Complainant

Respondent

Parties

Celine Murphy

Michael O'Toole

Representatives

Threshold

Management Support Services (Ireland) Ltd

Act

Complaint Reference No.

Date of Receipt

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

CA-00035074-001

06/03/2020

The complainant commenced her tenancy with the respondent in June 2016. She had requested the landlord to complete and return HAP application forms given to him on December 9th, 2019.

The respondent did not complete or return the form. After receiving an ES 1 Form on February 16th, 2020 he responded in writing stating that he was not in a "position to commit" to HAP.

This in effect has denied the tenant a housing subsidy which they are approved.

It is accepted in the respondent submission that he “refused to sign the relevant forms”.

The stated reason was that this would have committed him to a tenancy for a further two years.

He is mistaken in this.

Signing the HAP forms does not commit a landlord to a tenancy for a further two years and there is nothing prohibiting a landlord from serving a notice of termination during this period in line with the exemptions of a Part 4 Tenancy under the Residential Tenancies Act (2004).

There was no request by the tenant or Local Authority to issue a two-year fixed term lease in conjunction with the request to comply with the HAP application.

The respondent has stated that no discrimination took place as the tenant was in receipt of Rent Supplement at the time.

But, it is not for a matter for a landlord to cherry pick which housing benefit a tenant can avail of and there are distinct differences between Rent Supplement and Housing Assistance Payment.

Rent Supplement is a short-term housing subsidy administered by the Department of Employment and Social Protection; one does not need to be on the Local Authority Social Housing List to be in receipt of Rent Supplement. It is paid while the Local Authority performs a ‘housing needs assessment’ on the applicant.

When an applicant is confirmed for acceptance on to the Social Housing List they are then directed to apply for HAP and the Rent Supplement will continue to be paid while this process is continuing, as happened in this instance.    

HAP is a Social Housing support intended as a long-term payment where necessary, although the duration is not specified.

A key difference between the two schemes is that HAP allows recipients to return to work without limitations on the hours per week they may work and there is no maximum threshold on their income after the scheme has commenced.

Those in receipt On Rent Supplement, which is a short-term payment, are strictly prohibited from working in excess of 19.5 hours per week.

The complainant made an unsuccessful application for the Social Housing list in 2019, but a further application made after a change in circumstances was successful.

It is after this point in time that the complainant was directed by the Rent Unit in Portlaoise to apply for HAP as her Rent Supplement would be discontinued. Representation was made by Threshold to continue the rent supplement payment while proceedings were under way at the WRC.

Therefore, there is a clear act of discrimination by the landlord in this regard as Rent Supplement and HAP are two distinctly different schemes with HAP conferring benefits to a recipient which are not contained in Rent Supplement.

The tenant does not have the option of continuing on Rent Supplement indefinitely and would have had her payment discontinued if it were not for the Rent Unit using their discretion under Article 38.

In the letter issued to the claimant by the Portlaoise Rent Unit February 28th, 2020 it is stated that should the landlord continue not to comply with the request to complete the Section B of the HAP application, that the tenant will have to source alternative accommodation where a landlord will accept HAP.

A person may not be denied these benefits on the basis that they are already in receipt of a different payment and to do so is clearly and obviously an act of discrimination as it would be to treat one recipient of Rent Supplement less beneficially than one who is in receipt of HAP.

The reasoning behind the respondent’s refusal to comply with the claimants HAP application has changed throughout this process. Initially the respondent claimed that he could not locate the necessary documentation required.

However, the landlord later claimed that the reason he could not comply was that he was dealing with personal issues and later again that he was unsure as to whether he would continue to own the property.

It appears in retrospect that landlord having sought legal advice decided on the position that discrimination had not occurred as the tenant was in receipt of Rent Supplement. Despite the fact that Rent Supplement is a less beneficial payment than Housing Assistance Payment.

To conclude, a clear, unambiguous and express act of discrimination has taken place in this instance, placing the claimant in a far less beneficial position than those who are in receipt of HAP.

The complainant contacted the respondent, her landlord in mid-2019 to tell him she had applied for the Housing Assistance Payment scheme (HAP) but was deemed ineligible on income grounds.

Apparently, she re-applied in December 2019 and was approved as her circumstances had changes.

She contacted the respondent again at that time who was happy with the proposed arrangement but was unable to locate the documents needed for compliance with HAP requirements.

In February 2020 the respondent received the ES 1 form indicating that proceedings under the Equal Status Act had been initiated.

He replied on February 25th, outlining personal and family difficulties which had initially delayed a response, but ultimately made it impossible to accept HAP payments at all. Among the factors were uncertainty about the future use of the property, and its availability for letting.

Nonetheless, the respondent relies on Section 3 initially in saying it has not breached the Act.

Section 3(1) sets out the general provision related to discrimination.

Section 3 3(B) specifically adds the following in relation to housing assistance.

(3B) 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”).

In this case the complainant was in receipt of the rent supplement scheme. In order for discrimination to have occurred within the meaning of Section 3(2B) the complainant would have to show that she was discriminated against as between herself and a person not in receipt of rent supplement and another person who was not.

While the respondent gave a different explanation for his decision not to cooperate with the HAP application, there is no right to a particular form of rent subsidy. The complainant is in receipt of a rent subsidy or assistance and has not been discriminated against by the respondent’s actions in relation to the HAP.

Therefore, she has not made out a prima facie case.

This case comes down to a simple net point; whether there is an obligation on a landlord to cooperate with a specific application for HAP when a tenant is already in receipt of another housing allowance, rendering failure to do so a breach of the Act, or whether, as the respondent has argued, that once a person is in receipt of any rent allowance, a prima facie case of discrimination cannot be established.

Section 3B of the Act appears above and for convenience it is set out again here. It states

(3B) 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 essential element in discrimination is that of ‘less favourable treatment’; in general, as between a person in receipt of ‘rent supplement’ or housing assistance, and one who is not.

In addition to the reference to housing assistance under Part 4 of the Housing (Miscellaneous Provisions) Act 2014 these taken together to constitute the ‘housing assistance’ ground, and this is an important point.

Rent supplement is defined in section 6(8) as follows;

(8) In this section, ‘rent supplement’ means a payment made under section 198(3) of the Social Welfare Consolidation Act 2005 towards the amount of rent payable by a person in respect of his or her residence.

The respondent has submitted that once a person is in receipt of any benefit such as ‘rent supplement’ then it, the respondent was compliant and should not be held to be liable for any act of discrimination because it declined to cooperate with a particular form of housing assistance.

At the hearing the complainant was unprepared for this particular defence and both parties were facilitated with an opportunity to make written submissions after the hearing and did so.

The complainant, (whose subsequent written submission is largely set out above) appears to have missed the significance of the net legal point, and in any event did not address it directly.

While that submission went to some lengths to explain the difference between the two types of benefit that is not the issue that has been raised by the respondent.

What the complainant has concentrated on in its written submission is as follows.

Therefore, there is a clear act of discrimination by the landlord in this regard as Rent Supplement and HAP are two distinctly different schemes with HAP conferring benefits to a recipient which are not contained in Rent Supplement.

The tenant does not have the option of continuing on Rent Supplement indefinitely and would have had her payment discontinued if it were not for the Rent Unit using their discretion under Article 38 f0llowing representations by Threshold.

In the letter issued to the claimant by the Portlaoise Rent Unit February 28th, 2020 it is stated that should the landlord continue not to comply with the request to complete the Section B of the HAP application, that the tenant will have to source alternative accommodation where a landlord will accept HAP.

It is clear from this that the complainant’s position on the form of housing assistance she enjoyed was, at best, ‘on borrowed time’, and would not continue indefinitely. On the other hand, it is not simply the fact that HAP and Rent Supplement ‘are two different schemes’, as the complainant argues above which would give rise to an act of discrimination. This submission has failed to address the text of the statute.

There is no evidence that the respondent was made aware of this (and in any event his reasons for not cooperating with the HAP application at the time were not those later advanced at the hearing.) None of this argument is on the ES 1 form.

The complainant submitted that;

A person may not be denied these benefits on the basis that they are already in receipt of a different payment and to do so is clearly and obviously an act of discrimination as it would be to treat one recipient of Rent Supplement less beneficially than one who is in receipt of HAP

However, the complainant failed to go beyond a simple assertion of this view or to offer any legal basis for it.

The Act allows for different types of ‘housing allowance’.

While it is primarily a matter for the terms and eligibility criteria of such schemes as to which one a person may be entitled to, as a general principle, and as the legislation is drafted I do not see how a person can insist on access to a particular scheme, or make out a case that a failure by a landlord to cooperate with such an application would be an act of discrimination where a person is already in receipt of another form of housing assistance, as defined by the legislation.

I note that the complainant would not have been able to continue indefinitely on the rent support scheme she was on, and that she continued to have benefit at all was only as a result of the representations of Threshold and the willingness of the relevant State authority to do so.

In her complaint form she identifies the breaches of the Act as having occurred on two dates; December 9th, 2019 and February 25th, 2020.

Leaving aside the fact that the landlord was not aware of any of the implications of this, and it might have helped had he been; specifically, that the complainant would be required to migrate to the HAP payment, no act of discrimination had crystallised on the dates in question.

While this gives rise to something of a dilemma for a tenant seeking to progress from one form of allowance to another, and caught in the middle of the two, as the legislation is drafted it is clear that a person who is already in receipt of any form of housing allowance cannot succeed under this Act simply in a claim for a different form of allowance.

Harsh as it might seem to say so, that may only have arisen when the rent allowance she enjoyed had been withdrawn.

There may be an administrative anomaly here, but it is not one that can be resolved by means of a complaint under this Act, in my opinion. A complainant cannot succeed in respect of an act that has not yet occurred.

The fact is that at those times she continued to be in receipt of a form of housing assistance as defined in the Act.

The respondent did not engage in prohibited conduct and the complaint therefore does not succeed.

For the reasons set out above I find that the respondent did not engage in prohibited conduct and complaint CA-00035074-001 fails.

Equal Status Act, housing ground