ADJ-00026767

Complainant

Respondent

Parties

Evita Baikoua

Thomas O'Brien & Grainne Durham

Representatives

Threshold

Jason Murray B.L. instructed by Tracy Horan & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033560-001

09/01/2020

The complainant submits in July 2019 she asked the agent to complete HAP application forms but this was refused by the landlords. Initially a complaint was made against the agents and, following a WRC hearing, an Adjudication Officer issued a decision confirming the agent was not the correct respondent. On 25 November 2019 an ES1 notification form was sent to the respondents. The landlords replied and said they were never given the HAP forms. A complaint against the respondents was registered with the WRC on 9 January 2020.

The complainant submits that in July 2019 she asked the agent to get the landlord to complete her HAP application forms. The complainant went through the agent as she did not have contact details for the respondent. On 12 August 2019 she was told by the agent that the landlord could not sign the forms as they were not tax compliant. The landlord confirmed this in their response to the ES1 that was sent them by the agent. The agent advised the landlords they were obliged to sign the forms. When the second ES1 form was sent directly to the landlord they said they never received the HAP forms which contradicts what they said in response to the first ES1.

The complainant submits she was discriminated by the Landlords’ failure to sign the HAP forms and was victimised when the landlord requested the agent to carry out more regular inspections of the property going forward. Immediately after the complaint was lodged an inspection took place for the first time.

The respondents live in Australia and did not attend the hearing. The were represented by a solicitor at the hearing, who had instructed a barrister. Therefore, no direct evidence was given by the respondents.

The respondents submitted they were not in a position to accept a HAP payment as they were not tax compliant, at that time. Since November 2019 the complainant has failed to pay her full rent and that has resulted in the respondents being placed under significant financial pressure.

In response to the ES1 form that was sent directly to the respondents they said they had never received the HAP forms and they would return the forms as soon as they did receive them. Therefore, no discrimination can be said to have taken place. The respondents requested the agent to send them the forms on 6 January 2020. They then requested the forms from the complainant on 8 January 2020.

The complainant by email dated 24 January said she sent the forms on 13 January but the respondents contend they never received them. On 19 February 2020 the complainant gave notice of the termination of her tenancy and her final day would be 25 March 2020.

The issue to be decided is whether the Respondents 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 participate in the HAP scheme when requested by the complainant.

The Equal Status Act seeks to prohibit discrimination in the provision of services The Act was extended to include discrimination on the housing assistance ground. This includes the Housing Assistance Payment (HAP) as provided by Part 4 of the Housing (Miscellaneous Provisions) Act, 2014, which sets out the requirements for a landlord.

Section 3B of the Equal Status Acts states: …… 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 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 evidence from the complainant is that in mid to late July she submitted the HAP forms to the agent and requested their completion by the respondents. She was told by the Agent on 12 August 2019 that the respondents could not sign the forms as they were not tax compliant. This was confirmed in the respondents’ response to an ES1 form the complainant had sent to the agent.

The complainant took a case against the agent but the Adjudicator decided the agent was the wrong respondent. Therefore, on 25 November 2019 she sent an ES1 notification to the respondents. In the absence of a reply within one month the complainant registered her complaint on 9 January 2020. The respondents sent a response using the ES2 on 24 January 2020 saying they had never received the HAP forms and therefore could not have discriminated against the complainant. Indeed, they had asked to be sent the HAP forms in early January 2020. However, it is clear to me the request for the HAP forms only arose after the complainant reduced the rent she paid to the respondents to that she which could afford, given that her HAP application had not been processed.

I have considered all the evidence put before me, both oral and written. My conclusion is that the respondents refused to process the HAP forms in August 2019. Any later willingness only arose when the complainant reduced her rent payments. I do not accept the respondents’ argument that they could not have signed the forms as they never had them. They refused to comply with their obligations so the forms may not have been sent.

My conclusion is that the respondents chose not to complete the forms and this amounts to discrimination under the Equal Status Acts.

The complainant also made a complaint of victimisation arising from her request for her HAP application to be processed when the respondents instructed the agent to make more regular inspections going forward.

Section 3 of the Equal Status Acts defines the “victimisation ground” as “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

As between any two persons, ………..

( j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the F12 [ adjudication officer ] or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not.”

In this case the complainant sent an ES1 to the agent on 15 August 2019 which was forwarded on the same day by email to the respondents. On 19 August the respondents replied by email attaching their responses on the ES2 form. In the email they stated “As discussed on Friday, going forward we would like more regular inspections given the nature of this tenant and the present situation we are now in”

The ES1 clearly states at the top that it is notification under the Equal Status Acts and “This document warns of a possible legal action.” Therefore, the complainant, in sending the ES1 gives a clear indication she is going to make a complaint under the Equal Status Acts, if she is not satisfied with the response. As the respondents stated they were not going to process the HAP application it is clear that a complaint is going to be registered with the WRC. I am satisfied that the response given in the initial ES2 satisfies subsection (v) above and the complainant was victimised when the respondents requested extra inspections.

CA-00033560-001

Having regard to all the circumstances, particularly the stress caused to the complainant, and pursuant to Section 27(1)(a) of the Equal Status Act, I order the respondent to pay €5,000 to the complainant in compensation for the effects of the discrimination and a further €5,000 for the vicitmisation in contravention of the Equal Status Acts.

Housing Assistance Vicitmisation