ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00015490

Parties:

	Complainant	Respondent
Anonymised Parties	A Tenant	A Landlord

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00019971-001	22/06/2018

Date of Adjudication Hearing: 03/09/2018

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Further correspondence and submissions were exchanged between the parties following the hearing – the final documents were received by the WRC at the end of October 2018

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 25 of the Equal Status Act, 2000, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). Due to the sensitive nature of the complaint and the respondent’s health issues I am compelled to anonymise the parties in this decision.

Summary of Complainant’s Case:

In his complaint form, the claimant submitted as follows:

“On around 20th February 2018 I had informed my landlord that I was approved for hap scheme and that I had

documents for him to sign we had previously discussed that I might apply for assistance under hap scheme when my partner and child came to live with me at that time. My landlord said that would not be a problem, but the rent would be raised from 530 to 550. When my landlord came to the house to collect the forms the respondent told me that my rent would go up from 540 to 650 if I accepted hap scheme. He went on to say if I did not use hap scheme that my rent would stay the same and informed me that my lease would be up in a few months. I said to my landlord that what he is suggesting is extortion that my rent can not go up as rent can't be reviewed for a period of 2 years from when it was last put up. Landlord replied well this is how we do business. I informed him that hap is set up so a person can not be discriminated against and that hap scheme would pay around 30 euros a week towards rent to a value of 450 then i would cover the rest. The respondent told me that he has people on hap scheme that the hap pays for all the rent. I informed him that was not true. Respondent landlord went on to tell me that his accountant told him if he accepted hap scheme rent would have to go up to 650 to cover the costs. i informed my landlord that there is no additional costs for landlords but there are some tax breaks at this stage the landlord said again if you accept hap rent goes up to 650 if i don't use hap rent is same and again informed me that my lease is up soon then said 3 times ((what are you going to do )At this stage I asked my landlord to please leave as ((i was feeling a bit threatened)) and that i would be in touch. Landlord returned to the house after a few minutes accepted the hap form and said it would be filled out then left. ----------

I feel in this instance that I was discriminated against under hap scheme as landlord wanted to illegally raise rent well over the market rate within the 2 year period of when rent could be reviewed. If I did not accept the rent increase he would refuse hap scheme.

On the 24th February 2018 i received a letter from landlord telling me that when a landlord accepts hap scheme government gives me money then revenue gets the money back through revenue from landlord (this is very far from truth) he suggested my rent will stay the same and again let me know that my lease will expire on 11th May 2018 and suggested that i start searching the market for more affordable accommodation that would accept hap scheme.

I feel in this instance I have been discriminated against under hap scheme as landlord seems to refuse hap scheme suggests that I look for accommodation that will accept hap scheme.

I replied on 27th February 2018 by mail first giving my intent to stay on at the address. Also let Landlord know that my rent was not up for renewal for a few more months I had also reminded him of a conversation we had about the hap scheme that when/if I was approved for hap scheme that my rent would go up from 530 to 550. Again I informed him that hap scheme pays a part towards the rent while I pay the rest as he assumed it was fully covered as he had told me before that they have other property where hap scheme is being used and it covered all the rent. I also confirmed and informed him that there is no extra tax burden to landlord under hap scheme. I also informed him that hap scheme is set up in a way that a person can not be discriminated against when applying. I enclosed a book that I got when I collect hap forms that was directed at landlords to inform them about hap scheme and that i would not like for this to be prolonged as it is very stressful especially for my pregnant partner.

Thur 8th March 12.25 pm during a phone call landlord told me he needed another week to sort things for hap Wed 18 April 1.30 pm during a phone call the respondent informed me he was working on hap that his accountant was working on it he also told me he would give me a 6-month lease to November and that to his understanding if I did not have a lease that i would have to leave the house. i explained to him about a 4 term tenancy and that when my lease was up i could still stay in the house under the 4 year term tenancy that is entered. After 6 months he replied by saying he will have to reassess the situation and get back to me after a few minutes conversation about a leak in the roof he referred back to the house situation and the respondent suggested he Might be thinking of moving in to that house in November in. He would talk about it more in November. And that he would be back in a few weeks with a signed hap form for me.

To me this was an excuse to not pay hap to try drag the process out for a longer period of time and only way he could legally evict me because he did not want to fill out hap forms for some reason or wanted to prolong the situation to November when my rent could be reviewed.

During conversation, we worked out that my rent could not be raised till November. And that he would be back in a few weeks with a signed hap form for me.

Thursday 3rd May 12.49pm the respondent informed me that he would reply within 1 week about hap scheme.

I asked the respondent did he know the law surrounding hap scheme he replied he knew a bit and was looking in to it. I said to the respondent that I would inform him on the law surrounding hap scheme. That by not accepting or not filling out hap forms is an act of Discrimination. I also informed him that on accepting hap forms that he could bring rent up to the market rate but not exceed the market rate.

After talking to PRTB that the 540 rent that I am paying is above rent market for this area for a 3 bed semi-detached house as there is a 1 bed apartment connected to the house that I do not have access to if the house is considered a 3 bed detached house I would be paying 9 euros under market rate. Also, that after receiving hap forms that landlord could not refuse a new lease or give a new lease that was less favourable. That last lease I informed the respondent that my phone automatically records all calls mon 28th May 2018.

The respondent informed me that he had sent me registered mail and that his position would be very clear on the hap scheme and situation 29th /30thmay when mail arrived he returned the hap forms unsigned along with a statutory declaration and a letter he gave us notice to vacate as he wanted to move in to the house with his partner who he had been dating for past 2 years. I feel we have been discriminated this time under hap scheme as landlord has refused the hap scheme and has refused to renew our lease and ended tenancy after accepting/receiving hap forms. A few conversations we had prior to this incident the respondent had said in conversation had said he was taking a break from dating and was not in any relationship including the day he came to collect the hap forms when I also informed him my partner was pregnant. This eviction letter he sent according to threshold PRTB and legal advice.is an illegal and non valid term of termination.

For a start this situation has caused a very big amount of stress and depression on myself and my partner as my partner is pregnant and due date is on mid August. We are worrying a lot about having accommodation for our 15 month son and newborn son to be rental market is not very promising at the moment with lack of properties. I have recordings of the phone calls I had informed the respondent that my phone automatically records all calls or documents that confirm everything I have said.”

The claimant furnished supporting documentation with the complaint form including confirmation from the Local Authority of the claimant’s eligibility for Hap dated the 21st Feb. 2018, the respondent’s reply to same dated the 24th Feb. 2018, correspondence from the respondent to the claimant dated the 11th May confirming expiry of the lease, ensuing exchanges between the parties, statement accompanying notice of termination from the respondent to the claimant dated the 28th May 2018. In post hearing submissions, the claimant furnished screenshots of the property that was put up for rent on DAFT 6 days after the claimant vacated the property; further information asserting that the bank account details furnished to the WRC were different to the account in the lease agreement along with information about the respondent’s contact details being used to rent other properties. In this regard it was submitted that the claimant is working in some capacity despite his assertions to the contrary at the hearing.

In his direct evidence the claimant advised that he commenced renting the house from the respondent on the 7th May 2016 – initially the rent was €530 per month and increased to €540 per month after 6 months. While he was to vacate the premises at the end of August 2018, he obtained alternative accommodation and vacated the house on the 2nd August 2018. He received the initial notice of termination of the lease on the 28th May 2018 and the second notice on the 5th July 2018. When he was initially approached by the respondent, the claimant submitted that the respondent advised him that he would do his best to secure alternative accommodation for the claimant and his family. He submitted that within days of vacating the house, the house was advertised for letting under the Rent a Room Scheme – the separate apartment adjacent to the house had not been occupied when the claimant was renting the house.

The claimant asserted that the respondent had prior knowledge of the HAP Scheme and that the respondent manages property for his father. He was adamant that despite numerous exchanges with the respondent, no mention was made of the respondent requiring the house to accommodate his partner, until after the claimant raised the matter of his eligibility for HAP. In his complaint form the claimant asserted that the issue of moving into the house and accommodating his partner only arose at the end of May 2018.

The claimant said he did not understand the respondent’s position – he asserted that the respondent was now letting the property for less than what the claimant had paid. He asserted that the respondent’s position made no sense and that it was obvious he wanted nothing to do with the HAP Scheme. He asserted that he was advised by the PRTB that the respondent was not entitled to put the premises up for rent and that the claimant had been entitled to first refusal. He submitted that it was his understanding that the respondent had been given the property as a gift from his father.

The claimant submitted documentation into evidence from the respondent dated the 24th Feb. 2018, the claimant’s response to same and a letter dated 5th June 2018 from the respondent to the claimant. In his correspondence o the 24th Feb. 2018, the respondent confirms that the claimant’s rent will not increase as it is currently except that your lease will expire on the 11th May 2018. The letter of the 5th June 2018 states that “they were both interested in extending their lease but unfortunately the house is needed for myself and my partner”.

Summary of Respondent’s Case:

The respondent categorically denied that he was in breach of the Act and asserted that he was not familiar with the HAP Scheme. He stated that the house in which the claimant had resided was the only property he ever had. He acknowledged that his father and brother had other properties. The respondent stated that he had a commercial property that was in receivership. The respondent stated that if the claimant had any prospect of retrospectively claiming HAP, he would assist him with the paperwork. He submitted that the claimant had been served with appropriate notice and been issued with a positive reference. He asserted he had no animosity toward the claimant and he wished him well. The respondent stated that he hadn’t as yet taken up residence as he had started to do some work on the house. The respondent advised that he and his partner would be moving into the property and that they would also be advertising for expressions of interest in the Rent a Room Scheme.

The respondent submitted that he suffered a nervous breakdown in 2014, that he had been hospitalised for an 8 week period and that he was under severe pressure regarding the commercial property in B – which was in receivership and in respect of which he owed a 6 figure debt. The respondent stated that he was paying a mortgage on the house of €505 per month. The respondent did not dispute the chronology of events and exchanges between the parties as set out by the claimant. He stated that he saw no point in signing the HAP forms as it was so close to the end of the lease and he was moving into the house in November 2018.

The respondent submitted a medical report from his GP into evidence together with bank statements, receipts for bank lodgements and details of the 6 figure outstanding balance on his commercial property. In later submissions, he furnished the lease for the property, mortgage statements in the name of his mother “whom I agreed to pay her mortgage (15 years approx.) in return for ownership at its Mortgage Completion …”- , further details regarding his commercial property which he suggested contradicted the claimant’s assertion that he was doing well, clarification regarding his bank accounts and complaining about contacts he received from the claimant.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

The issue for determination in the instant complaint is whether the respondent discriminated against the complainant under the “housing assistance ground” contrary to section 3 and 6 of the Equal Status Act 2000 (as amended) by refusing to complete the HAP Application Form and by subsequent termination of the tenancy agreement.

The Equal Status Act 2000 was amended with effect from 1st January 2016 as outlined above such that discrimination in relation to “providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities” is now prohibited under the new “housing assistance ground” which provides 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 38A of the Act requires the complainant to establish, in the first instance, facts from which the discrimination alleged can be inferred. It is only where such a prima facie case has been established that the burden of proof shifts to the respondent to rebut the inference of discrimination.

Having carefully considered all the evidence adduced, I am satisfied that the complainant requested the respondent landlord to complete the appropriate forms in order to avail of HAP towards the end of Feb. 2018. Documentary evidence was submitted in relation to the respondent’s response to the claimant’s request for completion of the HAP forms. The letter contains the following statements “It is unfortunate one cannot have their cake and eat it. To clarify our point when the government gives you their money on one hand they must get it back another way through the revenue and the Landlord is the target in this case and so as to balance the books. Your rent will remain the same as it is currently except that your lease will expire on the 11th May 2018……………We prefer that we put all negotiations on hold until your lease expires on the 11th May 2018 …..We have no doubt that you will come out successfully and get a more affordable rent and also under the Hap system that will be of wonderful financial benefit to you both”. Termination notice was served on the claimant on the 28th May and the respondent advised the claimant that he was dating a lady friend and that they would need the house for their personal use.

The claimant submits that following his requests for signage of HAP documentation and the landlord’s unwillingness to complete the documentation, he received within a matter of 4 days a letter confirming his lease would expire on the 11th May 2018. Extracts from this letter are set out in the preceding paragraph. In the circumstances, I find that the claimant has established a prima facie case of discriminatory treatment on the housing assistance ground.

I must now consider if the respondent has rebutted the prima facie case raised by the claimant. The respondent denied any discrimination on Hap grounds but did not dispute the chronology of events and exchanges between the parties as set out by the claimant. In his first response to the request from the claimant to complete the HAP documents, the respondent clearly indicates an unwillingness to sign the documentation and advises the claimant to seek alternative accommodation. No reference to a partner and a requirement to take possession of the property to accommodate his partner is made in this correspondence. Having reviewed the documentation submitted, I find on the balance of probability that the respondent’s assertion that the requirement to take possession of the property related to the imperative to accommodate his partner, lacks credibility and is unconvincing. While acknowledging the respondent’s medical condition and his financial challenges, I find that the respondent landlord was inconsistent and contradictory in his evidence and that his evidence was contradicted by the documentation sent by him to the claimant on the 24.02.18, the 28.05.18 and the 5.06.18. I found the claimant to be consistent in his evidence and presented as a credible witness. I acknowledge that the claimant and his family suffered stress and anxiety as a result of the respondent’s failure to accept HAP. I am also mindful of the stress suffered by the complainant in trying to source alternative accommodation while his wife was pregnant. In conclusion, I find that the complainant has raised a prima facie case of discriminatory treatment by the respondent landlord under the housing assistance ground. Accordingly, I find that the respondent breached its obligations under the Equal Status Acts when he refused to participate in the HAP scheme as requested by the complainant and when he proceeded to terminate the lease.

I find that the complainant has established a prima facie case of discriminatory treatment by the respondent landlord on the housing assistance ground and that the respondent has failed to rebut same.

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.”

In considering the amount of compensation that I should award, I have considered the effect the discriminatory treatment has had on the complainant and his family. Having regard to all the circumstances and pursuant to section 27(1)(a) of the Acts, I deem it appropriate to order the respondent to pay the claimant €5,000 compensation for the effects of the prohibited conduct concerned.

Dated: 10th July 2020

Workplace Relations Commission Adjudication Officer: Emer O Shea