Complainant

Respondent

Parties

Michael  McNamara

Aideen McCormack & Stephan Murray

Act

Complaint Reference No.

Date of Receipt

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

CA-00036383-001

27/05/2020

This complaint is a complaint of discrimination on the housing assistance ground.

The Complainant submits as follows:

The Complainant has been a tenant of the Respondents since 2015.  In November 2017, the Complainant successfully applied for the Housing Assistance Payment (HAP).  He immediately contacted the Respondents and requested that they sign, and return, the landlord section of the HAP form to the County Council.  One of the landlords said that she would collect the HAP from the Complainant, but this never happened.  Instead, the Complainant was issued with a letter terminating his lease which was followed by a further letter seeking a 48% increase in his rent.

The Complainant said that he had been dealing with an agency in relation to his tenancy but that the agency informed him in early 2018 that it was no longer dealing with the property. The Complainant said that he only had email details for one of the Respondents.  In December 2017 she asked him not to contact her again.  The Complainant did not communicate with her again until 2020 when she contacted him when he stopped paying his full rent because his sister who had previously helped him to pay the rent was out of work and could no longer provide him with financial assistance.

The Complainant had a mobile number for the other Respondent but when he dialled the number, he was informed that it was no longer in service.  

The tenancy agreement between the parties was the subject of a Residential Tenancies Board Determination Order in October 2018.  In the report accompanying the Determination Order, the Residential Tenancies Board pointed out that it had no role in relation to HAP but said that it was “open to the applicant to pursue a discrimination case before the WRC should he choose to do so and the instant decision will not prevent him from doing so.”

The Complainant said that he tried to hand a copy of the HAP form to one of the Respondents at the PRTB hearing but that the Respondent refused to accept it.

In 2020, the Complainant sought advice from Threshold who advised him to refer a complaint of discrimination to the WRC.  It was only after the Complainant had submitted a complaint to the WRC that the Respondents finally returned the completed HAP form to the County Council.  The County Council wrote to the Complainant on 24 September 2020 to confirm that HAP payments would commence from 21 September 2020.  The Complainant believes that if he had not submitted a complaint to the WRC, the Respondent would not have signed the HAP forms.

The Respondents submits as follows:

In September 2018, the Complainant was given a document by the PRTB which stated that it was open to him to pursue a discrimination case with the WRC if he chose to do so.  However, the Complainant did not file a complaint with the WRC until April 2020.

The Respondents deny the allegation that the Complainant tried to hand the HAP form to one of the Respondents at the PRTB hearing in 2018.  The Respondents suggest that the Complainant could have made contact with them with the assistance of the PRTB who could have, if requested to do so, contacted the Respondents on behalf of the Complainant.  The Respondents also suggested that the Complainant could have approached them outside their children’s school which was near to the rental property when they were dropping or collecting their children.

On 23 April 2020, the Complainant emailed a copy of the HAP form to one of the Respondents.  This was the first time that the other Respondent had received HAP forms from the Complainant.  The forms were subsequently signed and submitted to the County Council in July 2020.  The delay was due to the pandemic and the fact that the Complainant would not permit the Respondents to inspect the rental property.

The issue for determination in this complaint is whether the Respondent discriminated against the Complainant on the housing assistance ground contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended), in relation to the ongoing refusal to sign the landlord section of the HAP form.  My remit relates solely to discrimination on the housing assistance ground – it does not extend to other matters raised by the Complainant.

Cognisable Period

The Complainant’s complaint referral form was received by the WRC on 27 May 2020.  In accordance with section 21(6)(a) of the Equal Status Act 2000 (as amended),  the period to be taken into account (the cognisable period) for a complaint under the Equal Status Act is the six months immediately before the date of the referral of the complaint.   The Equal Status Act provides that the Complainant may apply for extension of the cognisable period to cover an additional six months.  The Complainant did not make such an application.  My decision in relation to this complaint, therefore, only covers the period from 28 November 2019 until 27 May 2020.   However, because the Complainant has alleged that the discrimination has been ongoing, my decision will be informed by reference to the entire period of the alleged discrimination.

Section 3(1) of the Equal Status 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) 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) of the Equal Status Act 2000 (as amended) 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 38A of the Acts 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 case (generally referred to as a prima facie case) has been established that the burden shifts to the Respondent to rebut the inference of discrimination.

The Complainant was an applicant for housing assistance, and therefore is covered by the prohibited ground as per Section 3(3B) as mentioned above.

 The Complainant’s case is that he notified one of the landlords on 27th November 2017 that he had been approved for HAP by the County Council and that his landlord was required to sign and return the landlord section of the form.

The Respondent who attended the adjudication hearing asserted that the first time he saw sight of the HAP form was when the Complainant emailed it on 23rd April 2020. 

In this regard, I note that the Complainant submitted a copy of a text from one of the Respondents dated 28 November 2017 in which she wrote as follows “Hi [Complainant], sorry I won’t be able to call for that form today the baby is sick, I’ll ask [the other Respondent] to contact you about it”.

I further note that the Complainant emailed one of the Respondents on 1st December 2017 and 14th March 2018 requesting her to arrange for the HAP form to be signed.  In response to his email of 14th March 2018, the Respondent emailed the Complainant and asked him not to contact her again but instead to contact the letting agent.   At the hearing, the Respondent confirmed that the letting agent stopped handling the property in early 2018.  The only relevant person that the Complainant could contact at that time, therefore, was the other Respondent but, as the Complainant confirmed at the hearing, the Complainant did not have the correct contact number for him at that time.  This effectively meant left the Complainant in a position where he was unable to make contact with his landlords.

I am of the view that both of the Respondents were fully aware since 2017 that the Complainant had a HAP form which they were required to sign and that they were reminded of its existence in 2018 when it was referred to during PRTB proceedings. 

I find the Complainant has established a prima facie case of discriminatory treatment on the housing assistance ground.  Once the Complainant has established a prima facia case of discrimination, the burden of proof shifts to the Respondent. 

One of the Respondents attended the adjudication hearing.  At the hearing, he conceded that he knew that the Complainant had the HAP form in 2018 but that he did not pick it up as the relationship with the Complainant had become strained and the Respondent had his own issues going on at the time.

I am of the view that the reasons put forward by the Respondent for denying the Complainant access to HAP do not stand up.  The Complainant is legally entitled to the HAP payment.  It is not the responsibility of the Complainant to chase the Respondents to sign the HAP form. 

For all of the above reasons, I am satisfied that the Complainant has been treated less favourably on the housing assistance ground than another tenant who did not require housing assistance.

I have concluded my investigation of this complaint and for the above reasons, I find pursuant to Section 25(4) of the Acts, that the Complainant has established a prima facie case of direct discrimination on the housing assistance ground which the Respondent has failed to rebut.

Under section 27(1) of that Act 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."

Under the above section the maximum amount of compensation I can award is €15,000. In considering the amount of compensation that I should award, I have noted the effect the discriminatory treatment has had on the Complainant.  I note the Complainant fell into arrears in his rent due to the fact that he was unable to avail of the HAP.  In the circumstances, I find that an award of €10,000 is appropriate.  Accordingly, I order the respondent to pay to the complainant the sum of €10,000 (ten thousand euro) compensation for the discriminatory treatment.

Discrimination on the housing assistance ground