Complainant

Respondent

Parties

Tomasz  Pysz

South Dublin County Council

Complainant

Respondent

Representatives

Tara Hegarty Solicitor, Law Department

Act

Complaint Reference No.

Date of Receipt

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

CA-00036276-001

17/05/2020

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

CA-00045506-001

30/07/2021

The Complainant is claiming that he was discriminated against by the Respondent on the race and the housing assistant payment ground contrary to the terms of the Equal Status Act, 2000 as amended

The Complainant submitted that he and his partner applied to the Respondent for HAP support in 2018. They were then accepted on to the social housing list after providing all the documentation. He said that he did not get a reply for months to their HAP application and only got a reply after making a complaint to the ombudsman. They were told that their income exceeded the threshold by €5 and they did not qualify for HAP.  In July 2019 they had another baby and their income had decreased and they applied again for HAP.  They were asked by the Council to provide updated documentation to confirm that they did not own property in Poland as the document submitted was out of date. He said that it was difficult to get the documents from Poland due to GDPR rules and had to apply again to get them. He got them translated and brought them to the Council offices and then he was told that there was still documents missing. On the 6th December 2019 which was his fifth visit to the Council offices the documents were checked again and accepted.

He said that they got information that everything was in order and they would have to wait 12 weeks. Around the end of January 2020, he telephoned the HAP section to find out where his application was as their income was not enough to cover the rent and the bills. On the last week of the 12 week period he was emailed by the Council to say that they needed more documentation and the 12 weeks waiting would start again when the documents were delivered. He said that he had to complain to the ombudsman again before he got an answer. On the 26th May 2020 he received a letter from HAP saying that his income exceeded the threshold and his application was ineligible. He said that the decision was based on incorrect income and they submitted further documents re their income and they were approved for HAP in July. By the time they were approved they had to move out of the apartment because they could not afford the rent.

He said that he spoke to Irish and other applicants for HAP and they were not treated like he was and their application for HAP was approved much quicker. He believes that he was treated differently to Irish and other applicants. He submits he was discriminated against on the race and housing assistance grounds.

The respondent submitted that the matter is not properly before the WRC in that the Respondent did not receive the ES 1 form and was not notified of the complaint in accordance with section 21(2) and therefore the complaint should be dismissed. In addition, the respondent submitted that the claim was not lodged with the WRC in accordance with the time limits specified in 21(6) of the Equal Status Act and should be dismissed.

The respondent submitted that there are two processes involving housing applications referred to in the complaint — the social housing process and the HAP process.

Generally, the social housing application is processed to determine inclusion on the Housing list and once that is determined the HAP application follows. The HAP approval process is an entirely separate process, following on from Social Housing approval, with a separate income assessment.

 It is not clear from the ESI form what the actual complaint is and whether it relates to the HAP process or the Social Housing process.  It is the Respondent's view that the complaint is based on an application for Social Housing and a decision from HAP. The Respondent submitted that, on both the social housing process and the HAP process, the complainant was treated fairly and equitably and there was no discrimination. The respondent submits that the application referred to in the complaint and referred to as received on December 6th was the Social Housing Application and it was successful in that the complainant was placed on the Social Housing list and notified of such placement by way of letter of 3rd March 2020. This application was received by the Housing Department on 9th December 2019, there were some documents outstanding. The complainant was advised of this on 18 Feb 2020 and the respondent submitted that the decision was within the statutory defined period. The Social Housing application was processed within statutory time limit and was successful. The respondent furthermore submitted that the Social Housing Application falls entirely within regulation 12 of the Social Housing Assessment Regulations 2011 (Sl 84/2011) and Housing (Miscellaneous Provisions) Act 2009.

The respondent submitted that the HAP process resulting in the letter of the 26th May 2020 referred to in the complainant’s complaint was the outcome of an application of 9th March 2020 for HAP. The respondent submits that in respect of HAP applications there is no statutory requirement about time limits. In any event the respondent submitted that the HAP application was dealt with within 12 weeks (9th March to 26th May) and in compliance with the guidelines.

The HAP application was refused on the 26th as the complainant was over the income levels.

Legal Submission

It was submitted that the complaint should be dismissed as the Complainant has failed to comply with Section 21(2)(a) of the Equal Status Act 2000. If the Complainant was complaining about discrimination in relation to the HAP refusal, the email notification of the 18th of February, which the Complainant claims he sent, predates the HAP refusal letter of the 26th May 2020.

Furthermore, the Complainant has failed to establish a prima facie case of discriminatory treatment on any of the grounds cited.  There are no statutory time limits for processing a HAP application, but the application was dealt within the Respondent’s 12 week target. There is a statutory time limit of 12 weeks for processing Social Housing applications but that can be extended if there is a request for further information, but the Complainant’s application was dealt with within the approved time limit. It was submitted that the Complainant has presented no facts from which discrimination can be inferred 

Witnesses

Mr Neil Hanley Senior Executive Officer Housing the Department.

He said that the housing department dealt with Social housing in the housing allocation section and HAP is dealt with in the HAP section. They are 2 different processes and anybody who applies for HAP would initially have applied for Social Housing. An application for Social Housing requires certain supporting documents and once someone applies they are given a housing reference number which applies to both processes.  The target for Social Housing is a 12 week turnaround period provided all the documents are received. The assessments are carried in accordance with National Regulations and the County Council has no input about the income threshold applied by these Regulations. The applications cannot be run together because to be eligible for HAP you have to be generally approved for Social Housing. In 2018 the Complainant applied to the Council for Social Housing supports, but the application was refused as he was over the income limits. Once a person is refused for Social Housing, the file is closed, and the applicant must make a fresh application, if their circumstances change.  The Complainant applied again in 2019.

He said that he has no indication that the Complainant notified the Council of the complaint of discrimination. 

Lorraine Davin Staff Officer Housing Allocation Section

She said that an application for Social Housing was received from the Complainant in Customer Care on the 6th December 2019 and it was logged on 9th December 2019. A previous application was refused in September and he was advised he had to submit a new application. The application was assessed and in February 2020 he was emailed for further information including pay slips on 18th February 2020. She said that she approved him for Social Housing and included in the letter of approval was a HAP pack. She said that she was happy that the assessment was made within the time-limits and within the guidelines.

Laura Barrett Staff Officer HAP

She said that an application for HAP was received from the Complainant on 9th March 2020 and it was his 3rd application for HAP. He applied for Social Housing in November 2018 and an application for HAP was made on the 19th March 2019 and he reapplied again on the 24th April 2019 and he was advised on the 11th June 2019 that his income was over the limit and he was not eligible, and the file was closed. The HAP application of 3rd March 2020 was assessed, and the Complainant and his partner’s income were deemed over the threshold limit.  He was informed by letter of the 26th May 2020. The file was closed.  She said that there was no delay in processing the HAP application. She said that she did not receive any email from the complainant about his discrimination complaint and if she had she would have passed it on to the relevant person. 

The first matter I must consider is whether the complaint has been properly referred for investigation and decision.  The Respondent submitted that the Complainant did not send a notification to them under section 21(2) of the Act.

Section 21 of the Equal Status Act 2000 as amended provides:

“21.—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission.

(1A) If the grounds for such a claim as is referred to in subsection (1) arise—

…..

(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,”

(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.”

The Complainant referred a complaint to the WRC on the 17th May 2020 claiming that he was discriminated against on the race and housing assistance grounds. In referring the complaint, he sent in Form ES 1 dated the 7th of May 2020 and attached a synopsis of his complaint and it was received by the WRC on the 17th of May. Form ES 1 is a non-statutory form on the WRC’s website which Complainants may use to notify the Respondent of the complaint in accordance with Section 21(2) cited above.  The Complainant said that he referred the complaint to the WRC on the 17th May 2020.  He said that he notified the Respondent of the complaint on 18th February 2020 when he wrote to the allocation officer. He said his ex-partner got a response but as they are no longer together he was unable to get a copy of it.  The Respondent denies that they were notified of the complaint. I note that the Respondent’s 3 witnesses said that they did not get any notification of a discrimination complaint from the Complainant.

I note that the Complainant stated in his complaint referred on the 17th May that the date of discrimination extended over a period from December 2019 until May 2020. I also note that the ES 1 notification form was signed and dated on the 7th of May 2020.  There is no indication from the form that it was served on the Respondent. If the Complainant was complaining about the Respondent’s rejection of his application for HAP on the 26th of May 2020, the notification email of the 18th of February, which the Complainant claims he sent, would have predated the decision on HAP and for this reason was not a valid notification.

The Complainant completed a complaint form dated the 22nd April 2021 stating that the first incident of discrimination occurred in 2018 and the last incident was 26th May 2020. In response to questions on the form, he did not give any date for serving the notification on the Respondent but said that he got a reply to the notification on the 7th of May 2020. Another copy of that referral was received by the WRC on the 27th July 2021. He said that the new referral was basically the same complaint and he did not serve a notification on the Respondent as he had already served one a year previously.

The complainant has not established to my satisfaction that he served a notification of his complaint on the Respondent in accordance with Section 21(2) of the ES Act. He has provided no evidence such as proof of postage to establish that he notified the Respondent of his complaint. While it is not necessary to use form ES 1 there is no indication from the form that it was sent to the respondent.  I note in a response email of the 7th July 2020 to the Respondent concerning his HAP application, the Complainant referred to his discrimination case in the WRC, but this email does not satisfy the requirements of Section 21.  The notification must be served on the Respondent within 2 months of the last act of alleged discrimination and before a referral is made to the Director of the WRC. 

I am not satisfied that the Complainant has provided any evidence to support his contention that he notified the Respondent within 2 months of the last act of the alleged prohibited conduct. I find that the complaint as referred does not comply with the requirements of Section 21(2) of the ES Act. I find I have no jurisdiction to hear the case.  

I find I have no jurisdiction to hear the complaint referred as it does not comply with Section 21(2)(a) of the Equal Status Acts, 2000 as amended. 

Equal Status Act 2000, Discrimination – race and housing assistance ground, Section 21(2)(a) – notification of the complaint procedures.