Complainant

Respondent

Parties

Shauna Johnson

Kevin Smith

Representatives

Fiona Mc Grattan, Threshold

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00034695-001

Withdrawn at the hearing

17/02/2020

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

CA-00034695-002

17/02/2020

The complainant in this case, Ms Johnson, claims that she was discriminated against on the housing assistance ground under Section 3(3B) and in terms of Section 6(1)(c) of the Equal Status Act 2000.

Ms Johnson said that in December 2019, she was looking for a house to rent with her child. She saw Mr Smith’s property advertised on Daft.ie for €1,600 per month. The house was near where she lives with her mother and it suited her needs. On December 6th, Ms Johnson sent an email to the estate agent, Mr O’Flaherty and she made an appointment to see the house.   Mr O’Flaherty said that over 25 people viewed the property and he selected Ms Johnson as the most suitable tenant.

Ms Johnson filled in an application for the housing assistance payment (HAP) and she posted the application form to Mr O’Flaherty.

Some time between December 6th and December 16th, Ms Johnson was in touch with the HAP office in Dublin City Council. They had received her application, with the landlord’s part completed by Mr O’Flaherty.   The landlord, Mr Smith, had not signed the application, although his name was printed on it. It emerged that there was an error in the address of the property on the documents of the Residential Tenancies Board (RTB), which referred to Welmount Park, instead of Welmount Court. The HAP office was not satisfied with the documents showing evidence that the house was insured. They also looked for evidence of 12 months of mortgage payments and a landlord’s tax clearance certificate. In the end, the HAP application was rejected and sent back to Dublin City Council for clarification.

Ms Johnson said that the official in the HAP office in Dublin City Council was helpful to her and she was confident that the application would be processed, but that it would be delayed. She told Mr O’Flaherty that there would be a delay of six weeks for the landlord getting the HAP payment. She explained that she had the money for the deposit and the first month’s rent and, on December 16th, she arranged to meet Mr O’Flaherty at the house to finalise the contract and to hand over the rent and the deposit in cash.   Mr O’Flaherty contacted Mr Smith, who said that he didn’t want to wait for six weeks and he withdrew the offer of the house. In the end, it was rented to a person who was not in receipt of HAP.

Ms Johnson’s case is that she was discriminated against when Mr Smith withdrew the offer of his property to her because of a delay in the processing of her HAP application.   Mr Smith decided that he couldn’t wait for six weeks for the approval to be confirmed and he rented the property to someone who was not in receipt of HAP. Ms Johnson said that she knew that Mr Smith would be inconvenienced by the delay, and she had one months’ rent and a month’s deposit from her savings to give him.

On Ms Johnson’s behalf, Ms McGrattan said that the HAP office had a query about the error on the RTB registration document. They also looked for a mortgage statement, although, at the hearing, we learned that Mr Smith did not have a mortgage on the property. She said that Ms Johnson should have been given the time for the HAP application to be processed, but Mr Smith decided that it was easier to rent the property to a “cash” tenant. Ms McGrattan said that the only reason that Mr Smith did not rent his property to Ms Johnson was due to the HAP delay. By not waiting for the HAP application to be processed, Ms Johnson was treated differently to a person who was able to rent the house from their own resources.

Mr Smith said that he has no issue with HAP and that the previous tenant who rented this property was a HAP tenant. He said that he provided all the documents that he was legally obliged to submit in the HAP application, but he was informed by Ms Johnson that there would be a delay. He said that he wanted to get the property rented before Christmas and he instructed his estate agent to offer it to another tenant.

On January 10th 2020, Mr Smith wrote to Ms Johnson in reply to her ES1 form. In his letter, he stated:

“On receiving your HAP application form I filled in all the necessary sections and supplied the required documents for you to process your HAP application for rent supplement. I was then informed by the estate agent that you were having difficulty with the application as they required further documents so I supplied more detailed information. Again, I was informed by my estate agent that HAP was still not satisfied with the documents. As there was no further information available to me that I could give to HAP therefore HAP would not approve our property for the HAP scheme. This left us with no other option but to seek a new tenant.

“I was very disappointed about this as the property is now excluded by HAP from any possible tenants that may use the rent supplement scheme. I also felt discriminated against by HAP and maybe that is where you should seek redress.”

At the hearing, Mr Smith said that he has no issue with Ms Johnson and that she would have been a good tenant as she was from the area. He strongly refuted the suggestion that he would discriminate against anyone and he said that the house was rented to a private tenant simply because it became clear that the HAP application had not been approved. He said that he had provided all the documentary evidence that he was required to provide. He had not caused the delay and he simply needed to get the house rented.

The Relevant Law

Section 6(1) of the Equal Status Act 2000 prohibits discrimination on the ground of being in receipt of rent supplement. This section is to be read in conjunction with Section 3 of the Act which defines “discrimination” in general and specifically defines the new “housing assistance ground.”

Section 3(1) provides that:

“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) provides that discrimination in relation providing accommodation is prohibited under all the existing protected grounds and inserts the new housing assistance ground as follows:

“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.”)

Consideration of this Complaint

From the evidence submitted by the landlord, Mr Smith, it is clear that he would have rented his property to Ms Johnson if there hadn’t been a delay processing the HAP payment.   She was the tenant that he preferred in the first instance, and his estate agent offered her the property around December 6th 2019.

I am satisfied that Mr Smith did not intend to discriminate against Ms Johnson. There was no evidence however, as he suggested in his letter of January 10th 2020, that his property was not approved for a HAP tenant. Ms Johnson explained that there would be a delay of approximately six weeks for the payment from HAP to be transferred to him. It is my view, that, by refusing to wait until the HAP application was completed, and by giving the property to a tenant who is not a HAP recipient, he has caused Ms Johnson to be treated less fairly. In this way, discrimination has occurred. Mr Smith provided no explanation about why he did not simply accept the cash payment offered to him by Ms Johnson for the deposit and the first month’s rent. He simply said that he wanted the property rented before Christmas. The effect of this was to discriminate against Ms Johnson as a HAP recipient.

Findings

From the evidence submitted at the hearing, it is apparent to me that the respondent refused to rent a property to the complainant because of the complications associated with the HAP application. The intention of the legislation referred to in the previous section is to prevent occurrences of this type and to protect tenants who are in receipt of HAP or who are eligible for HAP.

I am satisfied that, based on the facts she has set out, the complainant has established that she has been discriminated against on the housing assistance ground and the respondent has not rebutted this allegation.

In accordance with Section 25(4) of the Equal Status Act, I am satisfied that the complainant has been discriminated against on the housing assistance ground contrary to Sections 3 and 6 of the Act.   In respect of redress, section 27(2) of the Act has fixed any potential award at €15,000, which is the maximum that may be awarded by the District Court.   In considering the appropriate amount of compensation, I have taken account of the effect of the discrimination on the complainant and her child and the fact that she was prevented from moving into an available house. I make an order for compensation of €4,500. This is equivalent to what the complainant would have received in HAP payments over three months, if the respondent had made good on his offer to rent the property to her in December 2019.

HAP, discrimination