Complainant

Respondent

Parties

Usman  Safder

Maureen McDonagh

Representatives

Sharon Lally Lally Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030046-001

02/08/2019

The complainant submits that he was discriminated against by reason of housing assistance and the failure of the respondent to fill in paperwork.

The summary of events below were not in dispute:

In 2009 the complainant became a tenant at the said property.

In November 2018 the respondent purchased the property, where the complainant was a tenant.

In November 2018 the respondent’s husband, Mr Joe Harris advised the complainant that the property would be sold.

In November/December 2018 the complainant requested the respondent complete Housing Assistance Programme (hereinafter referred to as HAP) forms.

In December 2018 rent of €500 was paid and no rent paid thereafter

In May 2019 the complainant was served Notice of Termination of Tenancy effective 31 May 2019.

The complainant gave evidence under affirmation that he signed a letting agreement on 16 November 2009 and paid €500 rent monthly.  The property was sold on a number of occasions and the complainant remained a tenant paying €500 rent.  The complainant advised that none of his previous landlords had an issue with him as a tenant. 

The complainant gave evidence that Mr Joe Harris, husband of the respondent, advised him around November 2018 when he came to visit the house, that the house was crowded and that the rent for the area is €1200.  The complainant advised the respondent that he had been approved for HAP  and submitted the HAP form and that the respondent and Mr Harris, her husband, would not return the signed forms and would not return his calls.  It was also submitted that Mr Harris wanted rent in cash but the complainant wanted the rent to be paid into a bank account to have proof of payment.

The complainant was advised formally on 4th December 2018 that the tenancy would be terminated on 16 July 2019, as the landlord intended to within 3 months of the termination date, to sell the house.   On 1st May 2019 the complainant was given Notice of Termination of Tenancy and advised to vacate the property before or on the 31st May 2019.

The complainant gave evidence that his then representative, Threshold, notified the respondent of the impact of discrimination on the grounds of HAP in February 2019 and through an ES1 form on 29th March 2019.  This ES1 referenced that on 4th December 2018 the respondent took the HAP form but did not return it; that texts were sent to the respondent regarding HAP dated 12th January 2019 and 22nd January 2019 but were not replied to.  It was also submitted that despite letters sent on the complainant’s behalf dated 22nd February 2019  and 21st March 2019, the respondent failed to sign HAP forms and that up to 29th March 2019 at 3.30pm, the respondent failed to accept the HAP.

Under cross examination the complainant submitted that he had not been entitled to HAP prior to November 2018 and that it was Mr Harris who told the complainant to put down €1,200 on the HAP form.  The complainant confirmed that he did not pay rent in January, February, March, April or May 2019.  The complainant advised that he was advised that it was a valid termination of tenancy but the complainant submitted that he incurred significant out of pocket expenses as a result of the termination of the tenancy including for the costs associated with additional transport.  The complainant advised that he did not pay rent as he no longer had the bank details for the respondent and did not make contact with the solicitor to find out the bank details.

Evidence under affirmation, of Ms Usman, partner of the complainant was that she had met Mr Harris, husband of the respondent at the property in November 2018 and that Mr Harris advised that the rent in the area was €1200.

The respondent purchased the property in November 2018 when the complainant was a tenant.  The  respondent’s husband Mr Joe Harris introduced himself to the complainant as the person that the complainant would deal with.  On the 16th November 2018, the solicitor for the respondent wrote to the complainant advising of the new owner and that future rents should be paid to the owner.  Mr Harris advised the complainant that it was the intention of the respondent to ultimately sell the property  but that rents could continue to be paid to Mr Harris on behalf of the respondent.

Mr Harris was advised by the complainant that his rent was €500 and that he was now entitled to HAP.  Mr Harris advised the complainant there was no problem with that as the respondent had other tenants on HAP and that there was no issue signing the HAP forms.

On 21st November 2018 the complainant was put on notice that the property would be sold and the complainant’s representative confirmed that the termination of the tenancy was valid.  Rent of €500 was received on 1st December 2018 but the complainant did not pay anything thereafter. 

In around the beginning of December 2018 Mr Harris and the complainant met and the HAP form provided by the complainant had a rental figure of €1200.  The complainant advised Mr Harris that he was not previously entitled to HAP because he was earning too much and rent was too little at €500 but that if he put a figure of €1,200 rent down on the HAP form than Mr Harris would get €1,200 and the complainant would only have to pay €30 rent.  Mr Harris indicated that he had no intention of entering into or taking part in fraud.  The respondent did not sign the HAP form as the rental amount was not correct

On 6th December 2018 the complainant rang Ms Lally, solicitor for the respondent who said under affirmation that she advised that the rent was €500 and that if he got HAP the rent would be €1500.  The complainant was advised to contact the landlord directly.  On 22nd February 2019, Threshold on behalf of the complainant sent a letter to the respondent requesting the HAP forms to be completed and advised the respondent of their requirements.  On 5th April the complainant was advised through Threshold that the respondent did not complete the HAP form as the correct rental figure was €500 per month.

On 3rd April 2020 the complainant was advised that rent was outstanding in rental payments and that failure to pay would result in district court proceedings.  On 4th April 2019 the complainant was advised he owed rent arrears of €2,000 and failure to pay within 14 days would result in an entitlement to terminate tenancy.

On 1st May 2019 the respondent advised the complainant that his tenancy would terminate on 31st May 2019 due to breach of tenancy obligations and his failure to pay rent on dates it fell for payment.  The property was subsequently sold and the closing date of the sale of the property is registered as 22nd November 2019.

The respondent submitted correspondence from Galway City Council which outlined that the respondent has had 6 properties on HAP over the years and that they currently have 2 active tenancies with the Council. 

Evidence given by Ms McDonagh, under affirmation, was that her husband Mr Harris had authority to collect the rent and liaise with the tenant and she had no interaction with the complainant.

Evidence given by Mr Harris, under affirmation, included that he had never asked the complainant to put €1200 on the HAP form and that the complainant had been provided the bank details to lodge the rent of €500.  Mr Harris confirmed that the complainant phoned him a number of times and that whenever he rang his call was answered and the complainant never mentioned that there was a difficulty with the bank details.  Mr Harris denied that he made any comment regarding rent of €500.  Under cross examination Mr Harris submitted that he always answered the phone calls from the complainant whenever he phoned and that the complainant never advised that he had lost the bank details.

 The Equal Status Act, 2000 as amended prohibits discrimination on Housing Assistance grounds 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.—(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 38A of the Acts applies to all complaints of discrimination under the Equal Status Acts and requires that the complainant, in the first instance, establish facts from which discrimination may be inferred. Where such a prima facie case has been established, the onus shifts to the respondent to rebut the inference of discrimination.

Section 21 sets out the requirement to notify the service provider in writing of the nature of the allegation and their intention, if not satisfied with the respondent’s response to the allegation, to seek redress pursuant to the Act. This notification must be made within two months of the alleged prohibited conduct. The complainant submits that he provided this notification via his representative’s letter, addressed to the respondent’s solicitor dated 22nd February 2019 and 29th March 2019 and references numerous dates that he requested the respondent to complete the HAP form with the latest dates of 21st March 2019.  The respondent denied receipt of notification.  A copy of documentation was provided and based on the submissions, I am satisfied that the complainant complied with this aspect of the notification requirement in section 21.  The complainant’s complaint was received by the WRC on 2nd August 2019.

It was not in dispute that the complainant had been a tenant at the property for many years and that the property had been bought by the respondent in November 2018.  It was also not in dispute that the rent had been €500 and that this had been paid, to the respondent, in December 2018 but that the complainant did not pay any rent thereafter and that the date of termination of tenancy was 31 May 2019  and that this had been regarded by Threshold as a valid termination of tenancy.

The complainant submits that he was told by Mr Harris, acting for the respondent to document that the rent for the purpose of HAP, should be €1,200.  The respondent submits that he would never have engaged in such fraud and that the respondent accepts HAP from tenants at her other properties and that the reason the respondent would not complete the HAP form was that the figure was incorrect and that this was advised to the complainant’s representative. 

I have considered all of the submissions and the evidence of the parties.  I note evidence was provided that the respondent accepts HAP payment from other properties and that the respondent had advised the complainant in November 2018 about the sale of the property immediately following purchase and prior to any discussion about HAP.  I also note that the complainant had been advised by the respondent through exchanges between the solicitor and Threshold on 5th April 2019 that the HAP form would not be completed as the correct rental figure for the HAP form should have been €500.00 per month.  It does not appear that the complainant or his then representative made a response to this and the tenancy ceased on 31st May 2019 owing to the non-payment of rental payments. 

Assessing the evidence in this case I can understand the upset felt by the complainant that the house was to be sold and the distress it would cause him looking for new accommodation after so many years as a tenant.   

In considering all the evidence I prefer the evidence of the respondent that the HAP form was not signed as an incorrect figure was recorded on the forms which the complainant’s representative was on notice of and no corrective action was taken.  It would appear that this is the more credible reason as to why HAP form was not signed. 

In all the circumstances I find that the complainant has not established a prima facia case of discrimination and I do not find that the complainant was discriminated against on the housing assistance ground.

I find that the complainant has not established a prima facie case of discrimination and the respondent did not engage in prohibited conduct.

Housing assistance programme, HAP, Equal Status