Complainant

Respondent

Parties

Valerie  Enners

Limerick City Council  / Housing Support Services

Representatives

  Self - Represented

Gerard Reidy,  Solicitor of Leahy Reidy 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-00035494-001

29/03/2020

The issue in contention is the alleged Discrimination on grounds of Nationality, Family Status, Housing Assistance and Accommodation evidenced by the alleged wilful maladministration of the HAP Housing Assistance Scheme by the City Council and the further alleged maladministration by the same City Council in regard to the Waiting Lists for Social Housing.

For convenience, in reading the Adjudication, a HAP application has two parts -Form A from the Tenant and Form B from the Landlord.

The Complainant has been a Refugee in Ireland since 1997. She is a single mother with one son. She formerly resided in the Dublin City area and was on the Housing Waiting List there for some 18 years. In 2016 her son secured a University place in Limerick and she moved there with him. She secured a private rental property and applied to the City Council for the HAP Scheme and to join the Limerick City Housing Waiting list. She believed that her time on the Dublin list would transfer automatically to Limerick. Difficulties regarding documentation arose with the HAP application but it was eventually agreed by the Council in January 2017. However, her Landlord refused to co operate and it was not until a WRC Adjudication decision in her favour (Adj 20413) in September 2019 that the Landlord completed the necessary Form B of the Application. The City Council did not share the Form B with the Complainant and were generally quite uncooperative. The Council alleged that the Complainant had not submitted a proper Form A to allow matters to progress. This was blatantly wrong as the Complainant had submitted all forms on the 1st October 209 but had them returned by the Council with no explanation.

The situation was further complicated by the Landlord serving a notice to quit on the Complainant in September 2019. This automatically invalidates the HAP process as it cannot apply to a property where there is no proper rental agreement in place. This fact seemed to have been misunderstood at the City Council as an authorisation to a HAP was issued on the 12th November 2019 backdated to the 28th September. Subsequently the Landlord commenced proceedings against the Complainant at the Residential Tenancies Board seeking to regain possession of the property. This was still ongoing at the date of the WRC Hearing.

The Complainant strongly argued that the entire, as she alleged, mishandling of her HAP application by the City Council was grievously discriminatory against her on the stated grounds of Nationality, Family Status, Housing Assistance and Accommodation. A neighbour of hers who is of Irish nationality rented a similar property from the same Landlord and had her HAP application handled smoothly and efficiently.

In regard to the second element of the Complaint – the Housing Waiting Lists – the Complainant was never able to satisfactorily ascertain that her Dublin Waiting List Years would transfer automatically to Limerick. Initially it appeared that she would have to start again in Limerick and thereby loose her Dublin “years”. To the date of the Hearing the responses of the City Council have been unclear and bafflingly bureaucratic. Again, the maladministration is clear evidence of discrimination on the stated grounds.

The Complainant submitted extensive paper evidence and e mail traffic in support of her claim.

As no written submission was produced the Adjudication Officer allowed time post the hearing for material to be submitted. This was received on the 14th April.

The Respondent City Council made two main points in their presentations.

Firstly, they acknowledged that the entire HAP and Housing waiting lists situation could have been handled better. Misunderstandings and lack of communications between Sections of the Council in relation to Planning issues concerning the rental property proposed by the Complainant had frustrated the case. Supervisory Staff changes in the relevant Sections had not helped matters. Changing central Government regulations regarding Housing list transfers had also confused Council staff. However, by letter of the 12th November 2019 the Council had agreed to support the Complainant’s HAP application back dated to the 28th September.

Secondly and most importantly the Council strongly argued that while, administratively regrettable, the above HAP or Housing List situation was not in any way in breach of the Equal Status Act, 2020. No evidence has been presented by the Complainant that would show that any of the discriminatory grounds within the definition of Section3 (2) (h) of the Act have been breached.

The complaint fails as an Equal Status claim for want of any evidence of Discrimination as defined by the Act has been put forward.

3:1      The relevant Law – Discrimination defined – the Burden of Proof requirements.

The Complainant has alleged Discrimination in the Complaint form CA-00035494 on the Family Status ground, the Housing Assistance ground, Provision of goods and services, Accommodation and other grounds. In her evidence and the narrative on the complaint form she alleges Discrimination on Nationality and Refugee Status grounds. The date of last Discrimination was stated to be the 15th March 2021.

Section 3 and Section 38(a) of the Act are quoted below

Discrimination (general).

Section 3

3.(1) 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,

( b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph ( a), constitute discrimination,

or

( c) where an apparently neutral provision F10 [ would put a person ] referred to in any paragraph of section 3(2)at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. ]

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

( a) that one is male and the other is female (the “gender ground”),

( b) that they are of different civil status – (the civil status ground”),

( c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

( d) that they are of different sexual orientation (the “sexual orientation ground”),

( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),

( f) subject to subsection (3), that they are of different ages (the “age ground”),

( g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

( h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

( i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”),

(3) (a) Treating a person who has not attained the age of 18 years less favourably or more favourably than another, whatever that person’s age shall not be regarded as discrimination on the age ground.

(b) Paragraph (a)does not apply in relation to the provision of motor vehicle insurance to licensed drivers under that age.

(3A) In any proceedings statistics are admissible for the purpose of determining whether discrimination has occurred by virtue of subsection (1)(c).

 (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”).

As Regards the Burden of Proof Section 38(a) refers

Burden of proof.

38A

38A.— (1) Where in any proceedings 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 or her, it is for the Respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the  Director of the Workplace Relations Commission  under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary.

3:2         Discussion

Section 38 A above refers to the requirement to “establish facts” to create a presumption that “prohibited conduct” i.e. discrimination occurred. In the case in hand all the evidence pointed to what could best be called a serious bureaucratic mix-up occurred between the Complainant and the Council. The Council agreed that a lot of the administrative routines and communications could have been handled better.

However, to translate this into an Equal Status complaint on the grounds advanced, Family Status, Nationality by Refugee status, HAP and Accommodation and other issues requires proof that these Discriminatory grounds were in fact breached and the Complainant was treated

“less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified.”

Labour Court precedent , albeit under the Section 85A of the Employment Equality Acts , refers to this evidence issue on a number of occasions and is discussed at length in Employment Equality Law by Bolger, Bruton and Kimber Round Hall ,2012.

The case of Southern Health Board v Mitchell [2001] ELR 201 is referred to

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

In addition, the case of Valpeters v Melbury Developments ltd [2010] ELR 64 at 68 is referenced by the authors in discussing the argument, relevant in this case, that “mere membership of a protected class” and specific treatment was sufficient for a Complainant to meet his or her burden of proof.  It is argued that this membership issue was rejected in emphatic terms by the Labour Court, initially in the context of race discrimination but now beyond:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Underlining by the Adjudicator.

Having reviewed all the evidence presented which included extensive copies of e mail traffic between the Parties , covering a wide range of issues such as for example, the proper registration of the property with the RTB, the Planning Enforcement issues, the misunderstandings over the Notice to Quit from the Landlord, there is no evidence that the Complainant was treated differently or in a discriminatory fashion by the Council on the prohibited Equal Status grounds alleged.

This is not to diminish the Complainant’s grievances regarding delays in communications with the Respondent.

The issue of the Planning enforcement/irregularities regarding the House at the centre of the case, which lead to HAP approval delays, was a Planning issue not connected with any Discriminatory grounds. There is absolutely no evidence that, as alleged, an Irish person or any other nationality, would have been treated differently or as set out in Section 3(1) (a) of the ES Act,2000 above “Treated less favourably”.

The Irish Nationality neighbour who was cited by the Complainant as a “Comparator” did not, it appeared, have the Planning issues, on her residence, with the Council. The Council refuted any discriminatory issue here and put it down to administrative oversights between houses in the same development. Once notified the Planning Department lifted any outstanding Enforcement Notices against the Complainant’s rental property. This was set out in the Council letter to the Complainant dated the 12th November 2019.

Likewise, the Housing List complaint, while strongly felt by the Complainant, had no evidence that her difficulties, as alleged applied uniquely to her on Discriminatory or Prohibited Conduct grounds. The Housing List transfer rules are set by Central Government and appear to change regularly. The Council admitted that their own staff had very likely got confused.

3:3         Summary

As referenced by Employment Equality Law by Bolger, Bruton and Kimber Round Hall ,2012. membership of a protected class in this case a single parent of a refugee background, does not confer an automatic presumption of discrimination.

Put simply, bad office routines and oversights between internal sections by a Public Authority is not in itself discriminatory on the prohibited grounds when unfortunately, all citizens, irrespective of background, have the potential to be equally mishandled.

As touched upon at the Oral Hearing the case in hand is more appropriate to the Office of the Ombudsman rather than an Equal Status claim.

Discrimination, Nationality, Family Status, Refugee Origins, Burden of Proof requirements, Office of the Ombudsman.