Complainant

Respondent

Anonymised Parties

Tenant

Landlord

Representatives

Noemi Santopaolo Threshold

AMOSS Solicitors. Mr Owen Keany, BL.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027227-001

22/03/2019

The Complainant contends that she has been discriminated against by the respondents in their refusal to complete the landlord section of the application form for the Housing Assistance Payment (‘HAP’) Scheme towards the payment of her rent. She is eligible for the payment of same.

She submitted her complaint to the WRC on 22/3/2019

This is a complaint 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 1st January 2016, which introduced the ‘housing assistance ground’ and prohibits discrimination in the provision of accommodation.

The most recent date of discrimination is 26/11/2018.

The complainant states she is a tenant of the respondent since 2005. She is in receipt of rent supplement. On the 26 and 29 November, the complainant asked the respondent landlord to sign the landlord section of the application form for HAP which she received from the Department of Housing on 22 November 2011. The respondent replied that he would have to get advice from his solicitor.

The respondent advised the complainant on the 29 November that the property was to be sold and that he could not fill out the HAP application form. The complainant was given a year’s notice. The complainant is still residing in the property and paying rent. The property has not been sold at the date of the hearing.

The complainant submitted an ESI form on 3 December 2018. She complained that she has been treated differently than a person not in receipt of HAP. The respondent failed to respond.

She is being discriminated against on the basis of her HAP application.

She has been discriminated against by reason of her HAP application in that she is at a disadvantage relative to someone not seeking HAP. With HAP the complainant would only have to pay 15% of her income. The complainant is at a loss of €500 a month as she would receive €1100 as a HAP recipient, whereas her rent supplement is €600 a month and with HAP, she can work full time.

The parties agreed to correct the respondent’s name, and this is reflected in the decision.

Preliminary points.

Incorrectly named respondent.

The respondent argues that the complainant has submitted no comparator as required by the Act.

There are no details in the complaint form from which discrimination could be inferred. Nor are there any details in the ESI form. The requirements therefore under the Act have not been met and the complaint should be dismissed.

Incorrectly named respondent.

The parties agreed to correct the name of the respondent. This is reflected in the decision.

The respondent state that the complainant’s tenancy was terminated for reasons totally unconnected to the HAP Scheme. The respondent stated that the complainant was a good tenant.

They deny that the reasons for refusal are to do with discrimination. The respondent became indebted to the bank and had to sell his properties so as to meet his debts. The respondent submitted a sworn declaration that the property was to be sold. The complainant asked the respondent to complete the HAP application form in circumstances where the complainant knew the house was to be sold. In addition, the tenant would remain a tenant for 2 years if in receipt of HAP.

They have many tenants in receipt of rent supplement (such as the complainant) and other tenants in other properties in receipt of HAP. They submitted evidence from other properties to support this.

The complainant was treated the same as other tenants. The respondent submitted a sworn declaration that the property was to be sold.

The complainant is in receipt of rent supplement so that contradicts the claim in the ESI form that there is discrimination on the basis of housing assistance. It is not possible to differentiate between HAP and rent supplement for the purposes of a complaint of discrimination

The mere failure to decline to fill out a HAP form is not evidence of discrimination. Complainant was in receipt of rent supplement for 14 years.

The complainant has failed to link the respondent’s choice not to sign the HAP application form to any one of the 9 grounds.

The respondent asks that the complaint should be dismissed      

The issue to be decided is whether the respondent discriminated against the Complainant under the ‘housing assistance ground’ contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended), by refusing to complete their section of the HAP Application Form and impeding the grant of HAP to the complainant.

The Law.

The Equal Status Act seeks to prohibit discrimination in the provision of services The Act was extended to include discrimination on the housing assistance ground, i.e. a claimant’s reliance on a social welfare payment. This includes the Housing Assistance Payment (HAP) as provided by Part 4 of the Housing (Miscellaneous Provisions) Act, 2014, which sets out the requirements for a landlord.

Section 3(1) of the Act of 2000 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”.

Failure to name a comparator.

The Act provides for a hypothetical comparator and I do not find this to be a ground to dismiss the complaint.

The 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. The complainant was eligible for housing assistance in the form of HAP. The complainant is covered by the protected ground as per Section 3(3B) cited above. The respondent failed to complete his part of the application form which is a requirement for the grant of HAP. The consequential financial detriment is the less favourable treatment relative to a tenant not in receipt of housing assistance and not intent on transferring to the HAP scheme.

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

I must now consider if the respondents have rebutted the prima facie case raised by the Complainant.

The respondent argued that the reason why he declined to complete the application form was that the property was scheduled to be sold. He further stated that were he to agree to a HAP application, the tenancy would survive for a further 2 years which would take it to a date beyond November 2019, by which date the complainant’s tenancy would have expired and the house would possibly have been sold. He submitted a HAP information document, Housing Assistance Payment (HAP), Tenant Information which states

“Once approved for HAP, the local authority will expect you to stay in the same property for at least two years”

This is a guide. The same paragraph qualifies this by allowing for a change in circumstances which could change the length of the tenancy.

There is no connection between HAP and the length of a tenancy agreement or the termination thereof. There is no minimum period for a tenancy to attract the benefits of HAP and the respondent is mistaken in this belief. The complainant’s tenancy survived for a minimum of 7 months beyond the notice of intention to sell. So, there was no bar to the complainant being in receipt of HAP for the period December 2018- June 2019.

I do not dispute that the respondent had other tenants in other properties in receipt of HAP and rent allowance, but it is the alleged less favourable treatment of this complainant that I have been asked to consider relative to a person not in receipt of housing assistance.

The respondent’s evidence has not managed to rebut the inference of discrimination in the face of their refusal to sanction an application for HAP.

The respondent was preparing the property for sale. I find that the action of the respondent denied the complainant the opportunity to avail of HAP for the remaining stretch of her tenancy, imposed a financial detriment on the complainant and   breached section 6 (1) (c) of the Equal Status Act, 2000 as amended, specifically at section (3B) which includes a prohibition on discrimination as between two people, one of whom is in receipt of rent supplement and the other is not.

I have found that she was treated less favourably on HAP grounds.

The complaint is upheld.

I have decided to exercise my discretion to anonymise this decision.

I therefore order, pursuant to S. 27(1)(a) of the Acts, that the respondent pay the complainant €3000 which is the six month’s loss incurred by the complainant.

I uphold the complaint. I order the respondent to pay the complainant the sum of €3000 in respect of the loss sustained by the complainant.

HAP; Landlord’s refusal to process HAP application for sitting tenant