ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00028448

Parties:

Complaint:

Date of Adjudication Hearing:  17/12/2021

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint pursuant to Section 21 of the Protection of Equal Status Acts 2000-2018 was referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 4th June 2020.  Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  Following two adjournments, I heard the matter remotely on 17th December 2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, designating the WRC as a body empowered to hold remote hearings. 

Section 12 of the Workplace Relations (Miscellaneous Provisions) Act 2021 amended Section 25 of the Equal Status Acts to require hearings to be held in public in the absence of special circumstances.  Section 30(1) of the Equal Status Acts provides that every such decision shall be published on the internet in such form and manner as the Director considers appropriate.  As well as Irish citizenship, the Complainant has refugee status in Ireland and as such remains legally entitled to anonymity under Section 26 of the International Protection Act 2015.  I therefore direct that any information that might identify the Parties including their names and locations should not be published. 

The Complainant was initially assisted by the charity, Crosscare who made submissions on her behalf.  Following a preliminary hearing on 21st May 2021, James Kane BL instructed by Community Law & Mediation Northside came on record for the Complainant and updated written submissions and documentation were filed.  The Respondent was represented by Declan Chambers BL and was afforded an opportunity to update his submissions in light of all of the relevant caselaw including this Adjudication Officer’s WRC decisions in ADJ-00004100, ADJ-00004101 and ADJ-00004705.

The Complainant was assisted with an interpreter of her language and all witnesses were sworn in under oath / affirmation.  As some of the facts material to the complaint were in dispute, sworn evidence was taken.  All evidence, submissions and documentation have been considered.

Background:

The Complainant held a tenancy with the Respondent for a studio flat.  She claims that the Respondent discriminated against her under the ‘housing assistance ground’ contrary to Sections 3 and 6 of the Equal Status Acts 2000-2018 (also ‘ESA’), by refusing to complete/sign the HAP Form required to avail of Housing Assistance Payment (also ‘HAP’) towards her rent.  As the tenancy has since ended, compensation is sought by way of remedy.  The Respondent maintained that there is no prima facie case of discrimination and put forward two grounds of defence by rebuttal.  First, he was prevented from completing the HAP Form as the property subject to the tenancy did not comply with the statutory housing standards as required under the HAP Scheme and the Complainant had refused to move flats to enable repair works to be undertaken.  Second, he submitted that as the Complainant had previously been in receipt of Rent Supplement, discrimination could not arise based upon the interpretation of Sections 3 and 6 of the ESA in Celine Murphy -v- Michael O’Toole ADJ-00027797 (under appeal).  Aligned to this defence is the contention that as the Respondent had previously accepted Rent Supplement on behalf of the Complainant and other tenants, it follows that his refusal of HAP cannot constitute discrimination under the ‘housing assistance ground’. 

Summary of Complainant’s Case:

Direct Evidence of the Complainant

The Complainant gave evidence supplementing written submissions and a corrective statement.  She has refugee status and citizenship in Ireland.  She confirmed that she commenced a tenancy with the Respondent landlord for a studio flat on 13th February 2014 as per a standard Letting Agreement containing the usual covenants.  The rent was initially €400 per month and was later increased to €480.  The Complainant was in receipt of Rent Supplement until February 2021.  She commenced working part-time as an agency care worker in February 2018.  Her working hours varied and her income fluctuated.  She wanted to increase her hours and income but was limited to less than 30 hours per week whilst in receipt of Rent Supplement.  The Complainant is on the Local Authority Housing List entitling her to avail of the Housing Assistant Payment (HAP) towards her rent. 

A letter dated 1st June 2018 from the Department of Social Protection to the Complainant confirming her entitlement to Rent Supplement also informed her that HAP would be more favourable stating: “You should be aware that a new scheme for rental support HAP (Housing Assistance Payment) is now available in the (City) area.  Anyone with a long term housing need can qualify for HAP.  One of the benefits of HAP is that you may increase your working hours or take up full time employment while still receiving housing support.  As the disregard for income disregard is greater for the HAP Scheme it is likely that you would receive a greater supplement towards your rent.”

The Complainant confirmed that arising from this communication in or around June 2018, she first asked the Respondent to accept HAP on her behalf but received no response.  Thereafter, she repeatedly asked him to accept HAP when he collected her rent on a weekly basis.  In or around December 2018, when she had enquired about HAP, the Respondent informed her that as the entire building was damp, he intended to serve notice of termination on all the tenants therein so that required renovation works could be undertaken.  The Complainant described her studio flat as being “black with damp”, the roof would leak when it rained and there was also damage to the floor.  She recalled that it had been in this condition since 2017.  Correspondence from the Complainant to the Respondent complaining about the condition of the flat and a broken heater was submitted to support this contention.  Although the Respondent had undertaken some works to the roof of the building, her flat had never been repaired.  A neighbouring tenant was given notice of termination and moved out in June 2019.  That flat was never re-let.  The Complainant was not served with a notice of termination.  She denied the Respondent’s contention first made in submissions that he had ever offered her a move to an alternative flat within the same building to facilitate repairs. 

In Summer 2019, the Complainant asked the Respondent to accept HAP once again.  In response, he sent her a handwritten letter dated 2nd July 2019 purporting to increase her rent to €700 from 2nd October 2019 and commencing a new one-year lease from that date.  The letter further stated: “HAP is acceptable from 2nd October 2019, if this is the best way forward for you.”  The letter did not make any reference to repairs to her flat as being required for the acceptance of HAP.  The Complainant sought assistance from Crosscare.  On 16th July 2019, representations were made by Crosscare to the Respondent by letter and by telephone in or around the same time, outlining the legal position and requirements for a valid notice of rent increase.  The Complainant sought an increase in Rent Supplement to meet the additional rent which was declined by letter dated 8th August 2019 from the Department of Social Protection explaining that the increase was unlawful owing to the rent cap and advising of recourse.  The Respondent did not pursue this rent increase. 

In September 2019, the Complainant obtained a HAP Application Form (also ‘HAP Form’) from the City Council and asked the Respondent to complete the landlord’s section.  On attempting to give the HAP Form to the Respondent in October 2019, he informed her that he did not want to accept the Form as there was damp in her flat, it was not good for her health to live there long-term, and he wanted to serve her with a notice of termination.  Towards the end of 2019 when she repeated her request, the Respondent agreed to take the HAP Form from her to look over and said he would revert.  When the Complainant received no response from the Respondent, she reverted to Crosscare again.  The Crosscare Representative wrote to the Respondent on 14th January 2020 asking him to complete the Form within 10 days.  Upon hearing nothing further, the Complainant asked the Respondent if he had completed the HAP Form and he informed her that he had thrown it away. 

From 4th March 2020, the Complainant’s Rent Supplement was reduced following a routine means assessment and from that date onwards she was paying more towards her rent than if she had been in receipt of HAP.  It remained the position that if she increased her working hours, she would lose her entitlement to Rent Supplement altogether.  Crosscare assisted with completion of an ES1 Form requesting an explanation for the refusal of HAP from the Respondent in light of the Equal Status Acts (containing an ES2 Form for reply) and sent it by registered post to his home address.  It was returned marked ‘RETURNED NOT DELIVERED’ on 5th March 2020.  The ES1 Form was resent by ordinary post on 9th March 2020.  On 13th March 2020, the Complainant attempted to give the Respondent a copy of the ES1 Form personally but he refused to accept same.  She also requested once again that he complete her HAP Form, but he refused.  No reply to the ES1 Form was ever received and Crosscare assisted with the referral of this complaint to the WRC on 4th June 2020. 

The Complainant had also been caring for her sick mother who was in homeless accommodation.  When she was awarded Carer’s Allowance in February 2021, her Rent Supplement was reassessed downwards to zero.  A letter dated 2nd February 2021 from the Department of Social Protection confirmed that her Rent Supplement was being suspended and a further letter dated 3rd June 2021 confirmed that it was being ceased.  The difference between what the Complainant contributed towards her rent whilst in receipt of Rent Supplement and would pay if she was on HAP was set out in a detailed spreadsheet submitted.  This amounted to approximately €3,127.  This figure does not include the potential income she could have earned had she been permitted to work more hours.

The Complainant’s tenancy came to an end in September 2021 on foot of an agreement reached between the Parties following a complaint to the RTB about the poor condition of the studio flat.

Finally, the Complainant confirmed that the flexibility of HAP would have allowed her to care for her mother whilst increasing her working hours and income without putting her accommodation in jeopardy unlike the position with Rent Supplement.  However, owing to the Respondent’s ongoing refusal to complete/sign the HAP Form, she was unable to access HAP, being the housing payment most suitable to her needs and avail of additional of working hours and income.  As a consequence of this discriminatory treatment, she had suffered financial loss, distress, inconvenience and upset.

Questioning of the Complainant

Under questioning, it was put to the Complainant that the Respondent had offered her a move to another flat within the same building in March 2019 and to the neighbouring flat sometime in 2020.  The Complainant denied that the Respondent had ever offered her a move to either flat.  She was asked why given that her flat was in bad condition, she had not left and gone elsewhere.  She replied that she had nowhere to go and just wanted the flat to be repaired.  When asked why then had she left in September 2021, she replied that the condition of the flat had worsened and she feared for her safety.  The Respondent had also advised her that it would be dangerous for her health to remain living there.  Had the Respondent proposed a move to enable repairs to be undertaken she could have stayed with friends.  It was also put to her that had she been given a notice of termination she would have been left homeless.  She was asked whether she had heard of Homeless HAP and replied that she had not.  She confirmed she had complained about the Respondent to the RTB previously about getting a bed.  Regarding the unanswered ES1 Form, it was put to her that she had known the reason why the Respondent had not signed the HAP Form, being that owing to the condition of the flat, HAP would not be accepted.  She was asked whether she recalled informing the Respondent that the neighbouring tenant had flooded her flat by leaving the washing-machine door open.  She replied that she did but the condition of her flat had not been caused by that incident.

Direct Evidence of Representative from Crosscare

The Representative from Crosscare who had assisted the Complainant outlined his communications with the Respondent on her behalf and involvement with this matter.  He had assisted with the correspondence outlined above, referral of this complaint to the WRC and had made the initial submissions.  He outlined the operation of Rent Supplement and HAP Schemes.  In particular, he pointed out that HAP allowed a tenant waiting on a Local Authority Housing List to work full-time and met longer-term housing needs.  Rent Supplement was designed to meet shorter term housing needs and is more restrictive in terms of income assessment.  A tenant’s contribution towards rent is limited to a percentage of income on HAP but is subject to regular means tests on Rent Supplement.  A tenant cannot be in receipt of both payments at the same time.  The Representative was of the view that the Complainant had a longer-term social housing need as she did not have sufficient means to meet her accommodation needs.  He confirmed the contents of his correspondence to the Respondent including the letter of 16th July 2019 informing him that a notice of increase in rent must comply with the relevant legislation.  They also had a telephone conversation around the same time wherein the Respondent had advised him that the Complainant would be leaving in three months.  The Representative had advised the Respondent to comply with the relevant legislation and reminded him that the Complainant was still entitled to apply for and receive HAP in the interim.

Questioning of the Representative

Under questioning on behalf of the Respondent, the Representative was asked whether he was aware that the property in question was in a poor condition and not in compliance with housing standards.  He replied that whilst he was aware of the poor condition of the property, he could not speak to the housing standards.  He confirmed that he was aware of the Homeless HAP Scheme as distinct from the main HAP Scheme and explained that the first two months’ rent was covered under the former.  It was suggested that the Complainant would have been better off on that Scheme if she had been given a notice of termination and made homeless as opposed to leaving voluntarily.  The Representative confirmed that he was aware of the reason why the Respondent would not sign the HAP Form, being that the condition of the property did not comply with HAP requirements. 

Submissions

On behalf of the Complainant, it was submitted that the Respondent’s ongoing refusal to complete/sign her HAP Form constituted discrimination under Sections 3 and 6 of the ESA as set out below.  It was contended that this claim for discrimination is very clear and arising from her qualification for, and reliance upon the Housing Assistance Payment (HAP), the Complainant has been treated less favourably than a person/tenant who does not qualify for, or rely on HAP.  The Respondent had refused to complete/sign her HAP Form thereby making it more difficult for her to access services than a person who does not qualify for, or rely upon such housing assistance.  This constitutes discrimination within the plain meaning of Sections 3 and 6 of the ESA, also found to comprise of discrimination in WRC decisions ADJ-00004100, ADJ-00004101 and ADJ00004705.

The two defences put forward by the Respondent in rebuttal of this complaint are also refuted.

Non-compliance with Statutory Housing Standards: 

It was submitted that the first defence put forward by the Respondent, being that he was unable to complete/sign the Complainant’s HAP Form as it required him to confirm that the studio flat complied with statutory housing standards, is utterly misconceived based upon the following:

First and as required, the Complainant utilised the ES1 Form to pose questions to the Respondent including: “… why have you not filled in the [HAP] Form?” and the Respondent had not completed an ES2 Form in reply.  This explanation was first put forward in a written submission to the WRC.  Pursuant to Section 26 of the ESA, the Adjudication Officer may draw such inferences, if any, as seem appropriate from the failure to reply or provide information in an ES2 response.  Accordingly, this Adjudication Officer is invited to find that this defence is contrived and lacking in substance.

Second, it is not open to the Respondent to use the WRC as a forum to adjudicate upon the condition of the property in question.  It is the Complainant’s evidence that the Respondent invoked the state of disrepair of the property as the reason for not accepting HAP as far back as 2018.  Even on his own evidence, the Respondent was aware of the fact that her flat did not comply with housing standards as far back as October 2019.  Therefore, this is not a genuine reason for failing to complete/sign the HAP Form.  A landlord also has rights, whether under the lease or statute or both, to carry out any necessary repairs and in the event of a dispute arising has recourse.  The fact that the Respondent has not made any attempts to carry out the repairs to the Complainant’s flat to date also strongly suggests that this defence is contrived.  It is not open for a landlord to assert that as he is in breach of housing standards, the tenant must leave the property to enable repairs to be conducted.  That leaves the tenant with virtually no rights and is an absurd application of the ESA.

Third, and relatedly, it is manifest that a respondent to an equal status complaint under the ESA cannot rely on his or her own default in relation to another statutory obligation to release him/her from an obligation under the ESA to rebut a complaint. No such defence is provided for by the ESA.  The Respondent herein has legal obligations (which the WRC does not adjudicate upon) to ensure that the dwelling complies with housing standards and a separate duty to comply with the ESA. 

If the landlord’s own breach of housing legislation renders it impossible for him to sign the HAP Form, then that is no different in principle to a landlord who simply refuses to sign a HAP Form for no reason at all.  The Respondent mistakenly maintains that the ESA provides a defence to the former.  The self-negating duty contended for by the Respondent herein would reduce the ESA to an absurdity and weaken rather than strengthen the rights of tenants in receipt of housing assistance.

Fourth, the obligation on the Respondent to ensure that the property complies with statutory housing standards does not simply arise when one signs a HAP Form, nor does it go away if one refuses to sign a HAP Form.  It is neither a credible nor a statutory defence to the complaint herein.

Reliance upon Celine Murphy -v- Michael O’Toole ADJ-00027797 (under appeal):

It was submitted that the second defence advanced, namely that the Respondent may rely on the WRC decision in Celine Murphy -v- Michael O’Toole ADJ-00027797 (under appeal) is also utterly misconceived.  The Respondent’s submission that as the Complainant was in receipt of Rent Supplement, no discrimination can arise (as this is also a defined housing assistance payment) is refuted.  First, that decision simply cannot assist the Respondent in the present case as it was found in that case that discrimination would occur when the Rent Allowance had been withdrawn and discrimination “may only have arisen when the rent allowance she enjoyed had been withdrawn.”  In the present case, the Complainant’s Rent Supplement ceased and therefore, even taking that decision as correct (which is not accepted), this complaint does not fall within the facts of that case.

Second, and relatedly, Section 3(1)(a)(iii) of the ESA prohibits treating a person less favourably on the basis of a ground which “may exist in future.”  Rent Supplement was conceived as a short-term form of support which is being replaced with HAP.  The fact that someone is in receipt of Rent Supplement is immaterial when assessing whether the treatment is based upon a discriminatory ground which “may exist in future.”  Given her circumstances, it was foreseeable that the Complainant would lose her Rent Supplement thereby giving rise to less favourable treatment arising from her futurestatus as a person entitled only to HAP.  The Murphy -v- O’Toole decisiondid not address this argument.  Put more simply, the fact that the Complainant was, at one point, in receipt of Rent Supplement is immaterial as she is now disentitled to same and became entitled only to HAP.  The Respondent’s ongoing failure to complete/sign the HAP Form means that the Complainant cannot access any housing assistance payment, unlike the position in that case.

Third, a defence similar to that advanced by the Respondent, was rejected in ADJ-00004100, ADJ-00004101 and ADJ-00004705 wherein the landlord claimed that it would accept Rent Supplement but not HAP.  An argument that signing a HAP Form was a choice by the landlord was also rejected.

Finally, it was submitted that as the ESA is a remedial statute, a broad approach should be taken to its interpretation so as to avoid sanctioning the Respondent’s conduct in the instant case.  In summary, it was submitted that for the reasons set out above, the Respondent has discriminated against the Complainant in failing to complete/sign her HAP Form.  The Complainant seeks compensation to include financial loss, out-of-pocket losses and distress, inconvenience and upset.

Summary of Respondent’s Case:

Direct Evidence of the Respondent

The Respondent gave evidence supplementing written submissions.  He confirmed that the property in question was divided into four rental flats (including the Complainant’s studio flat) and he also let out another property.  He accepted that the Complainant had repeatedly asked him to accept HAP on her behalf and he had received the HAP Form from her in October 2019.  However, he maintained that the request for HAP was only properly made when he was presented with the Form and he disputed that her requests went back as far as June 2018.  As the Form was lengthy, he asked her to leave it with him to go through.  It contained a section requiring the landlord to certify that the flat complied with statutory housing standards.  As the flat did not comply with those standards he had informed her: “Because of the condition of the flat I cannot honestly sign this Form because I am making myself a liar by signing it.”  Apart from the consequences of making a dishonest declaration, he also expressed concern that if he went ahead and signed the HAP Form and the HAP payments were subsequently stopped due to a failed inspection, he would be left with a tenant who could not pay her rent for an extended period.  He denied disposing of the HAP Form as contended. 

The Respondent recalled that a water leakage to the Complainant’s flat had occurred sometime in 2017 and in March 2019, he had verbally offered her another flat in perfect condition within the same building but she had declined this offer.  He was unable to undertake the works to her flat without vacant possession.  He asked the Complainant to convey his position to the Representative from Crosscare and had questioned with her why the Representative had written to him in January 2020 asking him to sign the HAP Form when he was appraised of the situation.  Thereafter, she refused to speak to him.  He undertook extensive works to the rest of the building including the neighbouring flat with only the Complainant’s flat left to be renovated.  He said that as frustration was setting in over the impasse with HAP, in June 2020, he also offered her the neighbouring flat.  She said she would take it on strict conditions including installation of a toilet and shower when they were already located outside.  He had formed the view that she had no intention of moving flats and wanted to move out altogether.  This could only be done by giving her notice of termination which would have been viewed as victimisation and was also prohibited during the Covid-19 Pandemic. 

The Respondent denied that the entire building was damp and submitted a Survey Report dated 26th April 2021 outlining the condition of the Complainant’s studio flat.  In the summary, it confirmed that the flat had suffered two different leaks causing damage to two different areas and required extensive repairs.  The Report concluded: “The current issues mean the flat will not meet the basic housing standards as laid down by the various Housing Acts.  In addition, when the works are being completed over a 2/3 month period it will not be possible for the tenant to live in this studio flat.”

Questioning of the Respondent

Under questioning, the Respondent confirmed that he had never previously been requested to accept HAP on behalf of a tenant.  It was put to him that he had never offered an alternative flat within the building to the Complainant and had never previously mentioned his purported offer of a flat in March 2019 in his statement or submissions.  He replied that he was only recalling this now.  Turning to his offer of the neighbouring flat in June 2020, the Respondent insisted that at the time, it had been renovated and it was the Complainant’s requirements that were too costly.  It was put to him that this was contrary to his submission stating that the neighbouring flat required renovation at the time of the alleged offer to the Complainant.  It was also put to the Respondent that it was not credible that he only first realised that HAP would not be acceptable owing to the condition of the flat not being compliant with housing standards when furnished with the HAP Form in October 2019. 

It was suggested to the Respondent that as a landlord he had enough knowledge to indicate that HAP would be acceptable in his letter of 2nd July 2019 when he had sought an unlawful rent increase from the Complainant.  The Respondent refuted this proposition.  It was put to him that it was his responsibility as a landlord to comply with housing legislation and had he done so, there would have been no barrier to his signing the HAP Form.  He agreed and repeated his position that he could not make the Complainant’s flat compliant because she had refused to move to another flat to enable requisite works.  He maintained that he would do his best to bring a flat up to standard after a tenant moved out but as the Housing Regulations have changed multiple times since 2016, he had difficulty keeping up.  When asked why he had never put this request for the Complainant to move in writing he said he spoke to her every week.  He could not serve a notice of termination after referral of this complaint to the WRC as he would be open to a victimisation complaint and was also prohibited during the Covid-19 Pandemic.  Every second week, the Complainant would tell him that she was leaving.  If he had signed the HAP Form and subsequently failed an inspection, he would have been left for a lengthy period with a tenant who could not pay her rent.  When asked why he had not addressed the repair works required to the Complainant’s flat before seeking a rent increase in July 2019, he agreed that in hindsight that would probably have been the correct approach.

Submissions

It was submitted that the Respondent’s defence by way of rebuttal to this complaint is twofold; first, he was prevented from completing the HAP Form as the property subject to the tenancy did not comply with statutory housing standards as required under the HAP Scheme and the Complainant had refused to move flats to enable repair works to be undertaken.  Second, as the Complainant had previously been in receipt of Rent Supplement, discrimination could not arise based upon the interpretation of Sections 3 and 6 of the ESA in Celine Murphy -v- Michael O’Toole ADJ-00027797.

Non-compliance with Statutory Housing Standards:

In relation to the first ground of defence, it was submitted that the Respondent had clearly set out in his statement and evidence why he had not completed/signed the Complainant’s HAP Form.  As he had indicated that he would accept HAP from October 2019, it was clear that he did not have a difficulty switching over to HAP in principle.  However, his problem lay with the condition of the property subject to the tenancy and the undertaking he was required to give confirming compliance with housing standards.  This was a legitimate concern on his part and a valid reason as to why he could not, in all conscience, make a declaration which he knew to be untrue and wholly dishonest. 

Specifically, the Housing Miscellaneous Provisions Act 2014 requires sourcing of a dwelling that meets minimum statutory housing standards, and the landlord has to comply with various conditions before payment can be made under the HAP Scheme.  In practice, the landlord has to self-certify because the local authority cannot inspect the property immediately.  The works required to ensure compliance may vary from remedying a minor defect to the instant case where significant works were required to make the Complainant’s flat compliant.  It was accepted that ideally a tenancy should comply with statutory housing standards.  However, a breach of the housing legislation could not be considered to exist in the instant case as the Respondent had not received an improvement notice or likewise from the Local Authority.  The Respondent had met a roadblock and either he had to make the Complainant homeless by serving her with a notice of termination or he had to move her to a different flat.  However, she had refused to move.  A stalemate ensued and then Covid-19 further affected matters with severe sanctions in the event of serving a notice of termination.

Reliance upon Celine Murphy -v- Michael O’Toole ADJ-00027797 (under appeal):

Regarding the second ground of defence, it was contended that the Complainant’s allegation of discrimination premised on the denial of HAP by the Respondent contrary to the ESA was flawed because she had been in receipt of a housing assistance payment in the form of Rent Supplement for many years.  The Respondent has never had any difficulty with the receipt of Rent Supplement having accepted same on behalf of many tenants over the years.  Hence, there was no reality to the contention that he would discriminate against a tenant under the housing assistance ground. 

In this respect, reliance was placed upon the WRC decision in Celine Murphy -v- Michael O’Toole ADJ-00027797 where a tenant in receipt of Rent Supplement had been denied access to HAP by the landlord.  In summary terms, the Adjudication Officer interpreted the wording of Section 3 and 6 of the ESA to find that a refusal to sign the HAP Form did not constitute discrimination as the complainant was already in receipt of a defined housing assistance payment, stating as follows: 

“This case comes down to a simple net point; whether there is an obligation on a landlord to cooperate with a specific application for HAP when a tenant is already in receipt of another housing allowance, rendering failure to do so a breach of the Act, or whether, as the respondent has argued, that once a person is in receipt of any rent allowance, a prima facie case of discrimination cannot be established.  Section 3B of the Act appears above and for convenience it is set out again here.  It states: “(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”).  The essential element in discrimination is that of ‘less favourable treatment’; in general, as between a person in receipt of ‘rent supplement’ or housing assistance, and one who is not.  In addition to the reference to housing assistance under Part 4 of the Housing (Miscellaneous Provisions) Act 2014 these taken together to constitute the ‘housing assistance’ ground, and this is an important point.  Rent supplement is defined in section 6(8) as follows: “(8) In this section, ‘rent supplement’ means a payment made under section 198(3) of the Social Welfare Consolidation Act 2005 towards the amount of rent payable by a person in respect of his or her residence.”  The respondent has submitted that once a person is in receipt of any benefit such as ‘rent supplement’ then it, the respondent was compliant and should not be held to be liable for any act of discrimination because it declined to cooperate with a particular form of housing assistance.” 

The Adjudication Officer went on to consider the particular facts and concluded: “While this gives rise to something of a dilemma for a tenant seeking to progress from one form of allowance to another, and caught in the middle of the two, as the legislation is drafted it is clear that a person who is already in receipt of any form of housing allowance cannot succeed under this Act simply in a claim for a different form of allowance.  Harsh as it might seem to say so, that may only have arisen when the rent allowance she enjoyed had been withdrawn.  There may be an administrative anomaly here, but it is not one that can be resolved by means of a complaint under this Act, in my opinion.  A complainant cannot succeed in respect of an act that has not yet occurred.  The fact is that at those times she continued to be in receipt of a form of housing assistance as defined in the Act.  The respondent did not engage in prohibited conduct and the complaint therefore does not succeed.”

In line with this decision, it was submitted that the Respondent has no case to answer as no discrimination could have taken place.  The Complainant was already in receipt of a defined housing assistance payment in the form of Rent Supplement.  Therefore, the Respondent did not engage in prohibited conduct and accordingly, no prima facie case of discrimination against the Complainant arises.  The Respondent further refuted the Complainant’s submission that he had repeatedly refused to accept HAP having first been presented with the HAP Form in October 2019.  Other issues were raised with the initial submission made by Crosscare on behalf of the Complainant. 

Finally, it was submitted that the Complainant had not suffered any losses before March 2020 not long before this complaint was referred to the WRC on 4th June 2020 and the Respondent was disproportionally affected by a delay in this complaint being heard owing to the Covid-19 Pandemic.  Therefore, this should be a consideration in relation to any consequent compensation awarded. 

Findings and Conclusions:

The Complainant contends that the Respondent discriminated against her under the ‘housing assistance ground’ contrary to Sections 3 and 6 of the Equal Status Acts 2000-2018, by refusing to complete/sign the HAP Form necessary to enable her to avail of HAP towards her rent.  In rebuttal, the Respondent maintains that first, he was prevented from completing the HAP Form as the property subject to the tenancy did not comply with the statutory housing standards as required under the HAP Scheme and the Complainant had refused to move flats to enable repair works to be undertaken.  Second, he submitted that as the Complainant had previously been in receipt of Rent Supplement, discrimination could not arise based upon the interpretation of Sections 3 and 6 of the ESA in Celine Murphy -v- Michael O’Toole ADJ-00027797 (under appeal).  Arising from this defence/rebuttal, there are two key issues of statutory interpretation for determination being:

• (1) Whether a landlord can rely upon non-compliance with the statutory requirements for the Housing Assistance Scheme (HAP) as a defence to a refusal of same to an eligible tenant?

• (2) Whether a landlord’s refusal to accept a defined housing assistance payment to an existing tenant in receipt of a different defined payment to which they are entitled i.e. Rent Supplement to HAP, constitutes discrimination under Sections 3 and 6 of the ESA?

First, it is necessary to determine whether the conditions precedent are met for referring this complaint to the WRC under Section 21 of the Equal Status Acts 2000-2018.  It is not in issue that the Respondent declined to complete the Complainant’s HAP Form from circa October 2019 and that this situation pertained until the tenancy came to an end in September 2021, being the alleged prohibited conduct subject to this complaint.  I am therefore satisfied that this is an allegation of ongoing discrimination.  Accordingly, the ES1 notification of the alleged prohibited conduct by ES1 Form on 9th March 2020 was within the requisite two-month period from the last date of occurrence of the alleged prohibited conduct.  On the same basis, I am also satisfied that this complaint was referred to the WRC within the requisite six-month period from the date of last occurrence. 

Consideration of the legislation in relation to the two issues of statutory interpretation requiring determination entails an examination of their wording and construction for the purposes of interpretation.  It is therefore of assistance to set out the relevant legislative provisions as follows:

Section 6(1) of the Equal Status Act 2000 provides (with relevant provisions highlighted): “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.  Section 6(1A) is omitted as having no application to the instant case.

Section 6(2) of the ESA also provides for an exhaustive list of exclusions from Section 6(1) of the ESA, namely the disposal of any estate or interest in premises by will or gift; 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; 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; and the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender.  Section 6(3) clarifies the scope of Section 6(2).  Section 6(4) has been deleted and Section 6(5) provides for further exclusions from Section 6(1) of the ESA where any premises or accommodation are reserved “for the use of persons in a particular category of persons for a religious purpose or as a refuge, nursing home, retirement home, home for persons with a disability or hostel for homeless persons or for a similar purpose,”.  Section 6(6) allows for housing authorities and certain approved bodies to provide, in relation to housing accommodation, different treatment to persons based on family size, family status, civil status, disability, age or membership of the Traveller community.  Section 6(7)(a) allows for differential treatment in relation to housing accommodation provided by or on behalf of the Minister for Justice, Equality and Law Reform on the same grounds in so far as there is no derogation from the State’s EU legal obligations.  Finally, Section 6(8) defines ‘Rent Supplement’ for the purposes of the ESA.

Section 6(1) of the ESA has to be read and interpreted in conjunction with Section 3 of the ESA which gives meaning to ‘discrimination’ across ten grounds and defines the ‘housing assistance ground’.  Specifically, Section 3(1) provides: “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 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,”  Section 3(1)(b) provides for discrimination by association and Section 3(1)(c) provides for indirect discrimination.  Section 3(2) lists the protected grounds including victimisation and identifies the respective comparators for each ground.  Introduced by the Equality (Miscellaneous Provisions) Act 2015 with effect from 1st January 2016, Section 3(3B) provides that discrimination in relation to Section 6(1)(c), namely providing accommodation as set out above, is prohibited under all of the existing nine protected grounds and inserts the ‘housing assistance ground’ as follows: “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”).”  Accordingly, three types of housing assistance payments are covered, namely, Rent Supplement, HAP and any other payment under the Social Welfare Acts.  The remaining provisions in Section 3 of the Act have no application herein.

Section 38A of the ESA provides for the applicable burden of proof which applies to all complaints of discrimination under the ESA and requires 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.

As referred to in Section 3(3B) of the ESA, Part 4 of the Housing (Miscellaneous Provisions) Act 2014 made legal provision for the Housing Assistance Payment (HAP) Scheme.  It is helpful to set out the main provisions.  Section 35 provides for the interpretation of various terms including the following:

“In this Part-

“housing assistance” means the payment by a housing authority of rent for a dwelling to a landlord on behalf of a qualified household in accordance with this Part;

“landlord” means the person for the time being entitled to receive, otherwise than as agent for another person, the rent payable under a tenancy in a dwelling in respect of which housing assistance is provided;

“qualified household” means a household qualified for social housing support in accordance with section 20 of the Act of 2009, in respect of whom housing assistance under this Part is an appropriate form of social housing support;

“rent contribution” means the payment to the housing authority by a tenant who is a member of a qualified household of a contribution in respect of the rent for a dwelling paid by the authority to a landlord on behalf of the tenant’s household;

“social housing support” shall be read in accordance with section 19 of the Act of 2009;

“tenancy” includes a periodic tenancy and a tenancy for a fixed term, whether oral or in writing or implied, and includes a subtenancy, and cognate words shall be read accordingly.”

Section 39 of the 2014 Act provides for the provision of HAP by a local authority to a ‘qualified household’ within the meaning of the Act and sets out the requirements for same as follows:

“39(1) A housing authority may, subject to subsection (3), provide housing assistance to a qualified household in accordance with this Part.

(2) In order for housing assistance to be provided under this Part to a qualified household in respect of a dwelling-

(a) that household shall source the dwelling in respect of which it seeks housing assistance,

(b) the dwelling concerned shall meet the conditions set down in section 41;

(c) the landlord shall comply with the conditions set down in section 42;

(d) the member of the qualified household who is the tenant of the dwelling occupied by that household shall pay a rent contribution to the housing authority in accordance with section 44, and

(e) the housing authority shall be satisfied that the tenancy concerned is or would be a tenancy in good faith.”  

Section 41 of the 2014 Act provides for the requirements of a dwelling subject to the HAP Scheme:

“41.(1) Except where otherwise provided for by this section, it is a condition of the provision of housing assistance to a household in respect of a dwelling that the housing authority concerned is satisfied that the dwelling complies with standards prescribed under section 18 of the Act of 1992.

(2)(a) The condition referred to in subsection (1) shall be deemed to be met if the housing authority, within a prescribed period prior to the date on which the household notifies the authority of the dwelling in respect of which housing assistance is sought, inspected the dwelling and was satisfied that the dwelling complied with that condition.

(b)(i) In a case where paragraph (a) does not apply, then the housing authority-

(I) shall, within a prescribed period after the date when housing assistance commences, arrange to inspect the dwelling for the purpose of satisfying the authority that the dwelling complies with the condition referred to in subsection (1), and

(II) may provide housing assistance in respect of the dwelling concerned until the dwelling is so inspected, and the authority shall notify the qualified household accordingly.

(ii) In this paragraph the reference to assistance commencing means the commencement date of the period in respect of which the housing authority made the first payment of rent under this Part to the landlord of the dwelling.

(c) A housing authority may provide housing assistance in respect of a dwelling the subject of a subsisting improvement notice given under section 18A of the Act of 1992 and shall notify the qualified household accordingly.

(d)(i) A dwelling the subject of proceedings under section 18B of the Act of 1992 or in respect of which a prohibition notice under that section is in force shall not be, or shall cease to be, eligible for housing assistance.

(ii) Notwithstanding subparagraph (i), where a household is residing in the dwelling in respect of which a prohibition notice under section 18B of the Act of 1992 is in force, the housing authority may provide, or continue to provide, housing assistance in respect of the dwelling for a period prescribed under this subparagraph for the purposes of enabling the qualified household to find an alternative dwelling.

(iii) Where subparagraph (ii) applies, the housing authority shall notify the qualified household of the prescribed period under that subparagraph for which housing assistance is being provided in respect of the dwelling concerned.

(3)(a) Where a housing authority determines that a dwelling in respect of which housing assistance is sought, or which is the subject of housing assistance, does not meet, or no longer meets, the accommodation needs of a qualified household due to overcrowding, then the dwelling shall not be, or shall cease to be, eligible for housing assistance.

(b) In a case where paragraph (a) applies and the household is residing in the dwelling, the housing authority may provide, or continue to provide, housing assistance in respect of the dwelling for a period prescribed under this paragraph for the purposes of enabling the qualified household to find an alternative dwelling.

(c) Where paragraph (b) applies, the housing authority shall notify the qualified household of the prescribed period under that paragraph for which housing assistance is being provided in respect of the dwelling concerned.”

Section 42 of the 2014 Act sets out the tax clearance requirements in relation to landlords availing of HAP and provision where default.  The remaining Sections in Part 4 of the Act provide for the operation of the HAP Scheme and the making of Regulations thereunder which stipulate the minutiae including the information required from applicants for HAP, time periods and rent limits.  

As referred to in Section 41 of the Housing (Miscellaneous Provisions) Act 2014, Section 18 of the Housing (Miscellaneous Provisions) Act 1992 provides for the making of Regulations prescribing the standards for rental properties, the most recent being the Housing (Standards for Rented Houses) Regulations 2019 (S.I. 137/2019).  Save for defined exceptions, the Regulations apply to every house let for rent or other valuable consideration.  Local authorities are empowered to ensure compliance.

Regardless of any HAP application, Section 12 of the Residential Tenancies Act 2004 (as amended) obliges all landlords to carry out such repairs to a dwelling as necessary to ensure compliance with housing standards prescribed under Section 18 of the Housing (Miscellaneous Provisions) Act 1992:

“12.(1) In addition to the obligations arising by or under any other enactment, a landlord of a dwelling shall-

(a) allow the tenant of the dwelling to enjoy peaceful and exclusive occupation of the dwelling,

(b) subject to subsection (2), carry out to- (i) the structure of the dwelling all such repairs as are, from time to time, necessary and ensure that the structure complies with any standards for houses for the time being prescribed under section 18 of the Housing (Miscellaneous Provisions) Act 1992, and

(ii) the interior of the dwelling all such repairs and replacement of fittings as are, from time to time, necessary so that that interior and those fittings are maintained in, at least, the condition in which they were at the commencement of the tenancy and in compliance with any such standards for the time being prescribed,”  (Obligations not relevant to this complaint are omitted.)

Section 16 of the Residential Tenancies Act 2004 (as amended) provides for tenants’ obligations:

“6. In addition to the obligations arising by or under any other enactment, a tenant of a dwelling shall-…

(d) notify the landlord or his or her authorised agent of any defect that arises in the dwelling that requires to be repaired so as to enable the landlord comply with his or her obligations, in relation to the dwelling or the tenancy, under any enactment,

(e) allow the landlord, or any person or persons acting on the landlord's behalf, reasonable access to the dwelling for the purposes of allowing any works (the responsibility for the carrying out of which is that of the landlord) to be carried out,”  (Obligations not relevant to this complaint are omitted.)

Part 6 of the Residential Tenancies Act 2004 (as amended) provides for the referral of a non-exhaustive list of disputes and complaints by landlords and tenants to the Residential Tenancies Board (RTB) including pertaining to the aforesaid provisions or a breach of covenant as to repairs.  There is an abundance of online guidance and explanatory booklets on the aforesaid provisions.

Turning to the factual matrix herein, the Complainant was a ‘qualified household’ as defined by Section 35 of the Housing (Miscellaneous Provisions) Act 2014 and deemed eligible for the HAP Scheme.  It is common-case that the Complainant held a tenancy with the Respondent from February 2014 until September 2021.  The repeated refusal by the Respondent to complete/sign the HAP Form is not disputed although the Respondent admits to a much shorter period.  In this respect, I prefer the Complainant’s evidence that her initial request to the Respondent to accept HAP was instigated by the letter from the Department of Social Protection dated 1st June 2018 informing her that HAP would be more advantageous.  Nothing materially turns on whether the Respondent disposed of the HAP Form, the undisputed position being that he refused to complete/sign same.

The other facts are not substantially in issue save for the Respondent’s contention that the Complainant refused to move flats to enable repairs to her flat to be undertaken to comply with the housing standards required for the HAP Scheme.  As set out above, a landlord has recourse to the RTB if a tenant is not facilitating necessary repairs to a dwelling and based upon other findings hereunder, a factual finding is not required.  However, I will determine same for completeness.

On the balance of probabilities, I prefer the Complainant’s evidence.  First, on the Respondent’s own evidence, the Complainant’s flat was subject to a water leak in 2017 which caused damage to the extent that he informed all the tenants in 2018 that he intended giving them notices of termination so that he could undertake renovation works.  The Respondent was aware of the Complainant’s request to avail of the HAP Scheme from at least 2nd July 2019 when he wrote to inform her of a rent increase stating: “HAP is acceptable from 2nd October 2019, if this is the best way forward for you.”  Therefore, there had been ample time to repair the Complainant’s flat before the Covid-19 Pandemic which may have impeded such works.  Second, if the requirement for the Complainant to move to enable renovation works for compliance with HAP had been a ‘roadblock’, one would have reasonably expected this to have been referred to in the letter.  Third, one would also have expected the Respondent to have taken some action to enforce his right to undertake repairs by way of correspondence and/or referral to the RTB.  Overall, I am of the view that there were other reasons for the Respondent’s failure to bring the Complainant’s flat in line with statutory housing standards. 

Based upon the aforesaid factual matrix, I must next consider whether the Complainant has established a prima facie case of discrimination.  This requires her to show that she had been treated “less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds”, in this case the ‘housing assistance ground’, “…which requires that as between any two persons, that one is in receipt of… housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014)… and the other is not.”  Likewise, in the instant case and having considered the Complainant’s evidence which I found to be wholly credible, I am satisfied that the Respondent’s ongoing refusal to complete and/or sign the HAP Application Form to enable receipt of HAP amounts to less favourable treatment than a tenant not so entitled.  The Respondent’s refusal to participate in the HAP Scheme had the direct effect of causing her to pay more towards her rent and significantly curtailing her participation in the workforce and earning capacity to avoid placing her tenancy in jeopardy, when compared with a tenant not entitled to HAP. 

I will now consider the two grounds of defence in rebuttal requiring determination of the following:

Non-compliance with Statutory Housing Standards:

Issue (1):  Whether a landlord can rely upon non-compliance with the statutory requirements for the Housing Assistance Scheme (HAP) as a defence to a refusal of same to an eligible tenant?

As a starting point, it should be noted that the statutory housing standards set out above and provided for by Regulations made under Section 18 of the Housing (Miscellaneous Provisions) Act 1992 apply to all residential tenancies (save from expressly provided exceptions) including the dwelling subject to this complaint.  These legal obligations attach to landlords regardless of whether the rent is paid with or without supplement by Rent Supplement, HAP or payment under the Social Welfare Acts.  The legislation does not impose any onus on an existing or prospective tenant to ensure that a property subject to an application for HAP complies with statutory housing standards.

It is further noted that Part 4 of theof the Housing (Miscellaneous Provisions) Act 2014 makes provision for the payment of HAP in circumstances where a landlord is non-compliant with other statutory requirements.  Relevant to this case, Section 41 makes provision for a tenant to claim HAP in circumstances where a landlord is subject to an improvement or prohibition notice for non-compliance with applicable Housing Regulations prescribed under Section 18 of the Housing (Miscellaneous Provisions) Act 1992.  Unfortunately, the Respondent did not make any enquiries or explore with his local authority or with the Complainant whether she could receive HAP to facilitate a move and/or whilst his non-compliance with applicable housing standards could be remedied.

Regarding reliance upon this defence, the Respondent has not cited any statutory basis or referred to any caselaw supporting his contention that his non-compliance with statutory housing standards required for the HAP Scheme act as a defence or rebuttal to a complaint of discrimination under the ‘housing assistance ground’.  Such a defence is not included within the exhaustive list of exclusions to the application of the ESA as contained within Section 6 of the ESA and set out aforesaid.

Even if permissible to read in, such an exclusion or defence would effectively render the ESA nugatory.  It would leave it open to landlords and/or agents to cite a breach of another statute as the reason for refusal of housing assistance to avoid complaints of discrimination under this ground.  This would defeat the stated purpose of the Equality (Miscellaneous Provisions) Act 2015 in the long-title, being to prohibit discrimination in relation to “providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities”.  It follows that causation for the breach of a statutory requirement for HAP is irrelevant.  For the aforesaid reasons, I prefer the submissions made on behalf of the Complainant and reject this defence.  Landlords who enter into or continue residential tenancies in non-compliance with statutory requirements do so in the full knowledge of the potential consequences, including an improvement or prohibition notice from a local authority or referral to the RTB or the WRC. 

Reliance upon Celine Murphy -v- Michael O’Toole ADJ-00027797 (under appeal):

Issue (2):  Whether a landlord’s refusal to accept a defined housing assistance payment to an existing tenant in receipt of a different defined payment to which they are entitled i.e. Rent Supplement to HAP, constitutes discrimination under Sections 3 and 6 of the ESA?

Regarding the second ground of defence, it was contended that the Complainant’s allegation of discrimination premised on the denial of HAP by the Respondent contrary to the ESA was flawed because she had been in receipt of housing assistance in the form of Rent Supplement for many years.  Aligned to this defence is the contention that because the Respondent has previously accepted Rent Supplement on behalf of the Complainant and other tenants, then the refusal of HAP cannot constitute discrimination under this ground.  In this respect, reliance was placed upon the WRC decision in Celine Murphy -v- Michael O’Toole ADJ-00027797 where a similar factual position arose.  In summary terms, the Adjudication Officer interpreted the wording of Sections 3 and 6 of the ESA to find that a refusal to sign the HAP Form did not constitute discrimination as the complainant was already in receipt of Rent Supplement, also a defined housing assistance payment. 

It seems that this interpretation arose from the wording of Section 3B, which does not provide an express ‘and/or’ option between the three types of defined payment as follows: “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”).”  Hence it was reasoned that once a landlord or agent has accepted one type of housing assistance payment, there is compliance with the ESA and therefore refusal to move to a different defined payment cannot be discriminatory.

Leaving aside the fact that the Complainant’s Rent Supplement had ceased before this hearing, I adopt a different position to that in Celine Murphy -v- Michael O’Toole and restate my reasoning in ADJ-00004100, ADJ-00004101 and ADJ-00004705 (not appealed) (also involving refusal by a landlord to sign HAP Forms necessary to enable existing tenants to move from Rent Supplement to HAP but were unsuccessfully defended on a different point of statutory interpretation) as follows:

“The starting point in relation to the interpretation of any Act or Statutory Instrument of the Oireachtas is the Interpretation Act 2005.  Section 5 of that Act provides: "In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)- (a) that is obscure or ambiguous, or(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of [the Oireachtas]....the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole."  Words should therefore be construed literally, utilising their plain and ordinary meaning unless to do so would fail to give effect to the intention of the legislature as ascertained from the Act as a whole or give rise to an obvious absurdity.

I am also guided by the purposive approach to what are termed as ‘remedial social statutes’ adopted by the Superior Courts.  The title to the Equal Status Act 2000 describes it as: “An Act to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access, to provide for investigating and remedying certain discrimination and other unlawful activities...”  In G -v- The Department for Social Protection 2015 IEHC 419, Para 161, Ms Justice O’Malley referred to the Equal Status Act 2000 as being a ‘remedial social statute’ requiring liberal interpretation as follows: “…the Act is intended to cover a broad range of human life and activity, and that its overall purpose is to reduce the social wrong of discrimination based on improper considerations.  Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally.”  In this respect, she was guided by Dodd (2008) on Statutory Interpretation in Ireland, Para 6.52: “‘Remedial social statutes and legislation of a paternal character favour a purposive interpretation and are said to be construed as widely and liberally as can fairly be done within the constitutional limits of the courts' interpretive role. This formula has been repeated in a number of cases [citations at fn. 82 p.179]…Remedial social statutes are enactments which seek to put right a social wrong and provide some means to achieve a particular social result.” Dodd citedBank of Ireland -v- Purcell [1989] 1 IR 327 at 333, where Mr Justice Walsh in the Supreme Court referred to the Family Home Protection Act 1976 as a ‘remedial social statute’ stating: “This statute is not to be construed as if it were a conveyancing statute. As has been frequently pointed out remedial statutes are to be construed as widely and as liberally as can fairly be done.  The first consideration in construing s. 3 is to ascertain the purpose of the section.”

The Equal Status Act 2000 was amended with effect from 1st January 2016 as outlined above such that discrimination in relation to “providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities” is now prohibited under the new ‘housing assistance ground’ which provides 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”).”  It was not disputed on behalf of the Respondent that as a matter of principle, landlords are prohibited from discriminating in relation to the provision of accommodation or related services and amenities.  In so far as I can understand the arguments made on behalf of the Respondent, the contention that the provisions in question could only apply to a prospective tenant arises from the requirement that for discrimination to arise, as between any two persons, one “is in receipt of” HAP and the other is not.  An interpretation of the wording “is in receipt of” is therefore required.

Section 3(3B) of the Act requires housing assistance to be “construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014”.  It is clear from Section 39(2) of that Act that certain minimum conditions have to be met by a ‘qualified household’ before HAP becomes payable as follows: “(2) In order for housing assistance to be provided under this Part to a qualified household in respect of a dwelling- (a) that household shall source the dwelling in respect of which it seeks housing assistance, (b) the dwelling concerned shall meet the conditions set down in section 41, (c) the landlord shall comply with the conditions set down in section 42,”  A qualified applicant must therefore firstly source a dwelling which meets certain minimum conditions and the landlord for that dwelling has to comply with various conditions before an application can be considered and payment under the HAP Scheme made.  Therefore, the wording “in receipt of” has to be interpreted as encompassing qualified applicants deemed eligible for the payment of HAP once they have sourced a dwelling and all the conditions have been met.  To interpret the wording otherwise would render the Section 6(1)(c) provisions nugatory not only in relation to existing tenants but also in relation to prospective tenants.  In this respect, an interpretation of the wording “in receipt of” in any other sense would be absurd and/or would fail to reflect the plain intention of the Oireachtas.

Adopting a purposive approach to the Act which requires a wide and liberal interpretation and taking the provisions as a whole, it is clear that the Oireachtas intended to legislate for a wide gamut of possible discrimination that could arise in relation to the provision of accommodation including the manner in which rent is accepted.  In particular, I note the all-encompassing nature of the wording contained in Section 6(1)(c) as prohibiting discrimination in relation to: “providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities”.  The inclusion of the word ‘ceasing’ would appear to envisage that discrimination under any of the prohibited grounds can arise in relation to existing tenants.  I am also of the view that although the Oireachtas could not possibly legislate for every conceivable discriminatory scenario arising, had it intended to exclude any particular tenancy status, it would have done so explicitly, particularly as Section 6 of the Equal Status Act 2000 (as amended) clearly sets out any exclusions.”

More recently, the Supreme Court Judgements of Ms Justice Dunne in McDonagh -v- Chief Appeals Officer & The Minister for Social Protection [2021] IESC 33 and Ms Justice Baker in ELG -v- HSE (No.2) 2022 IESC 14 endorsed a purposive approach to the interpretation of remedial social statutes.  Accordingly, a narrow and literal interpretation of Sections 3 and 6 would render the ESA a nullity for tenants such as the Complainant who need to move from one type of housing assistance payment to another defined payment more suited to their particular needs.  Adopting a purposive approach, the words “in receipt of” in Section 3E must also encompass existing tenants who are deemed entitled to HAP (regardless of whether they currently or have previously been in receipt of Rent Supplement or any payment under the Social Welfare Acts and vice versa) and the comparator is not so entitled to same.  The same conclusion was reached in ADJ-00004100, ADJ-00004101 and ADJ-00004705.

As evident in the instant case, the needs, means and personal circumstances of tenants dependent upon housing assistance payment are transient and subject to change and accordingly, the legislation underpinning the three types of housing assistance payments provides for this flexibility.  To interpret Sections 3 and 6 otherwise would prevent existing tenants who need to move from one type of defined housing assistance payment to one more suitable for their needs from enforcing their rights under the ESA.  This would give rise to unintended adverse consequences including those pertaining herein where the Complainant was curtailed from earning extra income, an outcome that could never have been intended by the Oireachtas.  It is also clear that the three types of housing assistance payments are individually listed for the purpose of encompassing them within the definition and not creating a situation whereby a tenant remains confined to one type of payment.  They were not included with the intention of narrowing options but rather to prohibit discrimination on the ‘housing assistance ground’ in relation to different types of housing assistance payment. 

Aligned to this defence is the contention that because the Respondent has previously accepted Rent Supplement on behalf of the Complainant and other tenants, then the refusal of HAP cannot constitute discrimination under this ground.  There is a common misconception that a particular mens rea, state of mind or intention to discriminate has to be established and that this is negated by the acceptance of another type of housing assistance payment.  It is in fact the act of refusal and the adverse consequences that flow for a complainant that gives rise to discrimination, in the instant case, being the ongoing refusal by the Respondent to complete and sign the HAP Form.  For the aforesaid reasons, I prefer the Complainant’s position and also reject this ground of defence. 

Having so found, it is unnecessary to explore the other arguments on behalf of the Complainant.

I have concluded my investigation of this complaint and based upon the aforesaid reasoning, find pursuant to Section 25(4) of the Acts, that the Complainant has made out a prima facie case of direct discrimination on the housing assistance ground contrary to Sections 3 and 6 of the Equal Status Acts 2000-2018 which has not been rebutted by the Respondent by any known legal defence or otherwise.  Again, I reiterate, the Equal Status Acts compels compliance by all those subject to its provisions including landlords, just as they are also bound by any other applicable Statutes.

Decision:

Section 25 of the Equal Status Acts 2000-2018 requires that I make a decision in relation to this complaint, and if finding in favour of the Complainant, to do so in accordance with the relevant redress provisions under Section 27.  Given the real and tangible effects of the Respondent’s ongoing refusal to accept HAP over a protracted period, I consider this discrimination to be at the more serious end of the scale.  By definition, recipients of housing assistance payments are more vulnerable, and the Complainant was particularly vulnerable given her status, her low income and need to care for her sick mother.  As a direct consequence of the Respondent’s refusal to complete/sign the HAP Form, she was effectively stuck in a poverty trap in sub-standard accommodation.  Fearful of losing her security of tenure on Rent Supplement, without HAP, her ability to work more hours and increase her income was significantly curtailed causing financial hardship.  She also had to contribute at least €3,127 more towards her rent than if she had been in receipt of HAP over the same period.  This was aggravated by the Respondent’s recalcitrant attitude and refusal to engage with the process.  The Respondent’s conduct clearly caused the Complainant financial loss and distress, inconvenience and upset and as such was an affront to her dignity. 

This jurisdiction is limited to the maximum award of €15,000 which by virtue of Section 27(2) is fixed at the maximum District Court civil jurisdiction.  Having regard to all the circumstances and pursuant to Section 27(1)(a) of the Acts, I deem it appropriate to order the Respondent to pay €10,000 (including compensation for loss of potential earnings and €3,127 difference in what she paid towards her rent whilst on Rent Supplement and would have paid if on HAP) to the Complainant for the effects of the prohibited conduct herein.  I do not consider that any delays in determining this matter caused by the Covid-19 Pandemic materially alter the circumstances such as to merit a reduction.  However, I have factored into this award the fact that the Respondent is a small landlord.

Dated:   05/10/2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Sections 3 & 6 of Equal Status Acts 2000-2018 - housing assistance ground – non-compliance with another statute not a defence to a complaint – refusal to accept move between different types of defined housing assistance payment constitutes discrimination – statutory interpretation - meaning of “in receipt of” - ADJ-00004100, ADJ-00004101 & ADJ-00004705