Complainant

Respondent

Parties

Philip  Manning

Brendan Cotter

Representatives

  Appeared in Person

 Appeared in Person

Act

Complaint Reference No.

Date of Receipt

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

CA-00023489-001

23/11/2018

The Complainant introduced his case as a Housing Tenant, who submitted a complaint of discrimination on Housing Assistance Grounds on 23 November 2018. He submitted that he had forwarded an ES1 form to the Respondent Landlord on 7 August 2018 and had not received a response.

The Respondent disputed the claim.

Both parties presented as Lay Litigants.

At the end of the hearing, the complainant was requested to submit a full record of his ES1 form as I only had an abridged version for the hearing. The Respondent was requested to submit a copy of the Hap application form he had quoted from. The Complainant subsequently submitted the ES1 form. However, while the Respondent made two contacts with the WRC and received clarification on the requested document on both occasions, nothing followed. I felt it best to now move to decision in the case.

The Complainant commenced renting at the Respondent premises on April 10, 2017. He told the hearing that while no Lease Agreement was in place, he paid rent at €120.00 cash per week. He submitted that he had experienced discrimination on housing assistance grounds. He engaged in an exchange of verbal abuse with the respondent, which resulted in my adjourning the hearing for 5 minutes with a clear direction to both parties on the conduct required at hearing.

At the commencement of the hearing, the complainant had a perceived difficulty in stating his case and asked for advice on how to present his case. I explained that I was unable to advise him on this. He then asked if there was an appeal to my decision? I had already informed the parties on this avenue.

The Complainant outlined that he had been actively commenced pursuance of HAP around April 2018. He recalled that he had previously conversed on the allowance with the respondent. He told the hearing that he was approved for HAP application on 19/20 May 2018 as he had entered the Housing List. He sought the Respondents endorsement of his application and on July 6 was rejected for tax purposes. The Respondent told him that he already had two tenants on HAP and he would only retain €60.00 a week.

The Complainant contended that he had experienced both Discrimination and Victimisation when the Respondent would not co-operate with the HAP application. He took advice from a Housing Agency.

He paid rent to end of September and reaffirmed that both he and Ms X were paying rent. He disputed that €5,600 was owing to the Landlord. He referred to his ES1 form where he reflected that he had asked whether he could rent the property until he completed his degree in 2020? . He argued that the refusal to grant him HAP meant that he was forced to pay 60.6% of his income on rent rather than 12.12% on HAP. This had placed an unnecessary financial burden on him.

The Complainant submitted that he had been a bona fide tenant and the Respondent had endorsed this by placing his name on the property post box. He left the property voluntarily on 30 October 2018 as he could no longer afford to keep up payments. He concluded that HAP had been illegally denied to him for tax purposes by the Respondent when he retained the HAP application form.

During cross examination by the Respondent, he stated that he believed that he was the only tenant, and this anchored his application for HAP. He believed that he had been disadvantaged by his housing need. He disputed that he had made an illegal declaration on the HAP form. He confirmed that both Ms X and he had paid rent.

The Respondent disputed the claim. On 5 December 2018, the Respondent submitted a letter to the WRC where he disputed that the complainant ever fulfilled the title of his Tenant. He denied discrimination on HAP grounds and stated that he already had tenants in receipt of the award. He submitted that the complainant was seeking to extort money from him. The Respondent submitted a copy of a Residential Tenancies Board Adjudication Report dated 20 November 2018, just prior to the complaint being submitted in this case.

The RTB Adjudication (October 2018) held that the complainant did not satisfy the title of his Tenant and was instead a Licensee of the Tenant.

The Respondent also engaged in an episode of accusatory and combative behaviour at hearing and was asked to reflect on his behaviour through a 5-minute adjournment.

The Respondent outlined a defence of the claim of discrimination on Housing assistance grounds. He maintained that the complainant was not his tenant.  He exhibited photos of the property at the centre of the case.

The property in question consists of a three bedroomed bungalow with two one bedroomed apartments adjoining. The first-floor apartment is occupied by his son and the bungalow by a tenant. The apartment at the centre of this case is a ground floor apartment. The Respondent lives next door with his wife and daughter.

The Respondent stated that he had issues with the complainant where he believed that he wanted to submit a claim for HAP which would be fraudulent as he was not his tenant.

In April 2017, the Respondent offered a temporary safe accommodation to a family friend. Ms X who had placed her own home at the disposal of her family in a highly charged family crisis. Ms X moved in on 15 April 2017. The Complainant stayed at the premises on a sporadic basis as Ms X boyfriend, but never as an approved tenant. Ms X has indicated that she intends to move out of the apartment but has not found an alternative location. the Respondents Daughter had habitually used the property when she visited.

In May 2018, the complainant presented the Respondent with an application form for HAP and asked him to sign it. The Respondent refused as he was not a tenant and Ms X was working and an already Home Owner, therefore unlikely to be eligible for HAP. The Respondent had an issue as the Complainant had declared that he was both a tenant and living alone on the application form. This was a misrepresentation by him.

The Respondent took the HAP form from the complainant and took advice.

The Respondent confirmed that he had then received an Intimidatory communication from the complainant, when he received a registered mail dated August 8 which contained the ES1 form citing discrimination and victimisation. enclosed also was a copy of a document detailing a case where a landlord had been found guilty of discrimination and ordered to pay €42,000 in compensation.

The Respondent described feeling overwhelmed by the complainant to the point where he blocked his number from his phone.

Ms X stopped paying rent in July 2018 and had denied tenancy. The Respondent understands that she conflicts with the complainant and in fear of him.

The Respondent confirmed that the complainant had made a once off lodgement of €120 to his bank account. There is no Rent Book in existence   He has attended the RTB on two occasions and firstly the complainant was rejected as a Tenant. Secondly, he was recognised as a Co Tenant. There is a €5,600 debt on the property. Rent had ceased being paid in July 2018. Recovery of debt was being actioned.

It was the Respondents position that the Complainant was not his Tenant and the HAP form was improperly completed. the Respondent was au fait with HAP. He had not filed a response to the ES1 form.

During cross examination, the Respondent confirmed that he had no idea that the Complainant lived with Ms X before she relocated to his property. As far as he was aware only one person, Ms X moved in.

He denied that he had refused the Complainant HAP on tax grounds but rather that the form was not filled in properly. He had not actually refused him HAP. He was not his tenant.

The Respondent confirmed that both Ms X and the complainant had left the property voluntary and without an eviction notice.

I have considered the facts of this case. It was clear to me from the outset that the circumstances surrounding the case evolved from an unresolved rental agreement. The Complainant understood that he was part of the “package “when Ms X relocated to the property in April 2018. The Respondent had no such understanding. He wanted to keep the property back for when his daughter visited and rented the property in 2017 in response to a mercy call by his sister for the sole benefit of Ms X.

I acknowledge that both parties engaged in a “squabble “surrounding allocation of names on post boxes and refuse collection in a bid to establish a pathway to proving tenancy at hearing. It was also clear that considerable discord prevailed between the parties. I sought to address this by way of a short adjournment.

 It is of note that an RTB Adjudication dated November 20,2018 held that the Complainant was not a tenant. While the Complainant went on to explain that he had been deemed a co tenant, I was not provided with any documentary evidence in support of this assertion. The two pages of HAP application submitted by the respondent indicated that the application was submitted in one name only, that of the complainant and there was no mention of Ms X.

I have drawn an inference from the Respondents failure to submit a copy of the HAP application form which the complainant submitted he kept in his possession once his bid for HAP was rejected in July 2018.

These claims have emerged from the Complainant under the ‘housing assistance ground’ contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended), by the Respondent refusing to complete his section of the HAP Application Form and the refusal to accept payment of his rent under the HAP Scheme. In addition, the complainant cites that he was victimised by eviction. The Complainant went on to clarify that he had subsequently left the property on a voluntary basis and was not evicted.

Section 3(1) 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.

Section 6(1A) provides: “Subsection (1)(c) is without prejudice to- (a) any enactment or rule of law regulating the provision of accommodation, or (b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.”

Section 6(2) provides for a list of exclusions from this provision including: “(a) the disposal of any estate or interest in premises by will or gift, (c) any disposal of such an estate or interest, or any provision of accommodation or of any services or amenities relating to accommodation, which is not available to the public generally or a section of the public,

(d) the provision of accommodation by a person in a part (other than a separate and self-contained part) of the person’s home, or where the provision of the accommodation affects the person’s private or family life or that of any other person residing in the home, or

(e) the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender.”

 Section 38A of the Equal Status Act applies to all complaints of discrimination and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.

The ES1 form was dated 7 August 2018. This did not illicit a response from the Respondent. I found this to be in stark contrast to the expansive way he addressed the complaint to RTB. I have drawn inferences from this inconsistent approach.

Section 21 of the Equal Status requires a certain course of action surrounding this claim.

2) Before seeking redress under this section, the complainant —

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of —

(I) the nature of the allegation,

(ii) the complainant’ s intention, if not satisfied with the respondent’ s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the] Director of the Workplace Relations Commission or the Circuit Court, question the respondent in writing to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2)the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

I am satisfied that the complainant complied with this requirement.

The first question for me is to establish whether the complainant has grounds on which to pursue his action before the WRC?  That is, whether the Complainant satisfies the description of tenant or prospective tenant.? This was vigorously debated at hearing.

Part 4 of the Housing (Miscellaneous Provisions) Act, 2014 made legal provision for the Housing Assistance Payment known as HAP. The Complainant did not provide the letter from City Council which declared him live on the housing list and free to pursue HAP. He told me that he received this approval in May 2018.

For the purposes of the Act, a Landlord means the person for the time being entitled to receive, otherwise than as an Agent for another person, the rent payable under a tenancy in a dwelling in respect of which housing assistance is provided.

A tenancy in Part 4 includes a periodic tenancy and a tenancy for a fixed term, whether oral or in writing or implied, and includes a sub tenancy, and cognate words shall be read accordingly.

Section 39 (e) of the Act has amongst other provisions, that the Housing Authority shall be satisfied that the tenancy concerned is or would be a tenancy of good faith.

I have reflected on the evidence adduced in this case and I cannot establish that the Complainant satisfies the description of a Tenant as provided for in Part 4 of the Housing (miscellaneous) Act. I did not have any documents to assist in my deliberations. There was no Tenancy agreement or Rent Book, the property was not registered with the RTB. I could find no evidence that the complainant exercised an option to seek tenancy (elevation from licensee to Tenant) as outlined in the detail of the RTB Adjudication, which alluded to the Residential Tenancies Act 2004 in that vein. 

It was clear to me that the Respondent was very opposed to the complainant’s presence in his property as he felt that what started as a good will “mercy mission “for Ms X was turned back on his good will. I understood that in part. However, I noted that at one point at hearing the Respondent stated that he blocked the complainant’s number. This outlined a relationship of some kind.

ADJ 4100 appears to be the case referred to by both parties as incorporating significant compensation for a breach of the Equal Status Acts. These cases evolved from a vastly different set of circumstances where Tenancy was not disputed. The Adjudication Officer outlined that both Prospective and live tenants held locus standi to take cases under Section 6 of the Equal Status Acts.

I return to the question of the relationship of the Complainant with the Respondent .I have concluded that it was somewhat ad hoc but could not reasonably be interpreted as a tenancy of any kind, prospective or live  .It was not disputed that the complainant was present at the property as Ms X’s boyfriend .However, I could not establish that he was party to any rental or business agreement surrounding the property . The Complainant had a stated  Housing need but did not accompany this with supporting documentation of being sanctioned to apply HAP by the Local Authority .Neither has he proved tenancy with the respondent .

The Respondent is a Professional Landlord and ought to have formalised the Rental arrangements with Ms X from the beginning. He ought to have provided a Rental/ Tenancy Agreement which would have assisted me at this juncture when a third party in the form of the complainant is seeking to exert his rights in pursuance of HAP. In this he has been very unfair in his administration of the property .

Based on the information before me, I have not been able to establish the complainant as a prospective or live tenant for the purposes of Section 39 of the Housing Act, 2014. While I appreciate that the complainant was in receipt of the DSP payment on Back to Education, I have not found that he has sufficient  standing on which to take this case. There is no doubt that the matter was not helped by the ad hoc nature of the rental arrangements to Ms X, while commenced by kindness ended in conflict and considerable debt. I believe it would have been beneficial if Ms X had attended the hearing as a witness for either party.

1. The Complainant does not have the locus standi to ground a complaint for prohibited conduct  in accordance with Section 3B and section 6 (1) of the Equal Status Act.

2. The Complainant countered that he had not  been evicted by the Respondent and had left voluntarily in September 30, 2018. This negates his claim for Victimisation.

I find that both claims are not well founded.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I have found that the complainant did not have the title of prospective or actual tenant in his pursuance of seeking the Respondent co-operation with his HAP application in July 2018. He has not satisfied the Burden of Proof outlined in Section 38 A of the Act and his complaint is not well founded.

I have found that the complainant has not satisfied the burden of proof for Victimisation under Section 3(2) (j) of the Act.

Housing Assistance Payment / Tenancy