Complainant

Respondent

Parties

Patricia  Herron

Easy Lets Ni Ltd

Representatives

  Complainant

Aine Friel Downey Property 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-00039404-001

27/08/2020

During March 2020 the complainant sought to rent a property from the respondent.  The respondent did not process the forms necessary for the complainant to receive Housing Assistance Payment (HAP).  The respondent contends that this was due to matters outside of his control related to the Covid pandemic.

The complainant, Ms Patricia Herron responded to an internet advertisement placed by the respondent regarding a house to let in a Retirement Village in Co. Donegal, in or around 14 March 2020.  She subsequently met with Mr Simon Eakin from the respondent and, having viewed the house, expressed a firm desire to rent it.  She discussed terms, such as deposit, monthly rent, previous landlord’s reference etc. and signed a Tenancy Application.

On 24 March 2020 the complainant confirmed by email her desire to rent the property and  agreed to pay a deposit of €700, partly as a means of having the house held for her pending her application for Housing Assistance Payment from the local authority and partly as a normal deposit payable to a landlord, along with a month’s rent in advance, if she was successful in her HAP application. She informed Mr Eakin that it might take a few weeks because of Covid.   The complainant had previously asked Simon Eakin if he was agreeable to her being a HAP tenant.  He confirmed he was, and that he had had previous tenants from the Republic receiving HAP.  He agreed to return her deposit if she was unsuccessful in her application for HAP. 

Around 24 March 2020 the complainant asked Mr Eakin to send her a sample Tenancy Agreement.  Although the draft agreement stated that the rent was to be paid into the landlord’s bank account, no details of same were provided.  The complainant asked if she could pay the deposit of €700 by euro cheque, and if so, made out to whom.   Simon Eakin replied by email that he could not accept a euro cheque as “we are waiting for our account to open in the Republic”.  He offered to travel to meet the complainant to be paid in cash.  Subsequently the complainant travelled to his office on 27 March 2020 and paid the deposit in cash there.  Mr Eakin wrote on the receipt that the deposit would be returned if HAP could not be obtained. 

A few weeks late, on 7 May 2020, the complainant received confirmation that she was eligible to apply for the HAP payment, and immediately emailed this information to Simon Eakin.  The complainant had been sent 2 forms to fill in regarding the HAP application, Form A (to be filled in by herself; and Form B to be filled in by the landlord). She immediately sent Form B to Mr Eakin and asked him to fill it in and return it to the local authority.  The complainant filled in form A and sent it to the local authority.

On 7 May 2020 Mr Eakin again stated that he wanted the HAP payment paid directly to the complainant, and for her to pay the full amount of the rent to him.  He repeated that he was still waiting for a bank account to be opened and until then he would collect the rent from the complainant.

The complainant sent several emails to Mr Eakin over the next few weeks, asking if he had filled in the form and returned it to the local authority, but Mr Eakin prevaricated about returning Form B.  He gave various excuses as to why he had not done so, and could not do so, including that he did not have a bank account in the Republic and had not been able to secure one during the Pandemic because of bank meetings not being allowed.  Other excuses were that the Form B required information that he, as the owner of a business in NI, could not supply. 

When the complainant first spoke with Mr Eakin in early March 2020, no lockdown restrictions regarding Covid were in place and by his own admission he did not have a bank account in the Republic and was making excuses then for not having one.  The government shut all schools, colleges, childcare facilities and cultural institutions on 12 March 2020.  On 24 March all non-essential business were ordered to be closed, but banks were exempt.  Most bank branches remained open to the public during lockdowns.

On 28 May 2020 the complainant emailed Mr Eakin and asked for an assurance that he would do whatever was needed to get the matter back on track (such as opening a bank account and filling in the Form B), otherwise she would have no option but to start looking elsewhere. Mr Eakin  responded that the obstacles involved in filling in the form that were too difficult for him, being a NI business, to overcome and that he would have to relist the property.   The complainant emailed him asking him not to relist the property yet and offering to help him find but received no response.

The complainant’s concerns had been aroused when Mr Eakin asked her to accept the landlord’s payment from the local authority into her bank account, and then to give it to him in cash.  He assured her this had been a system he operated with other HAP tenants.  But when the complainant enquired about this from the local authority she was told this was never, and never would be, an acceptable arrangement.  The complainant did not accept that he could not open a bank account in the republic due to Covid.

The local authority indicated they could pay the landlord’s rent into a NI bank account. 

From these responses the complainant concluded that the obstacles Mr Eakin was referring to could easily have been overcome by (a) having the landlord’s payment paid into his NI bank account or, by (b) having the landlord’s payment paid into the landlord’s existing Irish bank account However, as Mr Eakin was adamant that all transactions (such as payment of deposit and future payment of rent) had to be paid in cash, the complainant  became suspicious, especially as the scheme he said he operated with other HAP tenants was denied outright by the local authority.  The complainant believes such a policy was an outright case of discrimination, because even if Mr Eakin had filled out the Form B, his business model (cash only payments) was inconsistent with HAP rules.

On 23 June 2020 the complainant contacted the respondent’s office and spoke to a woman who said Mr Eakin was not there.  She informed the complainant that the landlord “was unwilling to go down that road” (i.e. to fill in the form B) and was being asked to give information not required in NI. 

Later that same day Mr Eakin phoned the complainant and said they were trying hard to get the information needed and he thought it would be available soon.  He assured the complainant he still wanted to rent the house to her. On 9 July 2020 the complainant phoned Mr Eakin again (having established that the local authority had not received his returned form).  She spoke with the same woman and she said she would get Mr Eakin to ring.  That did not happen.

On 17 July the complainant again rang the county council and was informed that they had not received the form B.  The complainant then decided to lodge her complaint.

On 28 August 2020 the complainant received a letter from a solicitor, representing the complainant. He repeated that his client was experiencing difficulties in opening a bank account in the Republic, exacerbated by Covid.  He said the property would be let to the complainant when “things were sorted out” but no timescale could be given.

On 8 September 2020 the complainant wrote to the solicitor informing him of the information she had received from the local authority, which contradicted what Mr Eakin was saying, and that there were no Covid-related reasons why someone in NI could not open an bank account in the Republic.  She also told him the HAP office in Limerick had informed her the HAP payment could be paid to a NI bank account.  The complainant stressed that although she had initiated a complaint, her preference would be to rent the property from the respondent and, if she could do so, she would withdraw her complaint. 

The complainant received a solicitor’s letter on behalf of the respondent dated 21 September 2020 and the language and statements in the letter was so confusing and contradictory that she came to the conclusion that this was a deliberate and disingenuous tactic on the part of the solicitor.  He asked the complainant to provide various documents to speed up the process if and when the property became available for her to rent.  He also asked for the complainant’s bank details so that he could return her deposit to her.  The complainant replied to this letter on 22 September 2020, voicing her confusion over his letter and restating her position that unless Mr Eakin filled in Form B she would continue with her complaint and no further personal information about her would be required or given.

By 2 October 2020, having received no reply to the questions raised in her previous letter to the solicitor, the complainant sent this solicitor a letter stating that it was now obvious that Mr Eakin had repudiated the agreement and that she therefore considered their contract/agreement null and void.  The complainant said she would accept the return of her deposit.              The deposit was subsequently returned.

 By failing, neglecting or otherwise refusing to provide the local authority with the completed Part B of the Housing Application Form, the respondent discriminated against the complainant under section 6 (Provision of Accommodation) of the Equal Status Act 2000.

The respondent, Mr Eakin, agreed to rent to the complainant, Ms Herron, in March 2020 knowing that she was applying for HAP. The respondent acknowledges that he made a mistake in assuming that HAP could be paid to the client. He had wrongly assumed it was paid the same way as rent supplement and housing benefit.  The fact it was to be paid to the respondent’s account was not a problem as he thought that by the time Ms Herron had been accepted for HAP his euro account would be open and there would be no problems.  He had no way of knowing the full extent of lockdown at this stage or of the delays that the pandemic would cause.

 The euro account was not the only obstacle and the information needed to progress to a formal tenancy was not available.  The evidence needed for the HAP form — proof of ownership, an undertaking for tax clearance, evidence and header from a bank statement — were not available at this time.  Had Ms Herron approached the respondent for the first time in May 2020 with a view to renting the house he would not have agreed as he did not have the required documentation.   In fact the respondent did not commence any new tenancies between April and September as there were too many obstacles to overcome. He had already agreed to rent to Ms Herron and for this reason she was the only person being offered a house during this time.

 Ms Herron informed the respondent on 28th May (less than 3 weeks after receiving the Form B) that she was not prepared to wait and the respondent told her if that was the case he would return her deposit and relist the house.  The complainant then back- tracked on this and the respondent confirmed again that the house was still hers if she could wait. Had the country not been in lockdown and dealing with a pandemic the respondent still would not have been able to gather the information in the time frame and it was unreasonable that Ms Herron expected it to be dealt with this quickly. During this time HAP applications were taking on average 40 days.  If the information had been available and returned to the local authority the day after the form was received (which would never have been possible) she still would not have been renting the property until July and the respondent was at all times prepared to wait.

 During the months of July —September this property was not available to rent to anyone as there had been a leak in the property and it was not possible to get workmen into the property. The respondent told Ms Herron the property was not available during this time.

The respondent offered the house to Ms Herron on 21st September and only returned her deposit as she had asked for it.  A Euro Bank account had been opened at this time and all government departments were operating so all the information could be obtained - had Ms Herron supplied the information requested, or given a timescale as to when she could supply it, she would have been able to rent the property.

This property, with a rent of €700 per month, lay vacant for 8 months. 

 Ms Herron was never treated unfairly. The respondent gave Ms Herron two months to apply to the local authority for HAP payments. The delays with filling in the form and renting the property were outside everyone's control and the respondent did not rent or offer to the rent the house to anyone else during this time. The respondent explained to Ms Herron that these obstacles were nearly impossible to overcome but that the house was hers to rent as soon as it was available. The respondent contacted the Ms Herron though his solicitor when he knew he would have all the information shortly and only returned her deposit as she kept requesting it be returned. The respondent let her know the house would be available shortly and it was hers if she wanted it. She asked for compensation and at this point the respondent told his solicitor to stop replying to her.  The respondent’s solicitor wrote to Ms Herron and told her the house was not currently available for rent but as soon as it was she would be contacted — Ms Herron replied stating that even if she was to rent the house she would still require compensation.  The respondent always intended to rent the House to Ms Herron as soon as possible and confirmed this in writing on numerous occasions

 Ms Herron was told on 21st September that the house was nearly ready and she was asked for information to allow the respondent to proceed to a formal tenancy arrangement — this information was refused and Ms Herron stated that the only way to prevent proceedings at that time was to pay compensation.  The delays in filling in the HAP Form were outside of the respondent’s control. The evidence need for the HAP form — proof of ownership, an undertaking for tax clearance evidence and header from a bank statement — were not available at this time.

Section 3(3B of the Equal Status Act, 2000 as amended provides:

 “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 38A  of the 2000 Act, applies to all complaints of discrimination under the Equal Status Acts which places the burden of proof on 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.

Southern Health Board v Mitchell  is a decision which guides on the question of shifting of the burden of proof.  This test requires that facts relied upon by a complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven must be of sufficient significance as to raise an inference of discrimination.  Therefore the evidence adduced by the complainant must be of a sufficient significance to raise a presumption of discrimination which then arises for rebuttal by the respondent by way of proving non-discriminatory reasons for the unfavourable treatment.  In the current case the mere fact that the complainant was qualified to receive HAP would not of itself meet the burden on the complainant to establish a prima facie case of discrimination. 

It is clear from the evidence provided that the communication from the respondent to the complainant was not good, and, in particular, the letter sent on his behalf from his solicitor dated 21 September 2020 was confusing.  However, poor communication is not the same as discrimination.

In reaching a determination on this case I found the particular evidence compelling.  In order for the respondent to complete the Form B (application for HAP) proof of ownership of the property was required and this needed certified copy of ownership from land registry which office was closed due to the pandemic. A downloaded copy from the website is not a legal instrument. 

The respondent was advised that the could not let to anyone in ROI without tax clearance and proof of ownership, neither of which he could get at the time due to the pandemic The respondent did not let any properties in Donegal between May and October.  Therefore the actual problems the respondent had in completing the tenancy had nothing to do with the complainant’s application for HAP, but were in fact a broader issue which prevented him letting any properties in this jurisdiction.

I note also that the respondent agreed to let the property to the complainant, knowing she was applying for HAP. I note that the respondent was prepared to accept cash which, while not in accordance with the rules governing HAP, would be an indication that he was prepared to go ahead with the tenancy.

Based on the evidence presented to me I find that the actual reasons for non-completion of the tenancy agreement were unrelated to the complainant’s application for HAP and therefore, the complainant has not established a prima facie case of discrimination.

I find that the respondent did not engage in discriminatory conduct

Equal Status.  Discrimination. Housing Assistance Payment