Complainant

Respondent

Parties

Jolanta Wicinska

Kevin Heffernan

Representatives

Karina Timothy, Threshold

No appearance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033432-001

29/12/2019

On 26 August 2020, the Respondent did not attend the hearing. I waited until 9.30am for the Respondent to attend. Having carefully reviewed the file there is correspondence from the Respondent to the Workplace Relations Commission regarding the hearing. The Respondent did advise by email dated 10 August 2020 stating that he would be in attendance with his solicitor. The Complainant provided proof of registered post and acceptance by the Respondent of the ES 1 Form to the same address on file. Having regard to all the circumstances, I decided to proceed with the hearing.

However, due to exceptional case specific circumstances the hearing was relisted for hearing on 24 September 2020. Having reviewed the file again there was correspondence from the Respondent since the last hearing date.

At the hearing on 24 September 2020, I again waited for a reasonable amount of time for the Respondent to attend but he did not appear. The case proceeded.

The Complainant claim relates to the failure of the Respondent to accept and sign the Housing Assistance Payment (HAP) forms to allow the Complainant available of the HAP.

She has been a tenant of the Respondent since September 2012.

The Complainant is a tenant of the Respondent. The Respondent notified her of a rent increase from €500 to €600 on 10 April 2019 but due to an issue with the timing the review was deferred until June 2019. A higher rent again of €650 was sought from the Respondent by text dated 30 May 2019. The Complainant took issue with this increase due to the additional amount sought and the timing.

The Complainant sought financial assistance and received approval from the Local Authority for HAP by letter dated 12 July 2019. The Complainant gave evidence that she waited for the rent review to be communicated in the correct manner and at the same time requested that that Respondent sign the requisite forms. There was no response from the Respondent.

On 3 October 2019, the Complainant presented evidence of a further rent increase sought via text message from the Respondent. It was the Complainant’s oral evidence that the Respondent demanded a higher rent of €700 in exchange for signing the HAP forms. The Respondent changed his mind again and requested €850 per month in rent on 6 November 2019. This led to the confusion on the part of the Complainant and she sought clarification in a text message to which the Respondent stated via text message of 6 November 2019; “No I am not accepting HAP! Sorry for any inconvenience caused but if you pay 700 per month from December you can stay”

At the hearing on 24 September 2020, the Complainant provided further evidence of a text message exchange on 9 January 2020 wherein the Respondent gave the Complainant 2 options:

“Option 1: Rent of €700 per Month or option 2: I will accept Hap with rent of €800 per month similar to my current tenants on HAP. I await your decision. Thanks Kevin”

The Complainant confirmed that she has signed the HAP Application Form but as there has been no agreement or communication on the part of the Respondent in response to the Application Form since 9 January 2020.

The Complainant presented 2 comparably examples of tenants who are in receipt of HAP from the Respondent but have accepted to pay him a higher rent in order to obtain it.

The Complainant gave evidence that the discrimination continued after she lodged her claim with the Workplace Relations Commission on 29 December 2019. She is in a difficult financial position due to the irregular nature of her work which has been adversely affected by Covid19 restrictions. Despite this she has always prioritise payment of her rent which has put her under further financial and emotional stress. She has been approved by the Local Authority for HAP since 12 July 2019. She gave evidence that if she was in receipt of HAP she would have security and ensure around the payment of her rent.

There was no appearance on behalf of the Respondent at either of the two hearings.

No evidence was put forward by the Respondent.

Section 3(1) of the Equal Status Act, 2000 as amended provides:

“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) of the Act provides:

“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”).”

Burden of Proof

Section 38A applies to all complaints of discrimination under the Equal Status Acts which places the burden of proof on the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. 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.

There are 2 pieces of key evidence presented by the Complainant in this case; the text message of 6 November 2019 wherein the Respondent expressly stated he would not accept HAP unless the Complainant a significantly increased rent and the text message of 9 January 2020 wherein the Respondent expressly stated that he did accept HAP from other tenants on the basis they paid a higher rent.

Conclusion

Having taken consideration all the evidence before me, I am satisfied that the Complainant has established a prima facia case of discrimination on the housing assistance ground and consequently, has discharged the burden of proof.

For the reasons outlined above, I am satisfied that the Respondent was given every opportunity to set out his case but failed to do so. Consequently, he has failed to rebut the prima facie the Complainant’s case of discriminatory treatment on the housing assistance ground.

Having concluded my investigation of this complaint, I find pursuant to Section 25(4) of the Acts, that the Complainant established a prima facie case of discrimination on the housing assistance ground.

The Respondent engaged in prohibited conduct.

Consequently, the Complainant’s case is well founded.

Section 27(1) of the Act provides redress may be ordered where a finding is in favour of the Complainant. Section 27(1) provides 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."

The maximum amount of compensation that can be awarded is €15,000. I order that the Respondent to pay to the Complainant the compensatory sum of €7,000 which I consider appropriate in the circumstances.

Of serious concern is the continuing discrimination and breach of the legislation so pursuant to Section 27(1)(b) of the Acts. Consequently, I direct the Respondent to take all steps required to enable the Complainant to participate in the HAP Scheme from 12 July 2019 (including completion of the Application Form and compliance with any necessary conditions) and accept HAP payments from the relevant Local Authority.

Equal Status-Discrimination – Housing Assistance Payment- Respondent failed to attend hearing - Prohibited Conduct- Prima Facie case – Order to participate in HAP Scheme- Redress