Complainant

Respondent

Parties

Jelena  Lune

Ires Fund Management Ltd

Representatives

Vadim Karpenko,  First National Consulting and Legal Service

 Ciaran Finn, Legal Executive

Act

Complaint Reference No.

Date of Receipt

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

CA-00044232-001

19/05/2021

The Complainant moved into the Respondent’s apartment in March 2018. At the time she lived with her then partner. Following Family Court proceedings, the Complainant’s ex-partner moved out of the apartment. The Complainant resided in the apartment with her two children, 7- and 18-year-old at the time.

The Complainant referred her complaint to the Director General of the WRC on 19th May 2021 alleging that the Respondent discriminated against her on the family status and the housing assistance grounds in provision of accommodation.

ES1 for was sent to the Respondent on 19th April 2021, albeit no copy was provided at the adjudication hearing, and the Respondent issued ES2 form on 14th May 2021.

The Complainant was represented by Mr. Karpenko of First National Consulting and Legal Service. The Respondent was represented by Mr. Finn, Legal Executive.

The Complainant gave direct evidence and was cross-examined. There were no witnesses called on behalf of the Respondent.

The Complainant submits as follows.

The Complainant moved into the Respondent’s apartment on 17th March 2018. She joined her civil partner Mr VF, who resided in the dwelling for many years previously. Due to the unsocial behaviour of her ex-partner the Complainant applied for a Barring Order against him. The District Court granted the temporary Barring Order and approved the Protection Order against the Complainant’s former partner on the 30th June 2020. The Order was enforced by Gardaí on the same day, and they removed the Complainant’s former partner from the dwelling. On the 8th July 2020, the District Court granted 3-year Barring Order against the Complainant’s former partner. At present Gardaí are proceeding with two criminal cases against him for breach of Barring Order. According to the Court Order, the Complainant’s former partner had to leave the dwelling and not enter there without the permission of the Complainant.

Immediately after the issuance of the first Court Order the Complainant contacted the Respondent, acting as the landlord, and requested to terminate the previous contract. She drafted a new contract in her sole name. The Complainant needed a new contract in order to change her HAP entitlement. Previously she had a joint HAP agreement with her ex-partner and her contributions were based on their joint income. HAP Department of Fingal County Council stated that they cannot change the amount of HAP contributions without a new contract.

The Complainant phoned the Respondent a few times, and the Respondent’s officers always promised to sort it out. A few times they requested her to furnish additional documents, which she always submitted on request. An employee of the Respondent promised to draft another Agreement and stated that the Complainant had to pay €30. The Complainant agreed. The Complainant submitted all requested documents many times, however, the new contract has still not been drafted.

The Complainant believes that the Respondent ignores her family circumstances and disregards her family status. She is deserted, she is a victim of domestic violence, and she is still under stress. The Respondent ignored the determination of the Irish court and insisted that the Complainant’s abuser is entitled to residence in the dwelling. The Responded is still holding the deposit in respect of the rent of the dwelling paid by the Complainant’s ex-partner, but claimed the payment of the deposit again, despite the Complainant already having refunded the deposit to her ex-partner. The Respondent decided that they are entitled to play the role of the Family Court and solve financial issues between the parties. However, according to provisions of the Civil Partnership and certain Rights and Obligations of Cohabitants Act 2010 and the Family Law Act 2019 all financial issues between parties must be solved in Family Courts. Therefore, if the Complainant’s ex-partner wanted an amount of money from his ex-partner, he would have to make an application in Irish courts. The Respondent does not have jurisdiction to solve financial relationships between ex-partners. The Complainant believes that this is another sign of her discrimination on family grounds.

The Respondent continues to send correspondence in the name of the Complainant’s ex-partner. The Complainant  wants to forget her previous relationship. She feels pain and each correspondence addressed to her ex-partner causes stress, anxiety and sleeping disorder. The Respondent admits the fact that they did not provide the lease agreement required for the HAP application. The Complainant submitted all required documents and asked the Respondent whether she needs to submit any others. However, the Respondent's employees transferred the responsibility to each other and rejected the acceptance of documents. As a result, the Complainant was not able to apply for HAP assistance, she still does not know how much exactly she must pay. Therefore, the Complainant believes that the Respondent unlawfully and intentionally restricted her from accessing HAP. She believes that the Respondent is simply claiming extra money and intends to move her out of the property.

The Complainant’s representative contended that the Complainant’s claims, namely that she has been discriminated against by reason of her family status and by reason of her housing assistance in accommodation are interrelated.

It was asserted at the hearing that the required documents had been sent to the Respondent but there were many reasons why the Respondent did not want to change the contract. For that reason, the Complainant was not able to apply for the changes in HAP. It was confirmed at the adjudication hearing that the Complainant was in receipt of HAP at the relevant time.

Direct evidence and cross-examination of the Complainant

The Complainant said  that she called the Respondent many times, but the Respondent never called her back. She said that she paid all her bills. She said that over the last 2 years she has lived under pressure. She said that the arrears in respect of rent are not her arrears to pay.

In cross-examination, the Complainant was asked to clarify when and to whom did she send the requested documents. She replied that she sent the barring order twice. It was put to the Complainant that HAP is in her name. She conceded that HAP was amended in August 2021 to her name, the amount of HAP changed around September 2021 but from August 2021 only her income was considered. She confirmed that her HAP was resolved, and all is in order since August 2021.

In relation to the statements that the Respondent had many reasons for not giving the Complainant her contract, the Complainant said that the Respondent wanted her ex-partner to move back in.

The Respondent submits as follows.

The Respondent refutes in its entirety the claim of discrimination made by the Complainant.

In order for a complaint of discrimination to be well founded, the Complainant must demonstrate less favourable treatment on a prohibited ground. At the outset, the WRC must first consider whether the existence of a prima facie case has been established by the Complainant. A person making an allegation of discrimination under the Acts must first demonstrate that a prima facie case of discrimination exists. It is respectfully submitted that the Complainant has failed to do so.

Background

Pursuant to a lease dated 20th October 2015 made between (1) Irish Residential Properties Reit Plc (the “Landlord”) and (2) Mr VF (the “Tenant”), the Tenant commenced occupation of the relevant apartment (the “Dwelling”) on 20th October 2015 (the “Lease”). The Complainant, Jelena Lune is not named on the Lease. The term of the Lease was 12 months. Accordingly, the Lease expired due to the efflux of time on 19th October 2016.

At no point prior to July 2020 did the Tenant notify the Landlord that the Complainant was residing in the dwelling. It is the Respondent’s understanding that in order to increase the amount of housing assistance payment the complainant is entitled to, they must provide a lease in their own name.

The Respondent submits that the following documents remain outstanding:

a) Valid piece of Government ID b) Current work reference letter c) Bank statements for the last three months d) Pay slips for the last three months

The Respondent submits that it had agreed to forego the requirement that the Complainant furnishes a landlord reference.

A series of emails have been exchanged between the Respondent and the Complainant concerning this issue and the Respondent has continually attempted to assist the Complainant. The following are particularly relevant from that email exchange as they demonstrate the Respondent’s willingness to issue a new lease agreement.

1. Email chain from 2nd April - 6th April 2021: The Complainant’s queries addressed, and documentation again requested.

2. Email chain from 14th April 2021: Confirmation that new lease agreement is possible and necessary steps outlined.

3. Email chain from 24th May 2021: The Complainant rejects the Respondent’s response to the initial ES.1 form. Subsequent response from the Respondent is to furnish the Respondent with the relevant information in order to obtain a lease. The ES.2 form also requested the documents to be furnished.

4. Email chain from 29th May – 2nd June 2021: Further confirmation of willingness to issue new lease agreement pending completion of standard process.

In relation to the alleged failure of the Respondent to recognise the Complainant’s new family status and right to reside in the apartment, the Respondent submits that the application process has no regard to the marital status. What is required, are several documents verifying the applicant's identity and ability to pay rent, each of which the Respondent had requested from the Complainant on several occasions. These documents have yet to be submitted to the Respondent, and as such, no lease can be processed. The Respondent was not, nor is it now privy to the Complainant's family status. Indeed, until the Respondent was in receipt of the barring order dated 8th July 2021, it was not aware of the Complainant's occupation of the property.                  

The Complainant's right to reside in the property was considered at length in a hearing of the Residential Tenancies Board on 12th October 2021. The issues and findings of this hearing are contained in the Adjudication Report and Determination Order exhibited at the adjudication hearing. The RTB decided that the Complainant did not have a right to reside at the property and issued an adjudication order to that effect. The Respondent has deferred enforcement of the Determination Order, pending conclusion of this WRC process.

In relation to the alleged discrimination on grounds of receipt of Housing Assistance Payment, the Respondent has always helped tenants to receive HAP and is open to helping the Complainant to do the same. It is the Respondent’s understanding that, in order to increase the amount of HAP the Complainant is entitled to, she must provide a lease in her own name. Again, the issue that the Complainant is encountering in respect of receipt of HAP is due to the lack of documentation to be submitted by the Complainant to the Respondent. Without this documentation a lease cannot be processed, and so HAP cannot be processed.

It should be noted that, in spite of the fact that the Complainant is not paying rent in full in contravention of the RTB Determination Order, the Complainant continues to reside in the property. The Respondent has tried on several occasions and continue to be willing to put in place a payment plan with the Complainant to deal with the arrears of rent due and to put in place a new lease for the Complainant once the Respondent receives all of the required documentation.

The Respondent disputes categorically that the Complainant has been discriminated against on any grounds including those claimed.

The Respondent’s application process for prospective tenants has no regard to marital status or housing assistance (i.e. whether the prospective tenant is in receipt of a rent supplement or any payment under the Social Welfare Acts). The Respondent’s application process applies equally to all applicants.

The Respondent sought to assist the Complainant in obtaining a lease, in her own name, in respect of the dwelling but she has repeatedly failed, despite multiple requests, to provide the required documents. Contrary to the Complainant’s various emails the Respondent had not received all necessary documents to enable it to consider the application. The Respondent does, however, remain committed to working with the Complainant and resolving the matter, if possible.

Mr Finn, on behalf of the Respondent said that all new tenants need to furnish a number of required documents. The same process applies if a tenant is in situ but not on the lease. The Respondent had not received the required documents from the Complainant. In response to the Complainant’s assertion that the documents were sent by email, the Respondent argued that the attached documents cannot be seen there. The Respondent pointed to the email exchange of 15th October 2020 where the Complainant says : “I am send for you all documents…” and the Respondent replies “Everything is not attached?”.

The Respondent submitted that it is happy to change the agreement, it has been asking for the required documents and cannot see why the Complainant did not submit them. The Complainant was asked in a number of emails and, the latest in the ES.2 form for the documents.

The Respondent further noted that the issue of arrears must also be dealt with. The Respondent submits that the Complainant was informed of the outstanding arrears. The Respondent submits that the RTB was satisfied  that the Complainant lived in the apartment in the relevant period and she is legally obliged to pay the arrears. The Respondent repeatedly said that once a payment plan is agreed and the relevant documents are provided, it will be able to process the lease. The RTB also ruled that in order to set up a new tenancy, the deposit had to be paid. Money changing hands between the Complainant and her ex-partner is not the Respondent’s responsibility. The Respondent stressed that it did not bring the matter to the RTB to make a big issue of it but to resolve the matter.

In relation to the HAP, the Respondent submits that it still receives the same amount of HAP, despite the change made in August 2021. The Respondent notes that it is not in a landlord’s interest to delay the matter as arrears are accruing.

The Respondent argues that it needs to follow procedures. The monthly rent is €1,524, the Respondent receives €1,275 in HAP from the Council. The Complainant has not paid rent since 1st July 2020.

It was put to the Respondent that it had never made any attempt to clarify the rent amount and arrears to the Complainant. The Respondent noted that there has been a lot of correspondence between the parties and at no point did the Complainant point out that she did not know what the rent was. The arrears were laid out clearly in the Respondent’s emails and in the RTB letter.

The Respondent submitted at the adjudication hearing that it manages approximately 4,000 properties and approximately 1,000 tenants are in receipt of HAP. There is no information required in relation to family status on the application form.

The Respondent told the hearing that, notwithstanding the outcome of this adjudication hearing, it remains open to resolving the issue. The Complainant remains in the apartment and the Respondent will work with her.

Section 3 of the Equal Status Act, 2000 as amended provides:

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,”

3(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(a)   Not relevant

(b)   Not relevant

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

Section 3(3B) 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 6(1) provides:

“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.

Section 6(1A) provides:

“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 6(2) provides for a list of exclusions from this provision including:

“(a) the disposal of any estate or interest in premises by will or gift, (c) any disposal of such an estate or interest, or any provision of accommodation or of any services or amenities relating to accommodation, which is not available to the public generally or a section of the public,

(d) the provision of accommodation by a person in a part (other than a separate and self-contained part) of the person’s home, or where the provision of the accommodation affects the person’s private or family life or that of any other person residing in the home, or

(e) the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender.”

In relation to the applicable burden of proof, Section 38A applies to all complaints of discrimination under the Equal Status Acts and requires 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.

“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.”

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

Discrimination on the family status ground

The Complainant alleged that she was discriminated against by the Respondent on the ground of her family status.

The Act clarifies that

“family status” means being pregnant or having responsibility-

(a)   As a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b)   As a parent or the resident primary carer in relation to a person of or over that age with disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability.

I am satisfied that the Complainant, as a mother of a person who has not attained the age of 18 years is covered by the above definition.

The Complainant asserted that the Respondent discriminated against her as she was separated from her ex-partner.

I am satisfied that no evidence was produced to support the case that the Complainant was treated less favourably than a person with a different family status in relation to this matter. 

For the avoidance of doubt, while the Complainant’s claim that she was discriminated against because she had separated from her partner, could have perhaps been more appropriately considered under the civil status ground, the Complainant confirmed at the adjudication hearing that her claim of the alleged discrimination relates to the family status ground. Even if the Complainant chose to pursue her claim under the civil status ground, which she did not, I am satisfied that no evidence was offered to support the case that the Complainant was treated less favourably that a person of different civil status.

I find that the Complainant has failed to establish a prima facie case of discrimination on the family status ground.

Discrimination on the housing assistance ground

I must consider whether the Complainant has established a prima facie case of discrimination on the housing assistance ground. This requires her to show that she had been treated “less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds”, in this case the ‘housing assistance ground’, “…which requires that as between any two persons, that one is in receipt of… housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014)… and the other is not.”

It was not in dispute that the Complainant had been an occupant at the property for some time. As per the Complainant’s submission, she moved into the property on 17th March 2018 to join her ex-partner and from around 1st July 2020 she occupied the property without her ex-partner. The Complainant requested that the lease agreement is amended to reflect the fact that her ex-partner no longer resided in the property, and she was the principal tenant.

Email correspondence between the parties ensued. Having carefully reviewed the exchange of emails, I find that the import of the lengthy communication is that, in order to progress with the amendment of the lease the Respondent required the Complainant to furnish a number of documents, pay €30 administration fee, pay a deposit, and address the matter of arrears owed.

There was no dispute that all the matters above were dealt with by the RTB Adjudicator on 12th October 2021 and the RTB Adjudicator determined, inter alia, that the Complainant was liable for the payment of rent and any arrears outstanding (a payment plan was outlined in the Determination), deposit, and that the Respondent is not obliged to sign a new lease with the Complainant.

While there was conflict between the parties as to whether or not the Complainant furnished the Respondent with the required documents, I find that the Respondent’s correspondence up to and including its response to the ES1 form clearly states that it did not receive the documents. In the absence of any evidence to prove either party’s contention, the argument reached an impasse.  It is, therefore, disappointing that rather than forwarding previous email with relevant documentation, if such had in fact been sent previously or send the requested documentation, the Complainant engaged in a lengthy correspondence disagreeing with the Respondent and reiterating that she had sent it.

From the submissions of the parties, it is also apparent that the matter of arrears and deposit had not been addressed by the Complainant. The Complainant, without any consultation with the Respondent, allegedly repaid the amount equal to the deposit previously paid to the Respondent by her ex-partner to him. In my view, the matter of any agreement between the Respondent and Mr F, including the payment and refund of the deposit was not a matter for the Complainant to deal with. 

With regard to the arrears of rent, it is apparent that these accrued after the Complainant’s ex-partner moved out and the Complainant, by her own submission, became the principal tenant. I find the Complainant’s assertion that these are “not her arrears to pay” implausible given the circumstances.

Furthermore, it was not in dispute that the Complainant was in receipt of HAP at the relevant time, albeit it appears that the amount of HAP was calculated on the basis of a joint assessment with her ex-partner. There was no suggestion that there was any difficulty with the initial HAP application and the arrangements that were in place at the relevant time.

Consequently, taking all of the above into consideration, I conclude that the Complainant has failed to establish a prima facie case of discrimination on the housing assistance ground.

Having carefully considered the submissions of the parties and evidence put before me, I find that the evidential burden resting on the Complainant has not been discharged and a prima facie case of discrimination on family status and housing assistance grounds has not been established.

I declare this complaint to be not well founded.

Family status - HAP – na prima facie case -