Complainant

Respondent

Parties

Anna  Migdal

Shona Barrett

Representatives

FIOS Consultants

 O'Shaughnessy Bairead Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00028596-001

22/05/2019

The complainant claimed that she was discriminated against on the housing assistance ground (‘HAP’) (Section 3(3B) in terms of Section 6(1)(c) of the Equal Status Act 2000 as amended. She served an application for rent supplement allowance on the Respondent and in response received a Notice of Termination of her lease agreement.  She moved out of the property in early September 2018. 

The Respondent made a preliminary application based on the applicable time limits.  Her application was that the Claimant was out of time in bringing her claim.

I reserved my position the application and proceeded to hear the substantive case.

The Complainants case was that she was a tenant of the Respondent from March 2014 to September 2018. Due to an injury, she was unable to continue working and secured illness benefit from Social Welfare.

She sought assistance from Social Welfare regarding payment of her rent and was advised to seek rent supplement.

This required completion of a form by her landlord.

The Complainant's agent sent the required form to her landlord in December 2017 and January 2018.

The Complainant did not receive a response about the rent supplement forms but did receive a Notice of Termination of her lease from the Respondent.

The Complainant queried the service of the Notice to Termination and it was withdrawn after telephone mediation with the Residential Tenancies Board.

The Complainant's landlord served a further Notice of Termination on the 8 June 2018. The termination date was the 3 September 2018.

The Complainant was left with no option but to vacate the property.

She submitted that the failure by the Respondent to allow her to claim rent supplement resulted in a loss of benefits to her of €5,346.

The Complainant made an application for extension of time to lodge her complaint form with the Workplace Relations Commission.

The Complainant's explained that she engaged the services of an information and advocacy service to assist her in her social welfare applications.

She submitted that her medical complaints were for the whole of life and involved monthly visits to a pain clinic in Galway.

She submitted that her medical condition precluded her from concentrating on more than one thing at a time. She was in continuous pain and suffering from depression.

The Complainant erroneously filed a complaint with the Residential Tenancies Board (RTB) on the 21 March 2019. The complaint to the Residential Tenancies Board was in relation to the failure by the Respondent to accept payment of rent by way of rent supplement. An adjudication hearing was heard on the 23 April 2019 and a decision issued noting that the adjudicator did not have jurisdiction to consider that aspect of the dispute between the parties. The Equal Status Act set out the Workplace Relations Commission is the appropriate venue for redress.

The Complainant lodged a complaint with the Workplace Relations Commission on the 22 May 2019.  She identified the most recent date of discrimination is the 5 September 2018 in her complaint form.

During the last hearing date, the Complainant undertook to provide medical evidence setting out her inability to file her complaint within the requisite six months from the alleged date of discrimination. This information was not provided despite a further written request for same.

The Respondent's case was that she never received an application for rent supplements from the Complainant.  She sought evidence of proof of postage from the Complainant.

Her case was that she served the Notice of Termination because she intended to reside in the property herself. She took up residence in the property in November 2018. She continues to reside in the property.

She explained that she has a medical disability which limited her mobility. She can only walk short distances due to pain in her lower limbs. The property rented to the Complainant was the most suitable accommodation she had, and it was located beside a main road where a bus stop was located. The Respondent does not drive due to her disabilities.

The Respondent submitted that there was no logical reason for her to refuse an application for a rent supplement. Due to her medical history, any income earned from the rental of her properties was tax-free. Her position was that once the rent was paid, the source of the payment was irrelevant to her.

The Respondent submitted that the Complainant had brought a complaint to the Residential Tenancies Board and was unsuccessful in same. She submitted that there appeared to be a pattern of disingenuous complaints against her by the Complainant.

She refuted the suggestion that the advertisement when she initially rented the property had set out that rent allowance would not be accepted. She furnished evidence from the rental letting manager confirming there was no reference to same.

The issue for determination in 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 termination of her tenancy agreement after she furnished a rent allowance form for signature by the Respondent.

As a preliminary step to invoking the jurisdiction of the WRC to adjudicate upon a complaint under the Act, the complainant must notify to the Respondent of her complaint.                        

The Complainant identified the first date of discrimination as December 2017 / January 2018 with this first instance being the refusal to sign the rent supplement form and the last date, 5 September 2018, being the date of the tenancy ended.  I accept that the two alleged instances were part of a continuum.

The Complainant is required to complying with section 21 (2) and section 21 (6) of the Equal Status Act. 

She firstly had to comply with Section 21(2).  The Complainant served letter on the Respondent on the 8 February 2019 and an ES.1 form on the Respondent on the 20 March 2019.  The wording of section 21(2) is mandatory. 

I was not furnished with details of the Residential Tenancies Board process which resulted in the withdrawal of the Notice of Termination served in December 2018.

In the letter of 8 February 2019, the Complainant explained how she was advised by her Consultants and gave the Respondent an opportunity to offer her “satisfaction prior to entering the judicial system”. It set out that she would refer the alleged discrimination to the Equality Section of the Workplace Relations Commission on the basis that when she went on disability benefit, she was given notice of the termination of her lease with the Respondent.

Section 21 (2) and 21 (3) sets out

21(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

21(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

 (b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

Based on the last date of alleged discrimination 3 September 2018, the Complainants letter of 8 February 2019 was out of time.

Even if applying the Section 21(3)(ii) derogation, the Complainant had the further difficulty of complying with Section 21(6) of the Equal Status Act as the Complainant did not lodge her complaint until the 22 May 2019 some 8 .5 months after the last date of alleged discrimination 3 September 2018.

I note that the Complainant's case before the Residential Tenancies Board took place on 23 April 2019. At that hearing she attended in person and she was represented.

Section 21(6) of the Equal Status Acts sets out

21(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

 (b) On application by a complainant the [Director of the Workplace Relations Commission] [or, as the case may be, the Circuit Court] may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(7) Where a delay by a complainant in referring a case under this Act is due to any misrepresentation by the respondent, subsection (6)(a) shall apply as if the references to the date of occurrence of prohibited conduct were references to the date on which the misrepresentation came to the complainant’s notice.

The Complainant applied to extend time under Section 21(6)(b).

The relevant period I am required to examine is between 5 September 2018 and 4 March 2019.

From the Complainants own evidence, she had the assistance of her social welfare consultants since November 2017. They took on the role to assist her in bringing her complaints under the Equal Status Acts.  By their submission, their primary focus was on her future basic income entitlement for invalidity pension (which she was successful in) and application for a disablement pension (which was still ongoing at the date of the last hearing).

The service of the notification letter on the 8 February 2019 was within the 6 months’ time frame.  The service of the ES.1 form on the Respondent on the 20 March 2019 was outside the six months frame. 

The Complainant gave evidence as to why she was not able to comply with the time limits set out in Section 21(6) of the Equal Status Act.  She described how her main complaint was back pain.  She explained how the prescribed medication she was taking made her feel “sluggish or behind”.   She confirmed that she was able to attend medical appointments and speak with her medical professionals.  She was naturally upset when she had to claim an invalidity pension and it affected her mental health.

In her evidence she confirmed that she was able to attend several different medical professionals and was ultimately able to find alternative accommodation in August 2018 and move into this accommodation.

The Complainant was able to attend the hearing of her Complaint to the Residential Tenancies Board. She was represented at that hearing.

The evidence presented to me showed that during the referable 6-month time frame, the Complainant was active in pursuing this complaint. She wrote to the Respondent on 8 February 2019 with the assistance of her Consultants.

While I appreciate access to justice is an important issue, complaints coming under the Equal Status Acts (as amended) must be heard within the confines of the statutory provisions. Statute of limitations laws have always been an integral part of legal systems (both in Ireland and abroad) and time limits need to be understood and carefully monitored by Complainants and their representatives. 

Taking all the evidence into account, I have not been provided with reasonable cause why Section 21 (6)(b) should apply in this case.  While the bar for reasonable cause has always been far lower than any requirement for exceptional circumstances, sufficient evidence must be provided to meet same.  Therefore, I find that I do not have jurisdiction to hear this complaint.

I do not have jurisdiction to hear this complaint.

This complaint is not well founded. 

Rent supplement.  Section 21 Equal Status Act. Time limits. Reasonable cause.