ADJ-00030652

Complainant

Respondent

Parties

Eduard  Biryukov

Tarpey Maloney Properties

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040905-001

10/11/2020

The complainant submits that he was discriminated against by the respondent by reason of housing -assistance for accommodation.

The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.

The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public and that this decision would not be anonymised. 

Parties were also advised that an Adjudication Officer may take evidence on oath or affirmation.  Evidence was taken under oath or affirmation, for the Complainant: from Eduard Biryukov and Alla Biryukov and for the Respondent: from Ann Maloney and Fionnoula Tarpey and cross examination of witnesses was permitted.

The complainant submits that he was discriminated against by the respondent under the grounds of Housing Assistance Programme (HAP).  The complainant confirmed that he was not pursuing a complaint of discrimination on the basis of a disability.

The complainant received notice of termination from his landlord in May 2020 and secured a reference from his landlord.  He then began looking for alternative accommodation with his wife.  The hotel where the complainant worked closed during Covid and the complainant was in receipt of social welfare and HAP.

The complainant contacted the respondent approximately 3rd February 2019, 20th February 2020, 28th February 2020, 9th March 2020 and 24th August 2020 regarding accommodation that the complainant was interested in renting.

It was submitted that  the application forms received from the respondent requested working references to accompany the application form but that there was no mention that HAP was also acceptable.   The complainant outlined that the respondent was discriminating against those who did not have employment or who might be in employment but in receipt also of HAP and/or social welfare, such as the complainant.  The complainant emailed the respondent asking whether this was legal and the complainant received an email with another application form outlying the process for renting an apartment.  The email advised that there was a need for:

“1 completed application forms with

2 current landlord reference or proof of house ownership and

3 working reference stating salary or proof of ability to pay rent ie HAP or proof of funds are submitted to the landlord for approval

4 ID:”

While the email the complainant received mentioned HAP, the accompanying application form referenced the need for a work reference and this application form did not make any reference that HAP and/or social welfare were acceptable.

An ES1 form was sent to the respondent dated 14th September 2020 setting out that in February, March and August 2020 the complainant contacted the agency to seek accommodation and that those application forms also looked for proof of salary and a work reference. 

The complainant received a response through an ES2 form that no completed application form was received from the complainant for accommodation.  The complainant was also advised in the ES2 form that the “request for work reference stating salary OR  proof of ability to pay rent ie (HAP) OR proof of funds is made in order to assess if the potential tenant has the adequate means to rent the relevant property”.  The respondent also advised the complainant in this ES2 form that they did not believe they discriminated against the complainant as they would not have been aware if he was working or receiving assistance.  The complainant was also advised that the respondent rents to many clients including those who use HAP.

In his evidence the complainant advised that he had completed the application form and was discriminated by the respondent who refused to let him look at the property, failed to answer emails, refused to consider the complainant’s application form, had discriminatory terms or conditions in leases or other tenancy agreements such as a request for a work references and salary and no provision within the application form to allow the complainant mention payment through HAP or social welfare jobseeker payment.

The respondent denied the allegations.

It was submitted that the complainant had not submitted an ES1 form until 21 September 2020 and therefore, all or most of the incidents referred to by the complainant were out of time.  The respondent advised that the complaints should be dismissed.

The respondent outlined that some of the respondent’s business includes rental and sales.  The respondent gave evidence that a junior employee had sent out the application forms to the complainant and should have also attached the appropriate email with each application form but that this employee failed to include the correct wording in the email until August 2020.

It was submitted that the email which accompanied the application form clearly sets out that HAP is acceptable and that this email was revised in March 2020.  The respondent also denied receipt of an application form from the complainant such that they could not have shown him the property as he failed to complete the application form.  The respondent submitted that owing to the large volume of applicants applying for rental they are not always able to allow every applicant to see the accommodation.  The respondent confirmed that they replied to the ES1 form and that in their ES2 form they advised the complainant that every effort is made to offer a fair opportunity to all applicants for rental accommodation.  It is not always possible, however, to schedule viewings for all applicants and viewings may only be arranged on receipt of suitably completed application forms.

In response to a request at the hearing to provide evidence of tenants who are in receipt of HAP, the respondent submitted a list on their own headed paper of tenants that they advised were in receipt of HAP.  The respondent advised that they were awaiting a response from Galway City Council to support their claim that they provide accommodation to tenants in receipt of HAP but no further correspondence was received from the respondent.

It is prohibited under the Equal Status Act, 2000 as amended to discriminate on Housing Assistance grounds in the provision of rental accommodation.

Under Section 3(3)(b) of the Act it is provided that :

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 ” )..

Furthermore, section 6 provides:

6.—(1) A person shall not discriminate in—

( a) disposing of any estate or interest in premises,

( b) terminating any tenancy or other interest in premises, or

( c) subject to subsection (1A) , providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

(1A) Subsection (1)(c) is without prejudice to —

( a ) any enactment or rule of law regulating the provision of accommodation, or

( b ) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.

Section 38A of the Acts applies to all complaints of discrimination under the Equal Status Acts and requires that the complainant, in the first instance, establish facts from which discrimination may be inferred. Where such a prima facie case has been established, the onus shifts to the respondent to rebut the inference of discrimination.

Section 21 sets out the requirement to notify the service provider in writing of the nature of the allegation and their intention, if not satisfied with the respondent’s response to the allegation, to seek redress pursuant to the Act. This notification must be made within two months of the alleged prohibited conduct.

I note that the complainant sets out that the incidences of alleged discrimination occurred around 3rd February 2019, 20th February 2020, 28th February 2020, 9th March 2020 and 24th August 2020.  The complainant posted his ES1 form to the respondent on 21 September 2020 and submitted that he was seeking legal advice prior to this and could not therefore, submit it any earlier.  The complainant submitted his complaint to the WRC on 10th November 2020.  The respondent submits that the complaints are out of time.  Having given due consideration to the submission and direct evidence, I note that the complainant was not prevented from submitting the ES1 form while also seeking advice if he wished and has not provided reasonable cause for the delay.  I am satisfied that the complainant complied with notification requirement in section 21 for the incident of 24th August 2020 but incidents prior to this, referred to in the complainant’s submissions, are out of time.  The remainder of this decision therefore will address the complaint that is within time.

On 24th August 2020 the complainant emailed the respondent enquiring about accommodation and received an email with an application form attached.  The email clearly sets out the requirement for

“working reference stating salary or proof of ability to pay rent ie HAP or proof of funds are submitted to the landlord for approval”. 

and that viewing will be arranged on receipt of completed application form.

The attached application form to be completed outlines that

“your application must be accompanied with the following after you have viewed the property and you wish to apply to rent the property”… Current employer Reference in writing/email.” 

For clarity there is no mention of acceptance of HAP in this application form.

The respondent submits that the complainant did not complete the application form and therefore, could not be granted a viewing of any accommodation and that the email outlines that HAP and/or social welfare is acceptable.  It would appear that receipt of a completed application form was conditional upon a viewing of accommodation and indeed it was the respondent’s own evidence of the importance of a completed application form to secure a viewing.  The complainant provided evidence of submitting an application form previously to the respondent but not receiving a viewing.  The complainant also submits that the application form requires proof of employment which he could not provide and alleges this is discriminatory.  

I note that the employee who worked for the respondent and engaged with the complainant is no longer employed with the respondent and it was unfortunate that he was not available to give evidence. 

Having heard the evidence and submissions, it is clear that there the email of August 2020 outlines that HAP/and or social welfare payment are accepted, however, the application form which is a key tool used for renting and which the complainant was required to complete for a viewing does references the requirement of an employer’s reference and looks for details of the applicants place of employment, their role and details of when they commenced.

Although the complainant does not need to be unemployed to be in receipt of HAP and/or social welfare payment, the complainant has established a prima facia case of discrimination by the respondent’s inclusion of references to employment.  I find that the respondent has failed to successfully rebut the inference of discrimination and that the respondent, therefore, engaged in prohibited conduct.

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

“the types of redress for which a decision of the under section 25may 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 considering the amount of compensation that I should award, I have considered the effect the discriminatory treatment has had on the complainant.  Having regard to all the circumstances and pursuant to section 27(1)(a) of the Acts, I deem it appropriate to :

1.       order the respondent to pay the claimant €4,000 compensation for the effects of the prohibited conduct concerned.

2.       order that the respondent undertake appropriate training of all relevant employees in the requirements of the legislation as it affects applicants for HAP.

I find that the complainant has established a prima facie case of discrimination and the respondent has failed to rebut the inference of discrimination and the respondent has, therefore, engaged in prohibited conduct:

1.        I order the respondent to pay the claimant €4,000 compensation for the effects of the prohibited conduct concerned.

2.       I order that the respondent undertake appropriate training of all relevant employees in the requirements of the legislation as it affects applicants for HAP.

Housing assistance programme, equal status, discrimination