Complainant

Respondent

Anonymised Parties

A Prospective Tenant

A Landlord

Representatives

Appeared in Person

Appeared in Person

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031476-001

09/10/2019

On 9 October 2019, the complainant, a prospective tenant submitted a complaint of discrimination on grounds of Family, Age, Race and Housing Assistance against the respondent landlord.

The complainant, a Romanian national had been in pursuit of an alternative rental residence for his family and contended that he had been discriminated against in contravention of the Equal status Acts 2000-2015.

The respondent denied the claim.

Both parties presented as lay litigants. I have given some thought to the complainant’s oral submissions on seeking an anonymised decision in the face of the likelihood of his having to test the rental market at some point in the future and his name associated with the case may be a problem. I noted that the respondent had no stated preference in that regard. I have decided to use the discretion permitted to me and have anonymised this decision.

The complainant is a Romanian national and father of two young children then aged 2 and 4. He is the sole earner as his wife does not work outside the home.

The complainant had been living in a small village on Housing Assistance Support payment for 3 years and wanted to relocate to a larger town which was better resourced. His case centred on being refused a tenancy by the respondent due to his reliance on HAP.

The complainant wished to make plans to relocate from the smaller village to the larger town to coincide with the end of august 2019. He hoped to place both of his children in crèche to permit his wife to go to work and the larger town was eminently more suitable for that purpose.

He met friends of his on May 6, 2019 who were live tenants of the respondent and they told him they had decided to buy their own home. The complainant asked his friends to pass his contact details to the Respondent as he was keen to explore a succession tenancy.

On May 7, the complainant emailed the respondent with his documentation which included HAP confirmation and ID where he was shown as having dark hair and tanned skin.

“This is X. Y spoke to you about us. we are a family with 2 kids, 2 and 4 interested in rent your apartment. Please let me know when we can talk or meet to discuss more details.”

The response dated May 7:

Please find a list of what I would require of any potential tenant. If you could please forward me on these details Id appreciate it and get back to you as soon as possible.

He was informed that rent would be €1100 monthly and the respondent would let him know in a week or two after paper work was received. The complainant forwarded his documentation and confirmation that he was in receipt of HAP

On May 22, 2019 the respondent informed him that “I have decided to postpone getting a new tenant until my current one moves out. At that stage, I will then advertise the property.”

The respondent asked him to postpone until the current tenants moved out.

On May 24, 2019, the respondent informed him that the tenancy was not the right decision for her.

The complainant was concerned that this may be a discriminatory practice and contacted an Advisory service on May 25, who advised him to wait for the property to be relisted. He contacted the respondent to ask if he could be considered as a tenant and was advised to wait until it was next advertised and to apply with other candidates.

On 9 August, the complainant saw the property advertised on a Rental website. The next day he expressed an interest in the property and did not receive a response. There was no phone contact details and communal viewing was to be arrange for August 27.

The complainant contended that his and his family were not wanted as the minute a landlord hears of HAP reliance by a prospective tenant, they don’t want to know. He contended that prospective landlords prefer animals to children as tenants.

The complainant submitted that he was an applicant for the rental property when it came for rental and exhibited an email which demonstrated this level of interest by his family. He was clear that he had applied to the rental website and offered to obtain a copy of his expression of interest received by the letting agency and forwarded to the respondent. The complainant subsequently confirmed that the letting agency had not retained this document but offered a confirmation that enquiries sent via their website are sent directly via the advertiser’s personal email.

He was not aware on what date his friends relocated from the property. He submitted that he had felt under an enormous pressure to relocate his family before the end of August 2019.

He filed his ES1 form on 6 September and contended that he had been discriminated against.

The complainant relocated with his family to the larger town in late September 2019 and has settled in well.

The respondent furnished a replying submission on 5 November 2019. She outlined that she had never met or spoken with the complainant prior to the hearing day.

She attended the hearing accompanied by her Partner. She denied the claim of discrimination and proceeded to outline her response to the claim.

The respondent had rented an apartment to an Eastern European family with two children for several years before they decided to invest in a home of their own which was under construction during 2019. She was awaiting confirmation of their intended leaving date.

The respondent submitted that she was happy to pass her contact details to her then tenant to pass to the complainant to explore an interest in rental.

The respondent recalled receiving a contact from the complainant in May regarding the apartment. She recalled that she felt pressurised by him and told him that she wasn’t taking on a tenant at that time. She re-affirmed that position on 22 May 2019.

The former tenant was to leave in August and the respondent was keen to avoid a gap in time in tenancy.

The respondent was preparing for her holidays in early August 2019, when she re-advertised the apartment on 9 August giving her partners email address at the contact point. She did not see the complainant’s application which he had sent to her personal email and had not furnished any reply to him. The applicants were short listed, and an offer of tenancy made. A copy of the Advertisement was exhibited which was entered on 9 August and deactivated on 1 September 2019.

The respondent confirmed that the complainant had not applied for the rental in August through the rental website as her partner had not received details of his application.

The respondent returned home on 25 August 2019.

The apartment was rented to new tenants, an Irish same sex couple on 16 September 2019.

In addressing her omission to respond to the complainants ES1 form, she couldn’t believe what she was being accused of and had shrunk from responding. She apologised for this omission but qualified it in saying that she felt that she was being unjustly targeted by the complainant for flaws in the rental market.

The respondent denied that the complainant’s race, family or housing assistance status had anything to do with her interaction with him. She had been awaiting a firm date for leaving from her former tenants who were friends with the complainant and wished to rearrange the apartment to prepare for the next tenants. The complainant had been welcome to apply through the rental agency and he had not been ignored.

The respondent acknowledged the complainants stated difficulty in sourcing family centric suitable accommodation and wished him well.

I have considered the written and oral submissions of both parties in this case. The complainant has submitted that he was discriminated against on the multiple grounds of race, age, family and housing assistance. The complaint form differed from the ES1 where the complainant had previously made a complaint of reasonable accommodation on disability basis but clarified that he did not possess a disability. In addition, he had not listed the “age “grounds on the ES1 form but had included it on the WRC complaint form. The complainant did not lead evidence on how he believe that he was treated less favourably on age grounds.

The law was changed to help people who are struggling to source private accommodation because they depend on State assistance. The law has outlawed discrimination on housing assistance grounds at all stages in the provision of rental accommodation, in advertising and making offers of new tenancies, in bringing existing tenancies to an end and in the treatment of tenants during the term of an existing tenancy.

Complaints are brought pursuant to Section 3 and 6 of the Equal Status Act 2000 as amended by the Equality Miscellaneous Provisions Act, 2015 with effect from January 1, 2016

The Equal Status Acts 2000-2015 prohibit discrimination in the provision of goods and services. This precludes prohibited conduct in all services available in either the public or private sector.

Section 3(1) of the Act provides that discrimination shall occur where

(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 sub section 2 which exists, existed but no longer exists or may exist in the future or is imputed to the person concerned.

Section 5 prohibits discrimination in disposing of goods to the public generally or a section of the public or in providing a service

Section 6(1) prohibits discrimination in

(a)    Disposing of any estate or interest in premises

(b)    Terminating any tenancy or other interest in premises or

(c)     Any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities

Section 38 A outlines the burden of proof required in this case.

Where in any proceeding’s facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him, it is for the respondent to prove the contrary

The complainant approached the case from a sense of weariness at the Private Rental Market at being rejected by multiple potential landlords in the private sector. I fully always accept that he worked to put his family in the best accommodation open to him and saw the benefit of HAP during his three-year tenancy.

The respondent approached the case from a sense of disbelief that any communication entered could be viewed as discriminatory.

For my part, I looked carefully at the facts as presented.

The parties had never met before the hearing. They had a brief email exchange in May 2019 and I looked carefully at this email thread. The complainant was keen to use his connections with the tenant family to lead to a successive tenancy for his family in August 2019. That was perfectly reasonable on his behalf.

The email thread demonstrated a brief exploration and information exchange from the respondent to the complainant on facts of the tenancy May 10 -May 22. This came to an end when the respondent decided not to take this exploration further as she submitted that the sitting tenants had not declared their leaving date. As the complainant had submitted details of HAP in his then tenancy, he considered that this was the root of the refusal.

Having listened carefully to both parties, I have concluded that the complainant may have over thought that point, so intense was his need for relocation. While I appreciate that the respondent engaged with his queries on rental price etc, this was an informal conversation while tenants were in her property.

I accept the respondent evidence that she had not received a leaving date from this family by the end of May 2019 and an expression of interest in tenancy could not amount to a legitimate expectation of guaranteed tenancy by either party at that point. In short, nobody could be bound by it.

I did probe the respondent knowledge of HAP and she submitted that she had no awareness of it and it was not material in her refusal to engage further with the complainant. I was struck by her honesty when she said that she felt pressurised by the complainant and this taken with the sitting tenants uncertain leaving date went to the root of her distancing from him.

The complainant asked the respondent to reconsider her position of not wishing to take the exploration of tenancy further. He was aggrieved and suspected discrimination. The complainant referred to a query he submitted to an Advisory body on discrimination regarding the property at the centre of this case and another. His email thread exhibited at hearing suggested that the Advisory body had engaged in further emails but these were not exhibited.

The ES1 form referred to a discriminatory action taking place at 09.49 hrs on July 26,2019. Considering the advertisement of the apartment being linked to August 9 by the respondent, I probed this dateline.

The complainant sent an unsolicited email to the respondent personal email on July 26. He confirmed that he continued in hunting for a rental premise and wondered if the respondent was still looking for a new tenant. He referred to his erstwhile submitted documentation and asked “but tell me please if there is something else needed to facilitate your decision? “

The respondent responded the next day saying nothing had changed and she awaited a final leaving date from the sitting tenants and she planned to redecorate before advertising for new tenants. The complainant was invited to apply, and he would be considered with all the others.

This exchange occurred outside any formal rental advertisement an was unsolicited. The respondent had not yet formally declared that she intended to provide a service as defined under Section 5 of the Act.

What happened next seems a little unclear as I have not manged to secure a confirmation of application for rental of the respondent property through the rental web sites as they inferred that contacts following advertisement are channelled through to the advertiser /prospective landlord. In this case, this amounted to the complainant’s partners email address. No cause of action in terms of complaint of discrimination has not been raised against either of the letting agents.

I have received a copy of an email sent directly to the respondent by the complainant date August 10. This by passed the official advertisement process for the rental and was not picked up by the respondent.

I then found a screen shot of the of text sent by the complainant to the rental agency in or around August 10 yet titled by the respondent’s name. This was not in keeping with the contact details laid down by the rental agency and I have formed the view that the complainant’s application may have been overlooked for want of a correct contact. The contact reference said X and the complainant addressed his application to XY (the respondent). I use these references as the decision has been anonymised.

My attention was then drawn to a script of an email attributed to the complainant’s wife dated August 26, 2019 at 21.13 hrs to the named contact X. This read as an application for a rental property but did not mention the complainant by name and referred to the writer being on maternity leave. I noted there were two different names listed on this script an English name and the name given by the complainant to his wife on the August 10 document. I did not meet the complainant’s wife and this email was submitted post hearing, so I did not get an opportunity to probe it.

Taken with the first application sent to the rental agency in the name XY, I can accept that the respondent did not receive an application proper from the complainant through the rental agencies during the time line of 9 -26 August, the time where shortlisting took place.

I have not been able to infer facts from which I can establish discrimination on race, age, family or housing assistance grounds occurred in this case.

The complainant did not lead any evidence on the complaint of age. The respondent had not opened the advertisement by July 26, 2019, yet, the complainant contended that he had been discriminated on that date.

I note the respondent assertion that the decision making on rental application rested with her and she believed that she practiced this fairly. However, while I accept that the respondent is in the category of “accidental landlord“ decision making in terms of a provision of service is subject to laws on equal status and I would encourage her to obtain a greater depth of knowledge in that regard via the WRC or IHREC website.

As stated, I fully accept that the complainant had faced a considerable mountain in seeking to secure preferential rental accommodation for his family during summer 2019.

However, I have found that he has not met the test for the burden of proof set down in section 38 A of the Act. He made assertions of less favourable treatment which fell short of fact. He has not made out the case that he was treated less favourably than a comparator, actual or hypothetical and I find his complaint not well founded in that regard.

Decision:

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

I have found that the complainant had not made out a prime facia case of discrimination on grounds of race, age, family and Housing Assistance.

The claim Is not well founded.

Discrimination on age, race, family and housing assistance