ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00018882

Parties:

	Complainant	Respondent
Parties	Jozef Gasior	Canal Road Rental Company Ltd.

Representatives

Siobhan Mc Loone Letterkenny Citizens Information

Martin McGee /Conor McMenamin

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-00024357-001	20/12/2018

Date of Adjudication Hearing: 18/06/2019

Workplace Relations Commission Adjudication Officer: Emer O'Shea

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).

Summary of Complainant’s Case:

It was submitted that the claimant was a tenant of Apt.8 Grand Central Apartments from the 4th.Dec. 2017 and had signed a tenancy agreement for 12 months. The accommodation comprised 2 bedrooms and the claimant shared the apartment with another tenant who was unconnected to him. The claimant approached the respondent in Jan 2018 to discuss the HAP Scheme. The respondent indicated that if the claimant was willing to rent a 2-bedroom apartment as a sole occupant, he would consider his request regarding HAP. The claimant did not require a 2-bedroom apartment and was aware that any HAP support would be disallowed as he would be considered over accommodated. The claimant’s application to the Local Authority for HAP was approved on the 21st.March 2018.When the claimant approached the property manager for the respondent to sign the HAP form , Mr. McG refused to accept or sign it – asserting that the respondent did not take part in HAP where a tenant is sharing accommodation and arguing that there was too much paperwork involved in the process. The claimant was approached by Mr. McG in early April 2018, offering to allow him to terminate his 12-month lease early with full return of his deposit to enable him to seek alternative accommodation which might accept HAP. At the end of May 2018 , the claimant was relocated to Apt.37 to share accommodation with another tenant as the tenant the claimant had been sharing with had vacated Apt. 8 .On the 27th.June , the claimant received a termination notice signed by Mr.C.McM advising him that he was required to vacate Appt. 37 on 1st.August 2018 as the apartment was to be sold within 3 months of the termination notice. The claimant was unable to secure alternative accommodation and was rendered homeless. On a temporary basis he moved in with his sister, her husband and their 4 children.

The claimant obtained alternative accommodation on the 10th.Aug and received support through HAP from the 10th.Nov. 2018.

It was submitted that the respondent refused to complete the HAP form despite a number of requests, resulting in him being unable to get housing assistance from the local authority for a prolonged period. It was submitted that when the claimant brought the HAP paperwork to the office the respondent stated that there was too much paperwork involved in the HAP scheme. This placed the claimant in a very difficult financial situation. “When compared with a tenant not requiring HAP, this amounts to less favourable treatment “and it was submitted that on this basis the claimant had established a prima facie case of discriminatory treatment on housing assistance grounds. It was further submitted that on becoming aware of the claimant’s intentions to make an Equal Status complaint, the respondent relocated the claimant to an alternative property which they stated they intended to sell and terminated the tenancy. It was submitted that the claimant suffered an actual financial loss of €535.50 from 22nd.March 2018 to 18th.November 2018 as a direct result of the respondent company ignoring his requests to engage in the HAP process .It was also contended that the claimant suffered significant inconvenience and emotional distress through being made temporarily homeless due to the termination of his tenancy.

The claimant’s representative submitted into evidence the Rental Lease Agreement between the claimant and Canal Road Management Company Ltd. – signed by Mr. McG), confirmation of qualifying for HAP from Donegal County Council dated 21.03.18.

The following documents in the name of Canal Road Management Co. Ltd. were also submitted:

Lease Agreement signed by Mr. McG

Spreadsheets re: rent due / received

Apartment Inventory

Statement confirming claimant’s tenancy at Apartment 8 (signed by Mr. McG)

Mr. McG’s signature appears on rent receipts issued to the claimant.

The following documents were submitted into evidence in the name of Canal Road Rental Co. Ltd.

Utility Bill

Information sheet re: rental rates

Bank details for payment of rent

The following document were submitted in the name of Mr. Mc M and it was submitted that Mr. McM also signed for receipt of ESI Form

Termination Notice with Statutory Declaration

In response to the post hearing submission from Mr. McG, the claimant’s representative submitted that the claimant received confirmation of tenancy registration from the RTB dated 11th.July 18 – casting doubt on the respondent’s assertions that it can take years to receive registration from the RTB. She advised that no evidence of registration of the claimant’s tenancy at No.8 had been furnished by the respondent. It was submitted that the tenancy registration application form was submitted for registration on the same date that the claimant received the termination notice – 27th.June 2018.She questioned why the respondent felt it necessary to register the claimant’s tenancy at Apt 37 on the date he was provided with a termination notice. It was submitted that Mr. McMenamiin wrote to the WRC on headed paper bearing the company name – Canal Road Rental Company Ltd while signing the correspondence as Director Canal Road Management Company Ltd. It was submitted that the respondent was being deliberately evasive and misleading in relation to which company is the liable company for the purposes of the Equal Status complaint. It was submitted that no clarity on the matter of the identity of the respondent had been forthcoming.

Summary of Respondent’s Case:

The respondent submitted that Canal Road Management Company has nothing to do with rent; that the lease agreement was in error and that rents go to Canal Road Rental Company while the leasing is with Canal Road Management Company Ltd. It was accepted that Canal Road Rental Company Ltd. was the lease holder and received the rent. The respondent undertook to submit clarifying documentation regarding the identity of the respondent within 2 weeks of the date of the hearing including registration documents from the Tenancy Board. It was submitted that Mr. McG was employed by Canal Road Management Company Ltd. and that he carried out the day to day running of the properties dealing with VAT returns, Fire Safety, cleaning and bills and that he was on site.

It was submitted that Apt 37 was sold in the last 8 weeks and that evidence of same would be submitted to the WRC. The respondent initially indicated that HAP invariably presented problems but contended that they had HAP tenants in a number of their properties. Mr. McG said the paperwork would be passed onto Mr. McM’s desk. The respondent could not recall receiving the claimant’s HAP paperwork and stated that lots of stuff landed on his desk.

The respondent was unable to recall when the decision was taken to sell the apartment.

In a post hearing submission, Mr.C.McM as “Director Canal Road Management Company Ltd” advised – on paper headed Canal Road Rental Company Ltd.”- that registration documents had not been received from the RTB and that the process can take a few years. He also furnished a document from his auctioneer stating that marketing of the apartment commenced on the 5th.Nov. 2019 – presumably this is a typing error – that the sale was agreed on 8.11.2019 and closed on the 7th.June 2019.

The tenancy registration application form dated 27.06.18 sets out the landlord details as” Canal Road Rental”.

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.

On the basis of the documentation furnished by the respondent’s representatives, the documentation furnished from the Residential Tenancy Board, the CRO number furnished and the corresponding Company name of Canal Road Rental Company Limited, I am satisfied that the correct respondent for the purposes of these proceedings is Canal Road Rental Company Limited .

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 during the period Jan-March 2018. The claimant was in receipt of confirmation from his local authority on the 21st.March 2018 that he was eligible for HAP. I found the evidence of the claimant with respect to this approach to the respondent to be compelling and consistent while the respondent’s witness was evasive and unclear. It was submitted that in early April the claimant was approached by the respondent’s representative Mr. McG who offered “ to allow him to terminate the 12 month lease agreement early with full return of his deposit to enable him to seek alternative accommodation which may accept HAP “.After declining the offer the claimant was relocated to share accommodation with another tenant as the person he had been sharing with had vacated APT.8 – the claimant received a termination notice to vacate this apartment on the 1st. August 2018 – at which point the claimant was rendered homeless.

On the basis of the submissions made on behalf of the claimant, the claimant’s evidence , the chronology of events leading to the claimant being unable to avail of the HAP Scheme and the unconvincing evidence of the respondent’s representatives , I am satisfied that the the claimant was the subject of less favourable treatment than a tenant not requiring HAP and that accordingly the claimant has established a prima facie case of discriminatory treatment on the grounds of HAP.

The claimant’s first complaint to the WRC was received on the 8.06.2018 and the named respondent was Canal Road Management Company Ltd. This complaint was not upheld on the basis that the claimant had named the wrong respondent. The second complaint which included Canal Road Rental Company Ltd., was received by the WRC on the 20.12.2018 .I am satisfied that this was the correct respondent .I am further satisfied that by reason of the lack of clarity and confusion around the identity of the respondent – as set out in the claimant’s submissions - that there was reasonable cause for the delay in making the complaint and accordingly I deem this element of the complaint to be in time.

I must now consider if the respondent has rebutted the prima facie case raised by the claimant. The respondent denied discrimination on HAP grounds but did not recall the chronology of events and exchanges between the parties as set out by the claimant. Having reviewed the evidence presented and the documentation furnished by both parties I find the claimant’s account to be more credible than that of the respondent and accordingly I am upholding this element of the complaint.

While I note that the claimant’s representative has contended that the company relocated the claimant to an alternative property “on becoming aware of the complainant attempting to enforce his entitlements under the Equal Status Acts “I am not upholding this element of the complaint as the respondent has provided evidence that the property was subsequently sold.

I acknowledge that the claimant and his sister’s family with whom he had to move in, on becoming homeless suffered stress and anxiety as a result of the respondent’s failure to accept HAP. The claimant stated he had to sleep on a sofa and share facilities in a house that was already full to capacity- he also had to incur travel costs between his sister’s home and Letterkenny when he was seeking alternative accommodation.

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 .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 €3,500 compensation for the effects of the prohibited conduct concerned.

Dated:

Workplace Relations Commission Adjudication Officer: Emer O Shea

Dated: 12-08-2020

Workplace Relations Commission Adjudication Officer: Emer O'Shea

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