Complainant

Respondent

Parties

Daniela  Krause

Michael McGrath McGrath Investments

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045974-001

05/09/2021

The complainant submits that the respondent discriminated against her by the respondent’s failure to accept housing assistance and delays with completing documentation, a complaint which the respondent denies.

The complainant submitted on her complaint form that the first incident of discrimination occurred on 10th May 2021 and that the most recent date of discrimination was 3rd September 2021.  It was also submitted that an ES1 form was forwarded to the respondent on 15 July 2021 which the respondent did not respond to and the complaint was received by the WRC on 5th September 2021.

The complainant gave evidence that she had to seek accommodation in 2021 and saw accommodation available in what was pre-covid a guest B&B owned by the respondent.  She was advised when she viewed the accommodation by Miss Norwicz that the accommodation might revert back, after Covid-19, to a Guest B&B.  The complainant submitted that there was uncertainty around whether she was given a tenancy agreement or a licence agreement.  The complainant signed what was worded a licence agreement for 12 months, paying €630 per month and was advised by the respondent that as she had signed a licence agreement, housing assistance would not be accepted.  The complainant received covid rent supplement between July-August 2021 and it was her evidence that the respondent delayed signing the necessary social welfare forms as Mr Michael McGrath owner of the Guest B&B said the accommodation was not registered for such purposes.  The complainant said the accommodation was over-crowded and denied that she was aggressive. The complainant submitted that she was harassed and stalked by the respondent and others in her accommodation. 

The complainant submitted that the organisation Threshold assisted her and tried numerous times to contact the respondent, but the respondent would not engage.  The complainant provided details of messages between herself and the respondent, some of which referenced events which occurred after her submission of this complaint to the WRC.

At the hearing, the complainant said that her Threshold representative Mr A could provide proof that he had sent the housing assistance programme (HAP) forms to the respondent and that she would furnish a copy of Mr A’s emails to the WRC after the hearing and advised that her Threshold representative was not available to give direct evidence at the hearing.  The complainant gave evidence that any accommodation of the kind that she had is covered under the legislation and that she is entitled to housing assistance.  The complainant submitted that she sent in a social welfare form on 10 May 2021 and it was 4th August 2021 before the complainant received it back from the respondent and this caused her stress and financial hardship.

Under cross examination the complainant said that she could only fill out details of the form when the respondent has signed his relevant part.  She confirmed that the social welfare housing form was eventually signed after significant delays and returned but the other form to transition her to HAP was not.

After the hearing, and as per the request of the adjudicator, the complainant forwarded on correspondence including a copy of emails from the representative of Threshold, Mr A. In this email Mr A submitted that he discussed with the respondent the need to fill in HAP forms that had been sent to him by the complainant and that he had advised the complainant to issue the forms physically and not by pdf.  Mr A stated in the email that he advised the respondent “HAP is a requirement, and a refusal would be an act of discrimination”.  Mr A said in the email he was not aware if the HAP forms were filled out.  By response the respondent responded denying receiving HAP forms from Mr A and the respondent enclosed copies of emails he had received from Threshold. The complainant responded reaffirming that if the respondent did not receive the forms, the respondent should have advised the complainant.

The respondent denied the allegations and submitted that there was no relationship of landlord and tenant between himself and the complainant and no statutory protection under the legislation.  It was submitted that the accommodation was a guest B&B business, temporarily converted to licenced accommodation for the duration of the Covid Pandemic.  The respondent submitted that it was a vexatious claim and denied that the complainant had discussions regarding HAP and submitted that the respondent previously signed HAP, where relevant, for other tenants.  The respondent submitted that it was the respondent and staff who had been subject to vexatious claims and anti-social behaviour by the complainant.

All twelve resident licensees at the premises were aware of the temporary arrangements.  On the 10th May 2021 the complainant emailed the Guest House Manager Ms Norwicz with a request to complete a Social Housing Support Application Form (Form SWA 3C-03/2011) which the respondent has signed for many tenants before where there was a landlord/tenant agreement. 

The respondent submitted this was their first experience of a licence agreement for a Guest House premises and he had a concern that signing forms might imply a landlord/tenant relationship which was not the case. The respondent contacted his solicitor and also the local authority to seek clarity and explained that the premises was a Guest House and was advised that social welfare support would not likely apply to a licence agreement in a guest house at that time. The Manager Ms Norwicz relayed this information back to the complainant.

The respondent submitted that the queries from the complainant and the differing information that he was receiving was increasingly time consuming and the respondent eventually agreed to sign the Social Housing Support Application Form for the complainant on 4th August 2021.  It was then up to the complainant to send the completed housing support form to the local authority for initial approval. As Ms. Krause was a new applicant for social housing support, this form would have started the process for her. The Rent Supplement Process must be first approved by council before being transferred to the HAP process by the council at that time. Once approved by the local authority the onus is on the complainant to obtain and complete the subsequent HAP application forms and provide these for review and signing. The respondent did not receive any such further HAP documentation for review and signing.

It was submitted that during her time in the accommodation the complainant’s behaviour became increasingly anti-social with both verbal and texting harassment and aggression towards the House Manager Ms Norwicz, other staff as well as other tenants who became upset by the complainant’s behaviour.  On the 1st November 2021 the complainant was issued a ‘Warning Notice for Anti-Social Behaviour’ and was later evicted.

Direct evidence of Mr McGrath was that the complainant wanted the respondent to sign a form that he did not believe applied to his accommodation and that he made further inquiries.  Mr McGrath gave evidence that there was no form received and no refusal to sign any form and that he would always respond to Threshold and did not receive HAP forms from Threshold.

Under cross examination Mr McGrath was asked by the complainant where were the forms that he had received and he denied that he ever received HAP forms. 

Evidence of Ms Norwicz was that when she showed the complainant one property in April she told the complainant that they did not accept housing assistance as that was her understanding about that specific property.  She gave evidence that she was not asked about HAP at the second property where the complainant resided.  In cross examination, Ms Norwicz said that she never received a HAP form and that she only received a social welfare housing assistance form and that she returned that to the complainant.

After the hearing and in response to correspondence that the complainant submitted, the respondent replied that the complaint had failed to submit proof that the HAP form had been sent to the respondent.

The complainant submits that the respondent discriminated against her on the grounds of housing assistance by the respondent’s delays in signing the social housing support form and failure to sign the HAP form and that she was victimised and harassed by the respondent.  The respondent denies the complaint and submits that the claims are vexatious. My remit relates solely to the complainant’s specific complaints under Equal Status Act 2000 (as amended) and does not extend to other matters raised by the complainant or the respondent.

It is prohibited under the Equal Status Act, 2000 as amended to discriminate on Housing Assistance grounds in the provision of rental accommodation.

Under Section 3(3)(b) of the Act:

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 ” )..

Furthermore, section 6 provides:

6.—(1) A person shall not discriminate in—

( a) disposing of any estate or interest in premises,

( b) terminating any tenancy or other interest in premises, or

( c) subject to subsection (1A) , providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

(1A) Subsection (1)(c) is without prejudice to —

( a ) any enactment or rule of law regulating the provision of accommodation, or

( b ) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.

Section 38A of the Acts applies to all complaints of discrimination under the Equal Status Acts and requires that the complainant, in the first instance, establish facts from which discrimination may be inferred. Where such a prima facie case has been established, the onus shifts to the respondent to rebut the inference of discrimination.

Under Part 4 of Housing (Miscellaneous Provisions) Act 2014 it defines “housing assistance” as:

…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;

It is further set out that:

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—

(II) may provide housing assistance in respect of the dwelling concerned until the dwelling is so inspected,

It was not in dispute that the respondent received the complainant’s social housing support application form in May 2021.  The respondent submitted that as the accommodation where the complainant resided operated as a B&B guesthouse before Covid; and following advice from his solicitor and local authority, that he was not obliged to fill out such form.  Nothing was provided by the respondent to confirm that the local authority had determined the dwelling did not satisfy relevant conditions.  The respondent confirmed the forms were filled in August 2021 as engagement with the complainant was taking up so much time.  He denied receipt of the referred to HAP forms and submits that the complainant has not been able to provide any proof that the complainant submitted any such HAP forms to him

On the complainant’s ES1 the complainant submits that discrimination, harassment and victimisation occurred on 10/5/21 when she asked for completion of the social housing form and 13/5/21 when she asked for completion of the HAP form.  The complainant submits the respondent would not complete the HAP form and that she was advised by Ms Norwicz that the HAP form would not be completed.  Ms Norwicz denies that she refused to complete the HAP form and gave evidence that she never received a HAP form but confirmed that she believed that the accommodation would not fulfil the requirements to be suitable for rent supplement. 

Having reviewed all the submissions and heard the evidence I am satisfied that the respondent failed to fill out the social housing support application form in a timely manner because he did not believe it applied to his premises; but this was not his decision to make.  Taking note of all the submissions and evidence I am satisfied that the complainant has established a prima facie case of discrimination which the respondent has failed to rebut.  I find that the respondent engaged in prohibited conduct by his delays in completing the form and did discriminate against the complainant by the delays in completing this form.  I take note, also that the respondent did complete the social housing form, prior to the submission of the complaints to the WRC. 

The complainant made reference on a number of occasions to the respondent’s failure to complete the HAP form but the complainant’s evidence as to when this HAP form was submitted to the respondent was inconsistent.  It was unclear from the complainant’s own evidence as to whether it was the complainant who gave the forms to the respondent, whether it was Threshold who provided the HAP form or whether the complainant had told the respondent to access the HAP forms on her behalf.  The complainant’s submission after the hearing did not provide any further clarity on this matter and I note that Mr A from Threshold did not attend the hearing to give direct evidence and therefore his correspondence sent after the hearing could not be suitably examined.  Taking all matters into consideration, I do not find that the complainant has established a prima facie case of discrimination on this aspect of her complaint.

The complainant further submits that she was harassed and victimised but I do not find that the complainant was victimised or harassed by the respondent and I do not find that the complaint is a vexatious complaint.

Having heard all the submissions and evidence I find that the respondent engaged in prohibited conduct and discriminated against the complainant on the grounds of housing assistance by his delays in filling out the social housing support application form and taking note that he did eventually complete that form, I award the complainant €1,500 for the stress and financial distress this caused her.

Taking into account all the submissions, written and oral that were made to me, I find that

The respondent engaged in prohibited conduct by his failure to sign the complainant’s rent supplement form in a timely manner and award the complainant €1,500.

The complainant was not harassed by the respondent on grounds of housing assistance and was not victimised by the respondent on the grounds of housing assistance.

Housing assistance, equal status