only a “second Front” in the fall out from a relationship that had completely broken down. It should be dismissed as frivolous.

5: Findings and Conclusions:

Much of this case rested on the oral evidence which was supported by photographic evidence from an RTB submission. It was clear that the Respondent had entered into a very loose arrangement with the Complainant regarding a Mobile Home. Nothing formal was agreed.

The oft quoted remark “Caveat Emptor” would have well applied to the Parties and the arrangements made in regard to the Mobile Home.

The Complainant sought her basic legal rights such as a formal lease and assistance with a HAP application. It was completely unclear if a HAP application would ever have actually succeeded.

None the less it was acknowledged that the Respondent had refused to participate in the HAP process. This was a discriminatory act under the Equal Status Act, 2000.

In awarding Redress, I have reflected on the entire scenario set out in the Oral and Written evidence. It was obvious that the Parties had developed quite a dislike for each other.

I did not find that there was any credible ground for the “campaign of harassment” allegation suggested. The farmyard was shared with a sizeable herd of cattle (in excess of 70) - naturally this put the water and electricity supply (primarily for the water pump) under pressure.

Accordingly, all things considered, I award the sum of € 100 as a compensation amount for the Discrimination suffered by the Complainant in the HAP element.

6: 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.

Act	Complaint/Dispute Reference No.	Summary Decision /Please refer to Section 5 above for detailed arguments.
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00026248-001	Discrimination under the HAP heading has been proved. An Award of €100 is made in Compensation.

Dated: 28th November 2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

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