Complainant

Respondent

Parties

Jaroslaw  Sutowicz

Donegal County Council

Representatives

  In person

Francis Gaughan Hegarty & Armstrong LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043317-001

30/03/2021

This is a complaint of discrimination based on the Equal Status Act 2000 – 2021 in relation to the Respondent’s non-provision of Social Housing Support to the Complainant. His complaint is that while his ex-wife was and continues to be provided with Social Housing Support, even though they both co-parent their children, that he has been denied such support and this denial constitutes gender- based discrimination.

No application was made by either party for this Adjudication to be heard otherwise than in public.

The Complainant gave evidence under a sworn Oath, with the assistance a Polish language interpreter, who interpreted under a sworn affirmation.

The Complainant lives in Co. Donegal.

He married his ex-wife in April 2009. He and his ex-wife have two children; a son, who was born in 2009 and a daughter, who was born in 2012. To care for the couple’s children, the Complainant gave up work and dedicated himself to being a homemaker whereas his wife continued to work outside the home.  The couple subsequently separated, and his wife gave up work. She started a relationship with someone else. She applied for social welfare benefits from the Department of Social Protection and received them.  The Complainant believed that his ex-wife was not entitled to receive social welfare payments and prior to the WRC complaint he reported her to the Department of Social Welfare.

The Complainant made an application for Social Housing Support from the Respondent, originally in September 2019, and he renewed his application in March 2020.

In his written application he referred to the fact that his ex-wife was receiving child benefit which had been denied to him. He referred to the fact that his ex-wife received Job Seekers allowance and One Parent Family Allowance, even though she did not meet the conditions for these benefits. He requested the same housing support as had been provided to his ex-wife. He referred to gender equality and asserted that parents should not be treated unequally.

After the couple separated, custody of the couple’s children was dealt with by the District Court Judge who ordered inter alia,  the couple to co-parent their children. It is the Complainant’s view that on foot of these orders, even though he had equal responsibilities and obligations for his children, as his ex-wife had (both financial and otherwise) she was in receipt of both social welfare and housing support, but both benefits have been denied to him.

While the Complainant complains that there was this background of unequal treatment by the Department of Social Protection, the present complaint relates solely to the denial to him by Donegal County Council of Social Housing Support, in the form of Housing Assistance Payment or any other housing support.

With respect to the WRC complaint, in the form the Complainant states that “despite the fact that both (his ex-wife) and I do not meet any conditions for receiving Social House Support, she receives them.. and Donegal County Council said I do not have any rights to receive them.”

Course of Dealings between the Complainant and Respondent

The Complainant first applied for Social Housing Support on 4 September 2019 by issuing a completed application form for Social Housing Support to the Respondent. His application hinged on being treated equally to his ex-wife.  

By letter dated 23 March 2020 the Complainant re-issued his request to the Respondent for Social Housing Support.  In this letter he stated that his ex-wife was receiving social welfare allowances that she was not entitled to and that she also received Social Housing Support. The Complainant asserted that he had been treated unequally to his ex-wife in terms of social welfare provision which was discriminatory. He stated that unequal treatment was in breach of EU Equality Law and UN Equality law because it constituted discriminatory treatment on grounds of sex or gender. He cited decisions, inter alia, of the CJEU and ECHR, in support of this assertion.

The Respondent replied to this application by letter dated 24 March 2020 stating that his application was incomplete. They sought further documentary evidence from him.

The Complainant replied by letter dated 27 March 2020 and attached a copy of his birth certificate, driving licence, and details of employment until 2013.  He re-stated that (as had been set out in his original application) that he was not in receipt of any social welfare benefit nor any income in the previous 52 weeks.   He asserted that unequal treatment on grounds of sex was contrary to EU Law and identified a number of CJEU authorities which supported his claim.

The Respondent replied by letter dated 14 April 2020 which they stated that the Complainant’s  application was incomplete. They sought the following evidence from him: 

-          Documentary evidence of total income/benefits received for 2019

-          Documentary evidence of current weekly income/benefits received and

-          Documentary evidence that (the Complainant) has been employed in Ireland for a minimum of 52 weeks ie. P60/Employment Details Summary.)

The Complainant replied by email dated 15 April 2020 attaching a P60 for 2012. He stated that, as advised previously, he did not have a P60 for 2019 because “he had no income in Ireland” and that he could not provide “evidence of current weekly income/benefits received” because I have no income or receive any benefits.” He stated that he was an unemployed person. He cited European law authorities which held that unequal treatment on grounds of sex were in breach of European Directives on Equality that had direct effect and Criminal Justice (United Nations Convention Against Torture) 2000 to contend that public officials were obliged, under European Law, to not act in a manner which was discriminatory.

The Respondent replied by letter date 17 April 2020 and stated that the Complainant’s application had been rejected because the application was incomplete. The incompleteness was in respect of:

-          Documentary evidence of total income/benefits received for 2019

-          Documentary evidence of current weekly income/benefits received.

The Complainant replied by letter dated 20 April 2020 which again stated that, as he had advised previously, he did not have a P60 for 2019 because “he had no income in Ireland” and that he also could not provide “evidence of current weekly income/benefits received” because I have no income or receive any benefits” because he was an unemployed person. He cited European law authorities which held that unequal treatment on grounds of sex were in breach of European Directives on Equality that had direct effect and Criminal Justice (United Nations Convention Against Torture) 2000 to contend that public officials were obliged under European Law to not act in a manner which was discriminatory.

The Respondent replied by letter dated 21 April 2019 in which they stated that his application “could not be validated in the absence of Current income details and Income details for 2019.”

The Complainant replied by letter dated 22 April 2020 restating that he could not provide the evidence that they sought because he had no income and received no benefits in 2019. He re-stated his reliance on directly effective European provisions.

The Respondent replied by letter dated 24 April 2020 repeating their previous advice that the position remained the same and that “his applicationcould not be validated in the absence of Current income details and Income details for 2019.”

The Complainant replied by letter dated 29 April 2020 which again stated that, as he had advised previously, he did not have a P60 for 2019 because “he had no income in Ireland” and that he also could not provide “evidence of current weekly income/benefits received” because I have no income or receive any benefits” because he was an unemployed person.

To this letter the Complainant also attached a document from the Revenue Commissioners which confirmed that the Complainant was not in receipt of any income for 2019 together with a letter from the Department of Social Protection which confirmed that the Complainant had not received any social welfare benefits for the period 1 January 2020 until 28 April 2020.  He cited European law authorities which held that unequal treatment on grounds of sex were in breach of European Directives on Equality that had direct effect and Criminal Justice (United Nations Convention Against Torture) 2000 to contend that public officials were obliged under European Law to not act in a manner which was discriminatory.

The Complainant wrote a further letter dated 12 May 2020 asking at what point the Respondent intended to comply with the European legal principles of equality as cited in previous correspondence in respect of which the Respondent was being non-compliant.

The Respondent replied by letter dated 15 May 2020 in which they advised that “to qualify for Social Housing Support an applicant must be in genuine need of housing and unable to provide accommodation from their own resources and satisfy a means test in relation to income. As you have not submitted income details, the Council cannot process your application and therefore your application is not valid.” The Respondent advised that no further correspondence can be entered into this matter in the absence of a valid application.

It is the Complainant’s case that having provided the Respondent with the documentary evidence from Revenue and the Department of Social Protection on 29 April 2020, the Respondent continued to repeat their earlier position, that his application was incomplete, and this was despite the fact that he had provided them with the information that they sought.

Furthermore,  if there was something inadequate about what he had provided to them on 29 April 2020, which failed to meet the specificity that they required, they failed to advise him specifically.

He asserted that it was only during the WRC hearing that the Respondent stated what they considered to be inadequate about the 29 April 2020 evidence and that without an explanation of this at the time, he was not in a position to be able to remedy the so called “inadequacies” of his application for social housing (which does not accept was inadequate.) He claims that in reality by refusing to process his application, despite having been furnished with the documentation that they sought, and without advising him how the documentation was still incomplete and if it was – what specifically could he provide which would remedy that – that they were refusing to treat him in the same way as his ex-wife and other female applicants for social housing support and that he was being discriminated against.

The Complainant stated during the Adjudication hearing that the Revenue Commissioners document sent to the Respondent on 29 April 2020 would have included details of all receipts whether income or social welfare benefits, both of which were zero. The Revenue Commission as a public body could have liaised with the Department of Social Protection and therefore if any social welfare benefits were received by the Complainant in 2019, these would have been reflected in this Revenue Document. The fact that the document from Revenue indicated that he had received no benefits should have sufficed as being documentary evidence that the Complainant also did not receive any social welfare benefits in 2019.

The Complainant submitted that the defence raised by the Respondent is a ruse to disguise the fact that they discriminated against him on grounds of gender and that they subjected his application to scrutiny that his wife did not have to contend with and that he doesn’t believe that the Respondent will ever afford him treatment equal to that which his ex-wife received.

The Complainant submitted that he is now under immense personal pressure. He has co-parenting responsibilities. He is responsible for his children. His landlord is going to evict him. He is being denied social welfare benefits and social housing support. He has nothing to live on. His ex-wife is not suffering from any similar level of insecurity because she is in receipt of social protections whereas he is not.

During the Adjudication hearing a proposal was made that the WRC Adjudication hearing be adjourned for 3 months to allow the Respondent to specifically identify the documents that the Complainant needed to provide so that his application can be processed within a fast-tracked time period, but the Complainant declined this offer. He wanted a decision on his discrimination complaint as it pertained to his treatment in 2020. He did not believe that the Respondent would ever give him Social Housing Support because their minds were fixed against him and this was because they, despite being public officials of the State, were resolute in discriminating against him on the basis on the fact that he is male.

Mr. Eamon Brown of the Respondent gave evidence under Oath as follows:

The Complainant applied for Social Housing Support on 23 March 2020.

The Respondent fully accepts the description of the correspondence and the contents within each letter,  as asserted by the Complainant in his evidence namely:

An application form dated 23 March 2020 for Social Housing Support was received by the Respondent from the Complainant.

A letter dated 24 March 2020 was sent from Respondent to Complainant.

A letter dated 27 March 2020 was sent from Complainant to Respondent.

A letter dated 14 April 2020 was sent from Respondent to Complainant.

A letter dated 15 April 2020 was sent from Complainant to Respondent.

A letter dated 17 April 2020 was sent from Respondent to Complainant.

A letter dated 20 April 2020 was sent from Complainant to Respondent.

A letter dated 21 April 2020 was sent from Respondent to Complainant.

A letter dated 22 April 2020 was sent from Complainant to Respondent.

A letter dated 24 April 2020 was sent from Respondent to Complainant.

A letter dated 29 April 2020 was sent from Complainant to Respondent.

A letter dated 12 May 2020 was sent from Complainant to Respondent.

A letter dated 15 May 2020 was sent from Respondent to Complainant.

The Respondent takes no issue with the contents of these letters as described by the Complainant in his evidence.

Where the Respondent takes issue with the Complainant’s contention is the assertion of discriminatory treatment.

The Respondent contends that the correspondence issued by them from 23 March until 15 May 2020 was consistent. There was documentary evidence that was missing from his application and because his written application was incomplete, it could not be progressed until such time as he had provided this evidence. The Respondent denies that he was refused housing support, because the application process never reached that far. The Respondent denies that the failure to progress his application in March-April-May 2020 was because he was male. The reason why his application was not progressed was because his application was incomplete because it did not contain documentary evidence as to the Complainant’s earnings –income and/or social welfare benefits - for 2019. And despite countless requests for this evidence, same was not provided or was only partially provided in his letter of 29 April 2020.

The process whereby Social Housing Support is determined is set out by statutory instrument. The Respondent is obliged to conduct a means tested process and to do that, each local authority is required to obtain full documentary evidence of any income and or benefits received by an applicant in the 52 weeks preceding the application. This is not a discretionary exercise. The Respondent is obliged to obtain this documentation to conduct the means test.

Mr. Brown stated that the Complainant did not comply with this process. What was provided initially in his application form was entirely unevidenced but ultimately, even though supporting documentation was received as time went on, when on 29 April 2020 the Complainant furnished the Revenue and Department of Social Protection documentation, glaring omissions still remained. The Revenue letter related to 2019 income (showing a nil return) was acceptable however the Department of Social Welfare letter only reflected the benefits the Complainant received (or to be more accurate did not receive) in the period 1 January 2020 until 28 April 2020, ie the most recent quarter of 2020 but it did not reflect benefits received in 2019 (into which the 52 weeks reached.) The Respondent does not accept the Complainant’s argument that the Revenue document would have included confirmation in relation to his social welfare receipts. The document furnished by the Complainant was a print out of a web Chat between him and an agent from the Revenue.ie on 28.4.20 and 29.4.20 in which the Agent answered the Complainant’s following question:

“Hi, I need a County Donegal certificate that I didn’t have a P60 for 2019 from work in Ireland because I am applying for Social Housing Support and they require it from me.”

And Revenue Reply stated:

“Hi Jaroslaw. Per Revenue records you had no PAYE employment in 2019 therefore Revenue cannot issue a Statement of Liability. Kind Regards, etc.”

The Respondent submits that Revenue were not asked during the web chat about social welfare benefits that he may or may not have received in 2019. I tis incorrect to state that the Revenue would have access to Social Welfare information. Furthermore even if they did (which has not been proven) the web chat document gives no evidence whatsoever in relation to social welfare receipts. Furthermore given that the document that he did send them from the Dept of Social Welfare only covered the first quarter of 2020, begs the question why he didn’t furnish a similar statement for 2019. The Respondent submits that the onus is on the Complainant to prove that this document was definitive proof of social welfare receipts for 2019 (or lack thereof) and this document did not do that.

The Respondent submits that despite what was furnished by the Complainant on 29 April 2020 the documentary evidence that remained missing – despite multiple requests for its provision – was proof of social welfare receipts for 2019 and given that he did get a letter from the Dept of Social Protection which proved nil receipts in the first quarter of 2020 there was no good explanation as to why he could not have obtained a similar letter for 2019.

The Respondent defence is that he never provided them with the necessary documentary evidence that they are obliged to have when making a decision on whether an applicant should receive Housing support.

The Respondent denies that the Complainant has discharged the onus of proving that prima facie the Respondent had discriminated against him on grounds of gender.

It cannot be said that any decision was made to refuse him a service. The process never reached that point. The application process, which is mandatory, could not proceed because the Complainant refused to provide them with the evidence that they needed to conduct a means test. All applicants for Social Housing Support are subjected to a means test. The Complainant is no different from any other applicant in this regard.

No preliminary jurisdictional matters arise in this Adjudication.  I am satisfied that the complaint was brought within time and that the conditions precedent to the bringing of an Equal Status complaint, by way of service of the ES1 form, were complied with by the Complainant.

I have some sympathy for the Complainant. English is not his first language and the risk of misunderstanding what documentation was being asked of him was a possibility. He also had a lot of responsibilities to manage at this time, in the face of difficult personal circumstances. His marriage had ended, he had co-parenting responsibilities, his rented accommodation has now become under threat, he has no alternative place to live, as a result he may have to return to Poland and be separated from his children and all of this is taking place during high inflation and a cost-of-living crisis.

It appears from his evidence that the Complainant believed that the documents that he provided to the Respondent on 29 April 2020 was what they had been seeking.

The Respondent’s response in early May 2020 to refuse to engage with him further unless he provided them with the documentary information that they had previously asked him for, made him believe that the Respondent were stone-walling him.

Initially in March 2020 he appears not to have comprehended what type of documentation could prove a negative, ie he had no income and received no benefits in 2019.  He appears to have become convinced that the Respondent’s insistence on the provision of this documentation was a ruse to avoid paying him what his ex-wife was receiving. Then, on 29 April 2020, when he appeared to then understand what he was being asked for, he provided the Respondent with a document from Revenue which, as far as he was concerned, stated all that needed to be said – that he had received no PAYE income in 2019. However, that document, which is a print out of a Revenue/ customer web-chat, significantly did not refer to any social welfare benefits, which the Respondent had also asked him to provide and which was a requisite proof for his application to be valid.

The documentation that remained missing was the Dept of Social Protection letter confirming no social welfare benefits were received by the Complainant in 2019.

My jurisdiction in deciding this complaint is circumscribed. I am limited to apply a test and this test is has the Complainant proven facts from which his complaint - that he was treated less favourably than a female comparator occurred because he was male.

To meet this test, the Complainant must prove not only that his comparator or other female comparator applicants were successful in obtaining social housing support whereas he has not, but also, given that his complaint is; that his application failed to progress which denied him housing support -  he must prove  that female applicants were not required to undergo the same process or provide the same information to the Respondent.    

The proofs that are required in this means tested application process is statutorily required. It is mandatory for all local authorities to obtain these proofs when they are considering housing support applications.  It is a process that is based on the provision of documented proof of all income, benefits and outgoings within the previous 52 weeks. The Respondent was obliged to require the Complainant – and indeed all applicants – to provide them with this documentation.

There is no evidence before me to show that the Complainant’s ex-wife or any other female comparator was not subjected to the same means tested application process, as the Respondent applied to the Complainant.

The Complainant has done to considerable length in researching the law of gender-based discrimination. The WRC bundle for this Adjudication runs to 1610 pages long.  Many of the Complainant’s submissions on equality and the need for non-discriminatory decisions making within the public sector are legally correct. His knowledge of the European, national and international law on discrimination is impressive. However, the test for discrimination is - has the Complainant proven facts from which a finding of less favourable treatment on grounds of gender may be found? In my view this test has not been discharged by the Complainant.

With respect to the Respondent’s submission that no finding of discrimination can be found, because a decision with respect to housing support was not reached, I consider that I am not confined to only consider a decision to refuse to sanction housing support. If a Complainant’s application had become stalled within a pre-decision stage of an application process and that Complainant could prove that the failure to progress his application was deliberate and discriminatory on a prohibited ground, then in my view failure to progress and application could also constitute  prohibited or discriminatory treatment.

But to succeed in this complaint the Complainant would need to prove that his female comparator (either his ex-wife or another female applicant) was not required by the Respondent to provide the same documentary proof as was being requested of the Complainant, and he has not done that.

Section 3 (1) of the Equal Status Acts 2000-21 states:

For the purpose 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..

Section 3 (2) states

As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are

(a)    that one is male and the other is female.

The Complainant has not proven that the Respondent’s request that he provide them with documentary proof of income and social welfare receipts was treatment that was not applied to female applicants. A mere assertion of discrimination is not proof that discrimination has taken place.

I am satisfied that the Complainant has not proven facts arising from which, a prima facie finding of gender based discrimination, may be made.

The Respondent requested documentation from the Complainant that they were entitled and obliged to seek.

The Complainant initially disputed the Respondent’s entitlement to seek this documentation and thereafter he provided evidence in part-only to the Respondent on 29 April 2020.

I am not satisfied that the document that was issued by Revenue to the Complainant dated 8 August 2020 (which confirmed that he did not receive any PAYE employment in 2019) is also proof that he received no social welfare benefits in 2019, as was contended by the Complainant. I do not accept that the Complainant has proven that the recorded of a web chat between him and a Revenue agent - which significantly makes no reference to social welfare benefits – could be considered as documentary proof that he did not receive social welfare benefits in 2019. 

The Complainant was obliged to provide the documentation if he wished to be considered for housing support. By failing to provide the documentation, his application was not complete and the application could not be progressed. The Complainant was advised as such. And given that the Complainant did provide the Respondent with a Department of Social Welfare statement of payment for the first quarter of 2020, given that he did comply with the documentary proof for income receipts in 2019 there is no obvious explanation for why he did not provide the Respondent with a similar Department of Social Welfare statement for 2019, given that this was what he had been asked for, on multiple occasions.  

Given the challenging personal and financial circumstances of the Complainant, which impacts not just him but his children, I regret that he chose not to avail of the Respondent’s offer, which was made during the course of the Adjudication hearing, that a supervised expedition of his application would take place as soon as he furnished documentary evidence of his earnings/ benefits over the previous 52 weeks. The Complainant was of course entitled to decline that offer and confine himself to a decision on whether he was or was not discriminated in March-April-May 2020, and which I will now discharge.

In respect of this complaint, I find that the Complainant has not met the legal test to prove on a prima facie basis, that the Respondent discriminated against him on grounds of gender. I find that the Respondent did not engage in prohibited (discriminatory) conduct under the Equal Status Acts 2000 as amended.

I find that the Respondent did not engage in prohibited (discriminatory) conduct under the Equal Status Acts 2000 as amended.

Equal Status – Gender Discrimination – Social Housing Support