Complainant

Respondent

Parties

Valerie Enners

David McCarthy

Representatives

Self-Represented

Donal Gavin W.B. Gavin & Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033939-001

22/01/2020

The Complainant’s compliant relates to discrimination on the grounds of Housing Assistance Payment, Race and Family Status. The Complainant confirmed at the hearing that the first incident of discrimination was on 17 January 2017 with the most recent date of discrimination being 26 September 2019.

The Complainant sent the completed ES1 Form dated 16 October 2010 to the Respondent. Her claim was submitted to the Workplace Relations Commission on 22 January 2020.

The completed ES2 Form was sent to the Complainant on 7 February 2020 from the Respondent.

There are a number of matters that came before me in the submissions and at the hearing which fall outside of my jurisdiction. Consequently, I have not referred to them in this decision.

Further information was requested from the Respondent at the hearing within 7 days of the hearing. This has not been received to date. The Complainant submitted documentary evidence on 18 and 21 September 2020 which she opened at the hearing.

Housing Assistance Payment

The Complainant has been a tenant of the Respondent since 2016.

The Complainant set out the following timeline of events:

On 24 September 2019, she sent the Respondent a text message requesting that he sign the HAP Application Form. By response the Respondent stated he would do so but only for the rent of €1,000 which represented an increase of €300.

On 25 September 2019, the Complainant stated the Respondent did sign the HAP Application Form and gave her notice of termination on the same date.

On 1 October 2019, the Local Authority rejected the Complainant’s HAP Application without explanation.

In November 2019, the Complainant sent a second signed HAP Application Form to the Respondent. She stated that she never received a response from him despite sending numerous text messages.

On 12 November 2019, she stated she received a call from the HAP Section of the Local Authority. The representative of the Local Authority stated that the planning restrictions on the estate in which she resided had now been lifted and due to the restrictions, her application was rejected.

On 9 April 2020, the Complainant presented a letter from the Respondent’s solicitor, in her written submissions, confirming the Respondent had filed the HAP Application with the Local Authority. The letter also requested that she confirm if she had lodged the HAP Application with the Local Authority.

On 28 April 2020, the Complainant presented another letter from the Respondent’s solicitor, in her written submissions, inter alia, requesting as to whether she had filed the HAP Application with the Local Authority.

On 26 June 2020, the Complainant sought details of the HAP Application from the Local Authority. By reply the Local Authority confirmed receipt of Section B completed by the Landlord but were not in a position to disclose any further details for data protection reasons.

The Complainant also stated that she sent numerous requests to the Respondent’s solicitor as well as the Respondent to sign the HAP Application Form in her presence.

The Complainant submitted to date she has not received HAP from the Local Authority as a result of the failure of the Respondent to sign the HAP Application From in front of her.

Complainant’s Witness

The witness stated she was British and gave evidence that she was in receipt of HAP from the time she commenced her tenancy in October 2016. She stated at the time she filled out the relevant Part A section and presented it to an agent of the landlord at the time, Mr O’D. She confirmed she did not meet with the agent to sign the HAP Application Form together nor did she have sight of Part B of the Form.

Race

The Complainant stated that she was being discriminated against by the Respondent in relation to his refusal to sign the HAP Application Form as she was Latvian.

The Complainant gave oral evidence of her neighbour, an Irish man and his girlfriend in No 99, received HAP from the Respondent. She stated that the Respondent met with this man and signed the papers at the house on 20 July 2020.

Family Status

The Complainant’s Complaint Form relates to three grounds of discrimination; Housing Assistance, Race and Family Status. However, neither her narrative contained in the Complaint Form, submissions or her evidence at the hearing related to the ground of Family Status.

Consequently, there is nothing before me to allow me to decide on this ground.

The Respondent confirmed he was the agent for the property at which the Complainant resides.

Housing Assistance Payment

The Respondent submitted an email from the Local Authority confirming receipt of the Part B of the HAP Application Form had been received in relation to the property in which the Complainant resides. A letter from the Respondent’s solicitor dated, 9 April 2020 and follow up letters dated, 28 April 2020 and 6 July 2002 were sent to the Complainant advising the HAP Application Form had been filed by the Respondent and was presented which sought confirmation as to whether she had filed the second part of the Application Form. No confirmation was received from the Complainant to this enquiry.

It was the Respondent’s case that he had signed the relevant section of the HAP Application Form in relation to the property on two occasions; the first in September 2019 when he gave the papers to the Complainant directly and the second in April 2020 when he filed the papers directly with the Local Authority. Consequently, it was submitted that he has compiled.

The Respondent’s Solicitor in cross examination asked the Complainant had she applied for HAP and to produce documentary evidence that she had applied for HAP. The Respondent put forward the argument that the Complainant, herself, failed to complete and file Part A of the Housing Assistance Payment Application with the Local Authority and this is the reason she has not received it.

Race

The Respondent gave evidence that he had many tenants from all around the world and did not discriminate against them. He gave evidence that once the tenant looked after the property and paid the rent or received HAP, it did not matter to him where they were from. No evidence of comparators was presented by the Respondent.

Family Status

The Respondent did not make submissions in response to the claim of discrimination on the grounds of family status.

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,”

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

Section 3(3B) 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 Act 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.

Housing Assistance Payment

The Complainant in her own submission stated that the Respondent presented her with signed a copy of the HAP Application Form on 26 September 2019. It is accepted by all parties that this application was rejected by the Local Authority due to planning restraints.

By correspondence from both the Local Authority and the Respondent’s solicitor from April, June, July and September 2020, it has been confirmed that the Respondent has signed and filed Part B of a HAP Application Form for the property in which the Complainant is a tenant.

It is found that the Respondent did sign the necessary section on the HAP Application Form which remains open with the Local Authority.

It is the Complainant who has not satisfied s. 3 (1) of the Act because she, herself, has not sought HAP from the Local Authority by submitting the relevant Section A of the Application Form for consideration by the Local Authority. She has only ever sent the April 2020 (current) application to the Respondent himself.

The September 2019 Application was rejected by the Local Authority but was signed by both parties.

The Complainant has not established a prima facie case of discrimination on the ground of Housing Assistance.

Race

The Complainant alleged that she was discriminated by the Respondent on the ground of her Race. The Complainant is Latvian. She claimed that the Respondent refused to accept the HAP because of her nationality.

On the basis that the Complainant’s complaint under the discriminatory heading of Race is directly linked to the Housing Assistance Payment and where it has been found that the Respondent has compiled, I find the Complainant has not established a prima facie case of discrimination on the ground of Race in this case.

Family Status

The Complainant alleged that she was discriminated against by the Respondent on the ground of her family status.

The Complainant did not adduce any evidence in regard to this complaint. I find that the Complainant was unable to establish a prima facie case of discrimination on the family status ground.

Having carefully considered all the evidence before me, I find pursuant to Section 25(4) of the Acts, that the Complainant:

1)     has not established a prima facie case of discrimination on the housing assistance ground.

2)     has not established a prima facie case of discrimination on the ground of race

3)     has not established a prima facie case of discrimination on the family status ground  

Consequently, the Complainant’s case is not well founded.

Equal Status –Discrimination – HAP – Housing Assistance Payment – Race- Family Status – Prohibited Conduct- Failed to establish a prima facie case.