Complainant

Respondent

Parties

Patrick  O' Reilly

Sophia Housing Association Company Limited By Guarantee

Representatives

Cara Jane Walsh BL instructed by    Frank Buttimer & Company

 AJP McDonald Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045557-001

06/08/2021

The Complainant was described as a single man/separated, member of the travelling community and father of a daughter with additional needs.

The Respondent is a registered housing authority. It provides housing to people in need together with support where required.

The Complainant is a tenant of the Respondent and was residing in one of its apartments (a one-bedroom apartment) since 7 September 2017.  This accommodation was a short-term /Emergency accommodation. It did not allow him to have overnight access with his daughter. He was seeking a long-term letting that would be suitable to him as a member of the travelling community and his family.

On 13 November 2020 he viewed Apartment 4 in a building owned by the Respondent. This was a two-bed duplex apartment on the first and second floors. It had three bathrooms. In December 2020 he was told that Apartment 4 was no longer available.

On 31 March 2021 he viewed Apartment 1 in the same building. This was also a two-bed apartment but on the ground floor (i.e., not a duplex). It had two bathrooms. This apartment did not have access to a courtyard that was part of the building complex.

The Complainant's case was that he had accepted the offer of Apartment 4, but that he was not given the opportunity to sign the written licence agreement despite efforts on his part to do so.

His case was that apartment No.1 was of less quality than apartment number 4 and as such he was in receipt of less favourable treatment by reason of him being a member of the Traveller community.

The Complainant gave evidence as to the timeline of events.

13 November 2020          viewed Apartment 4

17 November 2020          met with the Respondent to discuss the property and made enquiries about how he would carry out his lifestyle

21 December 2020           told the apartment not available

31 March 2021                   viewed Apartment 1

6 April 2021                       declined Apartment 1

27 May 2021                       complaint made by email as to treatment

He described the difference between the two apartments as:  No 1 was smaller in size, it had its own front door and direct access to and from the public footpath and road (the Complainant considered this a negative), did not have access to the courtyard, it was dark, dingy, had smaller windows, a manky carpet, a 'closed in' atmosphere and “not much of a view”.

He declined to go into evidence as to his access arrangements with his daughter. Evidence was given that there was ongoing involvement of the family law courts service.  It was confirmed that his daughter did not live with him as the terms of the accommodation he was renting did not allow overnight access by his daughter who is a minor.

The Complainant said that when he viewed Apartment 4, he told the case worker that he would "take it". He confirmed that he had queries regarding cost of the refuse bins and whether he could park his van in the courtyard.

He gave evidence that he independently spoke to the Respondents tenants in Apartment 1. They showed him around the courtyard and identified where the bins were located. They explained to him that their child had access to the courtyard.

At the meeting on 17 November 2020 with the Respondents management, he expected to sign the licence agreement. He expected that the management team would have answers to his questions which were mainly about the courtyard. He raised the questions again namely

-          could he park his van in the courtyard for security and to give him access to somewhere "private to sort out his scrap metal in his van". He was told that he could not do this as the courtyard could be used by children. He asked if he could do it when they were not children in the courtyard, and he was told no that it was not allowed.

-          Could he put a seating bench in the courtyard. He was told no that was not allowed there could be no loitering of any kind.

-          Could he put a shed in the courtyard to lock things away and he was told no.

-          Could he have pets in the property. He was a dog breeder, and he was registered with the kennel club. He only bred small chihuahua dogs.  He was told no that there were no pets allowed in the Apartments.

The Complainant confirmed that despite these answers, he was willing to accept the rules as he was desperate to get out of the emergency accommodation, he was living in.

At the November meeting he raised the laws regarding traveller specific accommodation, though not forcibly as because he didn't want to ruin his chances of getting out of his emergency accommodation.  He asked to sign the letting agreement, but it was not presented to him.

On the 2 December 2020 he was told there was a problem with Apartment 4, but no details were given to him at that time.  

He met again with the Respondents management on 21 December 2020 expecting to sign the licence agreement. At that meeting he was told that Apartment 4 was no longer available.

He went to the development again on 21 March 2021. He was shown Apartment 1. After reviewing the apartment, he was very upset. He was disappointed with the state of the apartment and that he wasn't been given access to the courtyard. In fact, he was told that if he went into the courtyard he would be trespassing. The refuse bins were to be located at his front door which was different to all the other apartment arrangements in the development.

He felt it was being treated differently and being isolated from the other tenants in the development because he was a traveller.  He felt this was a plan of the Respondent to stop him having access to the courtyard.

He said he would take Apartment 4. He was told this was not available.

The Complainant explained that he was on a housing list for Traveller accommodation with Cork City Council. He was engaging with the Manager of the Traveller unit with the City Council. He described what Traveller specific accommodation was and how a ‘traveller house’ would take into account his culture. It would allow dogs/horses/stables/space for a trailer/caravan/mobile home.  Evidence was given that if he accepted an apartment from the Respondent, he would be classified as being housed and taken off the housing list. However, he believed that he could apply for a transfer at a later date to traveller specific accommodation.

Under cross examination he explained why he refused the offer of long-term accommodation in 2019. He said he was not happy with what was on offer. He wanted a backyard and to keep dogs. He also explained that property was a one bed apartment, and he wanted a two-bed apartment as he had a daughter.

The Respondent's Project Manager gave evidence.  She explained how the Complainant declined to accept a one bed apartment that the Respondent offered to him in May 2019.

She explained how the Respondent chooses a tenant for a property they have to offer. The Complainant was selected to be offered the apartment as he met the criteria based on his support needs, did not engage in anti-social behaviour, had no need for regular case worker involvement, and was on the housing list for a two-bed apartment even though he had no regular access with his daughter.  The Respondent decided he was ready to move on from emergency accommodation.

While she did not attend the viewing of the apartment in November 2020, she gave evidence that the Complainant had questions around the apartment/courtyard and his needs as a traveller.

She met with the Complainant on 17 November 2020. Her evidence was that he hadn't accepted the apartment at the earlier viewing date or at that meeting.  She explained that the Complainant had questions as outlined above namely in relation to parking his van and working with his scrap metal in the courtyard.  She explained that the rent for the apartment would be €35 per week but that there was an extra service charge to cover bins, outdoor lighting and servicing the gas boiler.

She went through the license agreement/lease with him. Her evidence was that if the Complainant had accepted the terms of the lease, he would have signed it there and then.  He did not sign the lease or accept the apartment at that stage.  She described how he an issue in that if he accepted the apartment, he would be viewed as being housed and taken off the council accommodation list.

The Project Manager explained how a few days later another tenancy in the development became available. Vacant possession was available on the 4 February 2021 for Apartment 2. As there were now two vacancies in development, the Respondent reassessed the suitability of the apartments in the development for its service users. It was decided that the tenant in Apartment 1 who had a young child and had an issue with direct access onto the public road should move to Apartment 2. This freed up the availability of Apartment 1.

As the Complainant had not accepted its offer of Apartment 4, it was decided to withdraw the offer made to him as of the 2 December 2020. The Complainant was advised of this but told that he would be given another long term offer in the development.

The Respondent was in contact with the City Council Housing Traveller manager as regards the Complainant's case. It understood that the City Council had made no promises to the Complainant about facilitating a transfer application to traveller specific accommodation at a later date.

The Respondent did clarify that the Complainant was incorrectly advised that if he went into the courtyard area it would be considered trespassing.

The Project Manager gave evidence that she attended at the development once every two weeks and that the refuse bins for Apartment 1 were kept beside the front door for Apartment 1 and continue in this position.

Under cross examination, the Project Manager confirmed that Apartment 4 was offered to a family on the 26 February 2021.  She accepted that she did not divulge this information to the Complainant. She explained that it was not its practice to do so as Respondent took confidentiality very seriously.

She said that the Complainant only accepted Apartment 4 when he viewed Apartment 1. She referred to the case notes that were kept following the meeting. She maintained that the Complainant did not accept Apartment 4 in November 2020.

The issue for determination in this complaint is whether the Respondent discriminated against the complainant contrary to Sections 3 and 6 of the Equal Status Act 2000 (as amended), in relation to the provision of accommodation by reason of his membership of the traveller community.

As a preliminary step to invoking the jurisdiction of the WRC to adjudicate upon a complaint under the Act, the Complainant must notify to the Respondent of his complaint.                       

The Complainant identified the first date of discrimination as 31 March 2021 with this first instance being the offer of the lesser accommodation of Apartment No. 1 and 30 June 2021 being the outcome of the Complainant’s appeal to this offer of accommodation.  The Complainant submitted that these were all part of a continuum.

The Respondents case was that any prohibited conduct (which it denied occurred) took place on the 2 December 2020 when the Complainant was notified that Apartment 4 was no longer available.

To bring a complaint to the WRC the Complainant is required to comply with section 21 (2) and section 21 (6) of the Equal Status Act. He firstly had to comply with Section 21(2).  The Complainant sent an email to his case worker / the Respondent on the 27 May 2021 and an ES.1 form on the Respondent on the 8 July 2021. 

The email of 27 May 2021 was quite detailed. It set out the interaction between the Complainant and the Respondent in relation to Apartment 4 and Apartment 1. It set out that he believed that he was being discriminated against and racially profiled as an Irish Traveller and viewed as a future problem with antisocial behaviour. The email went on to say that the Complainant felt he was being unfairly treated and cheated out of apartment 4.

The Complainant's case is that only on viewing Apartment 1 that he experienced the less favourable treatment. He said, "I was extremely upset and disappointed viewing the apartment as I realised the truth seeing the apartment was left in a state of a kip and completely different from Apartment 4".

In view of the above, I accept the 31 March 2021 as the date of the alleged discrimination.

In relation to the statutory requirements, the wording of section 21(2) is mandatory.

Section 21 (2) and 21 (3) sets out

21(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

Based on the date of alleged discrimination 31 March 2021, the ES1 form of the 8 July 2021 was out of time.  I must now consider if the Complainant's email of the 27 May 2021 complied with the requirements of Section 21 (2) of the Equal Status Act 2000.

The email went into detail on the nature of the allegation. However, it did not set out the Complainant's intention if not satisfied with the Respondent's response to seek redress under the Act.  On that basis the email of 27 May 2021 does not comply with the technical requirements of Section 21 (2).

Section 21(3) of the Equal Status 2000 sets out

21(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

 (b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

At the hearing, the Counsel for the Complainant referred me to the decision of Mr. Justice Hogan in Eleanor O'Higgins v University College Dublin and The Labour Court 2013 21 MCA [2013] IEHC  431 in the context of asking what prejudice was suffered by the Respondent for not complying with the strict time limits required in this case.

While Counsel for the Complainant did not specifically refer to section 21 (3) (a) in her application (and the solicitor for the Respondent took issue with me highlighting Section 21(3)(a)(ii) to her) she did respond to the Respondents preliminary application regarding the time limits set out in Section 21(6) of the Equal Status Act and I note Section 21(3)(b)(ii) refers to

“the extent of any risk of prejudice to the Respondent’s ability to deal adequately with the complaint”.

Applying the extension of time set out in section 21 (3) (a) (i) which allows for reasonable cause, that the reference of two months shall be substituted the reference to 4 months, the ES 1 form filed on 8 July 2021 is within the requirements of section 21 (2) (a).

I must decide if there is reasonable clause to allow the application of that section.  Having reviewed the circumstances of this case and in particular the detailed email of the Complainant dated 27 May 2021 which complied in the main with the notification requirements of the Act.  Also as this email was within the two months’ time limit and that the Respondent did receive the ES 1 form within the four months’ time limit, I am prepared to apply the extension of time set out in section 21 (3) (a) (i).

I now move on to Section 38 (1) of the Act provides in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The Labour Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by a similar burden of proof in section 85A of the Employment Equality Act and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Having considered the evidence and in particular the conflict of evidence, I preferred the evidence of the Project manager corroborated by the case notes to that of the Complainant. 

Based on the evidence presented to me, I find that

-          The Complainant was a service user of the Respondent and continues to be also up to the date of the hearing

-          He was on the housing list with Cork city Council for a traveller specific accommodation and it was important for him to obtain such accommodation on a long-term basis

-          In May 2019 he was offered a one bed apartment as long-term accommodation by the Respondent, but he declined to accept it because of lack of a backyard and the prohibition on having a dog

-          The two properties (Apartment 4 and Apartment 1) are not Traveller specific accommodation. They are part of a small development with a small courtyard.

-          The Complainant was offered and viewed Apartment 4, a two-bed duplex apartment on the 13 November 2020. He had a number of queries at that meeting and at a subsequent meeting in relation to his user of the apartment and the communal courtyard.

-          I find that the Complainant did not accept the offer of Apartment 4 at that stage as he had ongoing engagement with the local authority as to the implications for him and his place on the traveller housing list if he was to do so.

-          The Complainant was offered Apartment 1 which also a two-bed apartment on 31 March 2021 and he declined to take this property on 6 April 2021

I accept that the Respondent had the power to manage its own housing stock and that it did so in relation to this apartment development. There was no requirement on the Respondent to keep its offer of Apartment 4 open for the Complainant indefinitely.  There was no obligation on the Respondent to provide traveller specific accommodation to the Complainant.

While I accept that the Complainant is anxious to leave the emergency accommodation he is residing in, I also find that his quest to move to traveller specific accommodation is very important to him and this was of significance in his decision-making for Apartment 4.

Taking an objective examination of the two apartments, I do not see how Apartment 1 could be described of “lesser quality” than Apartment 4.  Both were two bed apartments with at least two bathrooms.  I do not accept that for either Apartment, the Complainant would have been allowed to park his van in the courtyard or sort his scrap metal in the courtyard. The same applies to the placement of a bench or shed in the courtyard and the keeping of animals in apartments. Developments of this type which are exclusively residential, have rules in place for the benefit of all apartment occupiers and general management of common areas.  These rules (sometimes called house rules) are designed to avoid (or at least minimise) conflict between the apartment occupiers. The rules cover issues such as noise management, building or decoration works which can be carried out to the properties, health and safety, planning etc. While I accept that the house rules on animals are frequently breached, it is a matter for the housing authority or management company to enforce the objective rules if they so wish.

I accept the evidence of the Respondent regarding the location of the bins for Apartment 1 and it makes sense to me that they would be in that area.

Having considered the evidence as a whole, I do not accept that the differences between two properties could constitute less favourable treatment.   While Apartment 4 was a brighter unit as it was on the top floor of the development, it would be unreasonable to single this out as the deciding factor in this case. I would make the point that some occupiers would consider Apartment 1 as superior to Apartment 4 as it had its own private access.

It was accepted that from the 7 September 2017 to the date of the hearing, the Respondent had offered the Complainant four different properties from its housing stock to rent. The Complainant had accepted the first property (in which he was still residing in at the time of the hearing).  There was a dispute between the parties as to whether the Complainant accepted Apartment 4.  I find that he only accepted it after he viewed Apartment 1 and at that stage it was not available.

Even if there had been different treatment to the Complainant - which I do not accept did occur- I note Section 6(6)(b) of the Equal Status Act may be relevant but it was not referred to at the hearing.

For the reasons set out above, I determine that the Complainant has failed to establish facts that could raise a presumption that he was discriminated against.

This complaint is not well founded.

Section 6 Equal Status Act 2000

Section 21(2) Equal Status Act 2000

Traveller specific accommodation