Complainant

Respondent

Parties

Niall Martin Thompson

Hazelwood Park Properties Galway Limited

Representatives

Ian Thompson, Father

 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-00045946-001

03/09/2021

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant was a tenant of the Respondent since 9 February 2019. The rent was €800 per month for two rooms in a house, one room for himself and one for his daughter.

The ES1 Form was sent on 10 August 2021 with the Respondent returning the ES2 Form on 17 August 2021. The WRC received the Complaint Form on 3 September 2021. The first date of discrimination was noted as 28 April 2021 with the most recent being 01 September 2021.

The Complainant and the two witnesses which appeared on behalf of the Respondent, Mr Conor Foy, Director and Mrs Geraldine Foy, Agent, all swore an Affirmation. Both parties were given an opportunity to cross examine each other.

A submission along with supporting documentation were furnished in advance by the Complainant. During the hearing the Respondent furnished emails.

The Complainant claim relates to the failure of the Respondent to sign and return the Housing Assistance Payment (HAP) Application Form to allow the Complainant avail of the HAP.

The Complainant gave evidence that he was a tenant since February 2019 and in April 2021 he received notification from the County Council that he was eligible for the Housing Assistance Payment. By text messaged, dated 28 April 2021, he provided evidence of his initial request to Mrs Geraldine Foy to sign the necessary forms. On 6 May 2021, Mrs Foy received the relevant forms from the Complainant but after a series of “frustrating” texts to the Respondent it was not until October 2021 that the HAP forms were signed by the Respondent and returned to the County Council. The Complainant was able to avail of the HAP Scheme from November 2021, after the date this complaint was made to the WRC.

The Complainant denied being told in 2020 that the property was due to be sold. It was the Complainant’s evidence that the first he heard of the sale of the property was on 26 July 2021, when he received notice of termination of the lease.

The Complainant gave evidence that he suffered not only financial loss from April to September 2021 but also had the fear of homelessness which in turn resulted in him being prescribed anti-depressant medication.

Mrs Geraldine Foy gave evidence that she was an agent of the Respondent for over 20 years and dealt with the Complainant. It was her evidence that it had no issue with the HAP Scheme but there was a delay in obtaining the Tax Clearance Cert from the accountant due to Covid19 and the fact he was working from home. In her direct evidence she accepted there was a delay.

Mr Conor Foy, Director, gave evidence that the Respondent was considering selling the property “over Covid” and the decision was delayed until the Covid19 restrictions were lifted in May 2021. It was after the decision was made to sell the property was the Complainant notice to quit. When asked when the property was put up for sale, Mr Foy was unable to say. Under cross examination Mr Foy was asked why only after the complaint was made to the WRC was HAP accepted? In reply to Mr Foy stated the decision to sell the property had nothing to do with the Complainant’s HAP application. When asked about the ES2 Form and why it was stated that they could not accept HAP because there was a requirement to offer a two-year lease, and this was not something he was in a position to offer in light of the ongoing discussion to sell.

Agent of the Respondent

It is noted that Mrs Foy described herself as an agent of the Respondent and appeared alongside with Mr Foy, a Director of the Respondent. The Equal Status Act 2000 at Section 4 (6) includes an agent under the definition of a provider of a service:

(6) In this section—

“provider of a service” means—

(d) the person responsible for the provision of accommodation or any related services or amenities in respect of which section 6 (1)(c) applies,”

There was dispute between the parties as to Mrs Foy’s role with the Respondent and accepted in her evidence and did not dispute the evidence of the Complainant that she the provider of a service pursuant to Section 4 (6) of the Act.

Housing Assistance Payments

Section 3(1) of the Equal Status Act, 2000 as amended 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 Act 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”).”

Burden of Proof

Section 38A of the 2000 Act, applies to all complaints of discrimination under the Equal Status Acts which places the burden of proof on the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination

Housing Assistance

I have place particular consideration on the undisputed text messages presented by Complainant in his evidence requesting that the Respondent complete and return the necessary forms. There are numerous from the Complainant with sporadic responses from the Respondent. It is understandable that the Complainant became frustrated by what can only be described as the Respondent’s avoidance of him. It is also noted that the Complainant in his correspondence remains polite.

Of particular interest is the date of the Respondent’s Tax Clearance Cert presented by the Complainant in his evidence. It is dated 30 July 2021 despite the Respondent’s evidence that the delay in returning the signed forms was due to the Covid19 and the Accountant working from home. I do not accept this whatsoever as such information ought to be readily accessible online to any business itself with a click of a button regardless of Covid19.If there was an issue, the minimum the Complainant could expect was ongoing communication to explain rather than silence. It was accepted by Mrs Foy that there was a delay but no explanation was given why the tax clearance cert is dated 30 July 2021, yet the forms had not been completed by 3 September 2021, the date the Complaint was filed with the WRC.

There was no evidence from the Respondent genuine attempt to complete the HAP forms and allow the Complainant avail of the Scheme. Any suggestion the unreasonable delay was due to the sale of the property is rejected; not only was no evidence presented by the Respondent of this statement but furthermore, the Director of the Respondent could not tell the hearing when the property was put up for sale, it was for the Complainant to offer up this information noting it was March 2021. It was the Respondent’s evidence that it was the only one of their property portfolios that was put up for sale. Mrs Foy’s, when asked whether the property had been sold, said there had been little to no interest in it due to the downturn in the housing market. I find this to be a nonsensical statement in a country where not only is there a housing crisis but also where housing prices are at an all time high such is the demand. Ultimately, whether the property was on the open market or not has no relevance to the Respondent’s acceptance, but it is demonstrative in this case of the Respondent’s general approach to the claim. As given in evidence by Mrs Foy, under cross examination, when she phoned the Council to enquire about the HAP Scheme, she was advised that HAP is allowed where there is less than a 2-year lease.

Having concluded my investigation of this complaint, I find pursuant to Section 25(4) of the Acts, that the Complainant established a prima facie case of discrimination on the housing assistance ground. Having heard the evidence of the Respondent I find that it failed to successful rebut the interference of discrimination. Consequently, I find the Respondent engaged in prohibited conduct.

Section 27(1) of the Act provides redress may be ordered where a finding is in favour of the Complainant. Section 27(1) provides that:

"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."

I order that the Respondent to pay to the Complainant the compensatory sum of €4,000 being equal to 5 months’ rent which I consider appropriate in the circumstances where the Respondent engaged in probative conduct from April to the date of this complaint was received in September 2021.

Payment to be discharged within 6 weeks of the date of this Decision.

Equal Status – Housing Assistance