Complainant

Respondent

Parties

Nebojsa  Lukovic

John Blake and Maura Blake

Representatives

GormlaO'Duinn and Ewa Mackiewicz

North Leinster Citizens Information Service CLG

 Self

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00025105-001

18/01/2019

The Respondent made a preliminary application to state that they would like their names to be anonymised for security reasons.  They requested this because of their age and the fact that they live alone.  The Claimant objected the application. 

The Respondent made a preliminary application based on the applicable time limits.  Their application was that the Claimant was out of time in bringing his claim. 

I reserved my position on both applications and proceeded to hear the substantive case.

The Complainant’s case is that he rented a property from the Respondents on the 12^th December 2015.  The monthly rent was €600.00.

On the 19^th December 2017 he received confirmation from Westmeath County Council that he qualified for a Housing Assistance Payment (HAP).  The assistance payment was €450.00 per month. 

He requested the Respondents to accept the HAP on the 21^st December 2017.  He presented the required forms to the letting agents for the Respondent. 

On the 16^th March 2018 he received an email from the Respondents letting agents that the Respondent

“has confirmed that they do not wish to proceed with the HAP Scheme …

They have expressed concern that if the HAP Scheme were to be accepted, there would be a material change to the existing lease terms.  The rent levels allowed by the Council does not meet the current agreed rent and as such, this would mean two separate payments being made as opposed to the agreed monthly standing order which is currently in existence.

They have advised that because this change to the terms of the existing agreement would effectively be a breach of same, they are not in agreement to proceed with a HAP Scheme”.

On the 1^st June 2018 he received a further email from the letting agent

“Further to our conversation when you visited the office last.  I put your proposal to the owner of this property and I’m afraid their position still stands. 

The offer to pay a higher rent did not alter their decision”.

On the 11^th June 2018 Westmeath County Council wrote to the Claimant advising him that the Respondent was not willing to proceed with HAP and advising the Claimant to refer the matter to the Residential Tenancies Board.

The Claimant lodged a claim with the Residential Tenancies Board.  After an adjudication hearing with the Residential Tenancies Board on the 2^nd August 2018 he understood that the Respondents would accept payment under the HAP scheme.  The Claimant believed that the Respondent had signed an agreement that they would let him pay part of his rent with the assistance of the HAP scheme. 

The Claimant advised that this did not come into effect. 

He then lodged a further complaint with the Residential Tenancies Board on the 10^th September 2018.  The hearing took place on the 22^nd October 2018.  The Respondent did not attend the hearing, but their letting agent did.  The letting agent confirmed that the Respondent would not accept a payment under the HAP scheme. 

While waiting for the decision from the Residential Tenancies Board, the Claimant made contact with Threshold.  He was advised to file an EAS1 Form which he did.  He then obtained further advice from his local Citizens Information Centre.

On the 30^th of November 2018 the Claimant received a Notice of Termination from the Respondent.  It stated that he was entitled to 112 days’ notice.  The notice period was to end on the 31^st March 2019.

On the 3^rd December 2018 he completed the ES1 form and sent same to the letting agent for the Respondent.

In view of the circumstances he was in, the Claimant decided to look for alternative accommodation.  He enquired with the letting agent on the return of his deposit.  

On the 5^th December 2018 he received an email from the letting agent regarding his deposit:

“Your landlord has however indicated that they would be willing to waiver this notice period of 56 days if you and Elvira can supply confirmation in writing that you will cease any discriminatory action now and in the future that you have instigated in relation to the HAP scheme and your tenancy….”

On the 7^th January 2019 he received an ES2 form from the Respondents.

On the 11^th January 2019 he vacated the property.

The Claimant lodged his complaint with the WRC on the 18^th January 2019.

On the 25^th January 2019 he received the deposit to his bank account.

His case was because the HAP wasn’t accepted by the Respondents he suffered severe financial loss which impacted on his health.  He wasn’t sure if he could continue living in the apartment.  The apartment wasn’t a home for him.  He was stressed.  He had lost his job and he was struggling financially.

His evidence was that he had been given the wrong advice as to what forum to bring his complaints to.  Finally, he was given a leaflet that explained the HAP scheme to him in language that he could understand.  On receipt of that leaflet he brought the Complaint to the WRC.

The Respondent disputed the Complainant’s version of what happened at the first RTB hearing. 

Mrs. Blake submitted that she and her husband were not against signing up for the HAP scheme but that she was having difficulties in finding out information on what the scheme was.  She took legal advice from a solicitor.  She rang Westmeath County Council and spoke to one of the staff members in the housing department.  Both she and her husband discussed whether they would accept the HAP payment from the Complainant.  They weren’t against it, but they wanted to find out further information about the scheme. 

They had booked holidays for two weeks.  They had some queries about the additional payment that the Claimant was prepared to pay to make up the full rent.  They made further enquiries with Westmeath County Council.  They were advised that these payments were contrary to the HAP scheme.  The Respondent wasn’t happy to hear that as they wished to receive the full contractual rent for the property.

The Respondents advised that they had decided to serve a Part 4 Notice on the Claimant as they were going to retire and sell the property.  They felt that they were good landlords and they always had good tenants.  They felt they were acting in accordance with the terms of the lease and they were not in breach of their obligations under the lease. 

The Respondent’s evidence was that they decided they would accept a rent payment under the HAP scheme, but they didn’t have an opportunity to meet the Claimant to discuss same.  They said they were prepared to organise the paperwork, but it would take time to do so. 

They agreed that they did decline to accept the HAP payment initially on the basis that it wasn’t in compliance with the lease, but when they returned from their holidays in September 2018 they went about organising details to comply with the scheme such as whether the property was still registered with the Residential Tenancies Board. 

They obtained a form from their letting agent to complete their part of the HAP application.  Unfortunately, at this stage a relative was gravely ill and this was an extra stress on them.  During this time, they received notification of the second adjudication hearing. 

They agreed that they never said that they would accept the HAP payment at the PRTB.  They agreed they hadn’t written to anybody to confirm they would accept the HAP payment.  They thought they had until the end of September 2018 to organise their affairs. 

The Respondents didn’t go to the second PRTB hearing   They were angry that the case was listed again for a second time.  They were represented at the second hearing by their letting agent.  They weren’t aware that the HAP scheme was raised at the second hearing. 

Their evidence was that they were trying to get all the information on the HAP scheme was and how it would impact on them.  They believed the HAP scheme was more complicated than the arrangements they had in place already with the tenant.

Because they were intending on giving their Part 4 notice they were concerned about the terms of the HAP scheme where it stated that the tenant was expected to remain in the apartment for at least two years.  They again made enquiries with Westmeath County Council.  They were given advice on that.  They had a concern on the process where they would start to accept the HAP payments for three or four months and then the lease would end.  The tenant would get the HAP payment and then would lose it. 

The Respondents have never been asked for a HAP payment to be accepted in any of their other properties. They have been managing properties for thirty-five years.  They are fair landlords.  They have had an exemplary record and never had a bad relationship with any of their tenants.

On the 11^th of January 2019 the Claimant moved out.

The Respondent submitted that they weren’t aware that the Claimant was suffering any financial loss.  They had received a letter to state that he was in receipt of social welfare to help him out. 

This complaint is brought pursuant to Sections 3 and 6 of the Equal Status Act 2000 [as amended by the Equality (Miscellaneous Provisions) Act 2015 with effect from 1^st January 2016] which introduced the ‘housing assistance ground’ and prohibits discrimination in the provision of accommodation.

Section 38A of the Acts applies to all Claimants of discrimination under the Equal Status Acts and requires the Claimant to establish 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.

Following the decision of Kearns P in Sheehan -v- Director of The Equality Tribunal 2012 223 JR which held that the Director “is not entitled to unilaterally censor the names of parties and witnesses” I have decided not to do same as the Claimant didn’t consent to the application and I don’t accept that the basis of the Respondent’s request is a valid reason in the circumstances of this case.  Justice is required to be administered in public.   

I accept that the complaint is properly before the WRC and has been brought within the requisite time-limits provided by Section 21 of the Acts.  Section 21(6) requires a complaint to be brought within 6 months of the most recent occurrence of the prohibited conduct.   The complaint was lodged on the 18^th January 2019.  The Claimant was in occupation of the apartment until the 11^th January 2019. 

The Respondents also post the hearing requested that the case is dismissed based on the decision made in ADJ 00016558. Their submission being that the complaint was res judicata.  I have reviewed this case and don’t accept that it is binding on me.  This complaint before me of discrimination under the Equal Status Acts was not dealt with by the Residential Tenancies Board in the referral made to it.   The Residential Tenancies Board only has jurisdiction to deal with cases under the Residential Tenancies Act 2004-2016 and the decision of the Residential Tenancies Adjudicator Case 0918-48308 in relation to the complaint brought under the Residential Tenancies Act does not prevent me from hearing this case.  It is noted that the decision from the Residential Tenancies Board specifically stated that it considers that the Complainant’s claim comes under the scope of the Equal Status Acts and the WRC is the appropriate body to contact regarding same.

I have found the Claimant’s evidence to be wholly credible.  He had received written confirmation that the Respondent would not accept a HAP payment.  The Claimant was reliant on the advices of the Local Authority and was unfortunately incorrectly directed to the Residential Tenancies Board as the correct forum to bring a complaint to. 

I am satisfied that the Respondent’s ongoing refusal to complete the HAP Application Form and/or accept HAP towards payment of his rent amounted to less favourable treatment.  The Respondents’ refusal to participate in the HAP Scheme has the direct effect of placing him in a detrimental financial situation when compared with a tenant not requiring HAP.

Having satisfied myself that the Claimant has established a prima facie case of discrimination, I must consider whether the Respondent has rebutted same.

The Respondents explained that they had decided in the Autumn of 2018 to accept the payment, however they gave no indication of this to the Complainant, the Local Authority, their letting agent or the TD who made representations on the Complaints behalf.    

The Respondent’s attitude towards the Claimant in this case is very difficult to understand.  For the entirety of the letting, the Claimant paid the rent due despite the sever financial circumstances it put him under.  Despite receipt of the Claimants application, correspondence from Westmeath County Council, representation from a local TD and two Residential Tenancy board applications, the Respondents externally held firm in their stance on the HAP payment.  They may have decided between themselves to change their position, but they didn’t communicate this to the Claimant. 

The Respondents are entitled to serve the Part 4 notice under the Residential Tenancies Act 2004.  However, I was concerned as to how they attempted to victimise the Claimant in having him withdraw his equality complaint as a condition to receiving back his deposit. 

Taking all the above into consideration, I am satisfied that the Respondent has failed to rebut the inference of discrimination.

I find the case is well founded and having regard to all the circumstances I consider this discrimination to be at the more serious end of the scale. I order the Respondents to pay €12,000.00 to the Claimant as compensation for the effects of the prohibited conduct concerned.

Discrimination.  HAP. Housing Assistance Payment.