Complainant

Respondent

Parties

Esmiralda  Odina

Noel Smith

Representatives

Julija Odina

 Self-Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057669-001

11/07/2023

The Complainant alleges discrimination on the housing assistance ground as the Respondent failed to complete the Housing Assistance Payment (HAP) Application Form, despite the Complainant’s repeated requests.

The Complainant confirmed at the outset of the hearing that whilst she had made reference in her WRC complaint form and the Form ES1 to her race and the fact that she was suffering from a disability her claim under the ESA was on the “housing assistance ground” only.

At all material times the Complainant’s daughter engaged with the Respondent on the Complainant’s behalf. The Complainant’s daughter gave evidence that prior to entering into a tenancy arrangement with the Respondent she discussed the HAP Scheme with the Respondent. The Complainant’s daughter informed him that the Complainant was awaiting confirmation from the Local Authority as to whether she qualified for housing assistance and the Respondent agreed to sign the HAP Application Form if the Complainant was approved by the Local Authority.

In September 2021 the Complainant entered into a tenancy arrangement with the Respondent and in January 2022 she commenced the application process to be placed on the Local Authority housing list. There was a significant amount of paperwork to complete and as a result of a number of delays the application process took longer than was expected.

Around February/March 2023 the Complainant was placed on her Local Authority housing list. The Complainant’s daughter gave evidence that on the 1st May 2023 she sent the HAP Application Form to the Respondent to be completed and signed. She received no response so she sent a message via Whatsapp to the Respondent asking for his full address and eircode so that she could re-send the HAP Application Form to him. On the 16th May 2023 the Respondent confirmed receipt of the HAP Application Form but refused to sign it and advised the Complainant two days later that he was selling the property.

The Complainant’s daughter stated that the Respondent did not raise the issue of selling the property until she asked him to sign the HAP Application Form.

The Complainant received notice of termination on the 26th October 2023 by post and by email to the Complainant’s daughter’s email address. The Complainant’s tenancy will terminate on the 26th April 2024.

Under cross-examination the Complainant’s daughter accepted that the Respondent informed her via Whatsapp message and email  that he was required to sell the property by his lending institution. She stated that selling the property did not preclude the Respondent from signing the HAP Application Form and that between May and October 2023 she asked the Respondent if he had changed his mind regarding the HAP Scheme however every time she messaged him he responded by stating that his lending institution had raised the interests rates, he could not afford the mortgage, he was required to sell the apartment and he would ask her when the Complainant was moving out of the property. 

It was submitted on behalf of the Complainant that the Respondent’s refusal to sign the HAP Application Form has meant that to date the Complainant has lost out on six months of financial support and will continue to lose out on financial support if he continues to refuse to sign the Application Form. The HAP Scheme would have, at least, covered a significant portion of the Complainant’s rent from May 2023.

The Respondent did not dispute the fact that he had a tenancy agreement with the Complainant but stated that at all times he dealt with the Complainant’s daughter over the telephone or email and that he had never met the Complainant or the Complainant’s daughter in person. The Respondent stated that he understood the complaint was that he did not sign the HAP Application Form because of the Complainant’s race or disability, which he had no knowledge of, but now understands that the Complainant’s complaint relates to his failure to sign the HAP Application Form when asked to do so.

The Respondent did not recall discussing the HAP Scheme with the Complainant’s daughter before he entered into a tenancy agreement with the Complainant but stated that he owned six rental properties including the property rented by the Complainant and that all of his other tenants were HAP tenants.

He stated that he did receive the HAP Application Form from the Complainant’s daughter in May 2023 and that as soon as he received it he sent her a confirmation of receipt.

The Respondent stated that the reason he did not complete and sign the HAP Application Form was because he was in negotiations with his lending institution regarding the mortgage on his rental properties to work out what could be done to address the dramatic increase in repayments. He stated that the property rented by the Complainant was mortgaged and was cross charged with five other properties.

In May 2023 his lending institution came back to him and advised him that they would give him forbearance in order to allow his financial situation to improve with the understanding that all of the properties would be sold to pay off the debt apart from the one he was living in.

The Respondent stated that he had never had any difficulty with the Complainant as a tenant or the Complainant’s daughter as her representative and that his decision to sell the property was based on significant financial pressure and was unrelated to the Complainant’s daughter asking him to sign the HAP Application Form.

Under cross examination the Respondent accepted that there was no mention of selling the property until the Complainant’s daughter asked him to complete the HAP Application Form. He gave evidence that he was negotiating with his lending institution and did not know how the negotiations would go. He was hopeful that he could come to an arrangement with his lending institution that would permit him to retain the property and therefore he never mentioned to the Complainant or the Complainant’s daughter the possibility of having to sell the property. The timing was not related to the HAP Application Form request.

The Respondent gave evidence that it was his understanding that if he signed the HAP Application Form the Complainant might be excluded from the HAP Scheme or delayed in receiving HAP if she had to move to another property. He stated that it was his belief that he would have placed the Complainant in a difficult position if he had signed the HAP Application Form in respect of a property which was being sold. 

The Respondent stated that he did not serve notice of termination of the tenancy straight away in May or June 2023 because he did not want to put a time limit on the Complainant or go through official channels by serving a notice of termination and only did so in October 2023 because he was required by his lending institution. He accepted that he did ask the Complainant’s daughter on a number of occasions if the Complainant had found an alternative property to rent.

The Respondent gave evidence that he had nothing against HAP tenants and that he had never turned away a HAP tenant. He stated that he thought the Complainant’s daughter understood that he had no options but to sell the property and that the Complainant would find an alternative property and apply for the HAP Scheme in respect of the new property.

The Respondent stated that based on what he now knows he would be prepared to sign the HAP Application Form so that the Complainant could benefit from HAP for the remainder of the tenancy.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral submissions made by and on behalf of the parties at the hearing.

It must be determined whether the Respondent discriminated against the Complainant on the “housing assistance ground” contrary to the Equal Status Act 2000 (as amended) (hereinafter referred to as the “ESA”) by failing to complete the HAP Application Form, despite the Complainant’s repeated requests.

The Law:

Section 3(1) of the ESA 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,”

Section 3(3B) of the ESA provides:

“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 of the ESA 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 ESA 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. The ESA provides for a hypothetical comparator.

Finally, as regards redress, section 27(1) of the ESA provides:

“Subject to this section, the types of redress for which a decision of the 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.”

Findings:

The Complainant confirmed at the outset of the hearing that whilst she had made reference in her WRC complaint form and the Form ES1 to her race and the fact that she was suffering from a disability her claim under the ESA was on the “housing assistance ground” only.

The Complainant’s daughter set out the efforts she made on the Complainant’s behalf in seeking to have the HAP Application Form signed by the Respondent. The Complainant was eligible to apply for housing assistance payment which said allowance is a protected ground as per Section 3(3B) of the ESA. The Respondent failed to complete the landlord’s section of the HAP Application Form which is a requirement for the payment of HAP notwithstanding the repeated requests of the Complainant’s daughter on the Complainant’s behalf in this regard. In the circumstances, I find the Complainant has established a prima facie case of discriminatory treatment on the housing assistance ground.

I must now consider whether the Respondent has rebutted the prima facie case raised by the Complainant. The Complainant was a tenant of the Respondent from September 2021. The Complainant’s daughter outlined the several exchanges which took place between her and the Respondent between May 2023 and October 2023. I am satisfied from the oral evidence and the documentary evidence that the Respondent could not have been in any doubt but that the Complainant was seeking his co-operation in completing the HAP Application Form. The Respondent’s initial reply to the Complainant’s request was to query “Why would I want to apply for this scheme?”. On the 16th May 2023 the Respondent denied that the Complainant’s daughter had previously discussed the HAP Scheme with him and again stated: “Why would I want to apply for this scheme?” “There is a lot of work and expenses for me. Why would I want to do this?”.

When the Complainant’s daughter informed the Respondent on the 17th May 2023 that the property would need to be inspected by the Local Authority the Respondent replied by email on the 18th May 2023 stating: “I’ve decided to sell the apartment. I’ll begin the contract termination process now.”

This was followed by the Respondent’s notice of termination of tenancy sent on the 26th October 2023 but dated as having been served on the 26th October 2024.

I find that the Respondent’s evidence that he did not sign the HAP Application Form because he understood that if he did the Complainant might be excluded from the HAP Scheme or delayed in receiving HAP if she had to move to another property and his evidence that he would place the Complainant in a difficult position if he had signed a HAP Application Form in respect of a property which was being sold lacked credibility in light of the Whatsapp and email exchange that took place in the period immediately after the Complainant’s daughter asked the Respondent to sign the HAP Application Form.

Given the proximity of the Complainant’s various requests to complete the HAP Application Form and the notice of termination of the Complainant’s tenancy, both informal and formal, I find that the termination was connected to the application for HAP. In coming to this conclusion, I have taken on board the reluctance of the Respondent to meaningfully engage with the Complainant about her HAP application between May and October 2023 and the Respondent’s responses to the Complainant’s daughter’s repeated requests to complete and sign the HAP Application Form.

Having concluded that the termination of the Complainant’s tenancy was connected to her application for HAP, I am of the opinion that the issuing of the notice of termination raises an inference of discrimination.   I am satisfied that the Complainant has established that she was treated less favourably than another person who did not require HAP would have been treated. Accordingly, I find that the Complainant has established a prima facie case of discriminatory treatment on the housing assistance ground which the Respondent has failed to rebut.

In all the circumstances and having considered all the submissions, oral and written, I find that the Respondent discriminated against the Complainant contrary to Section 6(1) of the ESA on the grounds set out at Section 3(3B) of the ESA. I find that the Respondent denied the Complainant the opportunity to avail of HAP with the result that the Complainant endured financial detriment and hardship. I therefore find the complaint is well-founded.

I have concluded my investigation of this complaint and based upon the aforesaid, I find pursuant to section 25(4) of the ESA, that the Complainant has made out a prima facie case of direct discrimination on the housing assistance ground contrary to Sections 3 and 6 of the ESA, which has not been rebutted by the Respondent. I decide that the complaint is therefore well-founded.

To date, the Complainant has suffered an actual financial loss as a result of the Respondent’s ongoing refusal to participate in the HAP Scheme. In respect of redress, section 27(2) of the ESA has fixed any potential award at €15,000 which is the maximum that may be awarded by the District Court. The Complainant is a single occupant of a property in County Offaly paying a rent of €625 per month. As well as the financial loss that the Complainant had to incur arising from the Respondent’s failure to accept HAP I have noted the stress that this has caused her. I have also taken this into account in the calculation of my award. Having regard to all the circumstances and pursuant to Section 27(1)(a) of the ESA, I therefore deem it appropriate to order the Respondent to pay €3,420 to the Complainant in compensation for the effects of the prohibited conduct.

Also of concern is the continuing breach of the legislation so pursuant to section 27(1)(b) of the ESA I direct the Respondent to take such steps as are required to enable the Complainant to participate in the HAP Scheme (including completion of the Application Form and compliance with any necessary conditions) and accepts HAP payments from the relevant Local Authority forthwith which, in any event, the Respondent agreed to do at the hearing.