Complainant

Respondent

Parties

Amen Gasma  Maloyi Mabiala

Noel Lynch

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032216-001

14/11/2019

The Complainant began renting a property via the Respondent who was acting as the agent on 2 August 2018. He subsequently requested that the Respondent sign a form to enable him to claim the Housing Assistance Payment but the Respondent refused to do so.

The Complainant began renting an apartment via the Respondent who was acting as the agent on 2 August 2018. The monthly rent on the property was €1,450. Two weeks after moving into the apartment he posted the HAP form to the Respondent to sign. The Complainant was subsequently informed by the Respondent however that the landlord was unable to sign the form because he lived abroad and had an issue with tax clearance. He was also informed that he should rent out the second room if he had a difficulty in making the rental payments.

Given his financial situation the Complainant had no choice but to rent out the second room, which he did until he got married in July 2019, when his wife and son moved into the property. As a result of the continued refusal of the Respondent to accept HAP and that he was now unable to rent out the second room, the Complainant asked for a rent reduction. This was refused by the Respondent however and the Complainant was subsequently issued with a notice to quit the property on 4 November 2019.  

The Respondent did not attend to give evidence.

The Law

The sole issue for determination in this complaint is whether the Respondent discriminated against the Complainant under the ‘housing assistance ground’ contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended), by its actions.

Section 3 of the Equal Status Acts states that:

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 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.

Section 3B of the Equal Status Acts 2000-2016, as inserted by S. 13(b) of the Equality (Miscellaneous Provisions) Act 2015, states 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”). 

Similarly, S. 6(1)(c) of the Equal Status Acts 2000-2016 was amended by S. 14(4) of the Equality (Miscellaneous Provisions) Act 2015 to read that

[S]ubject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities. 

Findings

In evaluating the evidence before me, I must firstly consider

(i) whether the complaint is properly before me and

(ii) if the Complainant has established a prima facie case pursuant to S. 38A of the Acts. It requires the Complainant to set out, in the first instance, facts upon which he can rely on in asserting that prohibited conduct has occurred in relation to him. 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 raised.

In relation to (i) there is no issue that this complaint is properly before the WRC and has been brought within the requisite time-limits provided by Section 21 of the Acts, including those for giving notice of a complaint and referring the complaint.

In relation to (ii), the complaint is that the Respondent, in this case the agent acting for the landlord, refused to either (a) sign the application form for HAP when the Complainant requested that he do so, two weeks after he moved into the property in August 2018 and (b) did not make his client, the landlord, aware of his legal obligation to do so. Having considered the Complainant’s evidence, which I found to be wholly credible, I am satisfied that the Respondent refused to either complete the HAP Application Form or make his client aware of his legal obligation to accept HAP.

I am satisfied therefore that the Complainant has established a prima facie case and the onus therefore shifts to the Respondent to rebut the inference of discrimination raised. As highlighted above the agent did not attend the hearing, despite being on notice of same, and has therefore not rebutted the inference.

I find therefore this was an act of unlawful discrimination in which the Respondent was fully and actively engaged, was vicariously liable and is therefore accountable under S. 6(1)(c) of the Equal Status Acts 2000-2016, amended by S. 14(4) of the Equality (Miscellaneous Provisions) Act 2015.

Accordingly, I find that the Respondent engaged in prohibited conduct under the Act.

CA-00032216-001:

As outlined above, I find both that the Complainant successfully established a prima facie case of discrimination on the housing assistance ground which the Respondent failed to rebut and that he 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 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."

Under the above section, the maximum amount of compensation I can award is €15,000. Given the real and tangible effects of the Respondent’s refusal to participate in the HAP Scheme and/or make the landlord aware of his obligation to do so, I consider this discrimination to be at the more serious end of the scale. Specifically, the Complainant suffered financial loss given the failure of the Respondent to fulfil his legal obligations and also had to endure the inconvenience of living with a tenant which he would not have had to do if the form was signed. In all of the circumstances, I find that an award of €12,000 is appropriate for the effects of the prohibited conduct

Failure to accept HAP