Complainant

Respondent

Parties

Mandy  Place

Marie Ioannidis

Representatives

  Self

Simon Gillespie BL instructed by  Brendan Kelly Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004   Withdrawn at Hearing

CA-00053944-001

30/11/2022

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

CA-00053944-002

19/01/2023

This case is concerned with two complaints under the Equal Status Act related to an alleged breach of Section 6 of the Act on the housing ground associated with an application for rent supplement and also a complaint of victimisation.

The Complainant gave evidence that she began renting a house  from the Respondent in October 2021 on a twelve-month lease. Some months later she followed up with the Respondent regarding registration with the RTB as the property was not registered at that stage. The Complainant explained that she began  to experience financial difficulties after she lost her job. She began to offer palates classes at the premises and advertised same as part of a staycation. She had a disability as agreed by the DSP ,the full amount of which was reinstated in January 2022. However, she was having difficulty making ends meet although she did get some other support. She kept in contact with the Respondent about her difficulties. By the summer of 2022 she had accumulated arrears. In July she provided a staycation. When the landlord learned about it, she told the Complainant she did not want her to do any work at the house. The ads were cancelled and the Complainant gave the €200 she had received to the landlord for rent for which she received a receipt months later. The arrears in July amounted to €1210 and the rent was €780. From July she began clearing the arrears at a rate of €50 per week. By the 9.12.2022 the arrears from July stood at €370 but as she was unable make ends meet, she could not pay the rent  and the arrears. Payments to the landlord ceased altogether in December 2022 and she left the property in April 2023. The Complainant made a complaint to the RTB and there was a hearing in February 2023 which is under appeal. She referred to issues with the boiler. The DSP did not agree to pay her rent allowance which was her means of paying the rent and the arrears-they decided she was not entitled to any means of trying to pay her arrears. Her application was refused on various grounds.

On 6.10.22 she sent an ES1 form to the Respondent and received a reply from her solicitor on 20.10.22.

On 08.08.22 she asked the Landlord if she had signed the rent allowance form. The landlord had to sign the form in person. At first, she said she would but now understands that the landlord went to the social welfare office and later instructed a solicitor. On the 18.08.22 she was told that the landlord would not sign the form and all contacts were to be through her solicitor. One of the reasons given for not signing the form was that when completing the form, the Complainant stated that her son lived at the house. The landlord denied that she knew this. The Complainant argued that the landlord knew that she had joint custody, that her son had special needs and had seen his toys and had known which bedroom he used when at the house. On any inspection the landlord would have known her son stated there.

On the complaint of victimisation, the Complainant referred to a planned inspection which took place in September. There was a problem with wet on the laminate floor and the landlord and her partner took photos and implied that she was responsible for the problem. She felt that this was all dubious and deliberate action against her. Later that night the landlord returned to inspect the fireplace/boiler. This was inappropriate, a deliberate attempt at victimisation. Asked why this was victimisation, the Complainant replied that the actions of the Respondent on that day in September made her feel like a victim, blaming her for any damage to the floor and conducting a false and misleading inspection in relation to the boiler.

In cross examination the Complainant stated that on 16.08.22 she handed the Respondent the completed rent supplement application form backdated to 08.08.22. She agreed that the Respondent offered to send in the form.

In relation to her son, the Complainant denied  that what she had said on the form that her  son was living at the house was untruthful.

On question 32 self-employment-she had no income from palates in reality.

Asked if she agreed that the Respondent never actually refused to sign the rent allowance form, the Complainant replied that she had received an email from the Respondent solicitor on 06.09 to the effect that she would not sign the form.

In her concluding remarks, the Complainant said that she was in a very vulnerable situation at the time which she as doing her best to resolve. Had the Respondent signed the form at the time when she said she would, the application would have been passed. The Respondent had the means to do so. Instead, she went to a solicitor to get her out of the property before could receive rent allowance and made her more vulnerable.

On behalf of the Respondent, it was submitted that the Respondent first received a completed rent supplement form on 16.08.22 when she completed a pre notified inspection. The version she received circa 13 August was blank-not completed by the Complainant. When asked, the Respondent said she had no difficulty with accepting rent supplement.  When she received the completed version, the Respondent took the form away and said she was more than willing to sign it-offering to deliver it in person to the relevant office some distance away. During the inspection on August 16th,the Complainant said she had a difficulty with the CWO who was insisting that this was a four-bed property and this might a adversely affect her chances of being a approved for rent supplement as she lived alone at the house.

 On reading the form, the Respondent had major concerns as it contained material falsehoods. The Complainant had stated  on the form that her son was living at the property whereas it was the landlords  understanding from text messages previously received, that the Complainants son lives in  Co Galway with his father and visited the Complainant during holidays. There was a concern about the answer to the question regarding rent arrears given the Complainant was in arrears at that time. When the Respondent contacted the CWO it was to establish the value of the arrears to be included.

The form did not say that the Complainant was self-employed or had provided  palates/staycation at the property.

On another part, the Complainant had answered yes and no to the same question-about a reduction in her income.

The Respondent took advice first from citizens information and then a solicitor.

There  were issues of concern to the Respondent-breaches of the tenancy agreement. The Complainant was in arrears; she was not allowed to sub let the property and had done so  as a staycation ;batteries were not replaced in the smoke alarm. Prior to being asked to sign the rent supplement form, the Respondent had served a warning notice on the Complainant regarding rent arrears(copy dated 08.08.22 provided).

The Respondent had commenced a parallel process -six days after the Complainant provided the completed RS form-and that process related to breaches of the tenancy agreement, seeking vacant possession and on 07.09.22 a notice to quit was issued to the Complainant. The Respondent was perfectly entitled to seek an end to the tenancy agreement in the circumstances.

In his cross examination and summary Mr Gillespie BL implied that at no stage did the Respondent refuse to sign the Rent Allowance form. This was corrected by the Complainant in her evidence where she provided an email from the Respondents solicitor in which it was made clear that the Respondent would not engage further with signing the rent supplement form. In his summary Mr Gillespie stated that a parallel process  had commenced regarding the breaches in the tenancy. Notice to quit was issued on 7 September 2022 a process the Respondent was perfectly entitled to follow. A refusal to sign a rent supplement application is not an act of discrimination. The letter from the solicitor stating that the form would not be signed was issued after the parallel process of terminating the tenancy had commenced.

On the complaint of victimisation, it was submitted that at no stage did the Complainant do something as described in the Equal Status Act for which she was victimised.

Evidence of Maria Ioannidis

In her evidence the Respondent confirmed that she is the owner of the rented property which was advertised on Done Deal. The Complainant responded and provided references. The Respondent was aware of some parts of her background and understood that her son would be visiting. The rent was agreed and the tenancy was signed for the period of twelve months from October 2021 to October 2022.

The witness described difficulties that occurred: rent was being paid sporadically; there was a problem with subletting/staycation which was advertised by the Complainant; the insurance was invalidated by a message on Facebook where to leave the key; a dog was to be allowed at the house-no pets were allowed on the tenancy.

The witness described a phone  conversation on 25 July as ‘hard’. Rent arrears were an issue at that stage as well as the breach of the tenancy agreement.

The Complainant informed her about the rent supplement form which she then planned to collect on 13 August. That form was blank. On 16 August there was an inspection and, on that date, when she referred to the blank form-she was handed a completed form which she said she would complete and deliver to the CWO. When she read it through, she found it contained misleading information. As she had never completed a rent supplement form before she then went to the CWO. Section 7 of the form said she was up to date with rent at that stage whereas the Complainant was over a €1000 in arrears. The CWO was not there when she called but rang her later. When the Respondent explained each of her issues, the CWO advised her to get some legal advice. Then she rang the citizens information office who also advised her to get legal advice. This was on 19.08.22. After she saw the solicitor, all correspondence was to be through him. Correspondence issued of a twenty-eight-day notice to quit end the tenancy.

In her evidence the Respondent stated that she did not want to sign misleading information.

Under cross examination by the Complainant, the Respondent stated that the Complainants son was not there during her inspections. She did agree that she knew he would be staying there and which bedroom he used when visiting. 

The witness agreed she was aware that the Complainant needed financial help to pay the rent.

The witness agreed that the breach of the tenancy of the staycation did not occur after July when she instructed that it stop.

On the sequence of dates, the witness stated that she agreed to sign the form on 16.08-that she spoke with the CWO on the 18th and then to the solicitor on 19.08.

Asked again why she did not sign the form, the Respondent again referred to signing false and misleading information and she did not go back to discuss her concerns with the Complainant because communications were not great at that stage, describing them as difficult, tense. She was concerned to ensure that the twenty-eight-day notice was issued.

In his summary, the Respondent representative stated the complaint was rejected. There was no obligation on a landlord to complete a form or one containing false and misleading information. A process to terminate the tenancy commenced on 22 August and there was no obligation to compete the form thereafter. He clarified that the notice to vacate the tenancy was issued on 22 August 2022 prior to statement by the solicitor on behalf of the Respondent to the effect that the form would not be signed.

Preliminary Issue -references to a decision of the Residential Tenancies Board

During the hearing both parties wanted to cite or refer to a decision of the RTB following a hearing in February 2023 in support of their position including the fact that the decision of that Body is under appeal. For the avoidance of doubt, and to reiterate what was advised to the parties to this hearing, that other body dealt with an issue under entirely different legislation to the Equal Status Act. The Decision in this case is based on the terms of the Equal Status Act 2000 as amended and the evidence before this hearing. This conclusion is consistent with the observations of the Respondent when they appeared before the RTB and the decision maker himself in his RTB decision in his summary of reasons (see RTB Adjudication Report(undated) following a hearing on 14 February 2023.

Complaint of Victimisation

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).

Nothing at all in the Complainants evidence on this aspect of her complaint falls within the definition of victimisation contained in the Equal Status Act 2000, as set out in the above extract . While the complaint may have felt that she was a victim due to her vulnerability and for reasons related to the inspection which occurred in September 2022, nothing in her evidence related her feelings to the actual terms of the legislation and in particular she having exercised her rights under any of the subclauses as described in the same section, prior to any act of such alleged victimisation. The complaint of victimisation is not well founded.

Complaint of Discrimination

3.— (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,

Disposal of premises and provision of accommodation.

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.

(2) Subsection (1) does not apply in respect of—

(a) the disposal of any estate or interest in premises by will or gift,

(c) 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 thepublic generally or a section of the public,

(d) 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, or

or

(e) 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.

(3) References in subsection (2) to the disposal of an estate or interest in premises or the provision of accommodation or of any services or amenities relating to accommodation include references to the termination of any tenancy or other interest in those premises or ceasing to provide such accommodation, services or amenities.

(5) 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, a refusal to dispose of the premises or provide the accommodation to a person who is not in that category does not, for that reason alone, constitute discrimination.

(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.

(7) (a) Nothing in subsection (1) shall be construed as prohibiting, in relation to housing accommodation provided by or on behalf of the Minister, different treatment to persons on the basis of nationality, gender, family size, family status, civil status, disability, age or membership of the Traveller community.

(b) Nothing in paragraph (a) shall derogate from any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003 or any Act adopted by an institution of those Communities.

(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 inrespect of his or her residence.

Discriminatory Grounds

(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”).

In this case the complaint is based on a failure followed by a refusal by the then landlord to sign a supplementary rent allowance form. The fact is that the Complainant was never in receipt of rent supplement. Neither has she provided any comparator who falls within the definition at subsection 3B i.e., a person who was or was not in receipt of a rent allowance who she can compare herself to for the purposes of less favourable treatment than that person. While the legislation also refers to a person in receipt of a disability payment, that fact and the payment of that allowance preceded these events and in any event was not an issue of contention between the parties at any stage including these proceedings.

The Complainant in this case was never approved for a rent allowance prior to the expiry of her tenancy. At the time of the hearing, she referred to an appeal of the decision to refuse her rent allowance. She was not therefore someone ‘who was in receipt of rent supplement’ at any stage in the period August 2022 prior to the notice of eviction or post the notice of eviction up to the date of the hearing. In the absence of a comparator who in this case would have to be a person in receipt of rent allowance, whether the terms of Section 6 apply at all to the Complainant is questionable or at least whether the premise on which the complaint is made, a refusal to sign a rent allowance form is in any way valid.

The Respondent on her own admission first agreed wholeheartedly to complete the rent supplement application but then it appears that she first began to have doubts about doing so based on being provided firstly with a blank form and then questions arose in her mind in relation to the contents of the second form. At that stage she took legal advice and then gave notice to quit to the Complainant. It is important however in this case to note that the Respondent had, prior to the receipt of the rent supplement application form, previously served an arrears notice on the Complainant. Furthermore, while the Complainant made efforts to clear the arrears prior to 8 August over the months to December 2021, in parallel she built up another set of arrears during that period and yet another in the period while she contested the eviction notice. The Complainant could not be said to have complied with the warning notice issued on 8 August which was solely about arrears-she simply reduced one debt while building up another and later stopped paying rent altogether. And whatever else the Respondent could have ignored in the question she was required to sign under section 8 of the relevant form, those questions around rent arrears at section 7 of the landlords section of the form could not be completed without either giving false information or contradicting

Having reviewed the form provided by the Complainant and heard her evidence, it is not entirely clear that the refusal to approve her application for rent allowance was solely due to the refusal of the Respondent to sign the form after 16.08.22. From the Respondents evidence, the Complainant informed her on 16 August and before she had even read the form, that there were difficulties with the CWO. The only additional information on this point provided at the hearing, was that the refusal of the rent allowance was due to various reasons.

It seems that it was only after receiving the notice of arrears from the Respondent that the Complainant set about seeking rent allowance. Also in the background were the issues around the use of the premises for palates and staycation including advertising these facilities and these were followed by the contents of the form as completed by the Complainant. And issues continued to arise between the parties-batteries in a smoke alarm and the operation of a boiler, the condition of an area of the floor.  Not all issues of equal significance or fairness to the Complainant perhaps but the central point here is that, whether the actions of the Respondent and the Complainant were reasonable and in accordance with the terms of the tenancy and justified the termination of the tenancy are matters which were decided by the RTB. When examining the complaint under the Equal Status Act, that there were such issues is significant to the circumstances surrounding the Complainants relationship with the Respondent as a tenant. The evidence of the Respondent that she had issues both with the contents of the form and the conduct of the tenancy is credible and as such, on the balance of probabilities the issue for the Respondent was the behaviour of the Complainant including the performance of her tenancy and not a resistance to the concept of supporting the payment of the rent through a supplement from the Department of Social Protection.  

Burden of proof.

38A. — (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.

The Complainant has not established facts from which it may be presumed that prohibited conduct has occurred in relation to her. The absence of such facts includes a failure to provide evidence of less favourable treatment than another considering that she herself was not in receipt of rent supplement. She has not established that it was solely the landlord who was responsible for the decisions taken by the DSP Officials. The Respondent on the other hand has established that there were other issues concerning the tenancy aside altogether from the rent allowance application which influenced her attitude and actions towards terminating the tenancy.

I find that the complainant has not established that she was discriminated against or victimised by the Respondent under the Equal Status Act 2000.

CA-53944-002 As he complaints of discrimination and victimisation by Mandy Place against Maire Ioannidis are not well founded there is no basis for an order for redress.

Rent Supplement/Discrimination and Victimisation Complaints