Complainant

Respondent

Parties

Joseph  Duffy

Liam Redmond Lettings

Representatives

  N/A

  N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035920-001

29/04/2020

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

CA-00035920-002

29/04/2020

The complainant made the respondent, a letting agent, aware in October 2018 that he had become entitled to HAP in respect of the house that he was renting for €1,600 per month. The respondent informed him in January 2019 that the landlord would not accept HAP because he was selling the property and would be terminating the complainant’s lease.

The complainant stated that having been made aware of an entitlement to HAP in October 2018, he contacted the respondent and asked him to arrange for the relevant documents to be provided by the landlord. He claimed that he was subsequently informed by the respondent in January 2019 that the landlord would not agree to HAP because he was intending to sell the property. The complainant stated that he did not wish to make a big issue of this refusal because he and his family had decided to seek alternative accommodation elsewhere in light of the impending sale of the property. He highlighted that he had considerable difficulty in sourcing a property elsewhere however and, given the landlord’s failure to agree to HAP, was forced to exhaust his family’s savings and seek financial assistance from both his own and his wife’s family in order to pay the rent.

He stated that he and his family were eventually issued a termination notice of the lease in October 2019, nine months after it had first been indicated to him by the respondent, but that both he and his wife successfully challenged this at the RTB given that the notice period included therein was incorrect. He added that the financial pressures were becoming particularly intolerable at this stage and he made contact with the respondent again in an attempt to get the HAP forms signed. The respondent again refused to agree to this given the landlord’s intention to sell the property.

The complainant subsequently sent an ES1 form to the respondent on 28th April 2020 setting out his claim and received a response which stated that in his reply that he could not sign the forms in his capacity as the letting agent. It was also suggested that the complainant should refer the matter to the landlord. As a result, the complainant sent an ES1 form directly to the landlord further to which the HAP forms were signed by the respondent.

The respondent stated firstly that he was incorrectly named as the respondent in this matter and highlighted that he only facilitated the letting of the property. He agreed that the complainant had requested that the landlord provide documentation for the HAP application forms in October 2018. He stated that he made the landlord aware of the HAP request but was informed that he would be selling the property. The respondent added that the landlord then began the process of terminating the respondent’s lease.

The respondent also stated that he engaged regularly with the complainant in an attempt to seek an alternative home for him and his family and added that he had a very good relationship with them. He also highlighted that a solicitor whom the complainant had engaged agreed that he was not the correct respondent in this matter.

The Law

Section 3B of the Equal Status Acts 2000-2016, as inserted by S. 13(b) of the Equality (Miscellaneous Provisions) Act 2015, states that

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”). 

Similarly, S. 6(1)(c) of the Equal Status Acts 2000-2016 was amended by S. 14(4) of the Equality (Miscellaneous Provisions) Act 2015 to read that

[S]ubject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities. 

The Facts

In evaluating the evidence before me, I must firstly consider

(i) whether the complaint is properly before me and

(ii) if the complainant has established a prima facie case pursuant to S. 38A of the Acts. It requires the complainant to set out, in the first instance, facts upon which he can rely on in asserting that prohibited conduct has occurred in relation to him. 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 relation to (i) there is no issue that this complaint is properly before the WRC and has been brought within the requisite time-limits provided by Section 21 of the Acts, including those for giving notice of a complaint and referring the complaint.

In relation to (ii), the complaint is that the respondent, in this case the letting agent acting for the landlord, refused to either (a) sign the application form for HAP when the complainant made the request in October 2018 or (b) did not make his client, the landlord, aware of his legal obligation to do so. Having considered the Complainant’s evidence, which I found to be wholly credible, I am satisfied that the Respondent refused to complete the HAP Application Form and did not make his client aware of his legal obligation to accept HAP.

I am satisfied therefore that the complainant has established a prima facie case and the onus therefore shifts to the respondent to rebut the inference of discrimination raised.

I note firstly that the respondent, in an attempt to distance himself from responsibility, claimed that he only had a role in facilitating the letting of the property. On further investigation however, I note that when the HAP Forms were eventually signed on 26th May 2020, nineteen months after the complainant’s initial request, these were signed by the respondent and not by the landlord. I further note that an email of 31st October 2018 from one of the respondent’s employees to the complainant, presented to me in evidence, stated that “we will contact your landlord to see if he can provide the documents that HAP require. Once he sends them into us we can then fill out your application and return it to you”. 

I am satisfied therefore that the respondent was an active player in the landlord-tenant relationship and that as a letting agent, is a service provider in its own right, within the provision of S. 6(1) of the Equal Status Acts, as amended, notwithstanding his assertions to the contrary.

It was also alleged by the respondent that he requested the landlord to sign the HAP forms but that the landlord refused to do so to because he intended to sell the house and would be serving notice of termination on the complainant and his family in due course. I note firstly however that the complainant was only informed by the respondent of this supposed intention to sell after the landlord had been made aware of the request for HAP and that the notice of termination was not ultimately served until October 2019, nine months after the respondent had communicated the landlord’s intention to sell to the complainant and almost twelve months after the complainant had become entitled to HAP. I also note that the house is still not for sale, almost 2 years after the complainant was informed that it would be. 

Moreover, even if the landlord had intended to serve a notice of termination due to a desire to sell the property, he was still legally obliged to accept HAP as soon as he was requested to do so. The respondent should have informed him of this and was at no time obliged to act unlawfully on his behalf. Specifically, in terms of basic contract law, if an act is illegal under statute, then a contract to do that act will also be illegal and unenforceable.  

The case of Gray v. Cathcart (1899) 33 I.L.T.R 35, sets out this principle. The defendant in that case had taken a lease of an insanitary house in Belfast. The Belfast Corporation Acts made it an offence to occupy insanitary premises. The landlord’s action to recover arrears of rent failed. Johnston J. said:

Everyone commits a misdemeanour who does any act forbidden by a statute; accordingly when these parties entered into an agreement to occupy a house which had been condemned it was a contract to do what the statute says you could not do. It was a contract to do an illegal thing, and though the parties might go through the form yet such a contract is not binding and cannot be sued upon. [as quoted in Clark, Contract Law in Ireland, 5th edition, p. 383, “Statutory Illegality”]

In other words, given that discrimination on the housing assistance ground is unlawful, any contractual obligation on the part of the respondent to accept an instruction from the landlord to reject the HAP request from the complainant is also illegal.

I find therefore this was an act of unlawful discrimination in which the respondent was fully and actively engaged, was vicariously liable and is therefore accountable under S. 6(1)(c) of the Equal Status Acts 2000-2016, amended by S. 14(4) of the Equality (Miscellaneous Provisions) Act 2015 and section 42 (2) of the Equal Status Acts quoted above.

Accordingly, I find that the respondent engaged in prohibited conduct under the Act.

CA-00035920-001:

As outlined above, I find that the Complainant successfully established a prima facie case of discrimination on the housing assistance ground which the Respondent failed to rebut and that he therefore engaged in prohibited conduct.

Section 27(1) of the Act provides that redress may be ordered where a finding is in favour of the Complainant. Specifically, it states that:

"the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or (b) an order that a person or persons specified in the order take a course of action which is so specified."

Given the real and tangible effects of the respondent’s refusal to participate in the HAP Scheme and/or make the landlord aware of his obligation to do so, I consider this discrimination to be at the more serious end of the scale. Specifically, the complainant suffered an actual financial loss of approximately €30,000 between the dates on which he initially applied for HAP in October 2018 and when the respondent ultimately signed the forms in May 2020. While the complainant and his wife did not lose their home, they almost certainly would have, had it not been for the financial support they received from their respective families which enabled them to pay the rent, given the failure of the respondent to ensure that the HAP application forms were signed.  As well as the embarrassment and humiliation involved in having to seek financial support elsewhere, I note the considerable stress that the failure to receive HAP caused the complainant over a prolonged period of time as well as the genuine fear that his family would become homeless.

While the complainant met all of his legal obligations and paid his rent every month despite not receiving HAP, I note that the alleged ignorance of the respondent with regard to his legal responsibilities in this matter, was quite astonishing. Specifically, it is incredible that he attempted to evade his obligations under the legislation by seeking to plead that he was just a facilitator in the letting of the property despite him ultimately signing the HAP forms nineteen months after he was first requested to do so.

I therefore order that the respondent:

(a)    Backdate completion of the HAP forms from when the complainants initially applied in October 2018 to when the forms were ultimately completed in May 2020 and

(b)    Pay the complainant the sum of €10,000 for the effects of the discrimination which I noted.

The award is arrived at having regard to the seriousness of the discrimination, the effect on the Complainant and the requirement that the sanction be “effective, dissuasive and proportionate”.

CA-00035920-002: This is a duplicate claim

HAP; Letting Agent;