Complainant

Respondent

Parties

Nataliya Harnyk

Landlords Michael Twomey and John Walsh

Representatives

Vadim Karpenko, First National Consulting and Legal Services

 Self

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00036270-001

20/05/2020

Ms Harnyk is a tenant in a flat owned by the landlords at an address in Dublin 1 (details provided). She has lived there with her partner, since August 1st 2011. The rent is €400 per month.

On March 26th 2019, the landlords served the tenants with notice to vacate the flat, as they intended to sell the property. Following an application to the Residential Tenancies Board, an adjudicator found that the notice to vacate the property contained errors and it was therefore not in compliance with Section 62 of the Residential Tenancies Act 2004. The notice was determined to be invalid. On February 11th 2020, the landlords issued a new notice to Ms Harnyk and her partner to the effect that they must vacate the property on September 23rd 2020.

Ms Harnyk was out of work from March 2020 due to the Covid 19 restrictions. She was eligible for the Covid emergency payment and she said also applied for the Housing Assistance Payment (HAP) from Dublin City Council. Her complaint is that the landlords have failed to complete their section of the HAP application form.   

On behalf of Ms Harnyk, Mr Karpenko said that she was approved for the HAP and she sent the HAP application form to Mr Twomey on March 31st 2020. Mr Twomey did not return the form and on April 14th, Ms Harnyk sent a copy of an ES1 form to Mr Twomey and Mr Walsh, alleging that she had been discriminated against on the housing assistance ground.   The landlords did not complete an ES2 in response.

Mr Karpenko argued that a landlord who intends to terminate a tenancy agreement may support an application for HAP, which is intended to last for two years, and the tenancy may still terminate before the expiry of two years.  

This hearing was held on September 16th 2020, and later that evening, Mr Karpenko sent additional documents to the WRC in support of Ms Harnyk’s claim of discrimination. Included was a copy of a letter from Dublin City Council dated February 17th 2020 which confirms that Ms Harnyk and her partner are on a waiting list for social housing in the Kilbarrack / Coolock area and the Finglas / Cabra area. Mr Karpenko also sent a copy of the HAP application form completed by Ms Harnyk in March 2020.

Mr Walsh referred to the notice of termination of February 11th 2020 which was due to expire on September 23rd 2020 and which, because of the Covid regulations, will now expire in January 2021. He said that they signed Ms Harnyk’s application for rent allowance, but this was refused by the Department of Social Protection. She then applied for HAP. Mr Walsh said that an agreement by the Council to pay HAP is a two-year agreement. As they intend to sell the property, their position is that they cannot enter into a HAP agreement for two years.

Mr Walsh said that, in order to qualify for HAP, a tenant must be on the housing list of the local authority. He argued that Ms Harnyk is not Dublin City Council’s housing list. Referring to the letter from Dublin City Council which was sent to the WRC after the hearing, Mr Walsh argued that the Kilbarrack / Coolock area and the Finglas / Cabra area are not in the same location as the property which is currently rented to Ms Harnyk.

Mr Walsh submitted that Ms Harnyk has not shown that she has a long-term housing need. He said that he located the HAP Form sent by the complainant and he attached a copy of part 2, which is the section to be filled in by the landlord. This section is blank. Mr Walsh did not include part 1, which is the part filled in by the HAP applicant.

Mr Walsh argued that there has been no discrimination. He has not refused to rent the property to the tenant because she is on rent allowance.   Ms Harnyk is already the tenant. He said that they signed the original rent supplement form, but they did not sign the HAP application because they have terminated the tenants’ lease, are selling the property and will not be renewing the lease.

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 new “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 to 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 landlords to complete a HAP application form on behalf of their tenant of nine years. They argued that, because a HAP agreement is valid for two years, they could not enter into such an agreement in March 2020, because they intend to sell the property when it is vacated in January 2021.

To assist with my decision regarding this complaint, I conducted some research on the website of Dublin City Council and on the HAP website, www.hap.ie. I also contacted the disputes section of the Residential Tenancies Board. 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 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, Ms Harnyk met the eligibility for HAP, as she was approved for social housing support and was on Dublin City Council’s housing list. She found accommodation and the landlord agreed to rent the property to her, albeit that this occurred in 2011 and the tenancy is due to expire in January 2021. Based on these conditions, I find that there was no reasonable cause for the landlord not to support Ms Harnyk’s HAP application, which could have ceased on the date of the termination of the tenancy. The effect of failing to do so was to discriminate against Ms Harnyk as a tenant who has been approved for the HAP.

Findings

From the evidence submitted at the hearing, it is apparent to me that the landlords refused to co-operate with Ms Harnyk’s HAP application because of their concern that such an application might compromise their decision to issue her and her partner with notice to vacate their 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.

I am satisfied that, based on the facts she has set out, Ms Harnyk has established that she has been discriminated against on the housing assistance ground and the landlords have not rebutted this allegation.

In accordance with Section 25(4) of the Equal Status Act, I am satisfied that the complainant 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 the complainant and I make an order for compensation of €1,200. This is equivalent to what she would have received in HAP payments over three months, if the landlords had supported her application. I also order the landlords to complete the HAP application form sent to them by the complainant in March 2020.

Housing Assistance Payment