Complainant

Respondent

Parties

Michael  Murphy

Waterford City and County Council

Representatives

  Self represented

Gareth Hayden, BL instructed by Kieran Curran, Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035613-001

07/04/2020

The Complainant contends that he was discriminated against by the Respondent on the ground of disability and on the ground of housing assistance.  He also contends that the Respondent failed to provide him with reasonable accommodation.

The Complainant submitted a 375 page document containing his complaints and his various interactions with the Respondent over the years 2014 – 2020.  The broad overview of his case is as follows:  He submitted a house transfer request to the Council on the 8th of May 2014, it took over a year for the Council to send out their OT to do a report on his living conditions. In that report the OT highlighted that his living conditions were not suitable and he could not use the shower or toilet safely plus he had no means of escape from the house in case of an emergency. He was made an offer of a housing unit with Respond in April of 2016 but when he spoke with Respond they informed him he was not eligible for the unit. Over the next three years any time he contacted the Council for an update on his case he was told that they are aware of his situation and were working on a solution. When he questioned his case and showed that over time that over 30 suitable houses were advertised on Choice Based Letting scheme he was constantly told he was not entitled to that house, no other reason was given. In October of 2019 a meeting was set up with the Housing Officer at which he promised an offer would be made within the next four weeks, that offer came in Feb of 2020 for an unsuitable apartment. Finally after years of pushing by the Complainant and local TDs he was given a house transfer in Aug of 2021. In his case he said he can prove that suitable houses that would meet his needs were on the Council's books and handed out to other people, in some cases he was informed that he was not entitled to a three bedroom house but he has examples of the Council giving couples three bedroom houses. He can show and prove that the Council knew he was living in a Fire hazard with no means of escape and making him housebound, unable to shower or use the toilet comfortably for over seven years. In the case where he was offered a house but the shower was inaccessible, he was told "It was suitable” for him. He can show where he has been on the receiving end of the Council’s treatment and attitude amounting to Ableism. As a result he became depressed, suicidal and lost a lot personally including his independence. He has proof he contacted the Council and no response was received thus ignoring him and his needs. His main question that has gone unanswered from the Council is, is it acceptable that a person is left trapped in a house for over seven years while suitable houses are available? He sent an ES1 form but got no response, He also sent a complaint through the complaints section on the Councils web page but the complaint was sent to the person and department that he was complaining about, again no response was made to that complaint.

Evidence was given by the Complainant in which he stated that he was aware that he may not succeed on the claim of discrimination, however due to the frustrations and treatment experienced by him, and the fact that it took 7 years for him to be accommodated despite having identified multiple opportunities that the Council could have afforded him to live in a house suitable for his needs meant that he had to take this case.  He was particularly aggrieved at being described by the Housing Officer at one point of having special needs.  He questions what is ‘special’ about basic needs such as having an accessible shower and toilet facilities in a house?  He believes that the Respondent has failed to accommodate him reasonably in light of his disability.  The issue of the rent review, mentioned in his submissions was no longer an issue. The Complainant took issue with many of the points made in the Respondent’s submission, one example of incorrect facts is the Respondent’s submission that he succeeded to the tenancy of the house he was in from the death of a relative namely his mother.  This is incorrect and caused him further upset.  The Complainant also argued that he sought a transfer, not an adaption of the dwelling.  Under questioning by Counsel for the Respondent, the Complainant disagreed that he had turned down 5 or 6 properties offered by the Council, but stated that the correct number was 4.

The Respondent has not treated the Complainant in a discriminatory fashion as

alleged or at all. The only account taken of the Complainant’s disability has been to

grant the Complainant Medical Priority One status and also for the purpose of

providing a property suited to the Complainant’s needs. The Complainant has not

been in any way treated less favourably than a person in the same position without a

disability or without the Complainant’s particular needs. The Respondent accepts

that the housing list can take time to progress and that the allocation of suitable

properties can take some time to cater for each and every applicant, however this

does not amount to discrimination against a person who is awaiting an allocation of

a suitable property with which they are satisfied. The Complainant has been treated

in a fair and even-handed manner by the Respondent.

The Law

It is well established law that in order for the Complainant to succeed a prima facie

case must be made out by a Complainant. In order to do this the Complainant must set

out and prove facts from which it may reasonably be presumed that discrimination

has taken place, whether the discrimination is alleged to be direct or indirect

discrimination.

The test is well encapsulated in the following passage from the case of Cork City Council v

McCarthy EDA 21/2008;

”The law provides that the probative burden shifts where a complainant proves

facts from which it may be presumed that there has been direct or indirect discrimination.

The language used indicates that where the primary facts alleged are proved it remains for

the Court to decide if the inference or presumption contended for can properly be drawn

from those facts. This entails a consideration the range of conclusions which may

appropriately be drawn to explain a particular fact or a set of facts which are proved

in evidence."

The test is set out in slightly more detail in the case of Southern Health Board v

Mitchell [2001] ELR 201 where it was stated that;

”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 unlawfuldiscrimination.

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.”

It is submitted that it is clear from the foregoing that a Complainant must establish

on the balance of probabilities, the basic facts which are contended for. Those facts

must i) be proved to the satisfaction of the Court or the body dealing with the

matter, ii) the facts proven must be capable of raising a presumption of

discrimination, and iii) the facts proven must be of sufficient significance to raise the

presumption of unlawful discrimination.

The comments in the case of Valpeters v Melbury Developments ltd [2010] ELR 64 are also of relevance, in particular the passage which sets out that;

”Mere speculation or assertions, unsupported by evidence, cannot be elevated to

a factual basis upon which an inference of discrimination can be drawn. Section

85A places the burden of establishing the primary facts fairly and squarely on the

Complainant and the language of this provision admits of no exceptions to that

evidential rule.”

It is respectfully submitted that the matters raised by the Complainant amount to

assertions of discrimination which are not borne out by the facts of the matter.

Further, even if the facts alleged were to be proven on the balance of probabilities

(no admission being made in that regard in any event), those alleged facts are not of

sufficient significance and could not give rise to a presumption of discrimination in

the Complainant's favour.

The Complainant’s primary complaints appear to be;

The length of time that he was on the waiting list to be allocated a suitable property,

and,

The fact that he was not approved for certain properties which he had expressed

interest in.

With regard to the length of time which the Complainant was on the waiting list for a

property, it must be noted that in the first instance the time involved was not overly

Iong in terms of the standard, usual waiting time for being assigned a house on the

Respondent’s waiting list. The Complainant was accepted onto the list for transfer in

2016. As noted in the Respondent’s factual submissions above, there remain persons

of Medical Priority One status on the waiting list as of now who had been accepted

onto the waiting list in 2016. The Complainant’s application and housing allocation

have been dealt with and progressed in the same way as any applicant, save that the

Complainant has been afforded greater priority due to his disability and consequent

needs.

Further, with regard to the Complainant's length of time on the waiting list, the

Respondent engaged with the Complainant and engaged on the Complainant’s

behalf with Respond Housing Association and brought about the offer of a housing

unit at Property A. It was only arising out of the inspection

meeting at the property that the Respondent became aware that the property in

question would not be suitable for the Complainant’s needs given his altered family

situation. This had an obvious effect of delaying matters as a property suitable for a

single occupancy and sourced at the instance of the Respondent was not suitable

after all.

The Respondent then went on to engage with the Complainant in respect of other

properties. This included property B which was deemed unsuitable and not accepted by the Complainant, despite the Respondent being keen to render the property suitable for the Complainant’s needs. Again, the modifications to the property would have taken time to put in place and the fact of time needed to carry out works is not in any sense discriminatory towards the

Complainant. In fact it is quite the opposite: the Respondent wished to ensure that

the property would be suitable for the Complainant’s specific needs and this cannot

be in any sense discriminatory towards the Complainant.

The Complainant also makes complaint that he expressed an interest in certain

properties but was not approved for those properties or was not successful in

bidding on those properties. The Complainant had been approved for a two

bedroom property and three bedroom properties were included in the properties

which the Complainant expressed interest in. In the first instance the Respondent is

entitled to a broad degree of discretion in the management of its housing stock and

its allocation of the properties available to it through the various schemes operated

by the Respondent pursuant to statute (see further below as to the Respondent’s

discretion). Further, the approval of the Complainant for a two bedroom property

was based on his assessed need. The Respondent does not and cannot allocate

residential properties on the basis of future need. The Respondent allocates

properties based on existing need. Were the Respondent to allocate housing based

on potential or anticipated future need the housing lists would become unworkable

and it is only through allocation based on actual existing need that the housing lists

can be administered in a rational, needs-based manner. This policy is not in any way

discriminatory towards the Complainant nor is it directed towards any condition or

needs of the Complainant. It is a policy applied ”across the board” to all housing

applicants. While the Respondent does not propose to discuss or to outline the

housing status of any other person(s) the Respondent does submit that persons who

had been approved for three bedroom properties were always far more likely to be

allocated three bedroom properties through Choice Based Lettings for the

fundamental reason that they had been approved for three bedroom properties

where the Complainant had been approved for a two bedroom property. Again, the

application of standard criteria with regard to approval for various properties is not

in any way discriminatory of persons with disabilities in general nor discriminatory of

the Complainant in particular.

In the case of O’Donnell v South Dublin County Council [2015] IESC 28 MacMenamin J

stated that;

”A consideration of the European Court of Human Rights case law demonstrates that,

in fact, no judgment confers a right to be provided with the house of one’s choice nor

are there any positive obligations to provide alternative accommodation of an

Applicant’s choosing (see Chapman v UK, Application no. 27238/95 (2001) 33

E.H.R.R. 442"

The Supreme Court’s observation in that case (while concerned with Article 8 of the

European Convention on Human Rights) is applicable to a case such as this where

the local authority accepted the Complainant’s application, approved him for a

particular category of property and progressed the application through the waiting

list. In short, while the Complainant might have preferred to be provided with a

particular house within a particular time frame there is no right to insist upon a

particular property within a particular time frame and the operation of the housing

list and the Respondent's efforts to identify, modify and render suitable a property

for the Complainant is not in any sense discriminatory towards the Complainant.

Further, it is significant that the Complainant has now been housed by the

Respondent in a property which it appears that the Complainant is satisfied with.

This represents the aim of the process whereby the Complainant applied for a

housing transfer, was approved for same, was assessed when it became clear that

his wife was to live with him, was approved again, was tentatively allocated certain

properties which were not suitable or were not accepted and was ultimately

assigned and accepted a property which it appears is suitable to the Complainant.

This is simply an iteration of the housing process in relation to a person on the

Respondent’s housing list and does not represent discrimination towards the

Complainant in any respect, nor is it capable of constituting discrimination towards

the Complainant.

In the case of Mulhare & Anor v Cork County Council [2017] IEHC 288, the Applicant

was a child with profound physical and mental disabilities. The Applicant sought that

the Respondent local authority source and facilitate transfer to a property within a

certain distance of her GP‘s surgery or of the Applicant‘s regular hospital. Baker J.

stated in that case that the Respondent local authority had adequately provided for

the Applicant by offering to repair and modify the property which the Applicant

resided in. The Court further observed that it would be an impermissible breach of

the separation of powers for the Court to require the local authority to provide

housing in the area of the Applicant’s choosing. This is the application of the

principle that the Courts will afford a broad degree of latitude and discretion to local

authorities in their management and allocation of housing resources. Baker J. also

emphasised that the duty on a housing authority is to assess and meet housing

needs while also managing its housing stock and great care must be taken by the

Courts not to intrude upon these functions.

Again, it is respectfully submitted that there is nothing discriminatory in allowing

housing authorities to manage their housing stock and housing lists as best as

possible within the inevitably limited resources available to the housing authorities 

Further the fact of the Complainant having had his rent payment reassessed is not in

any way discriminatory and is no more than an application of the Respondent’s

functions and duties. The Complainant’s rent was revised based on the information

available to the Respondent. When objection was taken to the Respondent’s

assessment of the Complainant’s rent payment the Complainant provided further

documentation and this was considered and acted upon by the Respondent. There is

no basis for a claim of discriminatory treatment in any of the matters alleged in

respect of assessment of rent.

In the case of Valerie Enners v Limerick County Council ADJ-00027828 the

Commission found that, while there had been a ”serious bureaucratic mix-up”

between the Complainant in the case and the housing authority (with the housing

authority in that case admitting that matters could have been better dealt with by

it), to translate that mix-up into a valid Equal Status claim it had to be demonstrated

and proved that the discriminatory grounds were breached and that that

Complainant had been treated,

”less favourably than another person is, has been or would be treated in a

comparable situation on any of the grounds specified”.

It is respectfully submitted that, even were the Complainant in this case to prove

that the local authority had made some error or oversight at some point in the

housing process in this case (this not being accepted by the Respondent in any

event), that does not of itself translate into discriminatory treatment and the

Complainant still requires to show that a discriminatory ground has been breached

and that he has been the subject of discriminatory conduct or acts on the part of the

Respondent. It is respectfully submitted that this has not been demonstrated in this

case.

The Respondent respectfully submits that it has at all times complied with its duties

as a housing authority, has not treated the Complainant in a discriminatory manner

and that in the circumstances the matters alleged by the Complainant, even if

they were to be proved, (no admission being made in that regard) could not sustain

a prima facie case of discrimination. Accordingly the Respondent submits that the

Complainant’s Complaint should be dismissed.

Evidence was given by the current Housing Officer.  She apologised for the error in assuming that the Complainant had succeeded to the tenancy of the house from which he had requested a transfer from a deceased relative.  She also stated that she would escalate the Complainant’s complaint, submitted on 18th March 2020 to the Director of Services.  The HO described the process for allocation of housing.  She outlined that there are a number of “Priority Needs” categories, such as those in emergency accommodation, homeless persons, elderly persons and persons with disabilities.  The Complainant was categorised as MP1 (Medical Priority 1) in 2016.  Typically persons categorised MP1 could be on the housing list for 6/7 years.  A spreadsheet was produced to show the numbers still outstanding e.g. 2 from 2016, 3 from 2018 and 2 from 2019.  The HO stated that the priority assigned to persons with disabilities is the opposite of discrimination, in that it could be said to be positive discrimination.   In cross examination by the Complainant, the HO stated that in her view, some 6 offers of accommodation had been turned down by the Complainant.  She has a record of 18 bids on Choice Based Letting, the Complainant claims he had bids on 33-40 properties.  

The Complainant has contended that he was discriminated against by the Respondent on the grounds of disability and housing assistance.  He also contends that the Respondent has failed to provide him with reasonable accommodation in respect of his disability.  He stated that the rent dispute was no longer an issue.

The applicable law

I will first examine the applicable law in respect of his complaints.   The first relates to the definitions of discrimination.

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 F10 [ 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. ]

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

( a) that one is male and the other is female (the “gender ground”),

( b) that they are of different civil status – (the civil status ground”),

( c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

( d) that they are of different sexual orientation (the “sexual orientation ground”),

( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),

( f) subject to subsection (3), that they are of different ages (the “age ground”),

( 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”),

( h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”)

( i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”)..

(3B) For the purposes of section 6(11)(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”).

In order to succeed, the Complainant must rely on Section 3 (1) (g) and Section 3B to ground his claim.   The question that must be considered is whether the Respondent has discriminated against him by treating him less favourably than another person without a disability or a person with a different disability.  In this instant case, the Complainant had a number of complaints, questions and assertions around the Council’s treatment of him as a disabled person seeking suitable accommodation to rent.  The requirement to establish facts from which it can be inferred that discrimination has taken place is contained in the Act.   The Complainant referred to the Council’s refusal to approve him for anything other than a two bed house, and he referred to ‘couples getting two and three bed houses’.   No specific details of a comparator or comparators were provided, either one with a different disability or one without a disability with which an inference of discrimination could be adduced.

The onus is on the Complainant in the first instance to discharge the burden of proof that an inference of discrimination may be drawn from the established facts, this is the ‘burden of proof’ on him to establish a prima facie case.  If he succeeds, then the burden of proof shifts to the Respondent to prove that it has not discriminated against the Complainant.

Burden of proof.

38A of the Act provides:

38A.— (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission  under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary.

In this instant case the evidence adduced points to a long running dispute between the Complainant and the Council. The Complainant was understandably frustrated and annoyed at the predicament in which he found himself, having been confined to an unsuitable house for many years.                        However, to translate this into an Equal Status complaint on the grounds advanced, that of disability requires proof that the Discriminatory ground was in fact breached and the Complainant was treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified.  The Complainant referred to married couples getting housing but submitted no actual details of comparators.  The evidence produced by the Respondent shows the fact that the housing list contains some persons from MP1 category in the same or similar time line as the Complainant awaiting housing.   I find that the Complainant has failed to establish a prima facie case.

Housing Assistance Ground

In relation to the Complainant’s complaint that he was discriminated against on the ground of housing assistance, the specific provision in the Act that the discriminatory ground shall 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 Complainant has not submitted any evidence in relation to this contention. His complaint therefore on the housing assistance ground is not well founded.

Exemptions

Although it has not been advanced in this case, I note that here are exemptions in relation to the Act.  Section 14 (1) (a) (i) provides:

“Nothing in this Act shall be construed as prohibiting (a) the taking of any action that is required by or under - (i) any enactment or order of a court,”

Section 2 of the Interpretation Act 2005 defines an “enactment” as “an Act or a statutory instrument or any portion of an Act or statutory instrument”.  Reference has been made in this case to the regulations governing the Council’s Housing Allocation Scheme drafted in accordance with Section 22 of the Housing (Miscellaneous Provisions) Act 2009 as amended and the Social Housing Allocation Regulations, 2011 & The Social Housing Allocation (Amendment) Regulations 2016.  It is the case that the Council has operated the Housing Allocation Scheme in accordance with the statutory provisions of the Housing (Miscellaneous Provisions) Act 2009.  O’Malley J. in the High Court Case of G v The Department of Social Protection [2015] IEHC 419, stated the Equal Status Act could not override the terms of another statutory scheme.  In this case, the Complainant has chosen to make a claim under the Act, rather than proceeding, for example by way of judicial review.    Also, the Regulations referred to actually give positive treatment to persons with disabilities, older people, homeless, travellers, or other special accommodation needs and the Council operates Choice Based Letting (CBL) for eligible households.  While the Complainant has expressed frustration and upset at the delays in accommodating him, the utilising of the Equal Status Act may not be the correct vehicle for him to pursue his claim.

Reasonable Accommodation

In relation to his complaint that the Respondent has failed to reasonably accommodate him,

Section 4 of the Act provides:

(1) For the purposes of this Act 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.

In this case, while the Complainant’s frustration over the housing delay is accepted, the Respondent cannot be said to have refused or failed to accommodate him, albeit not in as timely a manner as would have been desirable.

Based on the evidence, case law and reasoning above, I find the Complainant’s complaints to be not well founded.

Discrimination on the grounds of disability, housing assistance, reasonable accommodation, not well founded.