Complainant

Respondent

Parties

Valerie Enners

David McCarthy

Representatives

W.B. Gavin & Company

Act

Complaint Reference No.

Date of Receipt

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

CA-00026916-001

09/03/2019

The Complainant submitted her claim to the WRC on 9th March 2019. She alleges that she was discriminated against by the Respondent on the grounds of her gender, race and other. Although she did not mark the relevant section on her WRC Complaint form, it is clear from the narrative of the ‘Compliant Specific Details’ that she also alleges that she has been discriminated against by the Respondent in his refusal to accept the Housing Assistance Payment (hereinafter also referred to as ‘HAP’) Scheme towards the payment of her rent, being eligible for the payment of same.

The Complainant was unrepresented at the hearing. She was offered some time to consider the matter and confirmed that she was comfortable to proceed with the hearing without representation. She was supported by a friend and a witness, Ms B.

At the commencement of the hearing I confirmed that the named Respondent is the correct respondent for the purposes of the Equal Status Act claim.

Further information was requested. The date of the last supplemental submission was on 13th August 2019.

Section 21 of the Equal Status Act, 2000 stipulates:

(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, as the case may be, the Circuit Court, question the respondent in writing so as 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.

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

 (b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

(4) The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

Section 21(2) requires that a person seeking redress under the Act must notify the service provider in question of the nature of the alleged discrimination within two months after the prohibited conduct is alleged to have occurred or where more than one incident of prohibited conduct is alleged to have occurred, within two months of the last such occurrence.The Complainant, in the WRC Complaint form stated that the most recent date of discrimination was 30th November 2018. Therefore, the latest date for notifying the Respondent was 29th January 2019.

The Complainant stated that she was never provided with the Respondent’s postal address and she made efforts to obtain same. She claimed that she sent the notification ES1 dated 25th January 2019 by registered post on 25th and 29th January 2019 and personally handed it to the Respondent on 30th January 2019. The Complainant exhibited copies of two An Post retail receipts dated 25th January 2019 and 29th January 2019. The receipts confirm that the registered letter sent on 25th January 2019 was not delivered. The second letter dated 29th January 2019 was delivered.

The Respondent argued that he did not receive the posted notifications.

The Respondent’s evidence in relation to the notification was somewhat inconsistent. In the ES2 form the Respondent acknowledged receipt of the ES1 form on 14th March 2019. However, in Section E of the form the Respondent stated that “the first notification I got was the 30.01.2019”. At the hearing, Mr D of the Respondent confirmed that he received the form on 30th January 2019. The Respondent could not provide any information in relation to the registered letter of 29th January 2019.

Section 2(a) states that “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 notification was sent to the Respondent on two occasions by registered post on 25th and 29th January 2019 and it was not shown that it was not received by the Respondent.

In the WRC Complaint form, the Complainant alleges that she was discriminated against by the Respondent on the grounds of race, gender and other. In the narrative, she clearly communicated that her claim also relates to the housing assistance ground.

At the hearing, the Complainant argued that she was also discriminated against by the Respondent on family status ground i.e.   her being a single mother.

Based on the narrative of the ES1 form it was always clear to all parties, including the Respondent, that this complaint relates to the Complainant’s race and HAP. There is no question of prejudice or surprise for the Respondent in that regard. Following the submission of the WRC Complaint form, copy of which the Respondent was furnished with, it was clear to the parties that the Complainant wishes to pursue her claim of discrimination on the grounds of gender, race and other.

I find that at no stage throughout the process was the Respondent made aware that the Complainant alleges discrimination on the ground of her family status. Having considered the matter, I am satisfied that the Respondent has not been on notice of the Complainant’s claim of discrimination on the ground of family status. I am therefore, of the view that this claim was not properly before me and I do not have jurisdiction to proceed with the claim under the Equal Status Acts in that regard.

The Complainant submits as follows:

The Complainant argues that she has been discriminated against by the landlord on the ground of race in his refusal to accept the Housing Assistance Payment (HAP) Scheme towards the payment of her rent. She claims that she is eligible for HAP, which would have reduced the impossible financial pressure she suffers.

The Complainant submits that she applied for social housing and, by letter dated 17th January 2017, the Local Authority confirmed her place on the waiting list for social housing and her eligibility for HAP. She claims that she asked the Respondent to sign the relevant forms for her at the time and he refused to do so despite the fact that he signed HAP forms for the Complainant’s Irish friend and a neighbour, Ms B at around the same time.

She claims that she asked the Respondent to complete the forms for her on many occasions over the years.

On 2nd and on 30th November 2018 when the Respondent came to collect rent, she asked him again to complete HAP paperwork. He refused to do so, as he did before on numerous occasions over a two year period.

The Complainant sent the required ES1 forms and notification letter to the Respondent on 25th January 2019 and the second copy on 29th January 2019 by registered post. She claims that the Respondent refused to give her a postal address and she had to use an address she found on social media. On 30th January 2019 the Respondent came to collect rent and she gave him a copy of the form. She claims that the Respondent made no attempts to contact her.

The Complainant submits that she needed to avail of the HAP Scheme as she was struggling to meet the rent from the family’s income. She claims that, knowing that she struggled financially, the Respondent repeatedly refused to complete the necessary paperwork for HAP, although there was no financial loss to the Respondent in doing so.

The Complainant submits that she was constantly surprised by the Respondent’s attitude towards her. She is a ‘model’ tenant who had always paid rent and honoured the terms of tenancy agreements.

She claims that the Respondent left her in a position where she could not avail of the HAP scheme for a period of over twenty-three months. As a result, this had a damaging effect on her family, both financially and personally. She asserts that, as she was unable to avail of the HAP Scheme, she had to meet the shortfall with loans.

In her direct evidence at the adjudication hearing, the Complainant stated that before she moved in in September2016 she informed the Respondent that she was a social welfare recipient and that the Respondent might need to sign some forms for her. The Respondent told her that he “has no problem with that”. However, she claims that from 17th January 2017 she has repeatedly asked for the HAP forms to be filled in for her and the Respondent refused.

She stated that on 2nd November 2018, when the Respondent came to collect rent for October, she again requested that the HAP forms be completed and the Respondent refused. Similarly, the Respondent refused to do so on 30th November 2018 when collecting the November rent.

The Complainant submits that she spoke with other tenants and her friend and a neighbour, Ms B who is Irish and moved in at around the same time the Complainant did, confirmed that her HAP form was completed by the Respondent.

The Complainant submits that on or around 22nd November 2018 she went to her local Citizens Information Centre and was informed that it was illegal to refuse to sign the HAP forms. She also went to Threshold on 29th November 2018 and met with a local TD on 27th January 2019.

In cross-examination, the Complainant confirmed that she never physically handed the forms to the Respondent as she had no opportunity to do so. The Respondent’s answer was always “no” when she asked about HAP.

The Complainant confirmed that there are many other nationalities renting houses from the Respondent on the estate she lives in. She noted that she is treated differently because she is a single mother. When prompted, she confirmed that her friend, neighbour and a witness at these proceedings, Ms B is also a single mother. She accepted that Ms B was in receipt of HAP but argued that this was due to the fact that she was Irish.

The Complainant presented an audio recording, which was recorded on a mobile phone by her, of the conversation between the parties on 2nd November 2018. Having heard the recording, the Respondent confirmed that it was him speaking with the Complainant on the recording. During this conversation the Respondent makes statements to the effect that he would sign the forms but “they” (the Local Authority) won’t take it. He then repeats that he would change it, but Council wouldn’t allow it.

Evidence of Ms B, a tenant of the Respondent’s

Ms B stated that she moved in to the Respondent’s property in or around October 2016. At the time she asked the Respondent to complete her HAP forms in order to avail of the Scheme and the Respondent did so. She has been in receipt of HAP since.

The Respondent’s response to the ES1 Form.

The Respondent forwarded its ES2 reply to the WRC on 22nd May 2019.

In the ES2 form the Respondent acknowledges receipt of the ES1 notification on 14th March 2019.

The Respondent disputes that the request was made about HAP as set out by the Complainant and argued that the first request it received from the Complainant was the 30th January 2019. The Respondent stated that it had never had a difficulty with HAP Scheme but it was not asked before this date. The Respondent notes that it has in the main communicated with the Complainant by text and has no record of any text where she asked to consider the HAP Scheme. The Complainant has always been a good tenant and the Respondent claims it has no difficulty in her applying under the HAP Scheme.

The Respondent notes further in the ES2 form that its normal practice is to let the tenant apply for the HAP Scheme but the Respondent was never given an opportunity as it received the complaint and then the Complainant would not communicate with the Respondent.

In the ES2 form the Respondent provides additional information and states that the circumstances are disputed by the Respondent. The first notification the Respondent got was on 30th January 2019 and no other evidence has been put by the Complainant.

The Respondent states that it has no difficulty with the Complainant applying for HAP and it has never been shown the written confirmation that she has been approved. The Respondent states that the first it heard of this is when the complaint was lodged.

The Respondent notes further that it has a broad range of tenants by nationality and has never been accused of showing any discrimination by nationality. The Respondent claims that some 5 houses are rented to non-Irish nationals.

The Respondent further notes that the Complainant in the ES1 refers to an alleged incident in 17th of January 2017 which the Respondent disputes as set out above. This is over 2 years before the complaint was made and the Respondent objects to it on the grounds of delay .

Direct Evidence of the Respondent

The Respondent stated that he has 35 years of experience as property landlord. He claimed that he has a number of tenants on social welfare and various rent allowances. As of the date of the hearing, he claimed to have some 33 tenants in receipt of HAP. He said that he has no reason not to sign the Complainant’s HAP forms.

In respect of the allegation of race discrimination, the Respondent stated that there are probably about 20 different nationalities renting property from him. He argued that as long as they are respectable and pay the rent he has no problem with that. He noted that the Complainant is a “good person” and he has “no issue” with her.

In relation to the Complainant’s claim that she was treated differently because she is a single mother, he stated that he never treated single mothers differently and that there are currently 7 single mothers renting from him, including the Complainant and Ms B.

The Respondent stated that over the years the Complainant never asked him about HAP. He was adamant that the Complainant never mentioned the matter of HAP when he was collecting rent and she never gave him the relevant form. He said that he first heard of her request when the WRC complaint was launched.

Following the examination of the audio recording the Respondent confirmed that the recording was of a conversation between him and the Complainant. The Respondent then revised his evidence and stated that the Council would not accept any HAP applications in respect of the specific estate. He stated that the estate the Complainant lived in was one of retirement homes. The Respondent noted that he started a process of transition from retirement homes to residential tenancy in November 2016 and lodged a change of use application with the Local Authority in mid-2017. This transition was finalised some two months previously (April 2019).

The Respondent clarified that Ms B moved in in October 2016 and at the time the Council approved her for HAP. However, while the planning was not regularised, the Council would not accept any applications. The Respondent gave an example of another tenant who was in similar circumstance and the Council would not approve her application.

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,”

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(a) that one is male and the other is female (the “gender ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

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) 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.”

In relation to the applicable burden of proof, Section 38A applies to all complaints of discrimination under the Equal Status Acts 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.

Discrimination on the gender ground

The Complainant alleged that she was discriminated against by the Respondent on the ground of her gender.

The Complainant did not adduce any evidence in regard to this assertion. I find that the Complainant was unable to establish a prima facie case of discrimination on the gender ground.

Discrimination on the race ground

The Complainant alleged that she was discriminated against by the Respondent on the ground of her race. The Complainant is Latvian. She claimed that the Respondent refused to accept the HAP because of her nationality.

The Complainant must show that she had been treated “less favourably than another person is, has been or would be treated in a comparable situation”, in the case of the ground of race the person being of “different race, colour, nationality or ethnic or national origins”.

The Complainant claimed that her neighbour, Ms B who is an Irish national had no difficulties in having her HAP forms completed by the Respondent.

Ms B attended the hearing and gave evidence. She confirmed that she moved in to the Respondent’s property in or around October 2016. At the time she asked the Respondent to complete her HAP forms in order to avail of the Scheme and the Respondent did so. She has been in receipt of HAP since.

I find the Complainant has established a prima facie case of discriminatory treatment on the race ground.

I must now consider if the Respondent has rebutted the prima facie case raised by the Complainant.

The Respondent accepted that in or around October 2016 it completed HAP forms for Ms B. At the hearing the Respondent argued that it has tenants of some 20 different nationalities renting. The Respondent also claimed that it has 33 HAP recipient tenants. The Respondent exhibited a spreadsheet showing that 9 out of 17 units in the estate the Complainant resides at are occupied by non-Irish nationals (7 different nationalities). There was no evidence of any kind presented in respect of any persons in receipt of HAP.

I, therefore, find that the Respondent has not rebutted the inference of discrimination established by the Complainant.

Discrimination on the housing assistance ground

I must consider whether the Complainant has established a prima facie case of discrimination. This requires her to show that she had been treated “less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds”, in this case the ‘housing assistance ground’, “…which requires that as between any two persons, that one is in receipt of… housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014)… and the other is not.”

The Complainant alleged that the Respondent refused to sign her HAP forms. The Complainant was eligible for housing assistance, therefore, she is covered by the prohibited ground per Section 3(3B) cited above.

She claims that since the confirmation by the Local Authority on 17th January 2017 of her eligibility for HAP she repeatedly asked the Respondent to complete the forms for her and the Respondent repeatedly refused to do so. She claims that she first notified the Respondents that she is eligible for HAP on 17th January 2017 and despite her repeated requests the forms have not been completed to date.

The Complainant submitted that the refusal of the Respondent to complete the forms for such a long time placed her under significant financial pressure in paying her rent.   I am satisfied that the Respondent was requested to complete the HAP application form in question and did not do so which amounts to less favourable treatment.

I find the Complainant has established a prima facie case of discriminatory treatment on the housing assistance ground.

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

I find the evidence of the Respondent inconsistent and implausible. In response to the WRC correspondence notifying the Respondent of the Complainant’s claim, the Respondent forwarded a copy of the ES2 form, which was received on 22nd May 2019. In said form the Respondent acknowledges the receipt of form ES1 on 14th March 2019 i.e. one day after the notification of the Complainant’s WRC claim together with a copy of the ES1 form was forwarded to the Respondent. In the body of the ES2 form the Respondent disputed that the request was made to him in respect of HAP. It says that the first request it received was 30th January 2019 i.e. the date when the Complainant claimed she handed the ES1 personally to the Respondent. The Respondent claims that it was “not asked before that date” and it has “no difficulty in her applying under the HAP scheme”. The Respondent goes on to say that normal practice is “To let the tenant apply to the HAP scheme but I was never given an opportunity”. Further in the form the Respondent states that “the first I heard of this was when the complaint was lodged”.

In the letter of 20th June 2019 to the WRC the Respondent’s representative stated that the Respondent has no difficulty with the Complainant applying for the HAP and, if there is any paperwork that is required to be executed it has no difficulty with the signature of same. The Respondent’s representative noted that it was made clear “at all stages in the above matters”. However, even as late as on the day of the adjudication hearing the relevant forms were not completed for the Complainant.

At the adjudication hearing, the Respondent in direct evidence confirmed that he received the ES1 form on 30th January 2019 (not 14th March as per the acknowledgement in the ES2 reply). He said that the Complainant is a “perfect tenant” but she never gave him a copy of the forms, did not post it to him, never emailed him about the matter and never mentioned it when he collected the rent. The Respondent confirmed that he has never been asked about HAP by the Complainant over the years and he first heard about the matter when the complaint was launched.

The Complainant presented a voice recording of a conversation between the parties on the basis that it supports her case against the Respondent. Having heard the recording, the Respondent confirmed that it was the Respondent speaking with the Complainant.

I note a previous decision of this Tribunal in Laurentiu Engen Iacob –v- The Central Hotel DEC-E2010-147 where the Equality Officer had to decide whether he should admit an audio recording provided by the complainant into evidence in relation to the case before him for consideration. I note that the Equality Officer in question, having considered submissions from both parties, decided that he was not precluded from admitting such a recording into evidence. I find that it could be verified and there was no dispute as to who the parties recorded were and the content of the recording has true evidential value. Accordingly, having carefully the matter I am satisfied that it is just and equitable to admit the recording into evidence.

Having examined the voice recording presented by the Complainant, the Respondent revised his evidence and confirmed that, in fact the Complainant did ask for the forms to be completed. However, due to matters relating to planning and a change of use application the Respondent was of the view that the Local Authority would not accept her application. The Respondent claimed that another tenant had gone through the application process in respect of HAP and her application was rejected. Post-hearing, the Respondent furnished a typed letter signed by, what appears to be a tenant of the Respondent. The letter notes that the tenant in question, Ms V rented one of the Respondent’s units on 17th August 2018. Some 3-4 month later she allegedly applied for HAP but was told that the “property was still listed as a retirement home property and not a private house and I wouldn’t be able to get HAP payments from the property”. Even if I accepted that the letter was a genuine statement of events written by a tenant of the Respondent, I have a major difficulty with the Respondent’s reliance on it in defense of the Complainant’s claim. Ms V moved in on 17th August 2018. Some 3-4 months later (i.e. 17th November – 17th December 2018) she allegedly applied for HAP and her application was allegedly rejected. Even if the Respondent genuinely believed that the Local Authority would not accept any HAP applications following this instance of rejection, it in no way explains the Respondent’s refusal to complete the relevant forms for the Complainant since as far back as 17th January 2017 until November 2018. In any event, it was not within the Respondent’s gift to decide whether or not the Local Authority would accept the Complainant’s application or otherwise.

I am satisfied that the Respondent’s ongoing refusal to accept HAP towards payment of the Complainant's rent by way of direct payment from the Local Authority in question amounts to discrimination on the ground of housing assistance. Owing to the Complainant's financial situation, the Respondent’s refusal to participate in the HAP Scheme has had the effect of placing the Complainant in a detrimental financial situation. I am satisfied that it exacerbated the distress she suffered and the quantum of the compensation should reflect that.

For the foregoing reasons, I am satisfied that the Respondent has failed to rebut the prima facie case of discriminatory treatment on the housing assistance ground raised by the Complainant.

I have concluded my investigation of this complaint and based upon the aforesaid, I find pursuant to Section 25(4) of the Acts, that the Complainant

1)      has not established a prima facie case of discrimination on the gender ground.

2)      has established a prima facie case of discrimination on the ground of race which the Respondent has failed to rebut.

3)      has established a prima facie case of discrimination on the housing assistance ground which the Respondent has failed to rebut.

Under section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:

"the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or (b) an order that a person or persons specified in the order take a course of action which is so specified."

The maximum amount of compensation I can award is €15,000. I order the Respondent to pay to the Complainant the sum of €12,000. Also of concern is the continuing breach of the legislation so pursuant to Section 27(1)(b) of the Acts, I direct the Respondent to take such steps as are required to enable the Complainant to participate in the HAP Scheme (including completion of the Application Form and compliance with any necessary conditions) and accept HAP payments from the relevant Local Authority forthwith.

Equal Status Acts – gender- race- HAP- family status