Complainant

Respondent

Parties

Miss Roxanne  O'Leary

Mrs. Margaret O'Leary

Representatives

Hannah Wood, Threshold

 C. W Ashe & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00031499-001

10/10/2019

On October 10, 2019, the Complainant, a former tenant of the respondent lodged a claim of discrimination on housing assistance grounds with the WRC. An earlier ES1 notification form served on the respondent had not been met with a response.

Both parties were represented throughout the case. The Complainant by Threshold and the Respondent by CW Ashe Solicitors. The claim was denied by the Respondent.

Both parties forwarded written submissions. The Respondent filed a written submission just prior to hearing. I gave the complainant some additional time to respond to the late arrival. This response was furnished to the respondent and the last document received in the case arrived on 30 November 2020. I asked the complainant to clarify whether the extensive document attached to the copy of the ES1 was sent concurrently in September 2019. The complainant confirmed that it was sent concurrently.

The Complainant ceased tenancy through eviction and the respondent, in seeking to address the arrears   has a live parallel case before the Residential Tenancies Board. This process stands adjourned since January 2020.

Several postponements, for a variety of reasons prefaced the actual hearing of this case.

The Hearing took place through the Remote platform. At the outset, I afforded a 30-minute accommodation to the complainant who had presented without her representative. The respondent accepted the delay. Once those parties reconciled the hearing commenced. All parties presented via video and audio mechanism except for the complainant, who presented by phone /audio.

I took oral submissions from the parties on the topic on anonymising the Decision in this case. Taking everything into account, I have decided to publish the names of the parties.

The Complainant commenced tenancy in October 2014 on monthly rent of €350. At that time, she was employed and could manage the rent.

The Complainants representative outlined that the complainant had been discriminated on housing assistance grounds in her pursuance of Rent supplement and Housing Assistance Payment (HAP) which led to her eventual eviction.

During 2018, the complainant became ill which caused her to leave her job. She applied for Rent supplement but was not supported by the Landlady. She applied to join the County Council Housing list and was sanctioned as eligible for HAP. She pursued the administrative requirements over a 5-week period to support this application.

The Landlady initially agreed to sign the HAP application form but on 23 July 2019, she reneged.

On July 22, 2019, the Complainant received a text message which stated:

X and I are just out of our solicitor and they have advised us to have the arrears sorted before we can sign any form

The arrears were recorded as €2220.00

The complainants medical condition worsened.

On 9 September,2019, the complainant forwarded an ES1 notification form to the respondent. This form alleged Discrimination, Harassment a refusal to provide reasonable accommodation.

The respondent did not file a response.

The Complainant forwarded her complaint to WRC on 10 October 2019 and submitted that she had been discriminated on housing assistance grounds alone.

Evidence of the Complainant

The complainant submitted that she had served as a positive support to the Landlady’s family following the death of the Landlord. she had been a tenant in “good standing “and while arrears had featured previously in her tenancy they had not been pursued during her period of unemployment due to ill health.

She submitted that she had suffered severe mental health difficulties during the period of uncertainty regarding rental support payments but had decided not to advance the complaint on rent supplement. She wished to focus on the circumstances surrounding her expressed interest in applying for HAP.

The Complainant made a direct approach to the Landlady’s son and daughter and engaged in a detailed discussion in April 2019, which she recorded at the respondent’s home on consent.

This discussion culminated in an agreed action plan that the respondent would comply with the application for HAP. The complainant was satisfied with this plan. she submitted the requisite forms to the respondent and allowed 6 weeks for their completion. They were not returned or submitted to the County Council on behalf of the respondent.

On 22 July 2019, the complainant was informed by text by the respondent’s son that the HAP forms were not going to be signed by the Landlady as arrears were now an issue. She had not anticipated that this was going to be an issue. The complainant phoned the landlady’s son who was not very friendly, and the matter remained unresolved.

If the complainant had been successful in her HAP application, her rental outlay would be €30 per month and the County Council was prepared to pay the remainder of the monthly rent of €350.00.

The complainant submitted that she had been negatively affected by the refusal to receive HAP. She described a high level of deterioration in her mental health, exhaustion, hurt and misunderstanding. She was aggrieved by her eviction but submitted that she had successfully relocated since.

The topic of arrears went before the Residential Tenancies Board and one meeting occurred. The matter of arrears remains unresolved and disputed by the complainant.

The Respondent did not avail of the opportunity provided to cross examine the complainant.

In response to the respondent presentation, the complainant’s representative argued that afresh tenancy was not required to anchor the application of HAP for the complainant.

The Complainants representative was provided with 14 days in which to respond to the respondent submission, received immediately in advance of the hearing.

The Representative submitted that the respondent was not prevented from completion of the HAP forms due to lack of declared ownership or probate.

She submitted the parameters contained in the HAP documents for Landlords in support of the contention that the respondent was not estopped from HAP. I requested sight of the document she alluded to and received a copy of the HAP guidelines to Landlords from 2019, which was in turn shared with the respondent for comment.

4. What if the property is in probate? If the property is in probate, you must provide the following:

(I). A copy of the will which shows that the deceased is the owner of the property. If the details of

the property is not mentioned in the will, you must provide proof of ownership in the name of the

deceased. (ii). Permission from the executor of the will to make the HAP payment to a third party (if

applicable) (iii). If there is no will present, the HAP payment can be made to the estate of the

deceased as long as proof of ownership showing that the deceased owned the property is provided.

The Respondent representative outlined that the landlady was an elderly lady who is a remnant in an undecided matter of property ownership following the death of her late husband in November 2017. Probate has not been granted and the landlady was not the legal owner.

By way of written submission, the representative submitted a hand-written account of the rent paid and arrears remaining in addition to background information on the location of the property. Historical ownership was recorded as the respondents late Father in law.

The representative confirmed that the tenancy with the complainant commenced on an oral basis in 2014 and ended through eviction for non-payment of €2200 rent in September 2019. The property has laid idle since that date.

The representative confirmed that the Landlady and her family had initially agreed to accept HAP in the complainant’s case in April 2019. She referred to a taped recording (on consent) of a meeting which resulted in this as an action plan to address the difficulties expressed by the complainant.

 However, the Landlady subsequently took advice surrounding HAP and was advised that in the event of entering a new tenancy agreement with the complainant, she would have difficulty in securing the arrears owed.

The respondent served notice of termination of the rental agreement on 11 October 2019.

The respondent affirmed that as the respondent was not the registered owner of the property, it was not in her gift to undertake a fresh tenancy which incorporated HAP.

Evidence of Ms A, Daughter in law of respondent

Ms A confirmed that the respondents family had every intention of following through on the agreed application for HAP. However, they were bound by their Solicitors advice.

She confirmed that she had been a participant in the April meeting recorded at the complainant’s parents’ home. she confirmed receipt of the ES1 notification and believed there was no more to be said on the matter.

During cross examination, Ms A reaffirmed that the respondent family was told not to sign the HAP application. The complainant was evicted for non-payment of rent in September 2019.

Ms A confirmed that she had never dealt with HAP before and had an “in passing “knowledge of it.

In conclusion, the respondent representative re-affirmed that the respondent was not able to sign the Landlord section of the HAP application based on both pre-existing arrears and the lack of a declared ownership of the property at the centre of this case.

On 30 November 2020, I received the respondent response to the complainant’s post hearing submission.

The respondent representative submitted that the property had not entered the probate process. Following the respondent’s husband’s death, no will or Executor was in being. It was uncertain where the property would fall for inheritance purposes.

I have been asked to investigate a claim of discrimination on housing assistance grounds lodged with the WRC on 10 October 2019. In reaching my decision, I have listened carefully to the parties at hearing and I have considered the extensive written submissions forwarded by both parties during this case.

The Complainant clarified at hearing that she no longer wished to pursue her initial complaint on how her application for Rent Supplement was addressed by the respondent. On my reading of the complainants two toned accompanying document to the ES1, I found her stated reasons for this stated position .

My investigation, therefore will address the circumstances around the application for HAP.

The Housing Assistance Payment (HAP) was provided for and is governed by Part 4 of the Housing (Miscellaneous Provisions) Act, 2014.

 These provisions were commenced and extended through a series of Secondary Legislation. It replaces the formerly titled Rent Supplement. It is a payment made to an Individual/family who have been deemed eligible for Social Housing, but no such facility immediately exists.  The payment is contingent on Landlord knowledge and co-operation.

 In addition, the   dwelling must meet standards prescribed under section 18 of the Housing (Miscellaneous Provisions Act, 1992.

HAP is a cash-based Housing Assistance Payment. The tenant or prospective tenant acts as a primary applicant for the payment and is required to obtain the Landlords written consent by means of HAP application form.

I accept that the complainant had a housing need. I asked for sight of the confirmation document from the County Council which confirmed that the complainant was sanctioned to apply for HAP. In the absence of this document, I accept the evidence of the complainant that she was sanctioned to apply for HAP in April/ May 2019. I note the transcript of the recording on consent entered into by both parties on 16 April 2019 and accept its inclusion in the case.

Preliminary Issue the Respondent about HAP.

I have been asked to accept that the respondent did not have standing to enter an application for HAP. This point was contested by the complainant, who argued that the existing tenancy was enough grounds for an application for HAP.

The respondent submitted that the respondent is not entitled to sign the HAP paperwork and followed that nobody was entitled to sign pending the resolution of the  title of the estates.

I have had regard for the three-page handwritten record of rent paid compiled by the respondent in the case. This detailed that the first rent on the property was received on 18 November 2014 and the last on 19 July 2019.

I am mindful that the respondent informed the hearing that the property was registered for the purposes of the ongoing dispute resolution with the Residential Tenancies Board. I have not been provided with the registration, confirmation of property tax or insurance.

The sole document in my possession outside inter party correspondence in relation to a very fraught oral tenancy is this balance sheet of rent received and arrears outstanding.

Section 35 of the Housing (Miscellaneous Provisions) Act, 2014 provides for the interpretation of various terms.

“housing assistance” means the payment by a housing authority of rent for a dwelling to a landlord on behalf of a qualified household in accordance with this Part;

                             “landlord” means the person for the time being entitled to receive, otherwise than as agent for another person, the rent payable under a tenancy in a dwelling in respect of which housing assistance is provided;

                             “qualified household” means a household qualified for social housing support in accordance with section 20 of the Act of 2009, in respect of whom housing assistance under this Part is an appropriate form of social housing support;

                             “rent contribution” means the payment to the housing authority by a tenant who is a member of a qualified household of a contribution in respect of the rent for a dwelling paid by the authority to a landlord on behalf of the tenant’s household;

                             “social housing support” shall be read in accordance with section 19 of the Act of 2009;

                             “tenancy” includes a periodic tenancy and a tenancy for a fixed term, whether oral or in writing or implied, and includes a sub tenancy, and cognate words shall be read accordingly.

The process of application for HAP commenced by the complainant on consent of the respondent appears to me to cast all parties within the correct interpretation of their respective roles.

The respondent has demonstrated a balance sheet where rent was received, albeit in arrears. The complainant has demonstrated that she had entered an oral tenancy in 2014.

I have considered the text of the 16 April 2019 meeting attended amongst others by the respondent and the complainant at the respondent family home. Minute 21 reflects a statement by the complainant’s son that his Mother was the Landlady. This gentleman was not in attendance at hearing for me to probe this. However, the whole meeting record reflected a Landlady/ Tenant relationship in active existence.

I have no need to wade into the parameters of the Succession Act, 1965. I am satisfied that a log of cash rental payments exchanged between the parties is determinative of a Landlady/ Tenant relationship and whatever issues there are on Title may well have to decided by the Higher Courts. I cannot agree that this uncertainty should disallow the respondent in submitting her response to the claim.

The Arbiter in an application for HAP, subject to SS 39-42 of the Act is the respective local Authority.  It is not my intention, as an Adjudicator / Equality Officer to circumvent that process at any juncture.

Section 20 of the Housing (Miscellaneous Provisions) Act 2009 provides:

“(1) For the purpose of this section ‘household’ means-

(a) a person who lives alone,

(b) two or more persons who live together, or

(c) two or more persons who do not live together but who, in the opinion of the Housing authority concerned, have a reasonable requirement to live together.

(2) Where a household applies for social housing support, the housing authority concerned shall, subject to and in accordance with regulations made for the purposes of this section, carry out an assessment (in this Act referred to as a ‘social housing assessment’) of the household's eligibility, and need for, social housing support for the purposes of determining-

(a) whether the household is qualified for such support, and

(b) the most appropriate form of any such support.”

I find that the respondent is correctly named in response to this claim. I have resolved this issue in favour of the complainant.

Substantive Case:

The Equal Status Act 2000 was amended from January 1, 2016 to prohibit discrimination on “Housing Assistance “grounds.

(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 ” ).

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.

Having listened carefully to the parties, I am satisfied that this was a tenancy fraught with difficulties from an early juncture. In the absence of a written agreement which may have offered much needed clarification on rent, responsibility of parties for utilities, maintenance, dispute resolution etc, the parties spent a considerable period in conflict. This was regrettable as the complainant clearly liked living in her rental property and the rent was favourable in market terms.

The complainant attributed this conflict as having a negative effect on her health. Apart from two Medical reports which named her illness as of physical origin, the complainant did not offer proof of a worsening mental health condition for the purpose of this investigation.

Section 13 of the Act places a prohibition on procurement on any party to engage or attempt to engage in prohibited conduct.

I am satisfied that the complainant was covered by the Housing Assistance Grounds and she was refused signage of the HAP forms by both the Landlady and her Agent on 22 July 2019. This followed a clear direction of April 16, 2019 that she should apply for HAP.

I am disappointed that the respondent did not enter a response to the ES1 form and reject the respondent submission that “there was no more to say “I have drawn inferences from this remark.

I am satisfied that the complainant has satisfied a prima facie case of discriminatory treatment on the housing assistance ground.

I must now consider the respondents rebuttal of same.

I fully accept that the respondent is frail and relied on her son and daughter in law in the discussion of this issue at large on 16 April 2019. However, the terms of section 13 of the Act are profound and relevant in this case. I accept that the respondent was a direct party to the action plan decided on April 16, 2019.

Both parties accept that the complainant was informed that the respondent had been advised not to sign the HAP forms on the sole reason of pre-existing arrears on 22 July 2019. The question of correct title of ownership was not advanced at that time.

The refusal to sign the forms due to arrears is not convincing, given that the arrears were present from the outset of the oral rental agreement and no effort had been extended to recover the arrears prior to this point. I appreciate that that process was accelerated later which culminated in the complainant’s eviction.

As I stated previously, the sole arbiter of an application for HAP is the respective Local Authority. Both tenant and landlady have an administrative preparatory role to play but the final decision rests with the Local Authority. It may follow that HAP is granted initially only for a revision some months down the line.

The respondent and her Agents were on full notice of the complainant’s financial circumstances since 16 April 2019 and that her application for HAP would be central for her financial and domestic security.

At first instance the respondent attributed the delay in signing HAP forms to the Accountant and latterly to the Solicitor. However, the complainant received a text from the respondent and her son which manifested as a refusal to progress the application further. This action curtailed the complainant’s chances of being at least considered for HAP.

I understand, in part the respondent’s reservations. However, given the positive encouragement extended to the complainant to apply for HAP on 16 April 2019. I found the blank refusal to be an act of bad faith.

I have found this to be a discriminatory action as it was directly related to the complainants housing assistance grounds and demonstrates less favourable treatment as a result.

I cannot establish that the respondent has rebutted the presumption of discrimination in this case.

I found it very disconcerting that the respondent did not return to a face to face exchange as had occurred on 16 April, 2019 to explain any difficulties with HAP in the aftermath of 22 July, 2019. I have noted that the respondent accelerated their quest for recovery of arrears instead and this was an inconsistent action with the action plan of April 16, 2019 and one which resulted in an arbitrary termination of tenancy.

I have found that the respondent and her Agent engaged in prohibited conduct in refusing to sign the HAP forms submitted to them by the complainant. This outward rejection is not mitigated by reference to pre-existing arrears.

I have found the complaint to be well founded.

I took note of both parties stated fatigue in the case and offered both parties time towards the end of the hearing to engage separately and without prejudice to explore a resolution. The respondent wished the case to move towards decision. I have respected that 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 concluded my investigation in this matter and in pursuance of Section 25(4) of the Acts, I find that the complainant has established a prima facie case of discrimination on Housing Assistance grounds contrary to Section 6(1) (c) of the Act.

In accordance with my powers under section 27 of the Act,

I order the Respondent to pay the Complainant €6,000 in compensation.  

I also order the Respondent to become familiar with the HAP scheme and to accept payments from the relevant Local Authority, see Adjudication Decision 20413, September 2019.

Discrimination on grounds of Housing Assistance