Complainant

Respondent

Parties

David Paul  Smith

Martin Shields and Hillary Shields

Representatives

Owen Duggan, Threshold

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039652-001

07/09/2020

The Complainant stated that he was discriminated against by the Respondents as a result of their failure to accept HAP when he initially inquired about it in May 2017 and again in July 2020.

The Complainant stated that he initially requested of the Respondents if they would accept HAP upon the tenancy commencing in October 2017.  This was refused verbally at the time. 

However, on 28 July 2020 the Complainant once again requested the Respondents to accept and sign the application for HAP.  This was refused by text message on 28 July 2020, with Hillary Shields stating that “You were told when you moved in that he (Martin Shields) didn’t accept hap”.  The tenant then protested by text stating that he was entitled to avail of HAP and that he was advised to issue an ES1 Form.  Mrs Shields then implicitly threatened the Complainant’s tenancy in her text message reply stating that she would “be moving in to the hse” (House). In reply to this message, the Complainant asked if she would therefore be issuing an eviction notice but he did not receive a response.

The Complainant subsequently sent an ES1 form to the Respondents but this was not completed or returned even though he was able to prove delivery of same. The Complainant subsequently left the property of his own accord in May 2021

Despite having been notified of the time and date of the hearing, the Respondents failed to attend and did not make any submission in writing.

The Law

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. 

The Facts

In evaluating the evidence, I must firstly consider

(i) whether the complaint is properly before the WRC 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 Respondents 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. Specifically, I am satisfied that the Complainant served the ES1 form on the Respondent within 2 months of the alleged contravention and that the complaint was referred to the WRC within six months of the most recent contravention.

In relation to (ii), the complaint is that the Respondents refused to accept HAP when requested to do so in October 2017 and again in July 2020. Having considered the Complainant’s oral evidence, which I found to be wholly credible, and the copies of the text messages which he sent to the Respondent, I am satisfied that the Respondents refused to accept HAP which they are legally required to accept.

I am satisfied therefore that the Complainant has established a prima facie case and the onus therefore shifts to the Respondents to rebut the inference of discrimination raised. Given that the Respondents failed to attend the hearing however, I find that they did not rebut the inference of discrimination raised and that they therefore engaged in prohibited conduct under the Act when they refused to accede to the Complainant’s request to accept HAP.

CA-00039652-001:

As outlined above, I find that the Complainant successfully established a prima facie case of discrimination on the housing assistance ground which the Respondents failed to rebut and that they 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 Respondents’ refusal to participate in the HAP Scheme, I consider this discrimination to be at the more serious end of the scale given that there was a continuing contravention since 2017. Specifically, the Complainant suffered an actual financial loss of €5,687 between the dates on which he initially asked the landlord if he would be willing to accept HAP in October 2017 and the date on which the complaint was referred to the WRC on 7 September 2020. While the Complainant’s representative alleged that he had incurred additional losses in respect of the period from September 2020 until May 2021, when he left the property, I can only consider any alleged contravention of the Act up and until the date on which the complaint was referred to the WRC, namely 7 September 2020.

As well as the financial loss that the Complainant had to incur arising from the Respondent’s failure to accept HAP, I noted the considerable stress that this caused him over a prolonged period of time and have taken this into account in the calculation of my award.  Specifically, I noted that the Complainant fell into arrears with his utility bills due to the fact that he was unable to avail of the HAP.

I therefore order that the Respondents pay the Complainant the sum of €7,500 in respect of their prohibited conduct. The award is arrived at having regard to the seriousness of the discrimination and all of the effects of same, namely financial and otherwise, on the Complainant.

HAP;