Complainant

Respondent

Anonymised Parties

A Tenant

A Letting Company

Representatives

Stephen Collins, Irish Human Rights and Equality Commission

No Appearance by or on behalf of the Respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030233-001

14/08/2019

On 14 August 2019, the Complainant submitted a complaint of discrimination on the grounds of Housing assistance. He submitted that in the course of securing a property rental in April 2019, he lost the tenancy due to his reliance on Housing Assistance Payment (HAP).

An ES1 was forwarded to the Respondent, a Letting Company on 26 June 2019 which did not receive a response.

Solicitors for the Respondent came on record on September 27, 2019

On 30 December 2019, the parties were notified of a forthcoming hearing scheduled for 27 January 2020.

The Respondent sought and was granted an adjournment on 9 January 2020. A new hearing date issued on 19 January 2020 inviting both parties to a hearing in the case on 4 February 2020.

On 24 January 2020, the WRC received an email from the Respondent Solicitors indicating that neither the Respondent nor her advisors could attend the hearing. The email referred to an offer of payment of a sum of money.

On 27 January 2020, the WRC scheduling Department notified the respondent solicitors of the protocol surrounding application for postponement. There was no further response from the solicitors and there was no attendance by or on behalf of the respondent at hearing on 4 February, 2020.

I have decided to exercise my discretion as an Adjudicator and have anonymised my decision. I have done this in consideration of the unique circumstances put forward by the Complainant at hearing.

I received the requested documents post hearing from the complainant.

The Solicitor for the complainant outlined the background to the claim for discrimination on housing grounds. The complainant is a 32-year-old Father of a then 2-year-old Daughter who shared custody with his former partner. He had been HAP approved in a separate City and had moved to Dublin to secure work. He had commenced work in Spring 2019 in an area of his special interest and was actively seeking accommodation. He had spent the first month of this work in shared accommodation. It was a priority for him to find accommodation to allow him to host his daughter.

The property at the centre of this case was advertised on a Rental Website and he arranged to view the property on 29 April 2019.

He had agreed terms for the tenancy and on disclosure of his HAP status, the respondent expressed displeasure with this disclosure as she told the complainant that the Landlord did not like HAP and the complainant ought to have informed her earlier of this status.

The Respondent eventually agreed to press ahead with the tenancy on payment of one month’s rent in advance. When the complainant sought to secure performance of this Agreement he was informed by the Respondent that the Landlord had engaged in a direct rental to another party, not the complainant.

The Complainants representative submitted that the complainant ha been treated less favourably on housing grounds and this treatment was egregious warranting sizeable compensation for the distress endured by him.

He recounted that pursuance of the identity of the Landlord had been arduous and had been obstructed by the respondent. He clarified that separate proceedings were currently live against the Landlord.

Complainant Evidence:

The complainant had applied for social housing in October 2018 and had been placed on the Housing list in November 2018. He was deemed eligible to apply for Housing Assistance Payment (HAP) and was approved for a 1-year period.

He had been actively looking for work and found work in March 2019 in a different city. He viewed a rental property on 29 April 2019 and understood that he had impressed the Letting agent. He was asked whether he was to be the sole tenant and he clarified that his daughter would be there also. He recalled being asked what he worked at. He recalled spending a period of 26 minutes at the property inclusive of 10 minutes queuing time,

He forwarded his references and the Letting agent agreed to rent him the property the next day.

“delighted to confirm the landlord of Property A will rent the property to you, the rent is €1,400, deposit €1,400, move in straightaway.

To proceed please pay the deposit to [the letting agent bank details]

On receipt, we will draw up contracts, sign and exchange keys at the Respondent Property, …and on receipt of a first month’s rent.

The Complainant transferred the deposit and followed up the transaction for the next step. He was requested to determine his availability to sign contracts, collect keys and pay a month rent.

The complainant responded by declaring his HAP status:

“I am on HAP and think they pay at the end of the month, but obviously the landlord is paid from the time he signs the forms (I will bring them tomorrow)

The Letting agent, Ms A phoned him and said that he ought to have mentioned his HAP status sooner as the Landlord did not like HAP. The complainant sought to counter this exclusion and eventually Ms A agreed to the tenancy on payment of the first month’s rent upfront.

The complainant secured this money and paid the amount on 30 April 2019.

The complainant exhibited an extract from the respondent website which introduced Ms A as a Director of Sales and Letting.

He emphasised the following extract:

Securing the right tenant for your property is a task we take seriously. As well as our large database of tenants currently looking for accommodation, we have strong relationships with relocation agents specialising in corporate tenants, giving us access to a steady stream of qualified, suitable tenants. To reach the highest quality tenants, we constantly review and advise on new marketing strategies to engage with the right audience.

He arranged to call to the respondent office next day to sign the contract and pick up the keys. He was provided with the contract of 15-24 pages, which he signed, but did not retain. Following a five-minute period, an agent of the respondent informed him that the Landlord had allocated the property to someone else. His HAP form was returned to him.

The complainant contacted Ms A by phone to seek to retain the property he had agreed with her but got nowhere. Ms A told him that the Landlord had done this before in their 15-year business relationship. Ms A offered him the potential for a 2-bed property for €1,600 but his HAP limit was €1,500.

The complainant was aghast at this development as he was sure that he had secured a home for both he and his daughter. He sought to address the Respondent by email dated 2 May.

In this letter, he submitted that the actions against him by the respondent were “unfair, illegal and discriminatory” He requested performance of the Agreement on behalf of both he and his daughter.

The Respondent replied by email dated May 6, 2019 and reaffirmed that the property had been rented by the Landlord in person. The complainant was requested to submit hi bank details to secure a refund.

The Complainant reluctantly agreed to the refund to those he had borrowed from without prejudice to his rights to advance his case. At the same time, he was faced with the immediate challenge of not being able to provide a base to host his daughter and he faced losing her. His mental health suffered greatly as a result.

He began to seek to establish the name of the Landlord, but this was withheld by the respondent.

He filed ES1 on 26 June 2019 and sought to again the identity of the Landlord. The Respondent replied on July 10, suggesting that it would contravene GDPR Regulations to reveal the Landlords c contact details. Ms A, the scribe, indicated that she was not aware who Property a had been rented to.

The IHREC came on notice for the complainant after that and the Landlords name was revealed on 16 September 2019.

The complainant catalogued the detrimental effect of his exclusion from the Tenancy which he attributed directly to his Housing Ground. He had been pursuing a fresh start after a difficult personal experience. He had secured work in his chosen area and the apartment at Property A would have been a 7-minute walk away. He had benefitted from sizeable good will from friends and acquaintances in supporting him and this was coming to an end. He needed his independence for his life and the custody arrangements for his daughter.

As a direct consequence of walking into the respondent premises on April 30, and experiencing the outright rejection of his agreed tenancy, he experienced an emotional set back and trauma which caused him to leave his job, suffer increased anxiety, move home and a complete withdrawal from the world. This has taken him a considerable period to recover from. He contended that he was treated badly simply because he was a HAP client. He had no knowledge of the successful tenant. He was clear that he was not requested to discuss housing support as a consideration in the context of the tenancy during the first engagement on 29 April.

He later confirmed that his daughter has since relocated abroad much to his sadness. The complainant confirmed that he has recently relaunched in Education with positive feedback.

Mr Collins for the complainant resumed his submission and submitted that section 2 of the Equal Status Acts defines a person as including “an organisation, public body or other entity. The Respondent is the correctly named mark in the case.

As per section 3(b) and section 6(1) (c) of the Act, the facts as disclose by the complainant gave rise to a prime facie case of discrimination on housing assistance grounds.

The respondent had been on notice of all the complainant’s identification and references on 29 April 2019. The complainant understood that he was to be provided with his agreed tenancy. He was not aware that there was a waiting list or that his tenancy was anything but agreed. He was told that the apartment had been given to another but did not receive any proof of this.

The representative argued that this was not a defence for the respondent as section 42(2) of the Act establishes the Landlords vicarious liability. Therefore, Ms A is directly liable for the discrimination and the Landlord is vicariously liable. The IHREC noted that section 13 of the Act establishes it a criminal offence for one person to procure another to engage in discrimination on their behalf. this reflects the seriousness of the issue. He contended that the four-month period expended to seeking to secure the name of the Landlord was injurious to the complainant.

An abundance of caselaw was opened to the hearing with special reference to the analogy of the circumstances in Sarah Jane McConnell and Horan Estates ADJ 24143.

The Representative reflected on the poignancy of the circumstances where the complainant was unable to find alternative accommodation which resulted in a personal crisis of grave proportions.

He sought a maximum award of compensation.

The Respondent Solicitors notified of their intention to take instruction in the case on September 27, 2019.

A Postponement was granted for the hearing scheduled for 27 January 2020 and the parties were invited to attend a hearing on 4 February 2020.

On 24 January 2020, the Respondent appointed solicitors sent an email to WRC denying any wrongdoing and refuting any complaint made. They indicated that they had attempted to contact the complainant Representative and offered to pay €1,400, the value of one months rent to the complainant. They closed by stating that the Respondent nor her advisors could attend the hearing.

The WRC scheduling Dept responded by outlining the protocol surrounding application for postponement. No further contact was received from the Respondent or the Solicitors.

I have considered the written and oral submissions presented by the complainant in this case. I was disappointed not to meet the Respondent or the Company Solicitors. From a careful review of the file, I note that the Respondent was on full notice of this claim from 30 August 2019 and appointed Solicitors to address the claim on or around 27 September 2019.

There was no visible sign that the respondent had difficulty with this claim until 24 January 2020. By then one postponement had been granted at the request of the respondent.

On 24 January 2020, the Respondent representative made a written offer to the complainant of €1,400 via the WRC but qualified this with a declaration of unilateral unavailability for a hearing in the matter. Despite a firm invitation to apply for an adjournment, the respondent neglected to engage further with the WRC.

I found this to amount to a staggering disrespect for a statutory Tribunal by the respondent. I was unable to validate the email of January 24, 2020.

It is important for me at this stage to reflect the Legislative back drop for this case as the Equal Status Act 200-2011 as amended. The short title of which reflects:

AN ACT TO PROMOTE EQUALITY AND PROHIBIT TYPES OF DISCRIMINATION, HARASSMENT AND RELATED BEHAVIOUR IN CONNECTION WITH THE PROVISION OF SERVICES, PROPERTY AND OTHER OPPORTUNITIES TO WHICH THE PUBLIC GENERALLY OR A SECTION OF THE PUBLIC HAS ACCESS, TO PROVIDE FOR INVESTIGATING AND REMEDYING CERTAIN DISCRIMINATION AND OTHER UNLAWFUL ACTIVITIES, TO PROVIDE FOR THE ADMINISTRATION BY THE EQUALITY AUTHORITY OF VARIOUS MATTERS PERTAINING TO THIS ACT, TO AMEND THE EMPLOYMENT EQUALITY ACT, 1998, IN RELATION THERETO AND IN CERTAIN OTHER RESPECTS AND TO PROVIDE FOR RELATED MATTERS. [26 th April, 2000]

In her book Equal Status Acts 2000-2011, Judy Walshe in Chapter 3 reflects:

The basic idea behind direct discrimination prohibition is that individuals should be treated according to their actual characteristics rather than based on prejudicial or stereotypical assumptions. It should operate as a means of eliminating illegitimate considerations from service providers processes and practices …. less favourable treatment is sometimes overt, but it can also be unconscious or unintentional.

It is difficult to decide on facts which are put forward by one side alone.I am satisfied that the Respondent was on full notice of the claim and notification of hearing . In this, I am mindful of the musings of Tom Bingham in chapter 8 of his book the Rule of Law.

“It would seem to be an obvious implication of the principle that everyone is bound by and entitled to the protection of law that people should be able, in the last resort, to go to court to have their civil rights and claims determined. An unenforceable right or claim is a thing of little value to anyone.

In Utopia, it may be, civil disputes would never arise: the citizens would live together in amity and harmony would reign. But we live in a sub utopian world, in which differences do arise, when there is dishonesty, sharp practice, malice, greed, or obstinacy on one side or the other. Those qualities are not, of course unknown among litigants. But it is possible for perfectly reasonable and well-motivated people to hold very different views on the meaning of a contract or a conveyance or a will. Or about the responsibility for an accident, or about the upbringing of children, the use of a footpath, application of Act of Parliament or the decision of a Minister or Local Government officer. And the need is for a binding decision. It is not in the interests of those involved in the dispute or of society as a whole that victory should go to the stronger (in modern terms, the part who can send in the best armed heavies) “

I was assigned this case to investigate the circumstances that surround this claim for discrimination on Housing Assistance Grounds. My preference would have been to have heard from both parties at hearing. That was not to be. I pressed on with my investigation having heard from the complainant and his representative which was followed by my own inquiry on the facts submitted.

The Housing (Miscellaneous Provisions) Act, 2014 made provision for HAP. It covers a Housing Authority payment of rent for a dwelling to a landlord on behalf of a qualified household, which covers a “household qualified for social housing support in accordance with Section 20 of the 2009 Act”.

Section 39 of the 2014 Act specifies the conditions of HAP being a discretionary payment providing that

(a)    The household sources the dwelling

(b)    Dwelling meets the conditions set down in Section 41

(c)     Landlord shall comply with the conditions set down in section 42

(d)    Member of qualified household who as tenant shall pay a rent contribution

(e)    Housing Authority shall be satisfied that the tenancy concerned is or would be a tenancy in good faith

HAP is a statutory scheme which is interspersed with the private rental market in the reality of insufficient supply of social housing. The Complainant had been on a waiting list for social housing since November 2018. He had been sanctioned to apply for HAP and submitted that it had been granted for a one-year period. He contended that it was transferrable between residential city locations. I am satisfied that the complainant had a defined housing need and is covered by the ground of Housing Assistance.

This case has raised an issue regarding “the Housing Assistance Ground “set out in Section 3(3)(b) of the Act.

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 ”

The Legislative provisions of Section 6 are important to the context of this case. Section 6(1) of the Equal Status Act 2000(as amended by the Equality Miscellaneous Provisions Act, 2015, provides that:

A person shall not discriminate in:

(a)    Disposing of any estate or interest in premises

(b)    Terminating any tenancy or other interest in premises

(c)     Subject to 1(a) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities

Section 6(1) (c) is without prejudice to the provisions to any enactment or rule of law regulating the provision of accommodation or the right of a person providing accommodation to “make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.”

There are exceptions to Section 6(1) noted in Section 6(2) of the Act.

Rent Supplement is outlined in Section 6(8) of the Act as “a payment made under Section 198(3) of the Social Welfare Consolidation Act, 2005 towards the amount or rent payable by a person in respect of his or her residence.

Section 3 of this Act addresses the provisions of Prohibited Conduct.

. — (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,

The Legislative provisions of Section 6 are important to the context of this case. Section 6(1) of the Equal Status Act 2000(as amended by the Equality Miscellaneous Provisions Act, 2015, provides that:

A person shall not discriminate in:

(a)    Disposing of any estate or interest in premises

(b)    Terminating any tenancy or other interest in premises

(c)     Subject to 1(a) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities

Section 6(1) (c) is without prejudice to the provisions to any enactment or rule of law regulating the provision of accommodation or the right of a person providing accommodation to “make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.”

Section 5(1) of the Act prohibits discrimination in the provision of services.

I am required to establish whether the complainant has satisfied the burden of proof in this case.

Burden of proof.

38A

38A. — (1) Where in any proceeding’s facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

I listened carefully as the detailed chronology of the facts of the case unfolded. I found the complainant to be a credible witness and I could see at first hand that his recollection of events triggered a certain level of trauma at hearing. I accept his evidence on this chronology.

My attention was drawn to his exhibit on the Mission statement of the respondent business and the quest for” qualified and suitable” tenants. I found these subjective criteria lacking in transparency and probed the complainant on how he experienced their application in this case. I am satisfied that he was not requested to comply with any in-depth probe on qualification and suitability for tenancy outside the submission of references and the financial settlement of rent and deposit, all of which he complied with. Inquisitorial documentation did not accompany this application for tenancy in the 26-minute encounter at viewing. I accept that he was asked what he worked at and the answer he gave did not seem to prompt further enquiry. The question itself suggests a high level of discretion.

In looking for evidence of discrimination, as Walshe states, it may not be overt or intentional. It is best practice for letting agents to have a veritable set of documents to accompany the application for tenancy process. An over reliance on oral engagement makes it difficult to investigate in the absence of both parties.

From the uncontested evidence adduced at hearing, followed by my inquiry, I am satisfied that the Respondent agreed initially to provide a service to the complainant. This places the investigation firmly within the parameters of the Act.

This position on provision of service appears to have altered within 24 hours on the mention of HAP. This resolved later in the day on the joint agreement that the complainant would forward one month’s rent in advance to secure the tenancy. I note that he relied on family and a work colleague to assist him in finding these funds.

He forwarded the down payment and took an extended break next day to sign the contract. I did not have the benefit of this document, but I am satisfied from the complainants uncontested evidence that he signed this document at the respondent premises but neglected to retain a copy.

The Complainant subsequently lost the tenancy when he was informed that the Landlord had stepped in to give Property A to another unknown person.

I am satisfied that this turn of events was directly attributed to the complainant’s disclosure of his HAP status. The complainant has been consistent in his chronology across written and oral submissions. I accept that he was informed that the Landlord did not like HAP and that he was chastised for his late disclosure of his HAP status. I accept that he had no idea that it would jeopardise his tenancy and I accept that he did all in his power to influence the respondent to change course on the tenancy. He almost succeeded.

I am also satisfied that both he and his representative engaged in a meaningful bid at resolution of this dispute but were obstructed by the respondent in their non engagement.

To have a housing need carries a certain vulnerability. The Government body had sanctioned the Complainant for a Social House but did not have one available to allocate. HAP is a stop gap between Homelessness and Housing and is an empowerment for tenants and a commercially sound transaction for Landlords. A Universal declaration of dislike of HAP coupled with withdrawal of service constitutes a blanket ban.

I am satisfied that the complainant has raised facts from which I can infer that discrimination occurred. The prohibited conduct was the withdrawal of service of tenancy on grounds of Housing Assistance. The tenancy was clearly for the benefit of the complainant and his daughter and its arbitrary withdrawal had devastating consequences.

The burden of Proof now falls to the respondent.

Section 42 of the Act provides an outline of the obligations for the respondent in this case.

 Vicarious liability.

42

42. — (1) Anything done by a person during 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.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee —

(a) from doing that act, or

(b ) from doing in the course of his or her employment acts of that description.

The Complainant has relied on the application of section 42(1) in this regard. There is a defence open to the Respondent in section 42(3)

The Respondent has not lodged a defence to the claim. I did not have a concrete response to the very elaborate and detailed ES1 form and I have drawn inferences from that omission.

I find that the actions of the respondent are comprehended by the provisions of section 42(1) of the Act. I would have liked to have obtained some feedback on whether the second suggestion of accommodation for €1,600 amounted to an actual offer. The complainant was not mandated to provide that answer.

In Anne Joyce v Michael Ryan Funeral Directors DEC-S2014-012, the then Equality Officer considered two core issues in a case where the respondent agreed to provide a funeral service for a 14-year-old member of Travelling Community before resiling from that agreement

1.whether or not the respondent agreed to provide a service to the complainant?

2 whether or not the respondent then withdrew that provision based on his membership of the Travelling community?

Both questions were answered in the affirmative.

I found a number of overlaps in the present case.

I have found that the complainant was faced with a very poorly administered tenancy over the course of April 29-30. Coupled with this, he had that tenancy, which was critically important to the integrity of his family arbitrarily withdrawn from him on utterance of his reliance on HAP.

I find that the complainant has established a prima facie case of direct discrimination on the grounds of Housing assistance and this has not been rebutted by the Respondent.

I also find that the discrimination had an enduring and detrimental effect on the complainant’s personal life.

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.

I have concluded my investigation and issue the following decision

I find that the complainant has established a prima facie case of direct discrimination on the grounds of Housing assistance and this has not been rebutted by the Respondent.

I also find that the discrimination had an enduring and detrimental effect on the complainant’s personal life. This is contrary to the intention of the HAP scheme.

1.       I order the respondent to undertake an immediate review of the application process for tenancy at their business to ensure that it is Equality Proofed. This should consist of the introduction of a standard operational procedure consisting of a chronological documentation of the process with records of both party’s involvement in the entire process.

2.       I order the Respondent to pay the complainant the sum of €8,500 in compensation for the effects of the prohibited conduct.

3.       I order the Respondent to familiarise themselves with HAP and the statutory importance of the Equal Status Act.