Complainant

Respondent

Anonymised Parties

{A Tenant}

{A Housing Association}

Representatives

none 

none 

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00029467-001

04/07/2019

The Complainant is a tenant of the Respondent.

The Complainant claims that she is being discriminated against, harassed, victimised and the Respondent fails to provide her with reasonable accommodation in relation to her disability.

The Complainant alleges that due to making a number of complaints in relation to her tenancy due to the failure of the Respondent to address certain issues, this has resulted in ongoing harassment and discrimination. The Respondent has taken issue with her complaints.

She complained about mattresses, garbage and furniture dumped in the communal areas by other tenants. A table was set on fire and the garbage has attracted rodents. The dog control policy is not enforced, dogs are fouling, and a dog nearby is aggressive and is not on its lead. The Complainant must wait until it goes indoors to leave her home. This is distressing for the Complainant and has been documented.

As a result, she is being subjected to verbal discrimination by neighbours who call her “crazy” in public. Eggs have been thrown at her windows, fish in her letterbox. She has been told the Respondent is working with her neighbours and their legal team to have the Complainant put in a mental hospital.

She believes a manager of the Respondent informed neighbours about her medical situation and breached her data protection rights. She made a complaint of bullying and discrimination against the manager, but her complaint was sent back to the same manager to deal with.

She was not allowed see the rental property before signing the contract and was told if she did not accept this offer she risked homelessness. When she got her keys, she was shocked by the filth of the place, lack of flooring, dealings with the manager and ended up in hospital.

The Respondent has frequently arrived at her home unannounced and arranged numerous housing inspections which have facilitated bullying. She is not given the opportunity to rearrange conflicting medical appointments, if she tries to do so she is accused of denying access to the Respondent and breaching her contract.

She has been treated differently to other tenants whose breaches are ignored. Her mailbox has been interfered with, post removed and returned open which violates her dignity. The Respondent refuses to provide a secure mailbox as they did not open the mail. As a tenant she is not allowed install or make alterations. She is being treated differently due to the stigma of her mental health disability, accused of regularly shouting and being aggressive, told she should be in a mental hospital. Recordings contradict the allegations. She is upset by the Respondent’s attempts to silence her.

The Complainant has made a complaint to the Residential Tenancies Bureau regarding breaches of housing law.

The Complainant seeks reasonable accommodation from the Respondent. This treatment has traumatised the Complainant and she wants to live elsewhere. Living in the environment negatively impacts on her health. She has been threatened with legal action for speaking out. She has been told if she leaves the accommodation she would render herself intentionally homeless and not be entitled to housing support.

The Complainant sent notification of her ES 1 complaint to the Respondent on 23rd April 2019. Her complaint was received by the Workplace Relations Commission on 4th July 2019.

The Respondent is an approved housing body. It entered into a Tenancy Agreement with the Complainant on 30th August 2016.

The Complainant submitted a form to the Workplace Relations Commission complaining that she has been treated unlawfully pursuant to the Equal Status Acts 2000-2004.

The Respondent was informed the Complainant was due to become homeless on 31 July 2016 and agreed to provide urgent accommodation. The Complainant inspected the common areas of the property on 29th July 2016 and accepted the tenancy on 4th August 2016. She inspected the apartment on 30th August 2016 and moved into the property around 22nd September 2016.

The Complainant requested a number of repairs to be carried out which were completed by the Respondent. These were carried out in a prompt and efficient manner. The Respondent carries out annual inspections of properties and common areas to ensure they meet Housing (standards for rented houses) Regulations. The Respondent works with property owners and the management company to ensure high standards are maintained. This includes monthly inspections by the management company and Respondent’s service co-ordinator.

The Respondent was not provided with information from the owner regarding the medical needs of the Complainant.

The Complainant furnished the Respondent with a letter from a Consultant relating to another property and from an Occupational Therapist on 22nd July 2016. The Occupational Therapist outlined the Complainant’s housing needs to be:

A home in a quiet residential area where she is unlikely to be disturbed.

Access to out of hours medical care amenities.

Accessible public transport.

Accommodation that fosters good sleep; i.e. quiet neighbourhood and neighbours.

A safe neighbourhood.

The Respondent believes the property is safe and secure as it is in a well maintained and predominantly owner occupier estate. The Respondent has not been notified of any anti-social concerns by anyone other than the Complainant and concerns by residents regarding actions of the Complainant. The apartment is in a small block of 4 units with own door access from the communal front door. There is public transport nearby. The Respondent as landlord is not responsible for access to out of hours medical care.

The Respondent subsequently received a letter from a Consultant on 9th August 2016 regarding concerns about smoke entering her apartment and fire hazard from full ashtrays in the communal areas, a dog barking upstairs, a sofa dumped at the rear of the property.

The Respondent carried out individual unit inspections to identify who was the owner of the dumped items, it was removed on 19th October 2016. Tenants were reminded of their duties to keep areas free from refuse, refrain from smoking and ensure pets in check.

The Respondent met the Complainant on 12th September 2016 and issued a letter regarding agreed outcomes and actions. It has discharged its responsibilities. It has provided regular support and assistance to the Complainant including organising a voluntary organisation to hang curtain poles, donate furniture and referring her to Threshold.

When the Complainant raised concerns over fire safety, the Respondent engaged fire consultants to work with the management company to ensure the property was safe and in compliance with fire regulations. The Respondent provides training to staff to ensure that the Tenants are dealt with in a way that is dignified and respectful.

The Respondent is a social housing provider and provides accommodation for individuals qualifying for social housing from local authorities. The Complainant’s complaints were not upheld by the Residential Tenancies Board and all structural items have been addressed. The Respondent continues to engage with the Residential Tenancies Board in relation to tenant issues raised by the Complainant. The condition of the property does not amount to discrimination.

The Respondent submits there is no grounds identified by the Complainant on which to base allegations of discrimination.

I have considered carefully the oral and verbal submissions of the parties on 17th October 2019 and 14th February 2020. At the hearing on 14th February 2020, the Complainant was invited to furnish replying submissions within two months to be extended if required, with the Respondent to comment on any submissions within a further period.

Given the nature of the Complainant’s disability, this decision should be anonymised in order to protect the confidential special personal information of the Complainant.

Section 6(c ) of the Equal Status Act 2000 prohibits discrimination by a person in providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or services or amenities. This is without prejudice to any enactment or rule of law regulating the provision of accommodation.

“Service” means a service or facility of any nature which is available to the public generally or a section of the public under the Act. The Respondent is an Approved Housing Body and provides services to the Complainant who is a tenant.

The Complainant claims she is being discriminated against, harassed and victimised by the Respondent on grounds of her disability in terms of Section 3 (1) and S 3 (2) (g) of the Equal Status Acts 2000-2015, and the Respondent has failed to provide reasonable accommodation contrary to S 4 (1) of the Acts in in providing accommodation services.

The ES1 form was sent to the Respondent on 23rd April 2019. The Respondent replied in May 2019. The complaint was received by the Workplace Relations Commission on 4th July 2019.

Section 3 (1)(a) of the Equal Status Acts 2000-2015 provides that discrimination shall be taken to occur 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”. Section 3 (2) (g) provides that as between any two persons, the discriminatory grounds are (g) that one is a person with a disability and the other either is not or is a person with a different disability.

A service providers obligation in relation to reasonable accommodation is set out in S4 of the Act.

 S4 (1) of the Act provides:   … “discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.”

S38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Acts and requires 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 of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

It is accepted the Complainant has a disability within the meaning of the Act. The Respondent is obliged to furnish accommodation and services to a tenant in accordance with the Housing (Standards for Rented Homes) Regulations.

The Complainant has given evidence of dissatisfaction with the accommodation services and has made a complaint to the Residential Tenancies Board.

The complaint made by the Complainant under the Equal Status Acts 2000-2015 is a separate cause of action. Section 196 of the Residential Tenancies Act 2004 provides that nothing in the Act operates to prejudice the powers under Part III of the Equal Status Act to award redress in the case of conduct prohibited by S6 of the Equal Status Act 2000-2015.

In G v The Department of Social Protection [2015] IEHC 419 O’ Malley J referred to the objectives of the Equal Status Acts which is described as a remedial statute, that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. She stated that it follows that it must be widely and liberally construed.

The Complainant’s allegations against the Respondent are as follows:

Continual harassment and discrimination by the Respondent due to her complaints regarding behaviour of neighbours and poor service.

Respondent frequently arriving unannounced and arranging numerous housing inspections, in circumstances where the Complainant is not allowed re-arrange awaited medical appointments and is accused of denying the Respondent access to the property.

Her complaint of bullying and discrimination against the Respondent’s Manager was sent to the manager to deal with.

Being accused of shouting and being aggressive which is not true.

She alleges other tenants fire safety breaches are largely ignored but she is threatened for failing to provide access.

She has been penalised for not responding to post not received even though the Respondent are aware that her post is going missing. Respondent has refused to provide a secure mailbox from An Post and as a tenant she cannot.

The Respondent says it has discharged its statutory responsibilities to the Complainant. A log of work done in response to complaints has been provided. The premises is safe and secure in a well maintained area. There have been no allegations of anti-social behaviour regarding the property other than complaints made by the Complainant, and allegations of neighbours regarding actions of the Complainant. Following concerns notified by the Complainant’s doctor regarding fire safety from smoking in the communal areas, it engaged fire safety consultants to ensure the Complainant’s property was fully safe and in compliance with fire regulations.  It has gone beyond its duties to assist the Complainant. The Respondent believes the Complainant has misunderstood its statutory responsibilities.

The Labour Court in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant in a complaint of discrimination under similar legislation pursuant to section 85A of the Employment Equality Acts 1998-2015 and stated:

“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 Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Labour Court stated that

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

There is a conflict in the evidence of the parties. The Respondent has gone to lengths to discharge its statutory duty to the Complainant. It must organise and run its accommodation efficiently and no doubt there are occasions where inspections of the Complainant’s premises are required immediately in order to discharge its statutory duties. However, the Respondent has also been placed on notice of the importance of the Complainant having access to medical appointments by her medical attendants.

The Act places an onus on the provider of accommodation to do all that is reasonable for a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be unduly difficult for the Complainant to avail of the service. The Labour Court in An Employer v A Worker [2005] ELR 159 in considering the obligation under the Employment Equality Acts 1998-2015 to provide reasonable accommodation noted the provision of special treatment or facilities necessarily involved an element of more favourable treatment to the person with a disability than a person without a disability. This is an objective test which includes consideration of the costs involved.  

The Respondent is required to act reasonably in considering the Complainant’s application to re-arrange an inspection where there is a conflict with a medical appointment in each specific circumstance, and I accept the evidence of the Complainant this has not occurred. This obligation also extends in my view to ensuring a secure mailbox is provided to the Complainant given her reported difficulties with missing post, disharmony with neighbours in her development, and difficulties in communicating with the Respondent. This cost is nominal.

A prima facie case of discrimination has been made by the Complainant, and the probative burden has shifted to the Respondent. This burden has not been discharged by the Respondent. I find the Respondent discriminated against the Complainant by failing to provide reasonable accommodation in accommodation services provided, given the Complainant’s disability. I award the Complainant €2,000 compensation for failure to provide reasonable accommodation.

A prima facie case of harassment, or victimisation of the Complainant by the Respondent on the disability ground has not been shown.

The Respondent has discriminated against the Complainant in terms of S4 of the Act by Equal Status Act 2000 in failing to provide reasonable accommodation in respect of her disability. I award the Complainant €2,000 compensation for the breach and direct payment by the Respondent.

The Complainant has not shown a prima facie case of harassment, or victimisation by the Respondent on the disability ground.

Service, reasonable accommodation, access to medical appointments