Complainant

Respondent

Parties

Kenneth Hayes

Tim Smiddy

Representatives

Tessa Shiels Roberts, Threshold

No Appearance by or on behalf of the Respondent

Act

Complaint Reference No.

Date of Receipt

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

CA-00032413-001

20/11/2019

On 20 November 2019, the Complainant, a joint tenant in a rental property submitted a complaint of discrimination on Housing Assistance grounds to the Workplace Relations Commission. He submitted that he had been denied access to the service of Housing Assistance Payment (HAP) by his Landlord over the course of June and July 2019.

The Complainant is represented by Threshold in the case and has submitted extensive written submissions and accompanying documentation. The last of which was received by me on October 15, 2020.

The Respondent has not responded to the claim and has not made an appearance at hearing or submitted any reason for his non-appearance. I understand from the Complainants representative that he may be resident abroad.

The case was delayed coming to hearing due to the National Pandemic of Covid -19.

The Complainants Representative outlined the background to the case. In August 2016, The Complainant, his then Partner and family became tenants of a rental property owned by the respondent. The complainant understood that the landlord lived abroad and virtually all contacts on the tenancy were undertaken through the landlord’s brother, Mr A, who was resident in Ireland.

In June 2017, the complainant’s financial circumstances changed, and he was placed on a waiting list for Social Housing. He qualified for a Housing Assistance payment but was denied the opportunity to pay rent with the support of this payment.

Subsequently, the complainant’s financial circumstances improved, and he continued to pay rent at €1,000 monthly directly to the landlord.

The Complainants representative submitted that the value of the HAP payment allowable in the complainant’s local authority amounted to €950 per month, where the complainant would then be expected to make a residual payment directly to the local Authority.

The Complainants circumstances changed following the birth of his fourth child and he became the sole earner outside the home. The family was approved for HAP during May 2019.

On 26 June 2019, the complainant emailed the Landlord seeking his consent to accept the HAP forms issued by the County Council. He did not receive a response. He subsequently posted the HAP forms to the Landlord but did not receive them back.

Threshold for the Complainant wrote to the Respondent on 2 July 2019. They explained the legislative framework of “Housing Assistance Payment “as a new ground of Discrimination. They requested that the respondent complete the HAP forms “as a priority “.

The Respondent did not engage with this request and did not respond to any request to complete the HAP forms. This left the complainant in an unenviable position where, he was struggling to pay his rent.

On 8 July 2019, the complainant received an invalid rent review, which sought to increase the monthly rent to €1250. This was followed by an invalid notice of termination on 13 August later that year. This necessitated the complainant taking time off work and college to attend the Residential Tenancy Board. The Respondent did not make an appearance at this forum. The Complainant continued to struggle to pay rent monthly.

Threshold wrote to the respondent on 9 July 2019 and sought completion of the HAP forms by 23 July 2019. The Respondent did not respond, and the complainant interpreted this as a refusal to grant him and his family HAP.

The Complainants representative contended that this refusal to facilitate a Housing Assistance Payment amounted to direct discrimination on Housing Assistance grounds in contravention of Section 6(1) (c) of the Equal Status Acts.

The Complainant compiled an ES1 form comprised of 14 questions and submitted it to the Respondent on 15 August 2019.

The questions covered whether the Landlord was aware of HAP, whether he had a recall of the previous two applications for HAP, whether he wished to now engage in completing the HAP forms?

The questions also centred on the respondents visit to the property on July 20 without completion of the HAP forms. The complainant also asked the respondent to recall that he “had indicated verbally to me that you will not be accepting HAP “and he requested “Can you advise me that you verbally informed me that if I pursued HAP you will have no choice but to sell the property “

The Complainant did not receive a response to the ES1 and proceeded with his complaint before the WRC.

The Complainant vacated the property in December 2019 and now resides with his parents. His partner lives in a neighbouring county with their children and is on the social housing list in that county. The complainant attributes the ongoing pressure surrounding pursuance of HAP and the respondent’s avoidance as a causative factor in this family breakdown.

The Complainants Representative submitted that the complainant had been penalised for exercising his rights to apply for HAP. He had been denied completion of the HAP forms and threatened with an increased rent and eviction as a result. The respondent’s reliance on a stated consideration of the house sale was an insufficient ground on which to refuse HAP.

Complainants Evidence:

The Complainant commenced a three-year tenancy in August 2016. Tenancy Agreements and extensions exhibited. The House was well presented, and the family was happy there.

The Tenancy was a joint tenancy with his partner for €1,000 a month. In the beginning both parties to the tenancy were working and rent was affordable.

In May 2017, he approached the Landlords brother and told him that he had been approved for HAP, but he didn’t hear back. He did not pursue this further. the complainant exhibited a copy of a text from the Landlords brother which confirmed that he “had sent him the stuff to read “.

The Complainant outlined that his son received a diagnosis of Autism in 2018 and his partner became a full time Carer and the household was reduced to his wage.

In May 2019, the family was approved for “a 4 bed Social Housing Support (Disability requirement)” inclusive of HAP.

In June 2019, the Complainant emailed the respondent indicating that he was going to apply for HAP. He followed up but did not hear back.

By then, his wage had reduced to €650 per week and the €1,000 rent was challenging and stressful in the face of other liabilities. He felt under pressure to secure HAP for his family and was not deterred when informed by the Landlord that “HAP” was “too complex”. He had an awareness of how HAP worked as friends of his relied on it. He knew that the Respondent would receive €950 directly from the Local Authority and his household would have liability for the remainder.

The complainant confirmed that he had not retained copies of the original HAP forms as he had submitted the originals received from the County Council and these were never returned.

The Complainant followed up directly with the Landlord. On June 25, 2019, the respondent emailed following an earlier conversation.

“I confirm that the Rental agreement re X …. expires on 7 August 2019. I do not wish to renew it for another year as I am considering selling the property “An offer of the potential for a 1-month extension followed to 7 September 2019.

On 8 July 2019, the complainant was notified by the Landlord of an invalid rent review, which sought to raise the rent in a Rent pressure zone to €1250. He exhibited a signed copy of this document.

He had approached Threshold for advice and awaited progress as two attempts were made to secure the Landlords consent to HAP through June and July 2019. All went unheeded.

On 13 August 2019, the complainant and his partner received an email copy of a Notice of Termination for 15 February 2020.

The Complainant exhibited a copy of the Residential Tenancies Board Determination order dated 9 January 2020 which found the notice of termination and notice of rent review to both be invalid. Rent at €1,000 was re-affirmed as correct. This was not appealed by the respondent who had made a written submission, but no appearance.

The Complainant submitted that he had struggled with rental payments during 2019. He was aware that the respondent lived in the UK and had spoken to him regarding HAP in late June 2019, where he was informed that HAP was “too complex “.

The Complainant described the high impact that this financial insecurity had on his family relationships and attributed it as a factor in their splitting up. His partner and children are currently resident in a neighbouring county and on the social Housing list for that County. He remains aggrieved by the indifference of the Landlord towards his need for the support of HAP.

He contended that he had been penalised in seeking HAP when he was met with an invalid Rent review and notice of termination. The House was well maintained and not damaged in any way. He told the hearing that the house remained unoccupied and had not been sold.

The Complainant sought monetary compensation for the upset caused.

Post hearing, following the adjudicators inquiry, the complainant submitted a copy of a text attributed to the respondent’s brother dated 4 May 2020 and he wished this to be included in the investigation in the case.

“I’m pretty (expletive) ……off with the way things ended up with the house. I gave ye guys the house as ye seemed decent people and need a family home. My brother was accommodating with ye too and for ye to go to the TRB route then leave and let him in the lurch was pretty (expletive) ……. behaviour.”

The Complainant did not submit any paperwork associated with the 2017 application for HAP. He submitted that he had requested confirmation documents on HAP from 2019, but the County Council had not provided them.

There was no appearance by or on behalf of the Respondent at hearing. I have not received a written response to the claims from the Respondent.

I have been asked to investigate the complaint of discrimination on Housing Assistance grounds in accordance with section 3 and section 6 of the Equal Status Act 2000 as amended, submitted by the complainant on 20 November 2019.

Details of the complaint were forwarded to the Respondent on 26 November 2019. The case was first scheduled for hearing on 23 March 2020 but was postponed due the national pandemic. It resumed on October 1, 2020.

I delayed the commencement of the hearing to allow for the respondent’s presence at hearing. I consulted the WRC office in Dublin to ascertain if any reason was forthcoming to explain the respondent’s non-appearance. There was none. I commenced the hearing in the sole presence of the complainant and his representative.

I am satisfied that the respondent was on proper notice of the details and location of the hearing.

At the hearing, the complainant’s representative sought that a complaint of victimisation be permitted adjunct to the claim for discrimination. She acknowledged that this was not listed on the original complaint form but submitted that it had been referred to on the questionnaire attached to the ES1 form, which remains unanswered by the respondent. I have drawn inferences from the respondent’s failure to engage in a statutory notification procedure.

I have given this request some consideration and as I am mindful that the complaint form is the foundation document for a claim before the WRC. However, in this case the Pre-cursor document is the ES1 form served by registered post on 15 August 2019 and reference to an alleged act of Victimisation was cited at Question 8.

I accept that the complainant omitted to enter a claim for Victimisation in accordance with section 3 the Act. However, I am not satisfied that the Respondent is properly on notice of the depth of the complaint for Victimisation and I have decided not to allow the inclusion in my investigation.

The Housing Assistance Payment (HAP) was provided for and governed by Part 4 of the Housing (Miscellaneous Provisions) Act, 2014. These provisions were commenced and extended through a series of Secondary Legislation. It replaces the formerly titled Rent Supplement. It is a payment made to an Individual/family who have been deemed eligible for Social Housing, but no such facility immediately exists. The payment is contingent on Landlord knowledge and co-operation. In addition, the     dwelling must meet standards prescribed under section 18 of the Housing (Miscellaneous Provisions) Act, 1992.

The Central Statistics Office points to a large increase in the proportion of Households in the Private Rental Sector from 10% in 2006 to 19% in 2016. This must be viewed against the Government plan, “Rebuilding Ireland “to complete 47,000 Social Houses by 2021. HAP is a cash-based Housing Assistance Payment. The tenant or prospective tenant acts as a primary applicant for the payment and is required to obtain the Landlords written consent by means of HAP application forms. The Local Authority serves as the ultimate decision maker on the application of HAP to a qualified Household.

Section 20 of the Housing (Miscellaneous Provisions) Act 2009 provides:

“(1) For the purpose of this section ‘household’ means-

(a) a person who lives alone,

(b) two or more persons who live together, or

(c) two or more persons who do not live together but who, in the opinion of the housing authority concerned, have a reasonable requirement to live together.

(2) Where a household applies for social housing support, the housing authority concerned shall, subject to and in accordance with regulations made for the purposes of this section, carry out an assessment (in this Act referred to as a ‘social housing assessment’) of the household's eligibility, and need for, social housing support for the purposes of determining-

(a) whether the household is qualified for such support, and

(b) the most appropriate form of any such support.”

The Equal Status Act, 2000 as amended prohibits discrimination on Housing Assistance grounds in all stages in the provision of rental accommodation.

Section 3(3)(b) of the Act provides:

(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 ” ).

Section 6 provides:

Disposal of premises and provision of accommodation.

6

6.—(1) A person shall not discriminate in—

( a) disposing of any estate or interest in premises,

( b) terminating any tenancy or other interest in premises, or

( c) subject to subsection (1A) , providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

(1A) Subsection (1)(c) is without prejudice to —

(a) any enactment or rule of law regulating the provision of accommodation, or

(b) 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.

Section 38 A of the Equal Status Act 2000, as amended outlines the burden of proof in this case. It places an onus on the complainant to provide evidence from which it may be presumed that prohibited conduct has occurred.

I would have valued sight of the County Council 2019 endorsement of the complainant’s application for Social Housing. I did receive a copy of this endorsement to the complainant’s former partner dated February 2020. The Complainants representative submitted that several requests had been made of the Council for this document, but it had not been released and the complainant had not retained a copy for his file.

Instead, I took evidence from the complainant that he was a constituent of the Social Housing list and had been approved to apply for HAP in May 2019. He also submitted that he applied for HAP in 2017, which failed to receive Landlord consent. In the face of the uncontested evidence of the complainant, I accept that the complainant had been cleared to apply for HAP while resident on the County Council waiting list for a Social House for his family. He is covered by the ground of Housing Assistance.

I would like to have met the respondent in this case. I note that a written response appears to have been lodged by him without appearance for the proceedings before the RTB, but no response has been forthcoming to the ES1 form lodged in August 2019 or the WRC complaint of November 2019. I have drawn inferences from this omission and have found a worrying level of indifference to the claim. It may be that the respondent is not a registered Landlord and fits the “Accidental Landlord “profile, however this does not constitute any grounds for exemption in accordance with Section 5 of the Act.

I have reflected on the complainant’s evidence on the respondents stated reluctance to engage with HAP in June 2019. He submitted that “HAP” was too complex for the Landlord. I accept that the complainant experienced acute financial distress while he was seeking the Landlord consent to HAP.

Perhaps the respondent was also experiencing financial problems, but I have no way of establishing that detail.

From my investigation of the circumstances of the case, I am satisfied that the complainant was denied HAP by his long-standing Landlord in June and July 2019. The inclusion of Threshold in active advocacy to get the Landlord to engage in the legislative framework of HAP went unheeded. This was an avoidance which amounted to callousness by the respondent and was not reversed in the face of a profound set of questions attached to the ES1 form.

Section 2(3) of the Equal Status Acts provides that:

(3) In any proceedings a respondent is presumed, unless the contrary is shown, to fail to do something when —

  (a) the respondent does an act inconsistent with doing it, or

  (b) the period expires during which the respondent might reasonably have been expected to do it.

I am satisfied that the respondent refused to consent to the complainant’s application for HAP and this amounts to direct discrimination contrary to sections 3 and 6 of the Equal Status Act 2000 as amended.

I was unable to secure a response from the Respondent.

In December 2009, the Lisbon Treaty facilitated an emerging jurisprudence where a stronger convergence evolved between the European Human Rights Frameworks of the Council of Europe and the United Nations with a context of protecting human rights. I found a human rights aspect to this case.

The Complainant secured the tenancy in this case in 2016 and did not foresee that his financial circumstances would ebb and flow as they eventually did. In short, he did not envisage applying for HAP as he had not yet been placed on the Social Housing List.

In Pullen and ors v Dublin City Council [2008] IEHC 379, Irvine J in the High Court held that that an eviction for anti-social behaviour interfered with the family’s rights under article 8 the European Convention of Human Rights, given effect in Irish Law by the European Convention of Human Rights Act, 2003 as the Council was an organ of the state.

In the instant case, the complainant was a participant on the Local Authority social housing list from May 2019. He submitted that he was directed to secure the Landlord consent to HAP in a private letting arrangement. He was unable to obtain that consent. The consequences of that refusal resulted in the tenancy ending abruptly but not before the RTB, another organ of the state became involved.

I would have preferred to see the respondents reasoning for refusal of HAP set out in a document commensurate with the period of application. Without this reasoning, I saw the actions that followed the application for HAP to be stark and heavy handed.

I found the text attributed to the Respondents brother to be ignorant of the law surrounding HAP and grossly misjudged.

It may be a statement by way of obiter dictum, but I have identified that the complainant was vulnerable in his directed dealings with a private landlord while an active participant on a Statutory Housing List. I would have preferred to see the process of securing consent for HAP led by a liaison process through the Local Authority rather than on the shoulders of someone who was clearly struggling with a worsening family and financial dynamic.

I appreciate that the house secured by joint tenancy was more than a house to the complainant, it was a home and he wished to protect that entity for his family .Article 8 of the European Convention of Human Rights would support that ideal .It is regrettable that the parties did not manage to engage on this core point that goes to the root of this case .

In a recent Adjudicator decision in ADJ 26767 Baikoua and O Brien, Durham, the Adjudicator found that a refusal to agree to HAP followed by an enhanced inspection pattern of the property amount to discrimination and victimisation.

In all the circumstances of the case, I find that the complainant experienced prohibited conduct by the respondent in his pursuance of HAP which amounts to direct discrimination on Housing Assistance grounds

I find his complaint to be well founded.

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

I have found that the complainant experienced prohibited conduct in his quest to secure a HAP payment to support his housing needs. I found that the refusal to grant HAP had detrimental consequences for the complainant’s family life.

In accordance with Section 27(1)(a) of the Equal Status Act, I order the respondent to pay €8,000 to the complainant in compensation for the effects of the discrimination. This covers the amount expended on rent during the cognisable period and a sum to address the complainants stress as a result.

In accordance with section 27(1) (b) I order the respondent to familiarise himself with the legal framework for HAP and the obligation for Landlords in this jurisdiction up to and including a careful consideration of registration as a Landlord with the Local Authority.

Complaint of discrimination on Housing Assistance Grounds