Complainant

Respondent

Anonymised Parties

A tenant

A landlord

Representatives

Self-Represented

Self-Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039003-001

02/08/2020

The Complainant was a tenant of the Respondent since May 2019. The rent was €400 per month which included electricity.

The ES1 Form was sent on 14 July 2020 with the Respondent returning the ES2 Form on 29 July 2020. The first date of discrimination was noted as 10 June 2020 with the most recent being 18 June 2020.

The Complainant claim relates to the failure of the Respondent to accept the Housing Assistance Payment (HAP)Application Form to allow the Complainant avail of the HAP. He also claims that he was discriminated against on the grounds of his disability.

Naming of the parties

At the hearing both parties were asked for their submission as to whether the parties should be named. Neither party raised any issue however, having regard for the sensitive nature of the subject matter of this complaint, it is decided to anonymise the parties.

Housing Assistance Payment

The Complainant was a tenant of the Respondent since May 2019 in a house share. In January 2020, due to medical grounds he was unable to continue to work. The Complainant fell into arrears in May 2020 as he was struggling to keep on top of his bills. He sought the assistance of social welfare and was advised he would be entitled to the HAP at the start of June 2020. Also included in the booklet of evidence was a letter dated 21 October 2019 from the County Council stating that he was eligible for the HAP Scheme and enclosing an Information Pack.

The Complainant presented a text message exchange between himself and the Respondent stating he had been approved by the Council for the HAP scheme and asking if he would accept HAP on 10 June 2020. In a replying message, the Respondent stated “I’m going to have to evict you if you don’t pay your rent….. You need to send me this payment ASAP before we can talk about hap”.  

The Complainant further presented a handwritten letter dated 10 June 2020 together with Section B of the HAP Application Form requesting that the Respondent complete it and stating it “would be a means of me being able to pay back the outstanding arrears owed and help me to afford accommodation here…”

The next correspondence between the parties presented by the Complainant was an undated text wherein he asked if he had to pay the arrears before Hap can be set up. The Respondent replied stating that he didn’t believe HAP would cover the arrears and would take a month before the first payment would be made. He went on to stated that he would require the Complainant to be out of the house by the end of the month.

It is the Complainant’s evidence that on 13 June 2020, the Respondent and his mother attended the property to meet with the Complainant. The Complainant recorded the interaction between the parties.  He stated that he had the HAP Application Form on the table during this meeting. He also stated he tried to hand it to the Respondent on a number of occasions during the meeting.

An email dated 15 June 2020 from the Complainant to the Residential Tenancies Board was presented stating that he was on the housing list, his landlord refused to accept HAP on the basis he must discharge the arrears first and he had applied for an exceptional needs payment from the social welfare to cover the arrears.

By text message dated 15 June 2020 the Complainant text the Respondent stating that he believed he would be eligible for rent supplement and would he accept it? The Respondent replied on 16 June 2020 again stated he could not “take rent supplement until all the outstanding arrears are paid.”

The Complainant advised that he had sought advice from Threshold who subsequently sought to speak with the Respondent directly. A follow up email was sent from Threshold to the Complainant stating that the Respondent had not responded to Threshold’s call.  

A series of messages were presented wherein the Respondent sought regular updates as to when the Complainant was moving out and assist him in finding alternative accommodation. 

On 10 July 2020, the Complainant gave the Respondent written notice of termination of the lease and he moved out on 15 July 2020.

Following the hearing the Complainant submitted documentary evidence of his HAP Application Form which it is noted as dated 10 July 2020 along with a letter of acceptance from the Local Authority dated 23 July 2020. As mentioned above, he again produced a letter from the Local Authority dated 21 October 2019 advising he was eligible for the HAP Scheme  

Disability

The Complainant provided medical evidence to support his medical condition. He gave evidence that he was unable to work due to his medical condition and fell behind in his rent as a result. The Complainant stated that he never disclosed the details of his medical condition to the Respondent but when he came to the property with this mother on 13 June 2020 that they asked questions about his health and made inappropriate comments.

Housing Assistance Scheme

The Respondent begin his evidence apologising for the stress felt by the Complainant. He explained he was under pressure around the time this interaction occurred. He described himself as being unemployed for two years with the rent being his only income. He was managing the rental of the property on behalf of a family member.

The first time he heard of the HAP Scheme from the Complainant was on 10 June 2020 in a text message.

The Respondent raised an issue with the Complainant’s evidence and in particular, the text message of 10 June 2020 wherein the Complainant stated he had been approved for HAP and asking if he would accept it. The Respondent produced evidence of a replying text messaging stating, “I’m going to have to evict you if you don’t pay your rent, I have been so patient with you [Complainant] and your allways (sic). You need to send me this payment ASAP before we can talk about hap”.

He took issue with the Complainant’s evidence that the Application Form was handed to him at their meeting of 13 June 2020 in the property. He stated he googled HAP prior to the meeting on 13 June 2020 and had little knowledge of the Scheme.

He stated that he did agree after speaking with Threshold to sign the HAP Application Form but the Complainant did not send him the Form. He submitted that he never “stated exactly that he would never accept HAP”. The Respondent stated; “I wanted him to come to an arrangement re the arrears.” An email from Threshold dated 17 June 2020 was included in the Respondent’s evidence to the Complainant summarising the conversation with the Respondent and his mother. It stated; “ I think I convinced her of the merits going along with Rent Supplement.”

It was the Respondent’s evidence that he was not presented with Section B of the HAP Application Form until 16 July 2020, the day after the Complainant left the property. The envelope was postmarked 16 July 2020 and presented in evidence. He stated prior to this he was never presented with the papers.

In response to questioning as to why he was so eager to assist the Complainant move on and why he asked if he could, “go somewhere, to a friend or family member, until you find somewhere to accept HAP Scheme?”, he stated that the allowance provided for under the HAP Scheme would not have covered the rent.

In conclusion, he stated that if the Complainant presented the HAP Application Form that he would have accepted it.

Witness

The witness was the Respondent’s mother and confirmed she was neither the registered owner or agent of the property. She attended the meeting of 13 June 2020 with her son as a support.

In relation to the discussion with Threshold she stated, “the payment would only cover rent going forward and not the arrears.”

She questioned the Complainant around his social welfare payments; when he received the payment, what he was entitled to and what he was spending his money on, whether he could afford to pay the bills. The witness continued to question him as to whether his mental health issues were the reason he fell into arrears? The question of whether the Complainant could afford to pay his doctors and if so, why did this differ from paying his rent? Reference was made to “hand outs” and that he could not wait around for someone to give him a handout?

Disability

The Respondent stated he never mentioned anything about the Complainant’s disability.

Witness

The witness stated she only spoke to the Complainant about his medical condition out of concern.  During the meeting on 13 June 2020, the witness raised the issue of the Complainant’s health and inquired as to whether his disability was due to mental health issues? She made several references to the Complainant “seeking help” asking him if he had obtained medical treatment and a counsellor. She questioned whether the Complainant’s mental health was the reason he could not pay the rent? The witness asked the Complainant when he was going to go back to work ? Even on a part time basis.

At the hearing the witness stated she only asked out of concern about the Complainant as she had experience of mental health problems in her family.

Recording

After hearing evidence from both parties, there was a clear conflict of evidence. The Complainant included a handwritten transcript of the recording which the Respondent disputed as being inaccurate. Having been made aware of that the Complainant had recorded the meeting of 13 June 2020 with the Respondent and his mother, I asked both parties if there was any objection to listening to the recording and first gave them an opportunity to listen to the recording outside of the hearing. Neither party raised any objection to the recording nor did they dispute they were not the parties captured in the recording.

The Adjudication Officer in Enners v McCarty, ADJ-00021403, relying on the Equality Tribunal case of Laurentiu Engen Iacob –v- The Central Hotel, DEC-E2010-147 allowed the admission of an audio recording where there was “no dispute as to who the parties recorded were and the content of the recording has true evidential value.”

I believed this recording had true evidential value.

Housing Assistance Payments

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”).”

Burden of Proof

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.

Findings

The Respondent accepted that the Complainant requested that he take payments from the HAP Scheme on 10 June 2020.

It is not accepted that the Complainant furnished a copy of the HAP Application to the Respondent prior to the 16 July 2020. However, the test laid down in the Equal Status Act 2000 is whether the Respondent would accept the HAP Scheme and if there were any acceptable defence for refusal. Form the evidence before me, it is clear that at no stage did the Respondent agreed to accept HAP despite being requested on numerous occasions by the Complainant both in text message and in person and by Threshold on behalf of the Complainant. While there is a reference in an email from Threshold of 17 June 2020 stating there appeared to be a willingness to accept it, it was the Respondent’s mother who gave this impression to Threshold. She is neither the landlord nor an agent and therefore, had no authority. There is no evidence that the Respondent confirmed his acceptance of HAP from this date to the date the Complainant moved out of the property. The evidence presented by the Complainant clearly established that the Respondent was only interested in moving him on with persistent text messages requesting an update on whether he found a new place to live and offering to arrange viewings for him.

It is disappointing that the Respondent did not take the time to inform himself of the HAP Scheme when initially requested to accept it by the Complainant, instead waiting until 13 June 2020 to “google it”. On several occasions during the course of the hearing the Respondent described himself as “an inexperienced landlord” with only one year’s experience. The simple fact is that the Respondent is a landlord, providing accommodation and in exchange collecting rent, there is absolutely no excuse for failing to adhere to his legal obligations.

Conclusion

Having taken consideration all the evidence before me, I am satisfied that the Complainant has established a prima facie case of discrimination on the housing assistance ground and consequently, has discharged the burden of proof.

I am also satisfied that the Respondent has not provided a defence for his failure to accept the HAP from the Complainant.

Disability

Section 1 of the Equal Status Act 2000, as amended,

“disability” means—

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;

Section 3(1) of the Equal Status Act, 2000 as amended provides:

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

 (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”),

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,”

Having reviewed the medical evidence presented, I am satisfied the Complainant has a disability for the purposes of Equal Status Act 2000.

Responsible Person

Section 11 (2) of the 2000 Act refers to the actions of a “responsible person”

“A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.” (emphasis added)

The Respondent is this case comes within the definition of a responsible person. It was that the witness was present in the accommodation with the consent and support of the Respondent. 

Section 11 (5) of the 2000 Act defines harassment as:

“Harassment takes place where a person subjects another person (“the victim”) to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her”

It is clear from the recording that the nature of the comments made by the witness regarding the Complainant’s disability and access to the Housing Assistance Payment were offensive, humiliating and intimidating to him.

Consequently, the Complainant has met the legal test of establishing a prima facie case as required by the legislation. From careful review of the Complainant’s evidence and that of the Respondent, there is evidence that he was treated less favourably by the Respondent as a result of his disability in the provision of accommodation.

Housing Assistance

Having concluded my investigation of this complaint, I find pursuant to Section 25(4) of the Acts, that the Complainant established a prima facie case of discrimination on the housing assistance ground.

The Respondent engaged in prohibited conduct.

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."

I order that the Respondent to pay to the Complainant the compensatory sum of €1,000 which I consider appropriate in the circumstances where

(a)    the Complainant first requested the Respondent to sign the HAP Application form on 10 June 2020 and moved out of the property on 15 July 2020; and

(b)     was responsible for the harassment of the Complainant by his witness at the meeting of 13 June 2020.

Payment to be discharged within 30 days of the date of this Decision.

Disability

Having concluded my investigation of this complaint, I find pursuant to Section 25(4) of the Acts, that the Complainant established a prima facie case of discrimination on the ground of disability.

The Respondent and as a Responsible Person engaged in prohibited conduct.  

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."

I order that the Respondent pay theto the Complainant the compensatory sum of €2,000 which I consider appropriate in the circumstances where the Respondent was responsible for the harassment of the Complainant by the witness at the meeting of 13 June 2020. Particular consideration was given to the fact the Complainant never disclosed his health issues to the Respondent or the witness and the repeated and persistent humiliating questioning and commentary on the part of the witness.

Payment to be discharged within 30 days of the date of this Decision.

Equal Status-Housing Assistance Payment – HAP- Disability – Prima Facie case – recording – evidential value – Responsible person – harassment