Complainant

Respondent

Parties

Kinga Zreik

John Dalton, Dalton & Co

Representatives

Karl Gill, CIS

N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030104-001

07/08/2019

The complainant rented a property since April 2015 with her husband. Having been made aware in November 2018 that they qualified for HAP, they were unable to get the requisite form signed by the respondent despite having made numerous efforts to do so. She alleged that this failure to sign the form constituted discrimination under the Act.

The complainant rented a property along with her husband from April 2015. She claimed that the rental was arranged through the respondent who also managed the property on an ongoing basis. In November 2018, having been informed that they qualified for HAP, her husband contacted the respondent and requested that he ask the landlord to sign the relevant form to enable them to receive the payment. Having received no response for 2 weeks, the complainant’s husband again contacted the respondent who informed him that the landlord was on holiday. He also followed up by text message with the respondent on 17th December but received no reply.

Having still received no response, the complainant’s husband visited the respondent’s office on February 28th 2019 to inquire if he had spoken to the landlord about signing the HAP form. Having been informed by the respondent that he had not seen him, the complainant’s husband asked him to send out the form to the landlord by post. Subsequently, on 16th April 2019, a termination letter signed by the respondent in his capacity as letting agent was sent to the complainant and her husband informing them that the tenancy would end on 15th July 2019. Having received the letter, the complainant’s husband telephoned the landlord directly but was informed that he should speak to the respondent instead.

On 17th April the complainant met the respondent to discuss the termination letter and asked why the landlord had not signed the HAP form but was informed that he did not need to sign it. When she asked the respondent to return the form to her, he informed her that it had been retrieved by her husband, which she disputes. It was claimed that the complainant and her husband lost out on HAP of €8,518 due to the requisite form not being signed.

The respondent denied that he was the managing agent for the property and stated that the rental payments were made directly to the landlord. He said that he only dealt with issues and fixed items in the property as a favour to the landlord because his office was very close by. He also stated that he did not receive any money from the landlord either for any visits he made to the property or in respect of managing it.

The respondent accepted that the complainant’s spouse presented him with a form to sign to enable both her and her spouse to receive the HAP and agreed that they had followed up with him on numerous occasions. He said that when the form was firstly presented to him in November 2018 he informed the Complainant’s husband that he had been talking to the landlord’s advisor and did not know if they would be in a position to renew the lease. He also stated that he told the Complainant and her husband that he could not sign the forms because he did not manage the property. He also alleged that when the complainant’s husband met him in February 2019, he offered him money to sign the forms.

The Applicable Law

The sole issue for determination in this complaint 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 its actions.

Section 3 of the Equal Status Acts states that:

3.— (1) 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,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

[…]

(3B) 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 ” ).

Specifically, on vicarious liability, the Acts state that:

42.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employee’s knowledge or approval.

In relation to the applicable burden of proof, Section 38A of the Acts 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.

Findings

I am satisfied that this complaint is properly before the WRC and has been brought within the requisite time-limits provided by Section 21 of the Acts, including those for giving notice of a complaint and referring the complaint.

I note that the complainant, along with her husband, was a qualified applicant for housing assistance payment (HAP) and is therefore covered by the prohibited ground. I note that the Respondent accepted that the complainant’s spouse presented him with a form to sign to enable both him and the complainant to receive the HAP and that they had followed up with him on numerous occasions but that he failed to sign the forms. I therefore find that the complainant has established a prima facie case of discrimination on the housing assistance ground and must consider if the Respondent has rebutted the prima facie case.

In his evidence, the respondent stated that he refused to sign the HAP application form because he did not manage the property. The complainant and her husband disputed this however and highlighted that if there was any issue with the property or something needed to be fixed, they contacted the respondent. While he stated in his evidence that he only dealt with issues because his office was very close to the property, I also note that the tenancy termination notice dated 15th April 2019, which was presented to me by the complainant and her husband, was signed by the respondent in his capacity as “Landlords (sic) Agent”. I further note that when the complainant’s husband telephoned the landlord to inquire as to why the lease was being terminated, he was instructed to contact the respondent.

I am satisfied therefore that the Respondent was the managing agent for the property and that he failed to rebut the prima facie case.

I have concluded my investigation of this complaint and for the above reasons find, pursuant to Section 25(4) of the Acts, that the complainant was discriminated against on the housing assistance ground and that the Act was therefore contravened.

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

Under the above Section, the maximum amount of compensation I can award is €15,000. In considering the amount, I have noted the effects of the discriminatory treatment on the complainant, the loss of the HAP financial support, namely €4,259 (50% of €8,518), and the detriment she suffered because of the financial pressures she experienced. In all of the circumstances, I find that an award of €5,500 is appropriate. For the avoidance of doubt, this is a separate award to that made to the complainant’s spouse in ADJ 23539.