Complainant

Respondent

Parties

Amy Louise  Finnegan

Moire Needham

Representatives

Ms.  Ciara MacQuillan, Conor MacGuill Solicitors

Mr. Timothy Smith, Timothy Smyth Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00039471-001

31/08/2020

On the 31st August 2020, the Complainant referred the present complaint to the Commission. Herein, she alleged that she had been discriminated against on the grounds of “accommodation”. In particular, the Complainant alleged that the Respondent rescinded an agreement once she became aware of the Complainant’s intention to apply for housing assistance (“HAP”). The Respondent did not rely to the initial correspondence setting out this allegation or to the ES1 form containing the statutory notification. I further note that the Respondent did not set out any defence by means of written submission in advance of the hearing, in accordance with the relevant hearing guidelines. Nevertheless, at the hearing of the matter, the Respondent denied the complaint and submitted that the tentative agreement had been rescinded due to the Respondent’s concerns regarding the Complainant’s maintenance of the property. 

A hearing in relation to this matter was convened and finalised on 24th January 2022. A hearing in relation to this matter was convened for and finalised on 20th October 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

No preliminary issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

The Complainant sought to rent a residential property from the Respondent. In evidence, the Complainant stated that she was seeking alternative accommodation as she was pregnant, and she would soon require larger accommodation. The Complainant answered an advertisement for the Respondent’s premises. Through the Respondent’s estate agent, she agreed and paid the first month’s rent and a security deposit. Following from the same, the Complainant was provided with a set of keys to the premises.

On 2nd July 2020, the estate agent acting for the Respondent issued an email to the Complainant attaching an unsigned residential tenancies agreement. The estate agent met with the Complainant later on that date to sign the agreement and finalise the tenancy agreement. During this meeting, the Complainant enquired as to her possible entitlements to the Housing Assistance Payment (HAP) scheme. She understood that this enquiry was brought to the attention of the Respondent by her estate agent at this point. Shortly thereafter, the estate agent returned and stated that if the Complainant wished to avail of this payment, the agreed rent would be increased. The Complainant did not agree to the same, and the agreement was rescinded. Shortly thereafter, the Complainant noticed the property advertised again at the original rate agreed with the Respondent.  

In cross-examination, the Complainant accepted that the tenancy agreement was not completed. She accepted that she briefly met with the Respondent near the premises, but disagreed that the premises was in any way untidy or otherwise poorly kept at this point.

By submission, the Complainant’s representative stated that the Complainant was a desirable tenant until such a time as she made an enquiry regarding support under the HAP scheme. At this point, an agreement that had been agreed in principle was rescinded. The Complainant’s representative stated that the face that the property was returned to the market at the rent agreed by the Complainant evidenced the fact that the Respondent discriminated against the Complainant in relation to her application for housing assistance.

At the outset, the Respondent denied that they had discriminated against the Complainant in respect of their application for housing assistance or at all.

In evidence, the Respondent stated that they put the house for rent following it vacation by the previous tenants. The Respondent engaged the services of an estate agent for these purposes. The Respondent became aware that a tentative agreement had been reached with a prospective tenant but did not consider the tenancy finalised until such a time as the agreement was executed. In July 2020, the Respondent visited the premises and noticed that it was in a state of disarray. This caused the Respondent concerns regarding issues that might arise during the tenancy agreement. Shortly thereafter, the Respondent advised the estate agent to inform the tenant that the tenancy would not proceed, and all monies were returned.

In answer to a question, the Respondent absolutely denied that she had discriminated against the Complainant. In answer to a further question, she stated that she did not inform her estate agent halt the tenancy agreement on the grounds of a potential HAP application.

By submission, the Respondent’s representative submitted that the Complainant had not proven the primary facts upon which a complaint of discrimination could be inferred. In particular, the Respondent’s representative submitted that in the absence of sworn testimony from the Estate Agent, the Complainant’s case could not succeed.

Section 6(1)C of the Act provides that,

“A person shall not discrimination in…providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities”

Section 3(1) of the Equal Act, 2000, as amended, provides,

“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,”

Section 3(3B) of the Act provides,

“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”).”

Section 38A of the 2000 Act applies to all complaints of discrimination under the Equal Status Acts which places the burden of proof on 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 has been established that the onus shifts to the Respondent to rebut the inference of discrimination.

In the case of Olumide Smith -v- The Office of the Ombudsman [2020] IEHC 51, Simmons J. stated that,

“The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”

The present matter involves an allegation that the Respondent withdrew from a tenancy agreement when she became aware that the Complainant would potentially apply for housing assistance in the course of the tenancy. In this regard I note that while the tenancy agreement was not executed as between the parties, the Complainant had paid the first month’s rent and security deposit and had received a set of keys to the premises. In light of the foregoing, it seems that the primary factors of the tenancy had been agreed and that the Respondent had no difficulties with the Complainant as a prospective tenant at that point.  Difficulties arise in this matter with the Respondent’s instruction to terminate the tentative agreement thereafter. The position of the Respondent is that she instructed the estate agent to do so on the grounds that she was concerned that the Complainant would not keep the premises in good order. The Complainant’s evidence was that she was informed that the Respondent intended to increase the rent in the event that the Complainant applied for rent assistance. It was her evidence that when the Complainant refused to agree to such an arrangement, the prior agreement was terminated. 

Having regard to the foregoing, it is apparent that the testimony of the estate agent is of central importance in determining the factual matrix of this dispute. Unfortunately, neither party elected to call the estate agent as a witness. In this regard, the Respondent has submitted that the Complaint has not discharged the burden of proof and her complaint must fail.

I note the Complainant gave direct evidence as to the conversation she had with the estate agent on 2nd July 2020. The only manner by which the Respondent could challenge this evidence is by calling the estate agent to deny the allegations made by the Complainant.  In this regard, I note the Respondent was on notice of this complaint from the date of service of the ES1 form by the Complainant. If the Respondent wished to advance the defence that either the estate agent did not make the statements attributed to her or the made them without the knowledge or consent of the Respondent, it is for them to call the relevant witness. 

Having regard to the foregoing, I find that the Complainant has established that she tentatively agreed the primary terms of the tenancy with the Respondent or an agent of the Respondent. I further find that once she raised the issue of potentially availing of housing assistance in the course of the tenancy, the terms of tentative agreement were fundamentally and unreasonably altered either by the Respondent or an agent of the Respondent. In such circumstances, I find that the Complainant has established the primary facts from which the discrimination alleged may be inferred. As the Respondent has not rebutted this inference of discrimination, I find that the Complainant application succeeds and consequently her complaint is well-founded.

Section 27(1) of the Act provides redress may be ordered where a finding is in favour of the Complainant. Section 27(1) provides 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."

In circumstances whereby the parties not longer have any form relationship, compensation for the effects of the prohibited conduct is the most appropriate form of redress in this instance. In this regard, I note the Complainant’s evidence that she found accommodation shortly after the withdrawal by the Respondent, but that the conduct had a detrimental effect on her. Having regard to the foregoing, I order the Respondent to pay the Complainant the sum of €3,000 in compensation for the effect of the prohibited conduct.

Housing Assistance, Discrimination, Estate Agent