Complainant

Respondent

Parties

Sipho  Biyela

Tom McElroy

Representatives

Lisa Quinn O'Flaherty Fitzsimons Redmond 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-00040405-001

14/10/2020

The complainant is a tenant with the respondent.

The complainant and a witness (spouse) both gave evidence under oath while the respondent gave his evidence under affirmation.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

Although there were some technical difficulties, it was possible to proceed with the hearing.  No objections were raised to this option during the hearing.

The complainant submitted that he was discriminated against on the grounds of disability and Housing Assistance.

The complainant submitted that they completed their HAP forms and returned them to the council in June 2020.  It was submitted that they requested their landlord to sign the forms to allow them to receive HAP in July 2020.  It was further submitted that they were entitled to the payment because both he and his spouse suffered from disabilities.

The complainant submitted that they received no response to their texts and when they phoned the respondent, he told them that he would not complete the form and told them they had to find another place to rent.  The complainant submitted that this refusal amounts to a breach of the Act under the housing ground.

The complainant submitted that following this, they wrote to the respondent advising him of their legal rights in respect of HAP.  The respondent then arrived at their home without notice and shouted aggressively to be let in.  They felt harassed by this behaviour.  The complainant submitted that the stress of the incident led to them both experiencing symptoms of their respective disabilities.  The complainant submitted that this incident was a breach of the disability ground and a failure to make reasonable accommodation for their disabilities. The complainant submitted that the respondent also instructed them it leave the property during this incident.

The complainant submitted that on 7 September 202, they contacted the County Council to ask if the HAP form had been completed but were informed that he had indicated that the house was no longer for rent.  It was submitted that the refusal to sign the HAP for put the complainant into financial distress and that this amounted to a continued breach of the Act.  On September 8, the complainant put the respondent on notice of the complaint to the WRC via a ES1 form.  On 21 September the complainant received a hand delivered notice purporting to terminate their tenancy and it was submitted that this amounts to victimisation under the Act.

The complainant moved from the property on 25 November 2020.

The complainant submitted that the respondent attempted to contact he complainant’s religious organisation in order to influence them to drop the action.  They also submitted that eh respondent contacted fellow congregants to make false representations that a claim had been submitted regarding religious and racial discrimination.  It was submitted that this amounts to further victimisation.

The respondent submitted that he was never made aware of the existence of any disability.

The respondent also submitted that he never received any letter or application form to fill in to register for the Housing Assistance programme.  He submitted that when he was approached regarding HAP in September, he informed HAP that he was no longer interested in renting out the property as there were too many matters that had to be rectified to rent out the property.

The respondent submitted that he was never made aware that the tenants had disabilities.

The respondent submitted that it was not true that he called to the house or harassed his tenants.  He stated that the tenants were constantly complainant about the cold and about the white goods in the house.  He said that the house was not suitable for someone with disabilities and had not been adapted.

The respondent submitted that the tenants were not unfairly treated and that he served the notice of termination of the tenancy as the property had gotten into a terrible state and he had to renovate it.  The respondent submitted that the complainant sent a termination of tenancy notice using the deposit as the last month’s rent. 

The respondent stated that he refuted all allegations, he noted that he had given the house to the tenants at a reduced rate but that they had let it fall into disrepair. He submitted that the tenants were disrespectful to him and to any workmen who had to do jobs on the property and the constantly complained about the house.  He submitted that they were unreasonable tenants and that he never harassed or intimidated them.

The parties outlined both gave evidence in relation to the Landlord Tennant relationship in existence.  From the evidence it is obvious that this relationship was a fraught one.

It is difficult to make an assessment of the credibility of the parties in circumstances where there are no independent witnesses to the events outlined by the parties.  However, it is possible to ascertain a number of factual elements from the evidence of the parties.

The complainant did not formally notify the respondent of the existence of a disability other than to make reference in a context of a phone text to having a disability.  The suggestion was made that the landlord should have been aware of the existence of the tenant’s disability.   In addition, no evidence was provided that the respondent treated the complainant less favourably on the basis of a disability. 

The case of Melbury Developments Ltd v Valpeters (EDA0917) although from the sphere of Employment Rights legislation, is somewhat analogous to this case.  In that case the Labour Court held that “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Section 38A (1) of the Equal Status Act, 2000 states that “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.”

The suggestion that there was less favourable treatment in this case is not supported by written evidence and the oral evidence does not establish beyond the balance of probabilities that either less favourable treatment occurred, or that if such treatment occurred that it was linked to the disability ground.  The mere existence of a disability does not automatically mean that the treatment of a person either amounts to less favourable treatment or any treatment is automatically linked to the existence of a disability.

Arising from the foregoing, I find that the complainant has not established that there was any less favourable treatment or that such treatment, should it exist, is linked to the disability ground.

The complainant stated that the forms were dropped into the respondent’s premises, but the respondent stated that he never received any forms.  The complainant did not submit either documentation proving an entitlement to the Housing Assistance payment nor evidence of the delivery of any application forms to the respondent.

Section 3(3B) of the Equal Status Act, 2000states 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”).

Section 6(1) of the Act states that

6.(1) 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.

Having regard to all the evidence submitted in relation to these matters, I am not satisfied that the complainant has established that he belongs to a qualified household under the meaning of Part 4 of the Housing (Miscellaneous Provisions) Act, 2014.  Accordingly, I am not satisfied that he has established a link to the Housing assistance ground.  Arising from the foregoing, I find that the complainant has not established that there was any less favourable treatment or that such treatment, should it exist, is linked to the housing ground.

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the respondent did not engage in prohibited conduct.

Equal Status Act – burden of proof – less favourable treatment – no prohibited conduct established.