ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024501
Parties:
| Complainant | Respondent |
Parties | Santa Tashfeen | Catherine Hanly and Evan Curran |
Representatives |
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Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00031181-001 | 27/09/2019 |
Date of Adjudication Hearing: 27/10/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 21 of the Equal Status Act 2000 (as amended), an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This Notice in writing shall be brought within two months of the said prohibited conduct or the last instance of same.
A Respondent may choose to reply with an explanation for the treatment by returning the attached ES 2 Form.
Pursuant to Section 25 of the Equal Status Act 2000, I have had the within matter referred to me by the Director General for the purpose of investigation into a claim of discrimination and I have heard where appropriate interested parties and have considered any relevant documentation provided in advance of the hearing and in the course of the hearing. At the conclusion of any such investigation I am obliged to make a decision and, if I should find in favour of the Complainant, I shall provide for redress (s.25 (4)).
Generally, discrimination under this Act is taken to have occurred where a person is treated less favourably that another person is (or would be) treated and by reason of any of the discriminatory grounds (as specified).
Broadly, the Equal Status Act prohibits discrimination in the context of buying and selling goods from and to the public (or a section thereof) and also in the context of using and providing services available to the public (or a section thereof).
Under Section 27(1) of the Act redress may be ordered where there has been a finding in favour of the Complainant. The Act allows for an Order for compensation (up to a maximum amount of €15,000.00) for the effects of the prohibited conduct. The Adjudication Officer can direct that a person or persons take a specified course of action. The AO Can also order that the service provider has to do something aimed at ensuring that similar discrimination does not happen again. For example, to upskill and train up staff.
In relation to the applicable burden of proof, section 38A of the Acts is applicable to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which a discrimination can be inferred. That there is a presumption that prohibited conduct has occurred. It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.
Discrimination is set out in Section 3 of the Act (as amended). Of significance in these proceedings is Section 3 (3B) which sets out that the Providers of accommodation services are prohibited from discriminating against someone on the “housing assistance” ground i.e. on the ground that they are in receipt of a rent supplement, housing assistance payment or other social welfare payment. The housing assistance ground protects anyone who has applied for and is eligible to receive such payments. The protection is intended to apply to existing tenants and to those looking for accommodation. Discrimination may take the form of refusing to allow a person look at or rent a property, refusing to accept the rent supplement or a refusal to complete the appropriate forms etc.
Background:
The Complainant form herein issued on the 27th of September 2019. The Complainant is of discrimination by a landlord for refusing to participate in the HAP scheme at the request of the Tenant. To overcome the health concerns associated with face to face hearings in the course of the Covid pandemic, the WRC has been assigned the status of “designated body” under SI 359 2020 for the purposes of Section 31 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act of 2020. This has allowed the hearing of this case to be held remotely. I confirm that this facility (on the WebEx platform) is organised and Hosted by the WRC. In line with the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) it is confirmed that this case may be attended by any member of the Public who may wish to attend (including where such attendance is at a remote hearing). In accordance with the Workplace Relations (miscellaneous Provisions) Act 2021 any person giving evidence in the course of this hearing was invited to make an affirmation solemnly declaring to tell the truth on the understanding that not to do so is a criminal offence punishable by operation of the Law.
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Summary of Complainant’s Case:
The Complainant herein represented herself. The Complainant provided me with some documents to assist in making her case. The Complainant claims she was discriminated against by reason of her proposal that her Landlord might engage in the HAP scheme once she had qualified for same. |
Summary of Respondent’s Case:
The Respondent’s herein are a married couple and the co-owners of a property rented to the Complainant. The husband herein represented both himself and his spouse at the hearing. The Respondent failed to provide the hearing with any documentation in advance of the hearing. The Respondent had not made it’s position known in advance of the hearing. In evidence the Respondent stated he had no difficulty with the HAP scheme per se. |
Findings and Conclusions:
I have carefully considered the evidence adduced before me in the course of the hearing. The Complainant and her Husband and two children came to live in Kinnegad in 2017. They entered into a Tenancy arrangement with the Respondent Husband and Wife. The parties signed three yearly leases running from 12th May 2017. The third Lease arrangement commenced on the 12th of May 2019. Towards the end of May 2019, the Complainant contacted her Landlords with the news that she had become eligible for the Housing Assistance Payment. The Assistance would have provided significant financial relief to the Complainant in her circumstances. The Landlords confirmed that they would be happy to fill out the forms and engage in the process which would allow the Complainant to avail of the HAP scheme. The Landlord never filled out the forms that were sent to him. It is agreed between the parties that the Complainant repeatedly contacted the Landlord about the forms needing to be completed. In response the Complainant was told that the matter was with their Accountant to sort the Tax implications. I accept that the Complainant was advised by the Housing Authority that her eligibility expired on the 8th of August and she would have to re-apply and start the process over again. On the 30th of August 2019 the Landlord contacted the Complainant to state that they had reached a decision to sell the house. The Complainant was very upset at this development. She was also upset that her phone number had been given to a local estate agent who started making contact to come and view the property. The Complainant engaged with Threshold who assisted the Complainant insofar as it wrote to the Landlord indicating that the Lease arrangement entered into was due to run to May of 2020. Threshold indicated that the purported Notice of Termination did not comply with the Residential Tenancies Act and no Notice of Sale had been served. The Complainant also issued the Workplace Relations Complaint Form on the 27th of September 2019 claiming discrimination by reason of being a HAP tenant (in waiting). I accept the Complainant’s version of events that in this period of time she was treated very poorly by the Respondent Mr. Curran. Mr. Curran does not appear to have respected her rights as a Tenant and instead insisted in bringing an estate agent to her door (in mid-October 2019) when he had no entitlement to do so. His proclamation that it was his right and his home was frightening and overbearing. It is worth noting that the Complainant was told at this time by Mr. Curran that he had sent the HAP form back. By the end of October, the Respondent Wife took over the conversation on behalf of Mr. Curran and things calmed down significantly. Whilst the spectre of selling the house was still present the Complainant believed she was still safe until at least May of 2020 and was still anxious to get the HAP process completed. The Covid Pandemic arrived in March 2020 and the Government stepped in to protect the status quo for Landlords and Tenants. Although she could have stayed where she was, the Complainant opted to move to Mullingar to a house which became available and where the Landlord had accepted and engaged in the HAP scheme. The Complainant and her family moved in August of 2020. This was some fifteen months after she had first told her Landlord she was eligible for HAP and perhaps twelve months after she could expect that HAP payments could have been made. Certainly, on the face of it the Complainant has made out the case that her Landlord sought to sell the house rather than accept and engage in a process which would involve a payment under the HAP scheme. These are facts from which a discrimination can be inferred. There is a presumption that prohibited conduct has occurred and therefore the onus shifts to the Respondent to rebut the inference of discrimination.
The Respondent gave evidence that he had been happy to assist the Complainant in achieving her aim of receiving the HAP. To his credit, the Respondent said that the Complainant and her family were excellent Tenants – though I note that there is still an issue over the non-return of her deposit. The Respondent effectively says he took the forms in good faith with every intention of filing them out. However, the Respondent Mr. Curran knew there would be a problem once he looked at the relevant paperwork. There is an obligation on a Landlord seeking to engage in the HAP scheme to become Tax Compliant. Mr. Curran was not, it seems, Tax complaint. The income that he and his wife had been receiving from this rental property for the last two or three years was not declared income for Revenue purposes. The Respondent consulted his Accountant and seemed to have referenced this single fact to the Complainant at the time. The Respondent told me that to become Tax compliant he would have to pay a fine which was of such a magnitude that he would have to sell the property in which the Complainant was living. It should be noted that Respondent provided me with absolutely no paperwork to back up these claims and that the Complainant had been given no version of these facts in advance of the hearing before me.
There is an interesting stipulation in the HAP documentation that states that a Landlord can receive payments of up to €10,000.00 before finalising tax compliance. This seems to me to have been included in the programme in ease of eligible Tenants so that payments can start while Landlords sort themselves out. It is regrettable that the Respondent did not consider this option. I am very sorry that the Complainant herein found herself in the situation that she did. Her circumstances were such that she was entitled to Housing Assistance from the housing Authority. Unfortunately, her Landlord could not meet her half way. This was not because he did not want to, or that he had any qualms about the HAP scheme. He could not meet her halfway because he was not Tax Compliant, and this evasion meant that the Complainant lost out on up to twelve months of assistance. In reaching this conclusion I must find that, whilst the Respondent might have acted unscrupulously in terms of his taxable income, he did not discriminate against the Complainant because she was (or hoped to be) a HAP recipient. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 CA-00031181-001 - There is no discrimination on the ground alleged and I do not find in favour of the Complainant.
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Dated: 26/11/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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