Complainant

Respondent

Parties

Robert  O'Gara

Keenan Property Management

Complainant

Respondent

Representatives

Threshold

 Managing Director

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044726-001

18/06/2021

The complainant submits that the respondent in refusing him a tenancy on 23 April 2021, discriminated against him contrary to section Sections 3 and 6 of the Equal Status Act as amended by Equality (Miscellaneous Provisions) Act 2015, which introduced the “housing assistance grounds”.

The last act of discrimination occurred on the 23 April 2021.

The complainant submitted his complaint to the WRC on 22 June 2021.

The complainant applied on 22 April 2021 to Daft.ie for a tenancy in one of their properties listed in Dublin 7.

He was an existing HAP tenant in good standing in another property in Dublin 7 but that tenancy was ending due to the sale of the property.

He received an email on the 24 April, in which the respondent property consultant advised that the apartment selected by the complainant was for one person and was not available to HAP tenants. He did not proceed any further with his application.

As required by section 21 (a)of the Act of 2000, the complainant submitted the ES.1 form on 2 April 29 April.  The act complained of in the ES.1 form was the email of the 24 April advising that a tenancy in the particular property sought by the complainant was not available to applicants in receipt of housing assistance payments.

The respondent failed to respond to the ES.1 form.

The complainant submits that the failure of the of the property owner to submit a tax clearance certificate- cited as an obstacle to the local authority’s acceptance of any HAP application which they might make- is not a valid reason to deny him a tenancy as a landlord has 10 months after the commencement of a tenancy to sort out the matter.

The complainant paid €580 a month in his former home. He did acquire a rental property three months later in Ranelagh as a HAP applicant. The rent jumped to €900 in his current tenancy. That, also, was the asking rental in the property denied to him on the basis of his HAP status.

The complainant asks that I find in his favour

The respondent denies that they discriminated against the complainant.

The respondent is a letting agency who lets many properties to HAP applicants.

The managing director gave evidence under affirmation.

The facts are not in dispute.

It was the landlord and not the letting agency’s decision to deny the complainant a tenancy.

The property owner did not have the necessary paperwork in place to allow HAP tenants to rent the property. The managing director confirmed that they were informed prior to the letting that the landlord was not able to meet the criteria in order to proceed with a letting for a HAP applicant. The respondent submitted an extract from the HAP website which required the landlord to submit a tax clearance certificate. The landlord was unable to fulfil that requirement and so rendered herself ineligible to rent to a HAP applicant.

The respondent apologised to the complainant for their inability to consider his application, but it was not their decision.

The issue to be decided is whether the respondent discriminated against the Complainant under the ‘housing assistance ground” contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended), by refusing to consider the complainant’s application for a tenancy when requested to do so by the complainant.

 Relevant Law.

The Equal Status Act, 2000, at Section 3 states

  “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”.

 The discriminatory grounds identified in sub-section (3B) provide 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”)”.

Burden of Proof.

Section 38 A of the Act of 2000, as amended, applies to all complaints of discrimination submitted under the Equal Status Acts and lays the burden of proof on the complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination. It states:

“1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.”

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary.

This means that the complainant must first demonstrate that it was his status as a prospective tenant in receipt of housing assistance which led the respondent to deny him the tenancy.

The uncontroverted evidence is that he was refused a tenancy because he was in receipt of HAP and the email from the respondent property consultant discloses that a tenancy would not be refused to an applicant not in receipt of housing assistance.

The complainant has established a prima facie case of discrimination.

Rebuttal of discrimination.

The onus, therefore, moves to the respondent to rebut the presumption and to demonstrate that their decision to refuse him a tenancy was unrelated to his HAP status. The respondent chose not to respond to the ES.1 form.

The respondent submits that it was not they, the letting agency, but the landlord who refused a prospective tenant in receipt of HAP assistance. However, the Equal Status Act 2000 at Section 4 (6) includes an agent under the definition of a provider of a service:

“(6) In this section—

“provider of a service” means—

(d) the person responsible for the provision of accommodation or any related services or amenities in respect of which section 6 (1)(c) applies,”

The respondent managing director did not dispute the evidence that she was the provider of a service pursuant to Section 4 (6) of the Act.

The respondent submits that the landlord’s non- submission of a tax clearance certificate constituted the only bar to renting the property to the complainant.

But the HAP publication, Housing Assistance Payment; Landlord Information Booklet, states that a landlord “can rent to a HAP tenant before the payment to the landlord reaches €10,000 and the organisation will not cut off payment but will attempt to resolve the matter. As a first step, the HAP payments may be suspended rather than stopped in order to give you time to sort out any difficulties. If these difficulties are resolved, payments resume; if not, payments may be stopped completely”.

Given that the rent quoted for the property was €900 per month, there was time available to offer a tenancy to the complainant and to rectify all outstanding requirements.

The landlord was not in attendance at the hearing.

I find, therefore, on the basis of the evidence that the respondent engaged in prohibited conduct and discriminated against the complainant on the grounds of housing assistance by refusing to consider the complainant’s application to rent the property in Dublin 7 solely because he was in receipt of housing assistance. This prohibited conduct continued for two months until late June 2021 when the complainant submitted a complaint to the WRC, by which stage had secured an alternative rental property in Ranelagh. The complainant gave no evidence of any loss.

Section 27 of the Act provides that an adjudicator may make an order for compensation for the effects of discrimination.

I order the respondent to pay the sum of €1500 which I consider appropriate in the circumstances.

I find this complaint to be well founded.

 I order the respondent to pay compensation to the amount of €1,500 to the complainant for the effects of the prohibited conduct concerned.

Prospective tenant: tenancy refused. HAP