Complainant

Respondent

Parties

Mary Louise  Mcandrew

Carmel Kelly Bourke

Representatives

  Appeared In Person

Thomas Walsh, Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00038855-001

22/07/2020

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

CA-00038855-002

22/07/2020

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 22 July 2020, the Complainant, a lay litigant, submitted a complaint that on 19 February 2020 she had been discriminated against, in contravention of the Equal Status Acts on the grounds of Housing assistance by the Respondent in the course of her effort to rent a particular property during February 2020

The complainant submitted a copy of an ES1 form dated 19 March 2020. She stated that she had not been provided with a reply.

The Respondent was represented by Thomas Walsh, Solicitor and it was her case that she was an accidental landlord through both she and her siblings securing the property at the centre of the case as a familial legacy.

The Complainant Ms Mc Andrew availed of the affirmation to accompany her evidence. The Respondent availed of the oath to accompany her evidence.

On a point of clarification, ADJ 28889 governs the named parties herein. The Complainant affixed another complaint to this complaint against the Auctioneer involved. The ES1 form was unsigned and undated. The Complainant accepted that the instant complaint was separate and distinct to the complaint against the Auctioneer.

My jurisdiction in ADJ 28889, rests solely with the named parties to this complaint i.e., Ms Mary Louise Mc Andrew and Carmel Kelly Bourke

CA-00038855-002 is not properly before me. On November 21, 2020, the Complainant acknowledged that complaints involving the  owner, this respondent and the auctioneer must be submitted separately. I have not identified a new complaint via a new ADJ number from that point.

At the conclusion of the hearing, I requested the c complainant furnish a record of her HAP approval documentation. I received these as promised on 4 March 2022 and they were shared with the Respondent. No further comment issued.

The document detailed an open HAP approval in Co Clare from November 2019 -March 12, 2020, and for Mayo from 13 April 2020 and onwards.

CA-00038855-001

The Complainant submitted a written outline of her case on the complaint form. She outlined that she had relocated with her infant son from her home for personal circumstances in January 2020.

For a short time, she was hosted in emergency accommodation, and then sought to repatriate to her home county.

She contacted local Auctioneers and inspected a local property on 17 February. she expressed an interest in this property and tendered the requested introductory documentation.

The next day, she met with the Landlords in the company of the Auctioneer with her young son.  At this encounter, the Auctioneer demonstrated a general bias against HAP recipients.

The Respondent joined in the conversation and explained that a HAP recipient in her work had given up his job.

The Complainant said she felt compelled to disclose her personal HAP status as she had been in receipt of HAP in earlier accommodation, in a different county since October 2019

The Respondent inquired as to whether she could return to work in 2/3 weeks. The Complainant told her she could not. The Complainant felt obliged to apologise to the Auctioneer for a late declaration of HAP and was shown to the door.

A short time later, an email followed from the Auctioneer which indicated that the Respondent would be prepared to rent the property to her if she came off HAP. This approach upset the complainant further as it reminded her of her compromised financial status. She said she lost her nerve a little in seeking new accommodation.

The Complainant issued her ES1 form on 19 March 2020 and received a letter of apology from the Respondent dated April 22, 2020, but the complainant’s level of upset was so pronounced that she did not reply 

Evidence of the Complainant:

The Complainant outlined that she had entered emergency accommodation with her young son on January 24, 2020. She took some time to recover.

The Complainant had been in receipt of HAP in C county Clare, and this was subsequently transferred to Mayo. She confirmed that she had a housing need and undertook to submit supporting documentation to this end.

The Complainant observed an advertisement for a cottage and went to see the property with the auctioneer. The property carried a €550 monthly rental fee.

On 19 February 2020, she attended the cottage with her young son and met one of the owners in the company of her husband and the Auctioneer.

She recalled them being present in the sitting room, when both the respondent and the auctioneer began to make derogatory remarks about HAP recipients.

The Complainant was thrown as she knew she was a HAP recipient and was vulnerable, while still on maternity leave. she was following the auctioneer’s advice to her when she had told her to “sell yourself “

The Complainant discovered she had mutual acquaintances with the owners and had been initially comfortable in their presence. she was taken aback in how dismissive they both were towards HAP recipients. The Auctioneer had recounted showing a house to a HAP recipient but dismissed the person once HAP was revealed. She had also disapproved of refugees been housed in hotels.

The Respondent had recounted assisting a work colleague to complete the HAP forms and who then subsequently left the job.

The Complainant said she felt she had to intervene “I had to say something about being in receipt of HAP “

She explained that she was in receipt of HAP to which the Respondent told her “This is no HAP house”

The Respondent inquired as to whether she could return top work in 2/3 weeks. By then, the Complainant was crying.

She left the property.

She recalled receiving an email from the auctioneer some 1 hr later which reflected that the respondent had enjoyed meeting with her and her son. She told her that as there were 5 co-owners, HAP was too complicated and thus not viable. She did add that if she were to come off HAP, the house would be willingly rented to her.

The Complainant contended that this was putting a gun to her head, and she did not respond to the email.

By the time the communication of 20 March 2020 had issued from the Respondent, matters had moved forward and the ES! Had issued.

The Complainant said she was not comfortable to meet the respondent and she did not want to engage in mediation.

The period in question had been painful and deeply unsettling for her.

During cross examination, the Complainant accepted that the Respondent had reached out to her via the auctioneer in the March 23, 2020, communication.

I have made recommendations to my clients that they reconsider the letting of the property at XXXX, to you.

They have agreed, and would be prepared to let the property at the same terms and conditions as already discussed

If you are interested, please contact me so that matters can be finalised

The Complainant denied any ambiguity or confusion on her recollection of the Respondent statement on this is not a HAP house.

The Complainant provided some clarifications when she confirmed that her desired outcome in the case was compensation.

The terms and conditions on the rental property were not discussed on February 19 meeting outside a fee. The meeting lasted 35 minutes. she clarified that the Respondent had confirmed that she had assisted her work colleague in compiling HAP application documents.

The Complainant secured a satisfactory rental property in April 2020 and received HAP in part payment of €650 rent as support. She returned to work in Summer 2020

She had considered the respondents apology but had deemed it insincere and only triggered by the submission of the ES1 form.

The Complainant described the lack of a dated ES1 form as an oversight

In conclusion, the Complainant explained her disappointment in how she had been treated by the respondent. she did not accept the limitation placed by the respondent the first-time letting scenario, given her prior working knowledge of HAP.

She re-affirmed that she was not comfortable to take part in the pro-offered meeting suggested by the respondent. She found the details vague and was unwilling to expose herself to further disappointment.

She acknowledged that 2 years had since passed and some of the hurt had abated for her. she reflected that she had not been in a good personal place at that time.

The Respondent representative outlined that the facts were not largely disputed outside his client’s denial that she referred to her property as “not a HAP house “on February 19, 2020. These words she attributed to the Auctioneer.

It was the Respondent case that she apologised for the error around HAP and offered to meet with the Complainant and this offer was refused.

The Respondent was positively disposed towards the concept of HAP as she had demonstrated in her discussion on helping a work colleague in that regard. His client wished to make amends.

Evidence of the Respondent, by oath

The Respondent outlined that she was new the title of landlord and the property had come into her possession through inheritance. She relied on the Agent to navigate the nuances of the tenancy.

The Respondent confirmed that she had assisted a work colleague who was pursuing HAP payment but denied that she had declared her house as a non-HAP house.

The Respondent confirmed that she had subsequently instructed the Auctioneer to offer the property for rent to the complainant incorporating the same terms e.g., a deposit, months’ rent in advance with further discussion on utilities.

She confirmed that she had apologised, in her letter dated 16 April ,2020 and she had offered to apologise in person, and she denied insulting the complainant.

During cross examination,

The Respondent confirmed that she had been guided in the consideration of rental by the estate agent. she had not discussed HAP prior to February 19. She had not taken advice on HAP, as she was aware of it.

The Respondent clarified that she has since registered as a landlord and the property was eventually rented in July 2021 for €550.

The application for tenancy was not grounded in an application form.

In closing, the Respondents representative re-affirmed that she wished to apologise for the incident, but stood back from his clients’ purported utterance that “this is not a HAP house”

The Respondent had approached the case seeking to make amends.

I have been requested to investigate a claim of discrimination on housing assistance grounds lodged with the WRC on 22 July 2020.

A second complaint CA-00038855-002 was confirmed as directed at the Auctioneer mentioned in the case and was not properly before me.

I took some time to listen to the parties at hearing and to consider the evidence adduced. I have also had regard to the documentation submitted.

I note that the Complainant did not date her ES1 form and described it as an “oversight “the Respondent did not take issue with its validity as demonstrated by the letter attributed to Ms Kelly Burke dated 16 April 2020.

The Complainants documents included a populated and particularised ES1 detailing a complaint of discrimination dated as 19 February 2020. The Complainant attached a copy of her receipt for the registered mail dated 19 March 2020 at 16.00hrs.

Section 21 of the Act places an onus on the Complainant in a case to comply with an exacting notification system of their experience of discrimination directly to the Respondent prior to referring the matter to the WRC.

The purpose of this notification system is to permit the parties some breathing space post the event at issue to take stock and perhaps explore any potential for resolution in the case.

I am satisfied that the date of notification as set out in Section 21(2)(a) has been met by the Complainant through the accompanying proof of postage and the action that followed by the respondent letter of 16 April 2020 which refers:

In response to your correspondence which I received on Friday, 20 March, 2020

I would advice the Complainant to be more vigilant in terms of dating official documents in the future. On balance, it is not lost on me that the Complainant was living through a very challenging period in her life at that time.

Redress in respect of prohibited conduct.

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 —

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11) , the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the  Director of the Workplace Relations Commission  under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law). ]

(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. 

My jurisdiction in this case rests in Section 3(b) Section 6(1) (c) of the Equal status Acts, 2000 as amended on January 1, 2016, by the prohibition of discrimination on “Housing assistance grounds “

Discrimination (general).

3.— (1) 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 F10 [ 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,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

………

(3B) 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 ” ). 

Disposal of premises and provision of accommodation.

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.

 (1A) 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.]

(2) Subsection (1) does not apply in respect of—

(a) the disposal of any estate or interest in premises by will or gift,

(b) [ … ]

(c) any disposal of such an estate or interest, or any provision of accommodation or of any services or amenities relating to accommodation, which is not available to the public generally or a section of the public,

 [ (d) the provision of accommodation by a person in a part (other than a separate and self-contained part) of the person’ s home, or where the provision of the accommodation affects the person’ s private or family life or that of any other person residing in the home,

Section 38 A of the Act sets out the burden of proof in the case.

I am satisfied that the Complainant I covered by the Housing Assistance ground set out in section 3 above. The post hearing documentation reflect that she was placed on a social housing list and was being maintained on that list by the application of HAP.

I accept from the complainant’s evidence that she was refused a tenancy by the respondent in her chosen property which she had inspected and identified as a potential home for her and her young son, who at that time were keen to relaunch from emergency housing.

I noted that the interview which took place on February 19, 2020, was a “getting to know you meeting “and both parties accepted that it was going well prior to the change in conversation to HAP.

I accept that this change was not led by either the complainant or the respondent, but both, in my opinion unwittingly contributed to the conversation. the respondent to disclose her knowledge of HAP via a work colleague and the complainant in articulating that she was actually a HAP recipient. By the time of that disclosure, I accept that the Complainant was very distressed in reflecting that her social circumstances i.e., reliance on HAP, had placed the house rental out of her reach at a critical time in her life.

I am bound to seek to resolve the disputed recollection around the phrase “this is not a HAP house “the complainant has attributed this phrase to the respondent. The respondent attributed the phrase to the auctioneer, who was not present at hearing.

Given the cogent evidence of the complainant and her disclosure of the change in the tone of the in-house conversation which resulted in her early exit from the property, I am more inclined on the balance of probability to accept that she heard this is not a HAP house in the manner stated.

I resolve the conflict in favour of the complainant.

I am satisfied that the Complainant has satisfied the burden of proof required as I can infer that a prima facie case of discriminatory treatment has been established.

 I am also concerned on the potential for the application of Section 13 to the facts of this case on what influence was extended by the respondent, if any on the Auctioneer.

Procurement of Prohibited conduct.

13.— (1) A person shall not procure or attempt to procure another person to engage in prohibited conduct.

(2) A person who contravenes subsection (1) shall be guilty of an offence.

I did not have the benefit of the Auctioneer as a witness in this case to probe the email of February 19 @16.53 hrs further.

The burden now passes to the Respondent, and I must consider her response.

I fully accept that the Respondent was an accidental landlord as she and her siblings sought to rent a family home passed to them through inheritance. I found that the Respondent was proud of her property and was keen to secure good and reliable tenants in a competitive market.

However, the Act has identified prohibited conduct in Section 6(1) (c) of the Act.

The sole reason shared with complainant regarding the refusal to grant tenancy came by way of the follow up email of February 19 at 16.53 hrs where the Auctioneer communicated that HAP was unbridgeable barrier to tenancy for the family and while they had enjoyed meeting her and her son, they required her to come off HAP to secure the tenancy.

This email asked for a response, which the Complainant was to upset and overwhelmed to give a response. she led with the ES1 form some 4 weeks later. The ES1 form prompted an offer of tenancy but the complainant had lost faith in the process at that point and found suitable accommodation in April 2020. She did not correspond with the Respondent when she sought to apologise in person.

The Respondent did not rent the property until July 2021 and has since become a registered landlord.

In my analysis of this case, I found the Complainant was understandably humiliated by the impact of the conversation in HAP on 19 February 2020. She was treated less favourably on account of her Housing Assistance Payment status and prevented from accessing a stable and supportive home while she was seeking to relaunch from emergency accommodation. She was the subject of relatively harsh procedures of exclusion. She had not anticipated this change in approach, and it completely unsettled her. The conversation changed from inclusion, through the mutual friends to exclusion through “this is not a HAP house “.

I have found that the respondent engaged in the prohibited conduct of denying her a tenancy based purely on her housing assistance grounds and this is in contravention of Section 3 of the Act.

It is not lost on me that the Respondent adopted a volte face approach to the Complainant once the ES1 form was constituted and submitted. In this, I found her approach genuine and meaningful.

I appreciate that the complainant was not in the emotional space at that time to manage that

 volte face

I found that the Respondent displayed an empathy and understanding towards the Complainant at hearing when she expressed her wish to make amends. Arguably, this was very late in the day, but nonetheless, this was demonstrated.

I have found that the complainant experienced prohibited conduct when she was discriminated against by the respondent in the course of her pursuance of a tenancy on 19 February and the Respondent has nor rebutted that presumption.

The claims succeed

CA-00038855-001

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I have found that the Complainant experienced prohibited conduct in her pursuance of a tenancy, whilst covered by the Housing Assistance ground of Section 3 (b) of the Equal Status Act, 2000.

In accordance with Section 27of the Act,

1 I order the Respondent to pay the Complainant €2,500 as compensation for the effects of the prohibited conduct. This amount is compensation under the Act and is free from tax.

2 That the Respondent with the support of her legal advisor write a present-day apology to the complainant for the events of February 19, 2020. This would amount to a full and final action in the move towards a mutual closure in the case.

3 That in the event that the Respondent plans to relaunch the house to the rental market that she should manage the process through an unbiased application form to assist in the transparency around the tenancy and to empower all concerned.

A second complaint CA-00038855-002 was confirmed as directed at the Auctioneer mentioned in the case and was not properly before me.

Discrimination on grounds of HAP, Housing Assistance Payment