Complainant

Respondent

Anonymised Parties

A Former Tenant

A Landlord

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00028775-001

30/05/2019

The complaint was submitted to the WRC on the 30th May, 2019. The Respondent did not attend the adjudication hearing although there were some email exchanges between him and the WRC. Arising from these exchanges, I am satisfied the Respondent was aware of the hearing scheduled for the 7th January 2020, he was notified of the hearing by letter from the WRC of the 22nd November 2019 and in an email to the WRC on the 14th January 2020, the Respondent apologised for not being present at the adjudication hearing. I proceeded with the hearing after waiting fifteen minutes. The Complainant was not represented.

The Complainant claims he was discriminated against contrary to the provisions of the Equal Status Act [2000-2020], arising from the failure of the Respondent Landlord to co-operate with his application for supplementary welfare allowance rent supplement and the Respondent’s failure to sign the landlord’s section of the relevant form in this regard – ie Form SWA RS1.

The Complainant outlined that he had been renting a room in a house share arrangement, from the Respondent Landlord since the 4th July, 2017 and he furnished copy of the lease agreement in this regard. His monthly rental payment was €450.

On the 5th November, 2018 the Complainant contacted the Respondent regarding an application he wished to make for rent supplement as he had recently become unemployed. The Complainant stated that the Respondent was hesitant towards his application and that he insisted that before he would complete the landlord’s section of the application, he would need to have his Solicitor look over the documents. According to the Complainant, the Respondent stated that he was unaware of rent supplement. The Complainant thought this was unusual but nonetheless, he emailed the Respondent relevant web links to information about the rent supplement scheme and also emailed the Respondent a PDF version of the application form SWA RS1.

The Complainant received no response to his email of the 5th November 2018. He emailed the Respondent again on the 13th November, 2018 but received no response. On the 23rd December, 2018 the Respondent texted the house tenants advising that he would be visiting the house the following day for an inspection. The Complainant stated that at the time he was on his way back to Dublin for Christmas, but that he returned to the house so as to ensure he was there to meet the Respondent. The Complainant stated that he handed the Respondent the rent supplement application form SWA RS1 and that he explained he was in a desperate situation and needed the form filled out as soon as possible. The Complainant stated that the Respondent refused to sign the form and that the Respondent again insisted that he would need to have his Solicitor look over the form before he would sign anything. The Complainant requested the Respondent to arrange for his Solicitors to look over the form. The Complainant stated that on the 24th December, 2018 he also emailed the form to the Respondent. The Complainant received no response.

The Complainant furnished copy of a number of text messages and emails exchanged between him and the Respondent which included the following:

·         5th November, 2018 from Complainant to Respondent: “….I was hoping to apply for rent allowance…..I was wondering would you or agent mind filling in the landlords part of the application?”

·         5th November, 2018 from Respondent to Complainant: “Who are you applying for rent allowance to?”

·         5th November, 2018 from Complainant to Respondent: “Social welfare services”

·         7th November, 2018 from Respondent to Complainant: “…..Just following up our text on Monday. Can you give me more details on what you were saying?

1.       When were you looking for this to start

2.       Who would be paying the shortfall of the rent

3.       Presume this takes months to get approved

4.       What percentage would the other party pay?”

·         7th November 2018 from Complainant to Respondent: “I’d be looking for it to start as soon as possible. Nothing would change for you, I would receive money towards my rent into my account. I would be still covering €450 a month. So basically, I’m entitled to about €230 a month in assistance towards the total. So other than filling out the form, it won’t affect you. If that works for you?”

·         13th November 2018 from Complainant to Respondent: “Just wondering if you had a chance to look into that for me?”

·         16th November, 2018 from Complainant to Respondent: “Hi….did you get a chance to go over my application”?

·         16th November, 2018 from Respondent to Complainant: “Hey can u resend Didn’t receive it”

·         24th December 2018 from Complainant to Respondent: “Just to follow up, here is a link to the government website. I’ve also attached a PDF…...http://www.welfare.ie/en/pdf/swa_rs1pdf”

·         3rd February 2019 from Respondent to Complainant: “….just wanted to give you notice that my brother is going to move into your room, so unfortunately I have to give you notice to move out. Never easy to send this message”

·         3rd February 2019 from Complainant to Respondent: “That’s okay, when is he moving in?”

The Complainant provided copy of the notice of termination from the Respondent which was dated 31st January, 2019. In the notice of termination the Respondent stated: “As you have been in the house for less than 2 years you have 42 days to vacate the premises, therefore this will mean you moving out on the Monday 18th March 2019. The reason for me wanting the room is that a member of my family is going to move into the house…..he is my younger brother…”.

Thereafter, there were further exchanges by text and email between the Complainant and the Respondent in relation to the arrangements for vacating the premises and other matters such as the state of the premises and outstanding monies for bills, rent and the deposit.

In an email of the 20th February 2019, the Complainant informed the Respondent that it had “been quite a stressful period the past few weeks since receiving your notification to vacate the premises” and he confirmed he would be leaving before the 4th March, 2019. In a response email of the 21st February, 2019 the Respondent stated that he appreciated “that it can’t have been easy for you to find another place in such a short period” and asked the Complainant if he could move out on the 3rd March as the lease had commenced on 4/7/2017. The Complainant replied by email of the 24th February, 2019 and stated, inter alia, that “Moving out on the 3rd is no problem…..”.

On the 13th March, 2019 the Respondent forwarded the Complainant   with copy of a message which had been sent by the new tenant to the Respondent. This new tenant’s message complained that the premises took longer than expected to be cleaned, that the room wasn’t ready to be moved into, that the shower required cleaning, that there was a damp spot on the ceiling and rust in the microwave. The Complainant replied to the Respondent asking why he was forwarding on his brother’s message and asking for some context in this regard. The Complainant also sought return of his deposit.

The Complainant stated that he never had trouble with landlords before then. He stated that at the time of his eviction, he took the Respondent at his word that his brother was moving in and accordingly, he proceeded to vacate the premises and co-operate with arrangements in that regard. However, due to his concerns about the Respondent’s retention of some of the deposit money, the Complainant made a complaint to the Residential Tenancies Board (RTB) on the 21st March, 2019. The Complainant provided me with copy of the RTB Adjudication Report and Determination Order. The Complainant pointed to the conclusions of this Adjudication Report which included the finding that the Respondent Landlord’s brother did not in fact move into the premises and that the offer to the brother was made after the serving of the notice of termination of the 31st January, 2019 on the Complainant. In this regard, the RTB Adjudication Report notes that “[The Respondent] in his written submission accepted he had terminated the tenancy in order for his brother to move in but advised that, due to personal circumstances, his brother had not in fact moved in. [The Respondent] submitted a copy of the email he sent to his brother on the 14th February 2019…..by way of evidence he had offered the property to his brother”. The RTB Adjudication Report went on to state: “Looking at the email……it seems the Landlord sent an email to his brother on the 14th February 2019 offering the property to him. It seems from this email, the offer of the property to the Landlord’s brother only came after the serving of the termination Notice on the 31st January, 2019, and, as such, it appears there was nothing concrete arranged. The termination of a Tenant’s tenancy, for whatever reason, is a very serious step and can have far reaching consequences. For this reason, it is not open to a Landlord to terminate a tenancy, in the hope a family member might move in and the information required in a notice is quite comprehensive for this purpose”.

The Complainant stated that on the 23rd April, 2019 he posted hard copy of his WRC complaint to the Respondent – though the complaint wasn’t received by the WRC until the 30th May, 2019. In that regard, the Complainant furnished copy of a receipt from An Post confirming that an item was posted on the 23rd April, 2019 and setting out the tracking number. The Complainant also furnished copy of An Post’s tracking results which showed that an item was delivered on the 26th April, 2019.

It is the Complainant’s position, that he was discriminated against for inquiring about and seeking to pursue a supplementary welfare allowance rent supplement and that he was evicted on the pretence that a family member needed accommodation. In his submission the Complainant outlined that this period was very stressful for him and that he suffered both physically and mentally. He stated that he had a chronic medical condition and that the stress of the situation impacted on this, that he had to put off corrective surgery due to the financial pressures he was under at the time, that he was unable to afford his medication and that he had to give up his car. He stated that he was ill and exhausted from the situation. The Complainant stated that in the end he had no option but to sublet an apartment from a work colleague which was only available for a few months, was more expensive than he could afford and was extremely impractical.

As already noted the Respondent did not attend the adjudication hearing on the 7th January, 2020. The Respondent had emailed the WRC on the 1st July, 2019 and confirmed that he had received correspondence from the WRC related to the case. The Respondent advised of his new address for correspondence and also advised that he wished to consult his father who is a Solicitor. In the 1st July, 2019 email the Respondent also stated: “However, I did speak to one of your colleagues this morning in your offices to explain this, and I had told her that I had already paid out monies to [Complainant] as a result of an adjudicator dealing with this case via the Residential Tenancies Board……”.

The Respondent emailed the WRC again on the 14th January, 2020 and advised as follows:

“Following receipt of your email dated 10th January 2020 in respect of the complaint / dispute…..over a discrimination case under the Section 21 Equal Status Act 2000. I wanted to apologise for not been present for the Adjudication hearing on the 7th January 2020….due to work commitments….  For the record I wanted to state that I have paid….. compensation to [Complainant] for a previous complaint via the PRTB…..  I have attached the Adjudication Report for your information and a text to confirm payment…..”

The Respondent furnished copy of the Residential Tenancies Board Adjudication Report and copies of various text messages.

I have been asked to decide whether the Complainant was discriminated against on the Housing Assistance ground contrary to the Equal Status Act [2000-2020]. In the first instance, I wish to consider the application of Section 21 of the Act which states as follows:

“21.—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission…..

(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, 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….. 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…… 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…..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…..shall not investigate a case unless the Director of the Workplace Relations Commission ….. 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.

(5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2)……”.

At the adjudication hearing the Complainant stated that he posted copy of the WRC complaint form to the Respondent on the 23rd April, 2019 whilst on his Complaint Form to the WRC of the 30th May 2019, he confirmed that he had notified the Respondent on the 23rd April 2019 using the ES 1 Form. The Complainant provided evidence of postage via an An Post receipt and an An Post tracking result to confirm delivery on the 26th April, 2016.

In terms of the prohibited conduct complained of, I decide this was the formal notice of termination of the Complainant’s tenancy to take effect on the 18th March, 2019. In accordance with Section 21(2)(a) above, I am satisfied that the last occurrence of the alleged prohibited conduct was on the notified date of moving out – ie the 18th March, 2019 – notwithstanding that the Complainant agreed to and did move out earlier on the 3rd March, 2019.

In relation to the matter of notification the Form ES 1 is titled “The Equal Status Acts, 2000-2015 Notification” and it provides for details to be entered such as the name and address of the complainant and respondent, details of the complaint and the discrimination ground(s) being cited, it provides an opportunity, if a complainant so wishes, to question the respondent and the Form also includes a statement of intent on the part of a complainant, to seek redress pursuant to the equal status legislation. The WRC has published a Question & Answer type guidance on using Form ES.1 and in this regard, I note the following which clarifies that use of the Form ES 1 is not a statutory requirement:

“[Q] 3. Do I have to use Form ES.1 to notify my complaint?

[A] No. There is no obligation to use this particular form. It is designed to make it easier for both parties to comply with the provisions of the Equal Status Acts concerning notification, request for information, and reply. But you can write your own notification, provided it complies with all the requirements of the Equal Status Acts”

The WRC Complaint form requires the following particulars to be inserted: Complainant Details, Employment Details, Pay Details, Respondent Details, Specific Complaint/Complaint Specific Details or Statement which requires the grounds for the complaint to be set out and the selected redress option.

The matter of notification was considered in the case of Andrew Ennis -V- Navan O'Mahony's Football and Hurling Club [DEC-S2010-031] in terms of the purpose of notification and whether the notification requirement could be dispensed with as provided for at Section 21(3)(a)(ii) of the Equal Status Act [2000-2020]. In that regard, the Equality Officer stated:

“In all the circumstances of the present case, then, in order to consider the application of Section 21(3)(a)(ii), I must consider whether the respondent has been prejudiced by the failure to meet all the notification requirements. In my view, the purpose of the notification is two-fold: 1) to make the respondent aware that a complaint was pending and 2) providing it with an opportunity to respond to the allegations of the complainant. It requires four conditions: 1. That the respondent is notified of the nature of the allegation; 2. That the respondent is notified of this within two months of the alleged incident in question; 3. That the respondent is provided with at least a month to respond to the allegation; 4. That the complainant indicates to the respondent his intention of invoking the provision of the Acts with regard to the matter viz. bringing a complaint to the Tribunal…….

“…….it appears to me that it was the intention of the Oireachtas to ensure that a potential complainant made a potential respondent aware of the seriousness with which (s)he took her/his allegation, to the extent that (s)he would make a complaint to the relevant legal forum if (s)he did not receive satisfaction in relation to it….”

In all the circumstances, I am satisfied the Respondent was notified of the complaint on the 23rd April, 2019 in accordance with the requirements of Section 21 of the Equal Status Act [2000-2020]. No evidence to the contrary has been presented to me.

The Respondent did not reply to the Complainant’s notification of the 23rd April, 2019, however in accordance with Paragraph 21(4) of the Equal Status Act [2000-2020], I am satisfied that at least one month elapsed after the WRC complaint form was sent to the Respondent and before the complaint was lodged with the WRC on the 30th May, 2019. I am also satisfied that the notification to the Respondent was made on time – ie within two months of the 18th March 2019, that being the last date of the prohibited conduct complained of. The Complaint to the WRC was also made within six months of the 18th March, 2019.

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. Having been made unemployed, the Complainant was eligible to apply for rent supplement which allowance is a protected ground as per Section 3(3B) of the Equal Status Act [2000 – 2020] cited above. The Respondent failed to complete the landlord’s section of the SWA RS1 application form which is a requirement for the payment of rent supplement notwithstanding the repeated requests of the Complainant in this regard. In the circumstances, I find the Complainant has established a prima facie case of discriminatory treatment on the housing assistance ground.

I must now consider whether the Respondent has rebutted the prima facie case raised by the Complainant. The Complainant was a tenant of the Respondent from the 4th July, 2017. The Complainant has outlined the several exchanges which took place between him and the Respondent between November, 2018 and the 3rd February, 2019. I am satisfied from the content of the text messages and emails that the Respondent could not have been in any doubt but that the Complainant was seeking his co-operation in completing the SWA RS1 application form. The Respondent’s only substantive reply after the 7th November, 2018 was by text message on the 3rd February, 2019 wherein he informed the Complainant that he wished to give him notice that his brother was moving into the Complainant’s room in the house. This was followed by the Respondent’s notice of termination of tenancy of the 31st January, 2019 to take effect on the 18th March. Given the proximity of the Complainant’s various requests to complete the SWA RS1 application form and the notice of termination of the Complainant’s tenancy, I find that the termination was connected to the application for rent supplement. In coming to this conclusion, I have taken on board the reluctance of the Respondent to meaningfully engage with the Complainant about his SWA RS1 application, the Respondent’s repeated statements that he wished to consult his Solicitor but notwithstanding, that he did not revert with any legal opinion or position to the Complainant on the matter, the message forwarded by the Respondent to the Complainant from the new tenant which was unlikely to have been from his brother, the RTB Adjudication Report which included confirmation from the Respondent himself that his brother had not in fact moved into the Complainant’s room and which also found that the notice of termination of the 31st January, 2019 preceded the offer of the room to the Respondent’s brother.

Having concluded that the termination of the Complainant’s tenancy was connected to his application for rent supplement, I am of the opinion that the issuing of the notice of termination raises an inference of discrimination.   I am satisfied that the Complainant has established that he was treated less favourably than another person who did not require rent supplement would have been treated. Accordingly, I find that the Complainant has established a prima facie case of discriminatory treatment on the housing assistance ground which the Respondent has failed to rebut.

Lastly, I have considered the Respondent’s communication of the 14th January, 2020 to the WRC wherein he advised that he had already “…..paid….. compensation to [the Complainant] for a previous complaint via the PRTB….”. With regard to this, I am in agreement with the Adjudicator’s statement in case ADJ-00009960, wherein the following was clarified:

“The complaint made under the Equal Status Acts 2000-2015 by the Complainant is of discrimination or less favourable treatment due to the Complainant being in receipt of rent supplement. This is a separate statute to the Residential Tenancies Act 2004 and separate causes of action. All Tenants irrespective of receipt of rent supplement are entitled to peaceful enjoyment of their Tenancy when compliant with the terms of their lease. However, only Tenants who access housing assistance or social welfare benefits come within the housing assistance ground under the Equal Status Acts 2000-2015. In addition, S196 of the Residential Tenancies Act 2004, provides that nothing in the Act operates to prejudice the powers under Part III of the Equal Status Act to award redress in the case of conduct prohibited by S6 of the Equal Status Act 2000-2015.”

This legal distinction is reiterated in the Report of the RTB Adjudicator furnished to me by both the Complainant and the Respondent, wherein she stated:

“Finally, in relation to the alleged failure by the Landlord in terms of having no obligation to sign such papers, this is not entirely correct. Since the 1st January 2016, a Landlord cannot discriminate against a Tenant on the basis that the Tenant is in receipt of ‘housing assistance’ such as HAP or other social welfare payments. However, jurisdiction in relation to the hearing of such complaints lies not with the RTB but with the Workplace Relations Commission and, as such, I make no determination as to whether or not such discrimination may or may not have occurred.”

In all the circumstances and having considered all the submissions, oral and written, I find that the Respondent discriminated against the Complainant contrary to Section 6 (1)(c) of the Equal Status Act [2000 – 2020] - on the grounds set out at Section 3(3B) of the Act. I find that the Respondent denied the Complainant the opportunity to avail of rent supplement with the result that the Complainant endured financial detriment and hardship.

The complaint is therefore well founded.

Section 25 of the Equal Status Act [2000 – 2020] requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Pursuant to Section 27, I order compensation of €7,000 to be paid by the Respondent to the Complainant for the effects of the prohibited conduct.

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

A Former Tenant V A Landlord