Complainant

Respondent

Anonymised Parties

Tenant

Landlord

Representatives

Self-represented

Self -represented

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00028490-001

19/05/2019

This is a complaint of discrimination contrary to section Sec 3 and 6 of the Equal Status Act as amended by Equality (Miscellaneous Provisions) Act 2015 with effect from 1st January 2016) which introduced the “housing assistance grounds” and prohibits discrimination.

The respondent landlord failed to support the complainant’s application for HAP in 2017 and 2018. The complainant was put on notice of eviction on 1 April 2019.

The complainant submitted his complaint to the WRC on the 19 May 2019

The complainant was a tenant of the respondent from 2014- October 2019. He was on a 1-year fixed lease since April 2018.

The complainant states that the respondent discriminated against him by way of failing to support his application for HAP in 2017, failing to support his application thereafter, and by putting him on notice of eviction on 1 April 2019 because of his HAP application.

As required by section 21 (a)of the Act of 2000, the complainant submitted the ESI form on 2 April 2019. The act complained of in the ESI Form was the text message of 1 April 2019. The respondent failed to respond.

The complainant submitted a copy of a text sent to him by the landlord on 1 April 2019.

“Hi A,

What time can I meet you to at today to collect keys and sort deposit and check house and grounds “

In July 2017 the complainant asked the landlord to complete his section of the HAP application form. The landlord stated he would do so and sign the paperwork if the complainant would top up his deposit by €300 to match the proposed new monthly rent of €1200. (The complainant had paid a deposit of a month’s rent, which amounted to €900 in 2014). The complainant states that he paid the deposit difference in July 2017. The relevant local authority advised the complainant in October 2017 that as the landlord had failed in his section of the form to give an explanation as to why the rent was increasing by €300 in a month, they had not approved the application. In February 2018 the relevant local authority told the complainant in a phone call that after receiving form ES1 the respondent advised the local authority that he intended to evict the complainant and his wife. The complainant stated that the relevant local authority also told the tenant of this in April 2019.

The tenant submitted his complaint about the rent increase to the RTB in March 2018.

The complainant advised that he had submitted a complaint to the WRC claiming discrimination contrary to the Equal Status Act, 2000, as amended, on the housing assistance grounds. An agreement had been reached between the respondent and the complainant on 23 March 2018 with the RTB concerning rent. A copy of this agreement was furnished to the hearing with the agreement of the parties. The agreement recorded that the landlord would facilitate a HAP application. The agreement provided for a 1-year fixed lease which would expire on 10 April 2019.

The complainant withdrew his complaint of discrimination under the Equal Status Act and this was confirmed by the WRC in a letter dated on 28 March 2018.

.

The complainant is comparing himself with persons who are not seeking HAP and whose tenancy did not end.

The complainant received a call from the relevant local authority in 14 December 2018 that the respondent landlord intended to place a family member on the property, and that he should receive a letter to that effect and until then there would be no eviction.

The respondent sent the complainant a letter dated 25 June 2019 notifying him of termination of tenancy on 30 December 2019.

The complainant concluded by stating that the tenancy ended because the landlord can get a higher rent.

The respondent denies that he discriminated against the complainant on the HAP grounds. The respondent confirmed that he received the ESI form in May 2019.

The respondent had tenants in receipt of housing assistance in his properties.

When asked by the complainant about supporting his HAP application in 2017, the respondent encouraged the complainant to apply for HAP. The respondent submitted the form to the local authority in 2017. The local authority advised him to correct the forms. He states that he did this did this in August 2017.

The complainant submitted a complaint to the RTB in 2018 concerning the proposed rent increase of €300 per month and he also submitted a complaint of discrimination to the to the WRC. There was an agreement reached with the RTB in 23 March 2018 which was opened to the hearing. The rent was reduced by €100 a month. The complainant withdrew his then complaint of discrimination under the Equal Status Act on housing assistance grounds which he had lodged with the WRC. The landlord and tenant agreed to extend the lease for a further year up until 10 April 2019.

The respondent stated that the relevant local authority advised him in July or August 2018 that he had not filled in the HAP application form correctly. When the respondent was asked why he didn’t proceed to do so he stated that he had asked the complainant to sign a lease on 28 June 2018. The complainant texted the respondent back on the same day to ask if there were any changes to the existing lease. The respondent states that was the last he heard from the complainant until October 2019 when he came to collect his deposit.

The respondent confirmed the text as read out of 1 April 2019 in which he had asked for the keys. The reason the respondent texted the complainant on the 1 April was that the lease was due to expire on the 10 April and he stated that to the complaint in a text when asked for an explanation.

The respondent landlord served a notice of termination on 25 June 2019. On 26 June, the respondent served a Statutory Declaration requiring the complainant to vacate the tenancy on 30 December 2019 as he required the dwelling for his son, his son’s partner and their child. The respondent explained his son had been unwell, that his wife helped in the rearing of their grandchild and that she wished to be near her grandson. He intends to give the house to his son.

Even before he made the decision to transfer the property to his son he had in mind to sell the property.

He ended the tenancy because of his intention to transfer the property to his son. This decision had nothing to do with the complainant’s request for him to cooperate with an application for housing assistance.

The issue to be decided 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 refusing to facilitate the complaints’ HAP application when requested to do so by the complainant and by putting the complainant on notice of eviction on 1 April 2019.

It is accepted that the landlord received the ES1 form in May 2019.

Jurisdictional issue.

The complaint of discrimination under the Act of 2000 in relation to the respondent’s failure to facilitate the complainant’s HAP application in 2017 was formally withdrawn by the complainant and this is recorded in a letter from the WRC dated 28 March 2018. Accordingly, I have no jurisdiction to consider matters relating to 2017.

The respondent’s alleged continuing failure to facilitate the complainant’s HAP application after March 2018.

The housing assistance ground protections comprehended by the Act of 2000 as amended applies to existing tenants applying for HAP. Discrimination can arise in refusing to complete the appropriate forms. The respondent failed to complete the HAP application form. The agreement reached with the RTB on 23 March 2018 stated that the respondent would facilitate a HAP application and supply any reasonable documentation in respect of this application. The lease would extend for a fixed term up until 10 April 2019.

The complainant made no reference to any efforts made by him to resubmit an application in 2018 or of any efforts which he made to the respondent in 2018 to get him to complete the HAP application, originally lodged in 2017. He did not contest the respondent’s statement that the respondent had no contact from the complainant from June 2018 until October 2019. He did not challenge the evidence of the respondent that an application was live in July or August 2018 in the sense that the respondent stated that relevant local authority advised him in July or August 2018 that he had not filled in the HAP application form correctly. The complainant did not accept that he refused to sign a lease but accepted that there was no signed lease.

I find on the evidence that the HAP application fell into abeyance in August 2018. This omission occurred outside of the statutory time limits within which a complaint must be brought. The cognisable period for this complaint is 20 November 2018- 19 May 2019. The Act of 2000 at section S 21 (6) states

“Subject to subsection (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.”

The complainant submitted no case for extension of time limits due to reasonable cause.

Section 21(11) of the Equal Status Acts, 2000 to 2008 (which was inserted by the Equality Act, 2004) provides:

“For the purposes of this section prohibited conduct occurs –

(a) if the act constituting it extends over a period, at the end of the period,

(b) if it arises by virtue of a provision which operates over a period, throughout the period”

I must consider if there was a disposition to discriminate over an extended period based on a series of connected instances of discrimination.

The Labour Court considered the precondition for considering instances of alleged discrimination outside of the cognisable period in Dunnes Stores v Breda MulhollandEDA 179 and stated

“It is settled law that in order for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of a complaint”.

Was the text of 1 April 2019 an act of discrimination?

Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant in relation to the respondent’s text message of 1 April 2019. 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 raised. In accordance with Dunnes Stores v Breda MulhollandEDA 179 , it is necessary for the complainant to establish a prima facie case of discrimination based on the incident of 1 April so as to include alleged instances of discrimination stretching back beyond 20 November 2018.The last act of discrimination cited by the complainant was the respondent’s text message of 1 April 2019 putting him on notice of eviction because he had made a previous application for HAP.

The complainant stated at the hearing that the relevant local authority contacted him on 14/12/2018 to state that a family member of the respondent would be moving into his property and that there would be no eviction until the complainant receives notice from the landlord.

The validity of the notice of termination delivered via text message was referred to the Residential Tenancies Board (RTB) by the complainant on 1 April 2019. Though the RTB do not have jurisdiction over the failure of landlords to participate in the HAP scheme, I note that a copy of the submission to the RTB on 1 April 2019, the same date on which the complaint to the WRC was submitted, makes no reference to HAP where the same RTB had a year previously recommended that the landlord facilitate a HAP application.

The complainant also stated that the tenancy ended because the landlord could achieve a higher rent.

It is agreed that the complainant was on notice from the agreement reached in the RTB that the lease for the property would expire on the 10 April 2019.

The landlord appears to have acted in a haphazard manner throughout the tenancy, yet he did deliver the statutory notification on 25 June that the tenancy was ending on the 30 December 2019.

I find that the complainant’s evidence fails to make a connection between his lapsed application for HAP in 2018 and the decision of the respondent to put him on notice of the termination of the tenancy on 1 April 2019. I find that that the decision to terminate the tenancy was based on the landlord’s intention to transfer the dwelling to his son, his partner and their child. I find that the decision to terminate the tenancy was not connected to the complainant’s HAP application.

I do not find that the complainant has established a prima facie case of discrimination based on the text message of the 1 April 2019. Therefore, I cannot consider acts of alleged discrimination outside of the cognisable period.

As the respondent’s son is unwell and an infant is also cited, I have decided to anonymise the decision.

I find that the complainant has failed to establish a prima facie case of discrimination and his complaint cannot succeed

I find that the complainant has failed to establish a prima facie case of discrimination and his complaint cannot succeed

HAP.