ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022515
Parties:
| Complainant | Respondent |
Parties | Biljana Batas | Alison Halpenny |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00029035-001 | 13/06/2019 |
Date of Adjudication Hearing: 27/09/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This Notice in writing shall be brought within two months of the said prohibited conduct or the last instance of same.
A Respondent may choose to reply with an explanation for the treatment by returning the attached ES 2 Form.
Pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me by the Director General for the purpose of investigation into claims of discrimination and I have heard where appropriate interested parties and have considered any relevant documentation provided in advance of the hearing and in the course of the hearing. At the conclusion of any such investigation I shall make a decision and if in favour of the Complainant I shall provide for redress (s.25 (4)).
Generally, discrimination under this Act is taken to have occurred where a person is treated less favourably that another person is (or would be) treated and by reason of any of the discriminatory grounds (as specified).
Broadly, the Equal Status Act prohibits discrimination in the context of buying and selling goods from and to the public (or a section thereof) and also in the context of using and providing services available to the public (or a section thereof).
Pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me by the Director General for the purpose of investigation into claims of discrimination.
The Act allows for an Order for compensation for the effects of the prohibited conduct or that a person or persons take a specified course of action.
Providers of accommodation services are prohibited from discriminating against someone on the “housing assistance” ground i.e. on the ground that they are in receipt of a rent supplement, housing assistance payment or other social welfare payment. The housing assistance ground protects anyone who has applied for and is eligible to receive such payments and applies to existing tenants and those looking for accommodation. Discrimination may take the form of refusing to allow a person look at or rent a property, refusing to accept the rent supplement or a refusal to complete the appropriate forms etc.
The maximum amount of compensation which can be awarded herein is €15,000.00. In assessing compensation, I can consider the effect that the discriminatory treatment has had on the Complainant.
Background:
The Complainant says she was discriminated against by a potential landlord who treated the Complainant less favourably than she would have treated a non-HAP tenant when going through the process of renting out her Apartment. |
Summary of Complainant’s Case:
The Complainant attended in person and outlined the case already set out in the Workplace Relations Complaint Form dated the 13th of June 2019. |
Summary of Respondent’s Case:
The Respondent did not attend. I am satisfied that the Respondent was on notice of this hearing date and a letter was sent on the 29th of August confirming that fact. The address used was the same as that used for the sending of the ES1 and ES2 forms. |
Findings and Conclusions:
I have carefully considered the evidence adduced by the Complainant herein. She and her husband have been looking for accommodation for themselves and their two National School aged children. They responded to an advertisement placed on DAFT.ie by the Respondent herein wherein she was advertising a …suitable for family…apartment in Clontarf. The Complainant communicated her desire to be considered as a prospective tenant and outlined her credentials by email on January 14th 2019. This included the fact that the Complainant was eligible for intervention under the Housing Assistance Payment (HAP) scheme. Initially the Landlord seemed happy to consider the Complainant and invited her to the open viewing the next day between 4.30 and 6.30pm. Less than 24 hours later, the Landlord appears to have changed her mind, and wrote a further email stating: “Unfortunately, HAP is not acceptable at this time” The Complainant followed up asking why the Landlord was not accepting tenants with HAP? She never got any reply. The Complainant made a complaint as provided for under the Equal Status Act, whereby a person cannot discriminate against a person (usually a tenant) by reason of being a part of the Housing Assistance scheme. In the ES2 form the Respondent sets out that she did not think that a person in receipt of Housing Assistance could afford to rent the property she was letting at the full market value. The Respondent it seems, came to this conclusion without communicating with the Complainant who, as it happens, has sanction for Housing Assistance in an amount over and above the market rent then being sought by the Respondent. The Complainant showed me the letter from HAP dated September 2018 which confirms this fact. Quite apart from that, the Respondent did not seem to know that very often tenants will supplement whatever Housing Assistance they are eligible to receive in order to bridge the gap between market rent and what they have secured by way of Assistance. This is a common enough practice. In any event, without gathering all the relevant facts, the Respondent reached her own conclusion and deemed the Complainant’s application to be “not acceptable” and I am perfectly satisfied that the facts as demonstrated amount to a Prima Facie case of Discrimination against a person in receipt of Housing Assistance. She has, on the face of it, been treated less favorably then a person not on HAP would have been. In the case of Kieran McCarthy v Cork City Council EDA 082 it states that “…the law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts” I am, on balance, satisfied that this is a situation wherein that inference has been drawn. The burden of Proof therefore shifts to the Respondent who must adduce evidence to show that the facts relied upon do not support the inference contended for by the Complainant. The Respondent has not provided me with evidence at the hearing and the explanation contained in the ES 2 do not counter the inference of discrimination/prohibited conduct.
The Complainant must succeed in her complaint.
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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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 CA-00029035-001 The Complaint is upheld, and I order compensation (for the effects of the prohibited conduct) in the amount of €850.00.
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Dated: 26-11-2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath