Complainant

Respondent

Parties

Noreen O’Reilly

Cork City Council

Representatives

Traveller Visibility Group, Cork

Officers of the Council

Act

Complaint Reference No.

Date of Receipt

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

CA-00041512-001

11/12/2020

On the date of the hearing of this complaint, March 30th 2022, Ms O’Reilly and her husband had been housing applicants with Cork City Council for 11.5 years.  On her complaint form, Ms O’Reilly said that, between July 2020 and December 2020, she submitted bids on 20 properties that the Council had available but she was not allocated any property.  She said that her family circumstances and the fact that she is a carer for her mother, should make her a priority with the Council.  She claims that her family is being discriminated against because they are Travellers.

Applications for Housing to Cork City Council

Ms O’Reilly and her husband have three children, aged between two and nine.  In September 2020, some of the family tested positive for Covid-19 and, as an emergency measure, they were allocated a house in Farranree.  Before that, they lived at a location known as “Annie’s Field,” without access to water or sanitary services.  The family have applied to be housed in standard accommodation in Farranree, so that Ms O’Reilly can be close to her mother.

In his submission in advance of the hearing of this complaint, Mr Erbsloh described the Council’s “choice-based letting” system (CBL) where approved applicants for housing can bid on the standard housing available in any week.  The list is updated weekly.  Standard social housing managed by approved housing bodies is included in the list of the Council’s available properties.

Houses are allocated in accordance with the Council’s Allocation Scheme, which was adopted by councillors in 2017.  A copy of the Scheme was submitted to me in advance of the hearing.  Members of the Traveller community are second in order of priority for houses, after people who are homeless.  Mr Erbsloh said that the CBL’s electronic system of prioritisation considers the years on the housing list as a key factor for allocating properties and he said that this is consistently reinforced in communications with the Council.   He said that seven years on the housing list is the average length of time that an applicant can expect to wait before they are allocated a house through the CBL system.   

In December 2020, when she submitted this complaint to the WRC, Ms O’Reilly had been 10 years and one month on the housing list.  In the summer and autumn of 2020, when the family were 9.5 years on the list, Ms O’Reilly submitted several bids on the CBL system.  An applicant may submit one bid for several properties, when similar houses in new estates, all with the same number of bedrooms are offered in one “bid.”  Mr Erbsloh submitted that just counting single bids is misleading, as this may hide expressions of interest in multiple properties.  Between July and September 2020, Ms O’Reilly submitted five individual “bids,” and these related to approximately 25 houses.  In his submission, Mr Erbsloh provided details of the various bids and the locations of the available houses.  In early October 2020, when she enquired with the Council about her bids, she was informed that she was not considered for a direct allocation of a property and she had not been nominated as a suitable applicant to one of the approved housing bodies.

On October 14th 2020, Ms O’Reilly sent an ES1 form to the chief executive of Cork City Council, claiming that she was being discriminated against on the Traveller ground, by not being allocated housing.  A copy of the ES1 form was included in Mr Erbsloh’s documents at the hearing.  The chief executive did not reply and Mr Erbsloh said that “such inferences as appropriate should be drawn from the failure of Cork City Council to respond” to the form.

Cork City Council’s Record of Providing Accommodation to Travellers

In his submission, Mr Erbsloh submitted that the findings of the Ombudsman for Children, the Irish Human Rights and Equality Commission (IHREC) and the WRC in previous complaints illustrate that Cork City Council “has institutional or systemic problems associated with the provision of accommodation to Travellers.”  The findings of these bodies form the background to Ms O’Reilly’s case.

Mr Erbsloh included in his documents a copy of a report of the Children’s Ombudsman, “No End in Sight,” published in May 2021.  He said that the report is critical of Cork City Council’s management of Traveller files and the operation of the CBL system.  He referred to three of the report’s findings, and its observation that the Council’s “failure to account for the disadvantages experienced by Travellers in effectively securing accommodation is based on undesirable administrative practices.”

Out of the findings of the report of the Children’s Ombudsman, certain recommendations emerged.  Mr Erbsloh referred specifically to the recommendation that the Council should “consider whether the current allocation system is appropriate in ensuring equal access to social housing.”

In a review of local authority Traveller accommodation published by IHREC in July 2021, the Commission referred to “structural issues” and the “frequently deficient process for identifying actual and future housing needs.”  The Commission noted that “There has been no facility for people to identify themselves as members of the Traveller community on the social housing application form.”  The report concluded that “This lack of an ethnic identifier … has implications for the identification of and inclusion of Travellers within the particular housing streams.”

Regarding a specific Cork City Equality Review, and referring to the online CBL system, the IHREC review observed that, “…this form of digital exclusion placed Travellers at a distinct disadvantage to the general population as the process for applying for local authority housing is online-based.”  The review identified “flaws in the system to capture and record the accommodation needs and preferences of Travellers.”

Mr Erbsloh referred to the decision of my colleague, Ms Patsy Doyle in October 2020, on the complaint of Mr James McCarthy and Cork City Council[1].  Ms Doyle upheld Mr McCarthy’s complaint of discrimination on the Traveller ground and made an award of compensation of €8,000.  In her findings, Ms Doyle commented on the record-keeping and the transparency of housing allocations and the CBL and she ordered the Council to review the CBL scheme to equality-proof its operation.

Summary of Ms O’Reilly’s Case that Discrimination has Occurred

Mr Erbsloh submitted that Ms O’Reilly case consists of the establishment of the following facts:

a.            Ms O’Reilly and her family are Travellers;

b.           Cork City Council is aware that Ms O’Reilly’s application for housing is from a Traveller family;

c.            For certain periods, Ms O’Reilly and her family were effectively or actually homeless;

d.           Ms O’Reilly has been on the housing list for 11.5 years;

e.           Ms O’Reilly’s status as a Traveller and homeless should have afforded her family priority in accordance with the Council’s allocation scheme;

f.             Ms O’Reilly has spent longer on the housing list than the average CBL applicant;

g.            Ms O’Reilly has submitted bids on multiple properties;

h.           None of Ms O’Reilly’s bids were successful, despite her family’s priority under the housing allocation scheme and the length that she was on the housing list;

i.             Cork City Council’s record of providing accommodation to Travellers has been called into question by the WRC, the Office of the Ombudsman for Children and the Irish Human Rights and Equality Commission.

Based on these facts, Mr Erbsloh asserted that Ms O’Reilly has established a prima facie case necessitating, in accordance with section 38A of the Equal Status Acts 2000 – 2018, that Cork City Council sets out its reasons for the failure to allocate a house to Ms O’Reilly and her family.

Cork City Council provided a response to Ms O’Reilly’s submission, which I will summarise here:

(a)         Ms O’Reilly and her family are Travellers

The O’Reilly family is qualified for social housing support with Cork City Council and their credit time dates from 2010.  Ms O’Reilly submitted an application in 2010 when she was single and living with her parents.  Her application was approved on the basis of over-crowding in her parents’ house.  She was recorded as being a member of the Traveller community and, as a sole applicant, she qualified for a one-bedroom property.

In 2012, Ms O’Reilly updated her application for housing and added her husband, and in early 2013, she updated her application again to include her son, James.  This changed the family’s housing need to a two-bedroom property and Ms O’Reilly also indicated her interest in the rental accommodation scheme and a bay in a Traveller halting site.  When Ms O’Reilly had a second baby boy in 2015, she added her new son to her application, although the family still qualified for a two-bedroom property.

In their submission, the Council referred to clause 24 of the Social Housing Assessment Regulations 2011 concerning the criteria to be considered when allocating housing to an applicant on the housing list:

For the purposes of determining the form of social housing support appropriate for a qualified household, a housing authority of application shall, in its record of qualified households –

(a)         Classify the household’s accommodation need by reference to the following matters:

(i)   The total number of persons in the household, and

(ii)  The total number of persons of each gender in the household aged 18 years or more, the total number of persons of each gender aged less than 18 years and their inter-relationships.

The Council will also have regard to the definition of “over-crowding” as specified in section 63 of the Housing Act 1966, so that a dwelling is deemed to be over-crowded at any time when the number of persons ordinarily sleeping in they dwelling and the number of rooms “are such that any two of those persons, being persons of ten years of age or more of opposite sexes and not persons living together as husband and wife must sleep in the same room.”

It is apparent from this that it is not considered inappropriate for two siblings of the same gender to share a bedroom.

The Council’s submission states that there was very little contact with Ms O’Reilly from August 2015 until early 2020.  Ms O’Reilly’s third baby son was born in March 2020 and this changed the family’s approval criteria to a three-bedroom unit.  From around this time, Ms O’Reilly began to submit bids more frequently through CBL and to engage with the Traveller Accommodation Unit.  In October 2020, the family accepted an offer of a three-bedroom, furnished property which was made available through a new form of housing support, the “long-term lease scheme.”  The house was allocated to the family because of concerns about access to sanitary facilities during the Covid-19 pandemic.  The land where the family was living at Annie’s Field is in private ownership and Cork City Council has no authority to instal water facilities, or to place a portaloo on the site.  The allocation of the three-bedroom house through the long-term lease scheme was considered to be the most expedient solution to the need to provide the family with suitable accommodation.

The Council’s submission noted that the house allocated to the O’Reilly family in October 2020 was furnished and was also located in Ms O’Reilly’s area of choice, in Farranree.  On the date of the hearing of this complaint, Ms O’Reilly and her family were still living in this property, rent-free, and they continue to have access to the CBL system to identify a property to meet their long-term needs.  They have been nominated twice to Tuath, an approved housing body, for a property that they expressed an interest in through the CBL system.

(b)         Cork City Council is aware that Ms O’Reilly’s application for housing is from a Traveller family

The Council’s officers in the Housing Accommodation Unit are aware that Ms O’Reilly and her family are members of the Traveller community.  In their engagements with the Traveller Accommodation Unit in the Council, they have looked for support for bids submitted on standard social housing units available through the CBL, rather than seeking Traveller-specific accommodation on a site on a halting bay.

(c)          For certain periods, Ms O’Reilly and her family were effectively or actually homeless.

The official record of clients of the Council who are homeless refers to the number of adults and children accessing temporary emergency accommodation.  The Council has no record of the O’Reilly family engaging with the Accommodation Placement Service for homeless people.

(d)          Ms O’Reilly has been on the housing list for 11.5 years.

Ms O’Reilly’s original credit time on the housing list since she made her first application in 2010 has been retained, although there have been short periods of closure pending submission of review documents.  Over the course of being on the housing list, the family’s approval criteria has changed from a one-bed unit, to a two-bedroom and most recently, a three-bedroom house.

(e)          Ms O’Reilly’s status as a Traveller and homeless should have afforded her family priority in accordance with the Council’s allocation scheme.

The Council does not consider Ms O’Reilly and her family to be homeless.  The Council recognises that the family are Travellers and that they were in inadequate housing.  For this reason, in October 2020, they were offered social housing support in the form of a long-term lease on a three-bedroom house.  They have also been twice nominated to an approved housing body for consideration of properties that they expressed an interest in through the CBL system.

(f)           Ms O’Reilly has spent longer on the housing list than the average CBL applicant.

While the waiting time on the housing list can vary, the current average waiting time is eight years.  The waiting time varies depending on the area that an applicant selects and some high-demand areas command significant waiting times.  Between 2016 and 2020, Ms O’Reilly expressed an interest in three- and four-bedroom units at the time she was assessed as suitable for a two-bedroom unit, and this resulted in her not being nominated for the properties she selected.

(g)          Ms O’Reilly has submitted bids on multiple properties.

Since the CBL system was introduced in November 2015, Ms O’Reilly and her husband have submitted 19 expressions of interest or “bids.”  A list of the bids submitted by Ms O’Reilly was included in the Council’s submission and this shows that, in 2016 and 2017, Ms O’Reilly submitted two bids in each year.  In 2018 and 2019, she submitted one bid in each year and in 2020, she submitted eight bids.  In 2021, she submitted five bids.  The family was not eligible for three- and four-bedroom properties that they submitted bids on before they had their third son in March 2020.  Properties in another identified location were in very high demand, and Ms O’Reilly was not successful in her bids for these properties, although another Traveller family with very high needs was allocated a property in that location.

At present, the family is approved for a three-bedroom property, based on their household composition of two adults and three children.  Since the system was launched, and, up to the end of March 2022, over 700 two-bedroom and 1,100 three-bedroom properties have been available through the CBL system.

In August 2020, when they expressed an interest in a property in Bishops Avenue, the family was considered for a nomination to Tuath, one of the approved housing bodies.  For reasons related to Tuath’s qualification criteria, the nomination did not proceed.  When Ms O’Reilly submitted a bid on another property under the management of Tuath, the Traveller Accommodation Unit made a strong representation and the family was formally nominated for a property on which they had submitted a bid.  Although they were notified of this in February or March 2021, the tenancy did not proceed.

In April 2021, the family submitted another bid on units in the same development and they were nominated for a three-bedroom house in November 2021.  Despite several attempts to engage with the family, Tuath indicated that there was a lack of contact and the nomination did not proceed to a tenancy.

(h)          None of Ms O’Reilly’s bids were successful, despite her family’s priority under the housing allocation scheme and the length that she was on the housing list.

Since October 2020, Ms O’Reilly and her family has been in receipt of social housing support through the long-term lease scheme.  Since then, they have also been considered for a number of CBL properties.

At the hearing, Mr Erbsloh outlined Ms O’Reilly’s contact with the Council since 2015.   In the summer of 2020, he said that Ms O’Reilly contacted him and he sent an email to the Traveller Accommodation Unit in the Council, asking them to advocate with the Housing Allocations Section.

Mr Erbsloh said that, once bids have been submitted, the CBL system is “opaque,”.  He said that between July and September 2020, Ms O’Reilly submitted four or five bids on up to 25 properties.  When she wasn’t allocated a property, she sent an ES1 form to the Chief Executive of the Council. 

Referring to the housing priority being based on homelessness and being a Traveller, Mr Erbsloh said that when the family was living in Annie’s Field, they were “de facto” homeless, as the accommodation was entirely unsuitable.

As they have not been considered for any of the 25 properties on which Ms O’Reilly submitted “bids” or expressions of interest between July and September 2020, Mr Erbsloh argued that they have been discriminated against.

Ms O’Reilly gave evidence at the hearing, confirming that she has been on the Council’s housing list for 11 years.  She said that, with three children, she was living in very bad conditions in Annie’s Field.  At the beginning of the Covid-19 pandemic, she had a new baby.  She lived in conditions with no running water and no electricity generator.  When her children were sick, and when she and her husband were sick, her family was not considered for a house.  She said that “there must be something wrong.”  She feels that her family is not in the Council’s sight or in their train of thought.  Ms O’Reilly said that there is “no reason not to house us” and the only explanation she can think of is discrimination.

Ms Lisa Hogan is an administrative officer in the Housing Allocations Section of the Council.  At the hearing, she agreed that Ms O’Reilly has been on the housing list since 2010.  She said that the average waiting time to be allocated a house is eight years.  Ms Hogan described the CBL system which has been in operation since 2015.  She said that, through this system, all the Council’s housing stock and houses managed by approved housing bodies are made available for expressions of interest or “bids” from people on the housing list.  When the bids are submitted, applicants are ranked in order of the length of time they have been on the list.  The allocations officer then allocates a property based on a house size and a family’s need.  Representations come in from advocacy groups such as the Traveller Action Group, Tusla and local councillors.  Every Wednesday morning, the bid list is downloaded and the allocations officer decides who is most in need of the available properties.  Ms Hogan said that the officer must achieve a balance between an urgent housing need and an applicant’s request for “a home for life.”

In the documents submitted by the Council, Ms Hogan referred to the bids Ms O’Reilly submitted between February 2016 and February 2020.  All the bids were for three- and four-bedroom units, although Ms O’Reilly had two young sons and was eligible for a two-bedroom property.  Ms Hogan confirmed that, since March 2020 and the birth of her third baby, Ms O’Reilly’s needs have changed and she is now eligible to be allocated a three-bedroom property.

In July 2020, Ms O’Reilly applied for three properties in St John’s Well.  The properties were end of terrace or detached and they attracted considerable interest, with over 800 bids on each.  Ms O’Reilly was placed 60th and 61st on the list for these properties.

In August 2020, Ms O’Reilly expressed an interest in one of eight three-bedroom houses in Bishops Avenue offered by Tuath, an approved housing agency.  Again, over 800 bids were received for these properties and Ms O’Reilly was 65th on the list.  Due to the family’s particular circumstances in Annie’s Field, Ms Hogan said that Ms O’Reilly’s file was reviewed and they were considered for one of these properties.  Ms O’Reilly’s application was presented to Tuath, but it was rejected when the family was not able to meet one of the qualifying criteria.  At the hearing, Mr Erbsloh said that, in October 2020, that issue was resolved.

On November 25th 2020, Ms O’Reilly submitted a bid on 11 three-bedroom houses at Bishops Avenue.  These houses were also offered by Tuath.  Ms Hogan said that the issues that prevented the August 2020 bid going ahead had been resolved and on December 22nd, the family was nominated for one of the 11 houses.  In February 2021, no action had been taken with regard to moving in to a house at Bishops Avenue and Ms O’Reilly contacted the Housing Allocations section.  Ms Hogan then got in touch with Tuath and she was surprised to be told that they weren’t proceeding with the allocation of a house to Ms O’Reilly, based on a report that the Gardaí had concerns.  Ms Hogan said that the Council has no authority to instruct a housing body to allocate a property. 

Between December 16th 2020 and February 24th 2021, Ms O’Reilly submitted three bids on three-bedroom homes (32 houses in Bishops Avenue and one in Fair Hill Drive) but these applications were not considered because she had been nominated for a house on Bishops Avenue on December 22nd.

On April 24th 2021, Ms O’Reilly submitted a bid on seven houses in Bishops Avenue and the allocations officer again nominated the family to Tuath.  Ms Hogan said that in November 2021, there were three properties available in Bishops Avenue and the family was nominated for the last remaining three-bedroom house.  The family was interviewed on November 18th and on November 25th, further information was requested by Tuath, including a reference from the family’s current landlord.  Ms O’Reilly did not respond to the request for a reference, and the housing body followed up with her in January 2022.  There was no response to this further communication.  Ms Hogan said that she has been informed by the housing body that the family don’t wish to be considered for the house at Bishops Avenue.

Mr Erbsloh said that all this activity occurred after this complaint was submitted to the WRC in December 2020. 

Since October 2020, the O’Reilly family have been living in a house under the long-term leasing scheme which came into operation in 2019.  Ms Colette Dennehy is the administrative officer in the Traveller Accommodation unit in Cork City Council and she gave evidence about how the scheme works.  She said that families in temporary long-term leasing units remain on the housing list and continue to be considered for bids through the CBL.

When some of the O’Reilly family tested positive for Covid-19 in October 2020, they had the option of going into emergency accommodation for the period they were required to isolate, or they were offered a property from the long-term leasing scheme.  Ms Dennehy said that they family decided on the long-term leasing option.

Mr Erbsloh said that he understands that applicants can move from a leased property to a permanent house and that they remain on the housing list as a transfer applicant.  Ms O’Reilly said that she never agreed that the leased house would be a long-term option.  She said that the property isn’t suitable.  It is too small, and has damp and mildew, which is detrimental to her children’s health, particularly the health of one of her boys.  There is sewage at the rear of the back garden and there is anti-social behaviour in the area.  Mr Erbsloh described Ms O’Reilly’s current arrangement as “emergency accommodation.”

Mr Erbsloh argued that the response submitted by the Council’s representatives at this hearing concern actions after Ms O’Reilly’s complaint was submitted in December 2020.  He said that the discrimination occurred between July and December 2020.

Ms Hogan said that Ms O’Reilly is not excluded from being made an offer for a permanent house in the future.  She advised Ms O’Reilly to include the details of her son’s health problems in her application. 

At the end of the hearing, I asked Ms O’Reilly why she didn’t proceed with the offer of a house from Tuath in December 2020.  She said that the house that they were offered wasn’t the one that she submitted her bid on and it was too small, as one of her sons needs a lot of space.  She said that she told the person she was dealing with in Tuath that she wouldn’t be happy there.  She said that she was afraid that she would be left there and she didn’t want to look for a transfer in a few years. 

The Legal Framework

Discrimination is defined at section 3 of the Equal Status Act (“the Act”) as follows:

(1) For the purposes of this Act discrimination shall be taken to occur -

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which -

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

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

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

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. 

Subsection (2) sets out the discriminatory grounds, one of which, at subsection (2)(i) is;  

(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”).

In accordance with the objectives of the Act, the public has a right to access the services of the local authority without being discriminated against on any ground.  Section 5(1) addresses this right:

A person shall not discriminate in the disposing of goods to the public generally or to a section of the public, or in providing a service, whether the disposal or provision is for a consideration or otherwise and whether the service can be availed of only by a section of the public.

Section 6(1) of the Act has the title, “Disposal of premises and provision of accommodation” and deals specifically with housing:

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.

Subsections (2), (3) and (5) are not relevant to the complaint under consideration here.  Subsection (4) has been deleted.

Subsection (6) provides that a housing authority may provide different treatment to people based on their membership of the Traveller community or other criteria:

(6) Nothing in subsection (1) shall be construed as prohibiting—

(a) a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1998, or

(b) a body approved under section 6 of the Housing (Miscellaneous Provisions) Act, 1992,

from providing, 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.

My task is to investigate how Cork City Council has responded to Ms O’Reilly, as a member of the Traveller community, for suitable housing for her family, and to decide if, on the basic facts, a presumption of discrimination has been shown.

Applications between July and September 2020

On behalf of Ms O’Reilly, Mr Erbsloh argued that “the core of the issue” is that discrimination occurred between July and September 2020, when Ms O’Reilly wasn’t offered any house that she expressed an interest in through the CBL system.  I will therefore confine my investigation to the Council’s response to Ms O’Reilly’s applications during those months.

In July 2020, Ms O’Reilly applied for three three-bedroom houses, two of which were end of terrace and one of which was detached.  More than 800 bids were received for each of the properties.  Ms O’Reilly was 60th and 61st on the list for being offered one of the properties, and an offer was not made. 

In August 2020, Ms O’Reilly was 65th on the list arising from her next bid, for one of eight houses on Bishop’s Avenue, under the management of the Tuath housing agency.  Although she was a long way down the list, because of her circumstances, the Traveller Accommodation Unit made representations to Tuath on her behalf and she was considered for one of the houses.  Unfortunately, an offer wasn’t made because of one of Tuath’s qualification criteria that the family couldn’t meet at that time.

In September 2020, Ms O’Reilly submitted a bid on 12 houses in The Meadows, Hollyhill.  Over 500 expressions of interest were received for these houses and Ms O’Reilly was 34th on the list.  I wish to mention also an application submitted in October 2020, around the time that the family were housed in the long lease property.  Ms O’Reilly made a bid for a three-bedroom bungalow in Sunset Place.  Almost 1,000 bids were received for this house and Ms O’Reilly was 84th on the list.  This placed her more than 700 ahead of others, many of whom are unlikely to have been members of the Traveller community.

In summary therefore, this is the outcome from five unsuccessful bids between July and October 2020:

Has Discrimination Occurred?

Mr Erbsloh described the CBL system as “opaque,” meaning that it is not transparent and that it is unclear how properties are allocated.  I found that the records submitted by the Council at the hearing were clear and easy to understand.  The missing details concern information about the circumstances of those placed ahead of Ms O’Reilly on the list.  I accept that this information cannot be provided to me or to Mr Erbsloh for reasons of confidentiality.  We are therefore asked to trust the selection process that has resulted in Ms O’Reilly’s place on the list following each of her expressions of interest.    

I reviewed the Council’s Allocation Scheme document which was provided to me in advance of the hearing.  I note that the purpose of this Scheme is,

“…to provide a means for determining the order of priority to be given in the allocation of dwellings (or particular categories of dwellings) to households (or to particular classes of such households) assessed by Cork City Council as being qualified for social housing support and to households already in receipt of social housing support…”

It is apparent that this Scheme is intended to provide a structure to the Council’s responsibility for allocating housing, and, while certainly not scientific, the Scheme is intended to ensure that, when housing is being allocated, vulnerable groups are considered in order of certain priorities.  I note that homeless people and travellers are listed as (a) and (b) in the list of priority groups.  Having listened to the evidence presented at the hearing, it seems to me that, while consideration is given to each application based on the length of time an applicant is on the housing list and their membership of an identified group (homeless, travellers, young people leaving care, financially unable to provide their own accommodation) that consideration is given to each applicant’s particular needs, and I find that this was the case with Ms O’Reilly.

While Ms O’Reilly has been more than 11 years on the Council’s housing list, she has been eligible to apply for a three-bedroom house since March 2020.  It must be the case that there are families on the housing list with more children and some families with greater needs than Ms O’Reilly’s family.  The fact that she was not successful in her application for a three-bedroom house after three months of applying, cannot in my view, point to an inference of discrimination.

As a family with two small boys and a baby, living on an unofficial site, there can be no argument that, in the spring and summer of 2020, Ms O’Reilly’s needs were critical and urgent.  By October 2020, her urgent needs were met when she was allocated a house in Farranree, although not the type of house in the location she wanted.  The fact that the Council intervened with the family at that time, without having any regard to their place in the housing list, indicates to me that their ethnic status as a Traveller family did not result in discrimination, but rather that it resulted in them being treated more favourably than if they were not Travellers.   

That said, Mr Erbsloh argued that discrimination occurred in the period from July to September 2020.  In the middle of that period, in August 2020, the Traveller Accommodation unit in the Council made representations to Tuath for one of their houses on Bishops Avenue to be allocated to Ms O’Reilly, even though she was 65th on the list.  This demonstrates that the Council was prepared to treat Ms O’Reilly more favourably than others higher up the list, because she is a Traveller and living in very difficult circumstances.  In the end, this offer didn’t proceed, for reasons that were not related to any criteria imposed by the Council, but associated with the qualifications imposed by the housing body.

While not attempting a forensic analysis of the bids and the resulting lists between July and September 2020, it occurs to me that the bids Ms O’Reilly submitted for the houses in St John Well, must have been allocated to people with specific needs related to access, as the houses were end-of -terrace or detached.  The fact that she was placed ahead of more than 700 people in the order of eligibility for these houses is some indication that Ms O’Reilly’s membership of the Traveller community was not a factor that prevented her from being offered a house at this time.  The final bid during the period in question was for one of 12 houses in The Meadows, Hollyhill.  As she was placed 34th on the list for one of these houses, it must follow that, if Ms O’Reilly continues to submit expressions of interest in a house similar to those in The Meadows, then, it cannot be too long before she is allocated a house in that category.

Conclusion

It is a concern that Ms O’Reilly did not get a reply to the ES1 she sent to the Chief Executive of Cork City Council on October 14th 2020.  I assume that the reason was because the family was placed in one of the Council’s long-term lease properties around that time.  However, none of the questions in the ES1 were answered, with the result that, two months later, Ms O’Reilly submitted this complaint to the WRC.

I am mindful of Ms O’Reilly’s evidence at the hearing of this complaint when she said that “there must be something wrong” that is preventing the Council from responding more positively to her expressions of interest.  She assumes that this “something” is related to her being a member of the Traveller community.  Having considered the process of her applications between July and September 2020, I have not reached the same conclusion, and it is my view that the fact that she is a member of the Traveller community and the circumstances of her family has resulted in her being treated fairly and in accordance with the Council’s housing Allocation Scheme.   

Based on the evidence presented to me at the hearing of this complaint, I find that Ms O’Reilly has not established that discriminatory treatment is the reason that she was not allocated a house by Cork County Council between July and September 2020.  For this reason, I decide that this complaint is not well founded.

Discrimination on the Traveller ground