Complainant

Respondent

Parties

Ms Lica  Pop

Mr Martin Phillips

Representatives

Mr Alex O’Conor Threshold Advocate

Mr Martin Wallace Wallace & Associates

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00053841-001

23/11/2022

This matter came before the Workplace Relations Commission dated 23/11/2022.   The Complainant alleges discrimination on grounds of housing assistance when the Respondent allegedly refused to sign the Complainant’s HAP form.  The date of the first incident of discrimination was documented as 01/04/2014.  The date of the most recent date of discrimination was documented as 26/10/2022.     The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 08/08/2023. 

The Respondent submits he was unable to sign the HAP form as he did have the requisite Tax Clearance Access Number.  The Respondent denies he discriminated against the Complainant. 

This matter has been the subject of two hearings with the first hearing taking place on 17/08/2023.  This hearing was adjourned to facilitate attendance by the Complainant’s partner as he featured significantly in the evidence adduced and I explained to the Complainant there was a requirement I hear that evidence directly from him.  The gentleman in question did not attend the re-convened hearing.

As per WRC complaint form

The Complainant requested that her landlord sign her HAP forms in 2014 which the landlord refused to do.  The landlord consistently refused to sign the forms again over a number of years.  The Complainant again requested that the landlord sign the HAP forms on 28/02/2022 and was threatened with a Notice of Termination.  The Complainant again requested that the Landlord sign the HAP forms on 25/10/2022 and was served with a Notice of Termination on 26/10/2022. 

Summary of direct of Complainant on oath:

The Complainant submits she was approved for HAP in 2014.  She has been a tenant of the Respondent since 2004.  The Complainant submits she has requested that the Respondent sign the HAP form every year since 2014. 

The Respondent did not file a written submission.

The Respondent representative submits a long-term landlord / tenant relationship exists between the parties with the Complainant and her family living in the property since 2004.  It is submitted the rent at its height was €1300 per month and this was reduced down in 2008/2009 to €800.  The Respondent got into difficulties with the mortgage which went into arrears.  The Respondent then became non tax compliant, and he was unable to get a tax clearance access number. 

It is submitted the Respondent served a Notice of Termination on the Complainant following her request to do so if he could not sign the form.    

The Respondent’s defence by way of rebuttal to this complaint is that he was prevented from completing the HAP form because he did not have a Tax Clearance Access Number until 10 December 2022. 

CA-00053841-001

In conducting my investigation, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters on a number of instances.

Based on my observations of the demeanour of the parties at hearing it is evident that the long-term landlord and tenant relationship that existed between the parties for 19 years has now descended to an acrimonious and bitter level with both parties making various allegations across the table to the extent it was difficult to establish the facts relevant to the specific complaint before me but which did provide a questionable backdrop to this complaint. 

The Relevant Law:

It has to be determined whether the Respondent discriminated against the Complainant on the “housing assistance ground” contrary to the Equal Status Act 2000-2018 by failing to complete the HAP application form despite the Complainant’s requests do so. 

At the outset 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.  The repeated refusal by the Respondent to complete / sign the HAP form is not disputed although for a much shorter period in the Respondent’s perception.   

I am satisfied that as required by section 21(a) of the Act of 2000 the Complainant submitted the ES.1 form on 16 November 2022 which was within the requisite two-month period from the last date of occurrence of the alleged prohibited conduct namely 26 October 2022.   The Respondent representative corresponded with the Complainant upon receipt of this on 19 November 2022.  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.

The Equal Status Act seeks to prohibit discrimination in the provision of services.  The Act was extended to include discrimination on the housing assistance ground.  This includes the Housing Assistance Payment (HAP) as provided by part 4 of the Housing (Miscellaneous Provisions) Act, 2014 which sets out the requirements for a landlord.  

Section 3(1) of the Equal Status Act 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.”

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”).”

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 Equal Status Act requires the Complainant to establish facts from which the alleged discrimination may be inferred.  It is only where such a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the inference of discrimination. 

Therefore, the Complainant must show that she has been treated less favourably than another person is, has been or would be treated in a comparable situation on the housing assistance ground which requires that, as between any two persons one is in receipt of housing assistance and the other is not.   

Finally, as regards redress section 27(1) of the Equal Status Act provides:

27.—(1) “Subject to this section, the types of redress for which a decision of the F67[Director of the Workplace Relations Commission] under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or

(b) an order that a person or persons specified in the order take a course of action which is so specified.”

The Relevant Facts:

The Complainant contends 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 for her to avail of HAP towards her rent.  In rebuttal, the Respondent maintains that he was prevented from completing the HAP form because he did not have a tax clearance access number. 

I note the first instance the Complainant requested a HAP form from the local authority was 13/07/2020 as verified by the relevant local authority despite the Complainant’s assertion she first requested the Respondent to sign HAP forms in 2014. 

I note there was no evidence presented to show when the Complainant first requested the Respondent to sign the HAP form apart from assertions by the Complainant that the Respondent had refused to sign the forms “over a number of years”.  I note that much if not all of the interaction with the Respondent was undertaken by the Complainant’s partner.  I would have preferred if the Complainant’s partner had been present to give evidence and for that reason I adjourned the first hearing to provide him with the opportunity to attend.  This opportunity was not availed of.   

I am satisfied based on the evidence adduced and in the absence of any evidence to the contrary that the first time the Complainant requested the Respondent to sign the HAP form was on or around February 2022.  I note the exchange of texts between the parties on the matter on Monday 28 February 2022 as follows: 

From the Complainant to the Respondent: “Hi Martin this is Luci, sorry to disturb you but could you please complete and give back the HAP scheme form in a few days time when I bring you the rent money? Thank you

From the Respondent to the Complainant: “Hi Luci I can’t do it at the moment I explained it to Tavi.”

From the Complainant to the Respondent: “I don’t want to come across as rude but you have to do something for me in this situation.  For the last 8 years I have qualified for the HAP scheme and I have been waiting patiently for you to solve your problems, if you won’t accept it then I will need a final eviction letter. I understand you have your own problems but I can’t continue waiting a long time.  Please tell me your final decision.”

From the Respondent to the Complainant: “Sorry luci I just can’t do it at the moment on advice from my finance advisor I will get u eviction notice asap sorry again.”

The Respondent alleges the Complainant requested that he issue a notice of termination in order that she could provide same to the local authority and thereby “get a house” if he could not sign the HAP form for her and I note this was a request with which he complied.     

I note that from the period 2017 through to December 2022 the Respondent was in income tax arrears and it was not until 10 December 2022 that the Respondent was issued with a Tax Clearance Access Number (TCAN) following negotiations with the Revenue and the implementation of a payment plan.  I note the Respondent was unable to provide the relevant local authority with an undertaking regarding his tax compliance as required until 10 December 2022.  Accordingly, the Respondent submits he was not in a position to certify that he was tax compliant as part of and required for the Complainant’s HAP application. 

Notwithstanding, I note 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.” 

I note the Respondent completed the HAP form having received his TCAN and it was submitted to the local authority by hand on 25/01/2023 by the Complainant.  I note that this HAP application was in fact never processed albeit the Complainant remained a tenant of the Respondent until she moved out at the end of August 2023.  I note the reason given by the relevant local authority was that the claim was not processed because the Complainant was housed by the local authority.

The issue I have to consider is whether the Respondent’s non-compliance with the statutory tax clearance certificate required for the HAP scheme can act as a defence or rebuttal to a claim of discrimination under the ‘housing assistance ground.”  I note such a defence is not included within the exhaustive list of exclusions to the application of the Equal Status Act as provided for in section 6 of the Equal Status Act set out above.  I am unable to find any statutory basis or legal precedent that would support the Respondent’s contention that his non-compliance with the statutory tax clearance certificate can act as a defence or a rebuttal to a claim of discrimination.

Accordingly, having concluded my investigation of this complaint I find pursuant to section 25(4) of the Equal Status Act that the Complainant has established a prima facie case of direct discrimination on the housing assistance ground contrary to sections 3 and 6 of the Act which has not been rebutted by the Respondent by any known legal defence or otherwise. 

Having careful regard to all the circumstances of this case, I consider that a compensation amount of €500.00 is appropriate in the circumstances.   

HAP; Notice of termination; Tax Clearance Access Number;