Complainant

Respondent

Parties

Ehab Ebaid

Fidelma Byrne

Representatives

Francesco de Martino, Threshold

Aisling Mulligan, BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035553-001

02/04/2020

In August 2010, Mr Ebaid and his wife became tenants in a two bedroom property owned by Ms Byrne.   The rent at the time was €700 per month.

Mr Ebaid is a chef and in November 2018, when his wife began to suffer from deafness, he had to reduce his hours of work so that he could help to take care of their daughter.   Mr Ebaid and his family were approved for the housing assistance payment (HAP) from Dublin City Council and Ms Byrne agreed to accept HAP. In January 2019, the rent was increased from €700 to €800 per month and Mr Ebaid completed the HAP application forms. Ms Byrne did not sign the landlord’s section of the form.

Ms Byrne decided to sell the property and in January 2019, she issued notice to Mr Ebaid to vacate the apartment. As she did not complete a statutory declaration in accordance with Section 34 of the Residential Tenancies Act 2004, this notice was invalid.

A valid notice of termination was issued on December 17th 2019 and Mr Ebaid and his family were required to leave the apartment on July 30th 2020. Mr Ebaid again asked Ms Byrne to agree to his application for HAP, but Ms Byrne said that she received advice that she should not sign the HAP form.

On February 3rd 2020, Mr Ebaid sent an ES1 form to Ms Byrne, claiming that he was discriminated against on the HAP ground. Ms Byrne replied on February 25th and said she was afraid that, if she agreed to the HAP application, she would be “locked in” to a two year tenancy agreement with Mr Ebaid, which would prevent her from being able to sell the apartment.

On March 26th 2020, Ms Byrne wrote to Dublin City Council to inform the HAP section that she wished to support Mr Ebaid’s HAP application regarding the apartment, even though he was due to vacate on July 30th 2020. In the meantime, on April 2nd, Mr Ebaid submitted this complaint to the WRC.

HAP payments commenced for the rent on Mr Ebaid’s apartment in April 2020. He and his family moved out of the apartment on September 15th 2020 and have been fortunate to find another suitable apartment in the same area.

On Mr Ebaid’s behalf, Mr de Martino said that the advice that Ms Byrne claims that she received regarding HAP and a tenancy agreement was wrong. The existence of a HAP agreement is not without prejudice to the rights of a landlord as set out in the Residential Tenancies Act 2004 and the fact of a HAP agreement being in place does not prevent a landlord from evicting a tenant. When he was issued with notice to vacate the apartment in December 2019, Mr Ebaid was entitled to remain for a further eight months. He could have benefited from rent assistance during that time.   When she would not agree to HAP, Mr Ebaid asked Ms Byrne to reduce the rent, but she refused.

Mr Ebaid claims that he was discriminated against because Ms Byrne did not cooperate with his application for HAP when he was approved for the payment in December 2018. From then, until April 2020, when Ms Byrne began receiving rent in the form of the HAP, this support was denied to him.

In her response on the ES2 form sent to Mr Ebaid on February 25th 2020, Ms Byrne said that in December 2018, she wasn’t confident about signing the HAP form and she contacted a solicitor from the Free Legal Aid Centre (FLAC).   She said that she was advised “against participating” in the HAP scheme. When, in January 2019, she decided to sell her apartment, Ms Byrne was concerned that she would be locked in to a two-year contract to lease her apartment to Mr Ebaid. Ms Byrne said that she did not anticipate that Mr Ebaid would not be able to pay the rent of €800 per month, which she said, was €700 per month from August 2010 until January 2019.

Summarising her reasons for not agreeing to Mr Ebaid’s HAP application, Ms Byrne wrote:

“My reason for not agreeing to HAP is because (1) I don’t know enough about the agreement criteria. The last paragraph of my declaration in the HAP form requests me to seek legal advice. I didn’t fully understand my obligations and the FLAC solicitor advised me not to agree. (2) For health reasons I will cease to be a landlady, therefore I will have no tenants, HAP or otherwise. I’m sorry that Mr Ebaid considers this discriminatory against him.”

At the hearing of this complaint, Ms Byrne provided evidence of treatment she has been undergoing since 2014 for a serious illness. In July 2020, because of her illness, she said that she reduced her working hours from 39 hours to 29.6 hours per week and she provided evidence of this from her employer. She said that she has to reduce stress in her life and this is the reason that she decided to sell the apartment.

In response to a question from me, Ms Byrne said that she can’t explain why it took her so long to agree to the HAP application. She said that, in the beginning, when she was asked about it, she was afraid to sign the form. She said that her illness has affected her cognitive abilities and she has problems with her memory. She said that, to function correctly, she needs a structure and she couldn’t identify a structure in the HAP application process.

On Ms Byrne’s behalf, Ms Mulligan argued that the only way that discrimination can be said to have occurred is if HAP had been refused. Ms Byrne agreed to cooperate with Mr Ebaid’s HAP application in April 2020 and he became entitled to the payment then.

The Relevant Law

Section 6(1) of the Equal Status Act 2000 prohibits discrimination on the ground of being in receipt of rent supplement. This section is to be read in conjunction with Section 3 of the Act which defines “discrimination” in general and specifically defines the “housing assistance ground.”

Section 3(1) provides that:

“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.”

Section 3(3B) provides that discrimination in relation providing accommodation is prohibited under all the existing protected grounds and inserts the new housing assistance ground as follows:

“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.”)

Consideration of this Complaint

This complaint concerns the failure of the landlord in December 2018, to complete a HAP application form on behalf of her tenant, who had been living in her property for over eight years. Ms Byrne said that she got legal advice from FLAC advising her against signing the HAP form. She was also concerned that she wouldn’t be able to sell the property if a HAP agreement was in place and she said that, because she is ill, she wasn’t able to manage the intricacies of the HAP process.

In response, Mr de Martino said that he asked Ms Byrne to get different legal advice and, if she was reluctant to agree to HAP, he asked her to reduce the rent. He said that the issue could have been resolved if she had trusted Threshold.

From my research into the conditions of the HAP scheme, I understand that when a person is approved for HAP, they are expected to remain in the same property for at least two years. If they leave a property for which HAP is approved, the payments cease and, if they wish, they can submit a new application for HAP in a different property.   I note also from the landlord’s information booklet on the website of the Residential Tenancies Board, that HAP payments will stop when a landlord or a tenant ends the tenancy “for any of the normal reasons provided for by the Residential Tenancies Act 2004 (as amended).” Section 34 of the Act provides that one of the normal reasons for ending a tenancy is a decision by a landlord to sell a property, and to issue a tenant with a notice to vacate.

It is apparent therefore, that, while a HAP agreement may last for two years, there is no obligation on either party to continue with the tenancy arrangement for the duration of the HAP agreement.

In the case under consideration here, Mr Ebaid met the eligibility for HAP, as he was approved for social housing support. He was a tenant in suitable accommodation, albeit that the landlord had decided to sell the property. Based on these conditions, I find that, in December 2018, there was no reasonable cause for Ms Byrne not to support Mr Ebaid’s HAP application. Having agreed to do so in March 2020, the HAP arrangement was in place for five and a half months and ceased on the date of the termination of the tenancy in September 2020. The effect of delaying her support for Mr Ebaid’s HAP application was to discriminate against him as a tenant who was approved for the HAP.

I accept that Ms Byrne suffered from a serious illness in 2014 and that she has been receiving treatment since then. I find it difficult to understand how a person in these circumstances could not avail of proper legal advice concerning the HAP process, particularly when she found it reasonable to engage a solicitor to advise her about selling her property.

Findings

From the evidence submitted at the hearing, it is apparent to me that Ms Byrne refused to co-operate with Mr Ebaid’s HAP application because of her concern that such an application might compromise her decision to issue him with notice to vacate her property. However, my understanding of the law is that the existence of a HAP agreement does not prevent a landlord from terminating a tenancy when they intend to sell their property, as long as the notice of termination is compliant with the provisions of Section 62 of the Residential Tenancies Act 2004.

Having considered the evidence of both parties at the hearing of this complaint, I am satisfied that Mr Ebaid has established that, as a result of the delay from January 2019 until March 2020, when Ms Byrne signed his HAP application form, he was discriminated against on the housing assistance ground and Ms Byrne has not rebutted this allegation.

In accordance with Section 25(4) of the Equal Status Act, I am satisfied that Mr Ebaid has been discriminated against on the housing assistance ground contrary to Sections 3 and 6 of the Act.   In respect of redress, section 27(5) provides that I may make an award of compensation for the effects of “the prohibited conduct” and / or an order that certain action be taken in respect of such conduct. I have taken account of the effect of the discrimination on Mr Ebaid and I make an order for compensation of €12,000. This is equivalent to what he would not have had to pay in rent over 15 months, if Ms Byrne had supported his HAP application.

Discrimination, HAP