Complainant

Respondent

Parties

James Scott

Ms Brid O'Keefe

Representatives

Claire Carroll, Threshold

Eamon Murray, Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027020-001

06/03/2019

This case was heard conjointly with ADJ 20457. The Complainant in this case is the Partner of the complainant in the earlier case. The Complainant is represented by Threshold and has claimed discrimination on housing assistance grounds. The Respondent has denied the claim and is represented by her Solicitor.

Both parties made helpful written submissions.

At the end of the hearing, I made requests of both parties for supplementary documents. Some documentation was received, copied an exchanged. This decision follows my careful consideration of all documents and evidence adduced.

On 6 March 2019, Threshold on behalf of the Complainant submitted a complaint of discrimination on Housing Assistance grounds to the WRC. On the next day, the title of the claim was amended with the complainant’s name as the first in time form had contained the name of the complainant in the con joined case. I am satisfied that this is a properly constructed complaint form.

I have already commented that the ES1 form which covered both this complainant and the complainant in the conjoined case while submitted in early January 2019, failed to illicit a response until a short time before the hearing in the case. The ES1 form mentioned a reference to Victimisation, but this was not reflected in the WRC complaint form. I have arrived at my decision on the components of the WRC complaint form dated 6 March 2019, as amended on 7 March 2019.

The Complainants representative gave an outline of the case. The Complainant together with his partner had care of 4 children who ranged in ages from 2 to 18 years.

The Complainant commenced a tenancy with the Respondent in March 2017. He had a shared understanding that this would be a long-term arrangement and the house was suitable in every way for the family’s needs. Rent was paid at €1,150 monthly and the tenancy progressed without incident until August 2018.

During Summer 2018, the Complainant decided to leave his position in the service of the state. He sent a text to the Respondent on 16 August 2018, where he outlined that his job circumstances had changed, and he now had a requirement to rely on social assistance. He enquired about the prospect of HAP being accepted by the Respondent. On 21 August 2018, the Respondent refused HAP and added that she intended to place the house on the market in March 2019.

The Complainants partner made further request was made in September 2018 for the Respondent to complete rent supplement forms. This was ignored, and the complainant reluctantly fell into arrears.

The Respondent followed up on the arrears and the Complainant sought mediation at the Residential Tenancies Board “to progress the signature of Rent Supplement forms by the Respondent “. The Respondent placed the complainant on formal notice of Termination dated November19, 2018 with a termination date of 10 January 2019 on the basis that the house was to be sold.

The Complainant persisted in seeking the Respondent co-operation in agreeing to Housing support payments but failed. The Respondent formalised the request for arrears through her Solicitor.

The Complainants representative argued that the complainant was discriminated in being refused Housing Assistance Payments on 29 November 2018. She also submitted that the pursuance of arrears and termination of tenancy are connected acts of discrimination. In the alternative, the complainant was subjected to continuing acts of discrimination since the first refusal on 16 August 2018.

The Complainant had been severely disadvantaged by the actions of the Respondent. The Complainant and his family were compelled to relocate to Dublin over the Christmas period to safeguard against homelessness. The Family has been severely disrupted.

The Complainant compiled his ES1 form on 20 December and submitted it in January 2019. He  did not receive a reply. This prompted the referral to the WRC.

The ES1 form had claimed Victimisation and Discrimination and tabled the direct questions of:

1.       Why was HAP and Rent Supplement refused by the Respondent?

2.       Why was the sale of the house not a stated concern prior to the mention of HAP?

3.       Why did the Respondent not participate at Mediation at RTB?

Complainant Evidence:

The Complainant told the hearing that he had worked in the service of the state for 10.5 years. He had developed knee problems and had grave difficulty with the continued “on tour” requirements of the job, where he was expected to leave home for 6 months at time. He made the decision to leave

He met with the Respondent in August when she visited the house and mentioned that he would have to reskill. Shortly afterwards, his partners hours were reduced. The family were not on a housing list. He recalled receiving job seekers benefit on either 18 or 28 August 2018. This was later confirmed as 28 August.

He recalled sending a text to the Respondent on HAP and he understood that it took 8 weeks to be cleared for Hap.

The Family were on holidays when they learned that the house was to be sold and attributed this development to their changed circumstances on housing assistance grounds. He told the Rent Officer that he had been refused HAP but not the reason of the house sale. There were no further conversations between the parties as the Respondent stopped calling over to the house.

During Cross examination, the complainant confirmed that he had left his position on 18 August 2018 and had been given one week’s annual leave prior to this date.

He confirmed that while he had been on the Cork Housing list, this had been cancelled in favour of the Dublin list since the family’s relocation.

He recalled that his partner had been on local radio on 18 August raising concerns about the challenges of paying bills from his state job.

He confirmed that he didn’t have a broad understanding of HAP but knew it covered the family. He submitted that he had been victimised in being refused HAP and Rent Supplement payments. There was some hope of retrospection but that did not materialise, He contended that further discrimination followed when he had been told that a request for HAP prompted a notification of sale.

The Complainant told the hearing that the family was in turmoil after this news and were compelled to move in with family in Dublin. Friends were gone, and an extended period was spent sleeping on the floor.

The Family contacted Threshold in August 2018.

The Complainants Representative submitted some documents on August 6, 2019

1.       The application for a place on the Social Housing List was made on September 3, 2018. The County Council confirmed that the complainant was eligible to apply for Hap on

2.       I did not receive a copy of the Tenancy Agreement dated 2017

3.       Copies of Job Seekers Benefit paid over two weeks followed by a Training course

4.       A Copy of correspondence regarding Rent Supplement.

The Complainants Representative made a further written submission that the Respondent had not sold the house and had failed to discharge the rebuttal necessary in the case. She also submitted that the WRC had traditionally applied a broad definition and understanding of “Housing ground “under the Act to cover both prospective and existing tenants and referred to case law in support. Tenant V Property Letter, ADJ 0000941, 2018, WRC

The Complainant representative sought a ruling of discrimination and damages for the impact of the family’s compulsory resettlement costs. Vouched receipts covering evidence of relocation expenses accompanied the claim.

The Respondent through her Solicitor rebutted all claims of discrimination made against her.

The Respondent outlined that the property at the centre of the case was her earlier family home. Her father had passed away in 2010 and her mother in 2015. The house was an inheritance property initially shared equally by her two siblings.

The Respondent relocated to live in the house for a brief period and soon found that it was incompatible with her working life in a Hospital in the city .She invested in the upkeep of the house before relocating back to her previous base .She described a very strong emotional attachment to the house and was reluctant to rent it, she had taken time to acquire her siblings share of the house.

The Respondent told the hearing that on a site visit in August 2018, she was unhappy with the condition of the house, cat litters were under the stairs and walls were destroyed. She formed the view that the tenants had departed from their contract and made her decision to sell the house, one week later. She then met a named Auctioneer to action her plan. The Respondent estimated that it would take a €4,000 expenditure to put things right. She moved in briefly herself in early 2019 for a 4-month period.

The Respondent denied that she had discriminated against the complainant as she had made a legitimate decision to sell the house.

During cross examination, the Respondent denied that she was a “professional landlord “and she rented to cover the cost of buying out her siblings in an inheritance property.

She agreed that she had not raised issues directly with the tenants during the site visit in August 2018. She became emotional when she recalled that her mother had lived at the house for 40 years and “mould “seen in August 2018 had never been an issue before. She stated that “she no longer wished to be a landlord “

The Respondent confirmed that the Complainant had confirmed that he had ceased his job during the site visit, but he had not tabled the circumstances “as inability to pay rent “or an application for HAP. She went on to state that she had not interpreted that the complainant and his partner had a housing need. She didn’t see that it was her place to interpret that need. The Respondent was aware that a 5th person was living at the house along with the 4 named children.

In answer to the question of whether she understood that Rent Supplement Payment had been requested? she stated “I had made my decision “The Respondent clarified that she had received the text dated September 28, 2018.

The Complainant confirmed that she had not provided her home address or email to the complainant, nor had she explored the parameters of Hap. She left the matter of the ES1 response to her representative. The Respondent submitted that she had not refused HAP or Rent Supplement, nobody had contacted her over the phone. All communication was by text.

The Respondent was clear that she had stipulated “ no animals” and felt disrespected by the tenants in the disregard of her wishes and the state of upheaval in the house .She re-affirmed that she held an enormous sentimental value for the house at the centre of the case and was clear that she would have offered an extension in time had it been requested by the complainant .The Respondent confirmed that she had not been approached by the complainant to provide   references to prospective Landlords .

The Respondent clarified that she had not refused Hap or Rent Supplement and that the house is currently idle and going for sale.

The Respondent did not furnish the RTB registration documentation for the property. In responding to the Complainants latter day written submission, they made the following points.

The Respondent re-affirmed her direct evidence that she had not discriminated against anyone and that in her time as a Nurse, she had treated all groups without bias or discrimination. She disputed that she could held responsible for the family upheaval

The Respondent confirmed that discrimination did not occur in the case as the complainant was not approved for Hap in August 2018. The property was never let after his family left and the respondent herself addressed her own housing need by living their short term in early 2019.

Finally, the Respondent submitted that the Equal Status Legislation was designed to prohibit landlords preferring financially independent tenants over those with a Hap requirement and there was no comparator cited in the case outside the Respondents own housing need. The Complainant had not paid rent over a 2.5-month period and had left the property in an unsatisfactory state.

I have given some time to considering the facts raised in this case, both by written and oral submissions along with supplementary submissions. While this case raises several current societal issues surrounding a Family in rental property who are faced with a sudden change in economic circumstances, I have been asked to decide whether the Complainant was discriminated against on a Housing Assistance ground contrary to Sections 3 and 6 of the Equal status Act 2000(as amended)

It was an unhelpful component in the case that the ES2 response to the complainant was unreasonably delayed. I have drawn inferences from this.

Section 38A of the Act places an obligation on the complainant in the case to establish, in the first instance, facts from which the discrimination alleged may be inferred. If the Complainant satisfies the burden of proof in this regard, the onus shifts to the Respondent to rebut the inference of discrimination

Section 3 of the Act provides for a definition of Discrimination.

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,

This case has raised several important issues 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.

I now propose to consider the facts of the case raised. The complainant made the decision to resign from his position in Summer 2018. This cast a significant change over the family economic circumstances.

The claim before me is for discrimination on housing assistance grounds. The ES1 form had referred to a claim of victimisation which was not a component of the claim form before the WRC. I must make my decision on a claim for discrimination alone.

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 interfaces with the private rental market in the face of insufficient supply of social housing.

Analysis:

In assessing the facts of this case, I have identified the undisputed over reliance on text message communication by both parties rather than face to face communication. What commenced as a mutually respectful and beneficent rental agreement ended in complete disharmony. I believe that this was avoidable if dialogue had united the parties rather than the infrequency of impersonal texts, which after all are merely one sides communication and seldom, if ever, in my opinion a veritable basis for negotiation of a resolution. I make a reference to this at this stage as the complainant was last to speak to the respondent in August 2018.

I fully accept that the provision of the March 2017 Rental Agreement, a copy of which has not been placed before me by either party, meant much more than provision of a mere house to the complainant and his family. He reflected that they would have liked to designate the property as their family home. It is unclear to me the duration of the agreement and there was no tangible evidence available to me which pointed to the presence of a long-term lease.

I accept that the Complainant was covered by the Housing Assistance ground.

From the Respondents perspective, this house was her earlier home which came into her sole possession in the aftermath of successive parental loss and a sibling buy out. Through her evidence, I established a pride in this house which had served as her home for many years. She had a very strong sense of loyalty to this home and had no visible grounding in the market rules of being a landlord or the much-expanded territory of rent supplements and the latter-day Housing Assistant payment. I saw her as an “accidental landlord “but nonetheless a landlord for the purposes of this case. I did ask but did not obtain a copy of the RTB registration of the property. I have drawn inferences from this omission.

The supervening event or set of circumstances in the case evolved from the complainant’s decision to voluntarily leave his job in August 2018 followed by the complainant’s partners’ 3-day week. On 16 August, the complainant sent a text to the respondent:

“ I was just wondering as we won’t be able to keep up with rent until I find myself a new job is there any way if we go for Hap will you be alright in signing the forms as it is not a long term it just till we get back on our feet ……any questions , you can call on this number “  

Five days later, the Respondent replied that “won’t be able to sign up for HAP as I will be putting the house up for sale in March of next year “

It is of note that the family were on holidays currently, which did not prompt an engagement with the respondent, which I understand. However, it would have been reasonable for them to address the matter on their return.

A lull in communication followed apart from an exchange on drain malfunction.

Five weeks later, the Complainants partner texted the Respondent asking for her co -operation in her application for rent supplement. There was no response from the Respondent.

Four weeks later, the Respondent declared that the complainant was in rent arrears and sought payment. the Complainants offered €200 as the projected differential between rent supplement and monthly rent.

Three weeks later, notice of termination in respect of the tenancy issued on the basis that the Respondent intended to sell the house.

Some 10 days later, the Complainants sought a reconsideration of HAP and the Respondent re-affirmed her decision to sell the house, allowing a close off date of January 10, 2019.

The first question asked was “if we go for HAP? “This was met with a confirmation of intention to sell by the Respondent.

I noted that the Complainant had been advised to submit HAP application forms to the Respondent in August 2018 and I inquired into the process of HAP application adopted. I established that the application for Social Housing Support had been assessed by the Co Council on 26 November 2018 and eligibility to apply for Hap confirmed on November 28, 2018. I found no evidence of a formal application for Hap at any time in this case. I am familiar with the composition of the application form and was surprised when it was not completed by the complainant who submitted that the first application for housing support was made in early September.

In the seminal case of a Tenant V Landlord ADJ 4100, 2017, my colleague Adjudication Officer placed much emphasis on the submission of application forms for HAP in her decision.

“… I am satisfied that the Respondents ongoing refusal to complete the HAP application form and/or accept HAP towards payment of her rent by way of direct payment from the Local Authority in question to amount to less favourable treatment “

This case had several common facts to the instant case in terms of economic difficulties, but the cardinal question posed was whether the Housing Ground covered a live tenant or a prospective tenant? This case clarified that it covers a sitting tenant. However, running right through this case is the respondent’s communication of her decision to sell the house, heavily disputed by the complainant and this fact distinguishes the facts of both cases in part.

The Complainant representative submitted that I concentrate on the broad interpretation of a housing ground and I accept that the complainant’s partner was in receipt of a social welfare payment from 28 August 2018. I also accept that a Rent Supplement was applied for by the complainant but was not processed due to insufficient detail provided by the respondent.

I have also given some thought to actual circumstances which unfolded once the rent stopped being paid in September 2018. The Complainants submitted a view that they were reliably informed that rent supplement, once granted would carry a three-month element of retrospection which would “lift all boats “but this did not materialise. I found no evidence of their sharing this assurance with the respondent. I was also struck by the respondent’s confirmation that she had not been asked to provide any accommodation references for the complainants.

I had difficulty in accepting as reasonable the failure of the parties to engage during this pivotal period. Rent was undisputedly owed, and a repayment plan had not materialised before the termination notice issued or afterwards. The process earmarked for the RTB did not advance and was withdrawn as the complainant and his family relocated to Dublin in time for the 2019 School year and redoubled their efforts to secure a family home in Dublin. Thankfully this materialised in April 2019.

I am to reflect again on what the Act cites as prohibited conduct in Section 3 of the Act and in relation to provision of accommodation in Section 6 of the Act.

The Respondent was consistent in her presentation at hearing. She gave a clear account of her own personal struggles on accessing ownership of the property. I took note of her direct evidence on how she found the condition of the house in August 2018 and her decision to sell the house. I also noted that she had not spoken about her reservations to the complainant and had left him in the dark on the house’s shortcomings. I found the unspoken word here to be counterproductive. The Complainant contended that there was a 14-day window permitted to deal with the cat issue that was not actioned. However, I must accept that the respondent decided to sell her house and it was her house to sell. I have also reflected on her submissions on visiting an Auctioneer and her plan for sale and the projected costs of preparing the house for sale.

In a careful analysis of submissions, I find that I must disagree with the complainant’s interpretation of the Respondents motives to sell. I appreciate that the news was received during the Family holiday but the immediate linkage of house sale to housing assistance grounds was, in my opinion pre-emptive. The decision to sell the house was communicated on August 21, 2018 by text. Once again, I say this method of communication was poor. However, I found no direct linkage that the Respondent was guided by the complainants housing assistance grounds in her decision to sell. I found her personal chronology surrounding her reason to sell to be compelling and persuasive. It is regrettable that the parties did not converse at that time giving the healthy landlord tenant that indisputably existed at that time.

This followed a “what if “supposition on Hap submitted on 16 August. As we have seen earlier an application for HAP is a discretionary award on stated criteria, one of which suggests a “good faith tenancy “. At any rate it is an application between a tenant and a local authority.

I noted the complainant’s total reliance on the anticipated brinkmanship of the rent supplement/Hap to cover the rent, there was no other declared contingency. I found insufficient regard for the impact of rent arrears in the interim on the respondent.

The Respondent was not placed on notice of the complainants or his partners job seeking benefit status at the time of notification of sale. I accept that the Respondent was approached to complete an application for rent supplement in late September 2018 and desisted from same. The situation of arrears then seemed to take over and parties became more defensive until notification of termination issued in mid-November 2018 and the complainant reluctantly left the property just before Christmas. I have not made anything of the respondents’ comments on the state of the property on leaving as my investigation has centred on the complainants housing assistance ground.

I must now return to the Respondents direct evidence. She visibly struggled when she recalled her negative experiences at the house in August 2018, she felt disrespected and she stated plainly that she didn’t want to be a landlord anymore. I must conclude that this was the primary reason for her decision to sell and that her actions were not discriminatory. The Complainant was not replaced by successive tenants prior to the hearing of this case. This was not disputed.

The Respondent representative submitted that any award could only be directed at one party. However, the ES1 form originated from both complainants and the WRC complaints are complaints.

Perhaps some of the “bridging arrangements “pre-sale could have been more responsibly addressed by the parties had they engaged in direct dialogue or RTB input , but I have decided that the decision to sell the house was not informed by the complainant’s temporary reliance on a need for housing support/assistance but by an overarching decision to off load the property to the market . I have taken on board the Complainants latter day submission that there is no evidence of sale, however, the complainant has not submitted proof of successive letting. I have accepted that the property is currently idle and in preparation for sale.

I found that both parties in this case were not sufficiently acquainted with the housing support payments currently available to tenants. This should be mandatory for all private landlords and tenants as the statutory housing support schemes continue to interface with the private rental markets. I found this collective gap in knowledge contributed to the unfortunate circumstances which subsequently unfolded in the case for both parties. I found that the complainant was highly reliant on assurances received from external agencies which unfortunately did not follow through for him.

Therefore, I find that the complainant has raised an inference of discrimination by the failure of the respondent to complete the application for rent supplement mentioned in September 2018 and by refusing an invitation to co-operate with an application for HAP in late November 2018. However, the Respondent has successfully rebutted the inference by her firm statement of her intention to sell the house first on August 21, 2018 and secondly in the face of unaddressed arrears in November 2018.   These reasons were not linked to the complainants housing assistance ground.

I cannot find that the decision to either sell the house or terminate the rental agreement were grounded in prohibited conduct. Nothing in these findings goes to comment on the rent arrears remaining between the parties.

I have found the claim is not well founded.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I have concluded my investigation and while I found that the Complainant had raised an inference of discrimination, the Respondent has successfully rebutted the presumption.

I find the claim has not succeeded.

Discrimination on Housing Grounds