Complainant

Respondent

Parties

Paulina  Wilkocka

Elizabeth O'Connor

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

 No Attendance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035547-001

01/04/2020

The Complainant is a tenant in a property in north County Dublin. The Respondent, while not listed as the landlord on the tenancy agreement, acts as an agent for the landlord and engaged in lengthy correspondence with the Complainant. On 3rd March 2020, the Complainant notified the Respondent of perceived discriminatory treatment and her intention to bring the present claim should the same not be addressed. This notification was completed by means of the standard “ES1” form. Herein, the Complainant alleged that the Respondent made it particularly difficult for her to access rent supplement as she would not answer correspondence in this regard. Following a further email communication from the Complainant, the Respondent issued their response on 27th March 2020. Evidently unhappy with the same, the Complainant lodged the present complaint with the Commission on 1st April 2020. Herein, the Complainant alleged that she had been discriminated against by reason of “Housing Assistance”. In the narrative section of the form, the Complainant again stated that the Respondent’s delay in completing the housing assistance forms was causing her financial hardship.

A hearing in relation to this matter was convened for 5th October 2020. On 25th September 2020, the Respondent advised that she would not be in a position to attend the hearing and requested that the same be re-convened at a later date. On this initial hearing date, the matter was adjourned to allow the Complainant to submit further paperwork and to permit the attendance of the Respondent to answer the complaint.

Due to the renewed restrictions arising from the Covid-19 pandemic the matter was again adjourned, with a further hearing convened for 12th March 2021. This was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

On 5th March the Respondent again sought for the matter to be adjourned on the basis that she would be traveling on that date. This application was refused on 9th March 2021 and the matter proceeded on 12th March 2021 in the absence of the Respondent.

The Respondent, while not listed as the landlord on the tenancy agreement, acts as an agent for the landlord and engaged in lengthy correspondence with the Complainant. On 18th June 2019, the Respondent issued notice of termination to the Complainant. This notice proposed a termination date of 5th February 2020. This notice, and the accompanying statutory declaration, were co-signed by the Respondent and the person listed as the landlord on the tenancy agreement. On 10th January 2020 a third-party organisation corresponded on the Complainant’s behalf advising that the notice of termination was not valid and consequently the Complainant was not obliged to comply with the same. No contemporaneous response was received to this communication and the Complainant considered the matter to be concluded.   

On 3rd February 2020, the Complainant issued a request to the Respondent requesting that she complete the relevant section of a rent supplement form. When no response was forthcoming, the Complainant issued form ES1 stating that the Respondent’s failure to complete the relevant form constituted discrimination within the meaning of the Equal Status Acts.

On 23rd March 2020, the Complainant emailed the Respondent directly. Herein, the Complainant expressed her disappointment at the Respondent’s persistent failure to return to relevant forms. The Complainant went on to state that she had been approved for a HAP payment of €1,600 per month. In the circumstances, the Complainant was willing to agree to an increase the rent to this amount on the understanding that relevant rent supplement forms are completed. On 27th March, the Respondent replied stating that she was agreeable to this proposal and indicated their agreement to engage in the HAP scheme. On 28th March, the Complainant responded, requesting that while the HAP payment was being processed, the Respondent complete the rent supplement form for the current rate of rent. Herein, the Complainant advised that on receipt of the same she would withdraw the present complaint.

On 1st April, the Complainant lodged that present complaint with the Commission. Herein, she outlined that the Respondent’s continual failure to return the rent supplement form was causing her considerable financial difficulty and that the same constituted discrimination within the meaning of the Act.

On 14th April, when attempting to process the HAP payment, the Complainant was informed that such payments could not be approved when rent had increased and that the payment would relate to the current rate of rent only. On 15th April, the Complainant informed the Respondent of this situation and requested that the Respondent complete the HAP forms for the current rate of rent. By response the Respondent advised that they had agreed to enter into a new agreement with the Complainant and that the previous tenancy agreement had expired on 5th February. On 24th April, the Respondent sent a new tenancy agreement and completed rent supplement form to the Complainant. These forms indicated that the rent payable is €1,600 and set out a commencement date of 10th April 2020.

On receipt of the same, the Complainant sought advice from a third-party body. Here, she informed that from 27th March 2020 new emergency laws had been introduced to protect tenants during the Covid-19 emergency period. Part of these new measures included a prohibition on any form of rent increase, even in situations where the tenants are agreeable to the same. In light of the same, the HAP payment could only be approved for the existing rate of rent.

On 15th April, the Complainant corresponded with the Respondent, informing her of the above and asking whether she was agreeable to sign the HAP agreement for the existing rate of rent. By response, the Respondent indicated that an agreement had been reached to enter into a new tenancy agreement and that the relevant paperwork, incorporating the increase in rent would be issued shortly. On 26th April, the Complainant again responded stating that any proposed rent increase was illegal and that she would not sign any new lease agreement that included the same.

On 4th May, the Complainant corresponded with the Respondent requesting that she sign the rent supplement form while the dispute about the rent increase was ongoing. On 7th May, the Complainant advised that due to the Respondent’s ongoing delays in completing the relevant paperwork, she would only pay their portion of the rent, less the amount that would be paid to the Respondent should the rent supplement paperwork be completed. Matters progressed along these lines, with the Respondent stating that the Complainant had entered a new tenancy, and that the previous tenancy had expired and the Complainant stating that the previous tenancy had not expired and that any proposed increase in rent is illegal and could not be agreed by the Respondent.

By submission, the Complainant stated that the Respondent demonstrated an extreme reluctance to sign any rent relief paperwork. She submitted that the first request to the Respondent to sign the relevant paperwork was in February of 2020 and that the same had not been completed by the date of the hearing. She submitted that this evidenced discrimination as the Respondent replied quickly and without hesitation to the Complainant’s suggestion to increase the rent.      

In answer to a question, the Complainant accepted that the Respondent had, on numerous occasions, stated that they had no difficulty in filling out the HAP paperwork. However, she submitted that agreement was always dependent on signature of the new tenancy agreement containing the illegal increase in rent and new commencement date. These stipulations were in effect a de facto refusal to complete the paperwork. In addition, the Respondent continually refused to sign the rent supplement paperwork throughout the process and to the date of the hearing.

As set out above the Respondent did not attend the hearing or provide any written submission in advance of the same.

Section 6(1)C of the Act states that,

“A person shall not discrimination in…providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities”

In this regard, I note that the Respondent to this complaint is not listed as the landlord on the tenancy agreement. Nevertheless, I note that for the relevant period of this complaint, she acted as an agent for the landlord and was for all intents and purposes the decision maker regarding the subject matter of the complaint. I further note that she co-signed the purported notice of termination and accompanying statutory declaration.  Having regard to the totality of the evidence presented, I find that the Respondent provided a service related to accommodation and is an appropriate Respondent to this complaint. 

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,”

Section 3(3B) of the Act 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”).”

The essential element in discrimination is that of ‘less favourable treatment’; in general, as between a person in receipt of ‘rent supplement’ or housing assistance, and one who is not.

In addition to the reference to housing assistance under Part 4 of the Housing (Miscellaneous Provisions) Act 2014 these taken together to constitute the ‘housing assistance’ ground. “Rent supplement” is defined in section 6(8) as follows;

(8) In this section, ‘rent supplement’ means a payment made under section 198(3) of the Social Welfare Consolidation Act 2005 towards the amount of rent payable by a person in respect of his or her residence.

Section 38A of the 2000 Act applies to all complaints of discrimination under the Equal Status Acts 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. In the case of

In the matter of Olumide Smith -v- The Office of the Ombudsman [2020] IEHC 51, Simmons J. stated that,

“Section 38A gives effect to article 8 of the Racial Equality Directive (Directive 2000/43/EC). The complainant must establish a prima facie case of discrimination, i.e. the complainant must establish facts from which it may be presumed that there has been direct or indirect discrimination. The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”

Regarding the instant matter, of central importance is the difference between two separate schemes that constitute “rent supplement” for the purposes of the Act. On 1st February 2020 the complainant requested that the Respondent complete the landlord’s section of the “Supplementary Allowance Rent Supplement”, (commonly known as “rent supplement”) to the Respondent. The purpose of this scheme was to financially assist the Complainant until such a time as they had concluded their application for the Housing Assistance Payment. It should be noted that both of these payments constitute “rent supplement” for the purpose of the Equal Status Act.

As set out above, the Complainant issued the rent supplement form to the Respondent on 1st February 2020. It is notable that the Complainant did not receive any timely reply to this initial request. On 5th March 2020, over a month from the initial request, the Complainant issued form ES1 to the Respondent. This form again requests that the Respondent complete the form and, at a minimum, underlined the urgency of the matter. Again, it is notable that this communication did not elicit any form of direct response from the Respondent.

Matter did progress somewhat when on 23rd March, the Complainant advised that they were agreeable to a substantial increase in rent should the Respondent complete the relevant Housing Assistance Payment paperwork. This request evidently spurred the Respondent into action, and four days later they indicated their agreement to the terms and their willingness to complete the relevant paperwork.   

At this point, a clear contrast arises between the Respondent’s failure to respond to request to facilitate the rent supplement payment of itself and the speed at which they responded to the request coupled with a proposal to increase the rent payable. While the Respondent did state that they would complete the relevant HAP paperwork, this was always dependent upon the Complainant agreeing to a substantial increase in rent and a new commencement date. Such caveats effectively prevented the Complainant from availing of the scheme. I also note that throughout the ongoing dispute over the proposed increase in rent (and consequently the HAP payment), the Respondent failed to complete and return the rent supplement form, leading the Complainant to experience ongoing financial difficulties

Having regard to the foregoing, I find that the Complainant has established a prima facia case for discrimination under the Act. The Respondent’s initial failure to act on the request for rent supplement, and their effective blocking of it thereafter, constitutes “less favourable treatment”.  Consequently, I find in favour of the Complainant and the complaint is well-founded.

Section 27(1) of the Act provides redress may be ordered where a finding is in favour of the Complainant. Section 27(1) provides that:

"the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or

(b) an order that a person or persons specified in the order take a course of action which is so specified."

In the present case, the Respondent’s failure to complete the relevant paperwork resulted in a financial loss for the Complainant for approximately three months. Thereafter, the Complainant refused to pay any rent in excess of what she calculated her payment less the rent supplement to be. Having regard to the foregoing, it is clear that the Complainant’s actual losses are restricted to those three months, or approximately €2,100.

Having carefully considered that circumstances of this matter, I award the Complainant the sum of €4,100, representing €2,100 of the losses incurred and a further €2,000 in compensation for the effects of the discrimination.

Discrimination, HAP, Agent