Complainant

Respondent

Parties

Mohammad  Rustam

Ger Scully

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-00039221-001

18/08/2020

The Complainant alleges that the Respondent discriminated against time in relation to his Housing Assistance Payment ( HAP).

The Complainant moved into the Respondent’s property in May 2018. He first asked the Respondent if he would accept a HAP payment and complete the form in July or August 2019. The Respondent asked him some questions about it. He told the Respondent that he couldn’t pay his rent. The Respondent said he would come back to him in two weeks as he had to talk to his solicitor about it. Then he followed up with a text message on the 11th August 2019 by asking how many people were living in the house. The Complainant didn’t understand why he was asking that as he knew he was living there with his family. On the 27th August the Complainant text the Respondent asking if he had an answer for him.  The Complainant was sick at the time. He was in receipt of illness benefit and was really struggling financially. On the 28th August the Respondent text him and told him he was deciding whether or not to sell the house.  The Complainant then went to Threshold to get advice. The Respondent text by stating that HAP only pay in arrears. The Complainant was happy to continue to pay the rent until the HAP was paid. He had been paying the rent up to this point. The Complainant did his research and found out that the Respondent still should have filled out the HAP form for him. Then in September 2019 the Respondent said that the rent was in arrears. IT was only in arrears for a few days. It had been paid by the end of that week.  On the 9th September the Respondent text stating that the Complainant had never asked him to sign up for HAP. That confused the Complainant.

The Complainant had the HAP application filled out and ready to go. He needed to give it to the Respondent to fill out and sign. In November the Respondent submitted some form to Laois County Council. The Complainant does not know what he submitted as he had never given him Section B to submit. The County Council sent it back saying the form submitted was out of date. The Complainant asked if he could send the form to him or give it to his father, but the Respondent said he would get the form electronically from the County Council. Then the Respondent said he would get the right form “ Section B” and would resubmit it. The Complainant heard nothing from the Respondent. The County Council did e-mail him several times saying they were still waiting for the “Section B”.  The Respondent then said he would submit the form in January. That didn’t’ happen. Then in July 2020 the Complainant was told by the County Council that the form had been submitted but had been returned due to lack of proof of ownership.

By September 2020 things were really bad financially. The Complainant applied for rent supplement. He was refused and advised he had to apply for HAP.  The Complainant found a new house with a Landlord who did accept HAP. He moved into his new house on the 1st December 2020. He did not get his deposit back.

Back in September Threshold appeal to the County Council in relation to the rent supplement application. They started to pay him rent supplement in October on a short term basis.

On the 9th August 2019 the Complainant requested a HAP form. On the 7th September stated that he was considering selling the house. On the 9th September he got advice from the RTB in relation to the Complainant’s contract. The RTB advised that the Complainant’s contract and the HAP form were two separate issues. If he didn’t comply with his contract, he had the right to serve notice. At no point did the Complainant state that he was going to pay the rent until the HAP payment came through.

On the 13th September the Respondent wrote to the Complainant stating that he would accept the HAP payment and he requested an electronic copy. That wasn’t forthcoming, so he requested an electronic copy from the County Council. The Respondent is paralysed from the breastbone down and has very limited use of his arms and hands. When the electronic form arrived, he filled it out and sent it in on the 6th December. He spent from the 24th September to the end of November 2019 gather up the relevant documents and proofs.  He also sought the mandatory legal advice. It was returned to him on the 16th December because the form had been updated between him receiving it and sending it back. They didn’t send him on the new electronic form. On the 28th February 2020 the Respondent sought the correct HAP form. He had to gather up the up to date proofs. Lock down came in March 2020. The Respondent is very high risk, so he was cocooning for a long period of time. His solicitor’s office was closed from the 16th March 2020 to the 18th May 2020 and from the 13 July 2020 to 27th July 2020 and from the 3rd August to 24th August 2020 due to close contracts. His father who helps him out couldn’t travel to him as he lived outside of the mileage limits set by the Government and he too was cocooning because he is 78 years of age.  The Respondent accepts that there was a long delay in dealing with the matter, but they were outside of his control and he apologised for the delay.

The sole issue for determination of this complaint is whether the Respondent discriminated against the Complainant under the ‘housing assistance ground’ contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended).  In relation to the applicable burden of proof, 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 prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.

Section 6(1) of the Equal Status Act 2000 (as amended) has to be read and interpreted in conjunction with Section 3 of the Act which gives meaning to ‘discrimination’ in general across a broad spectrum of grounds and defines the  ‘housing assistance ground’.  Specifically, Section 3(1) 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(1)(b) provides for discrimination by association and Section 3(1)(c) provides for indirect discrimination.  Section 3(2) lists the protected grounds and identifies the respective comparators for each ground.  Section 3(3B) provides that discrimination in relation to Section 6(1)(c), namely providing accommodation as set out above, is prohibited under all of the existing protected grounds and inserts the new ‘housing assistance ground’ as follows: “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”).” 

I must consider whether the Complainant has established a prima facie case of discrimination.  This requires him to show that he 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.”  No comparator was identified to me either in correspondence or during the hearing. Leaving that aside for the moment. The evidence of the Respondent was that he initially told the Complainant back in August 2019 when the issue first arose that he needed to get legal advice on the matter and that he would get back to him in four weeks. In that time, he decided that he was going to sell the house. He communicated that to the Complainant. On the 13th September, he had a change of mind and decided to keep the house. He immediately contacted the Complainant and asked him for an electronic version of the HAP application form. I am satisfied, due the Respondent’s disability, that that request was a genuine one and not some sort of delaying tactic.  The Complainant did not send that form. The Respondent himself contacted the Council County and requested an electronic form. He spent from the 24th September to the end of November 2019 gather up the relevant documents and proofs.  He also sought the mandatory legal advice. He submitted the form in early December.  It was returned to him on the 16th December because the form had been updated between him receiving it and sending it back.  On the 28th February 2020 the Respondent sought the correct electronic HAP form from the County Council. He had to gather up the up to date proofs, such as bank statements. While he was doing that lock down commenced in March 2020. I accept the Respondent’s evidence that is very high risk and as a result of that had to cocoon for a long period of time. In addition to that, his solicitor’s office was closed from the 16th March 2020 to the 18th May 2020 and from the 13 July 2020 to 27th July 2020 and from the 3rd August to 24th August 2020 due to close contacts. Furthermore, his father, who helps him out couldn’t travel to him as he lived outside of the mileage limit set by the Government and he too was cocooning because he is 78 years of age.

The specific set of circumstances of this case are not only unusual but are also unfortunate. Having carefully considered all of the evidence, I find that the complainant has failed to establish a prima facia case of discrimination on the grounds that he failed to identify a comparator, the Respondent having decided not to sell his house, did in fact fill out the forms and sent them to the County Council not once but twice. However, due to his disability, the updating of the electronic forms, the pandemic and his solicitor’s office being closed on several occasions between March 2020 to August 2020 and his father’s inability to help him, it took an inordinate length of time to get the matter dealt with. I accept that the vast majority of the matters leading to the delay were outside of the control of the Respondent.

In all of the circumstances I find that the complaint fails.

The complaint fails.

Equal Status. HAP. Discrimination. Delay.