Complainant

Respondent

Parties

Christopher  Cleary

Tipperary County Council

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043304-001

29/03/2021

The complainant contended that he was discriminated against by the respondent on the grounds of disability and that this was in relation to their failure to take his disability into account when assessing him in relation to his placement on the list for social housing.  He also contended that his disability was again, not taken into account by the respondent when they conducted an assessment where the moved him from the list for 2-bedroom housing to the list for 1-bedroom housing.  The complainant described the impact of this as negatively impacting his likelihood of being housed due to a severe short supply of 1-bedroom properties in the area.

The respondent is a local authority who, while acknowledging the challenges for individuals on the housing waiting list, denied the allegations of discrimination.

Preliminary Issue

The complainant advised at hearing that he had completed and submitted the ES1 Form, that he had been contacted by a staff member of the respondent in relation to that form.  He also submitted that if he had been aware that this was an issue for the respondent in advance of the hearing, he could have provided documentary evidence to show that he had submitted the form.

The complainant asked if he could be permitted to provided the documentation post hearing and I agreed to take the information post hearing, on the basis that the respondent had not provided a submission in advance of the hearing and therefore the complainant had no advance knowledge that there was an issue of concern in relation to the ES1 Form.

Post Hearing Submission

Post hearing the complainant sent copies of the following documents to the WRC for my attention:

·        ES 1 Form completed and signed by the complainant on 28th March 2021 denoting local authority email address to which it was sent on the same date

·        Email from a staff member of the local authority in response to the above seeking a phone number at which the complainant could be reached to discuss the above form

·        Email response from the complainant providing the required phone number

Substantive Issue

In his complaint form, the complainant outlined that he was discriminated against by the local authority in relation to the allocation of housing at a specific named address within the local authority area.  He stated that he had been on the housing waiting list since 2008 and that, out of 5 eligible applicants for that property, he had been on the list the longest.  He stated that he had been assessed by the local authority as “involuntary sharing” in circumstances where he suffered with mental health issues including depression, suicidal ideation, anxiety and panic attacks for 13 years.  He outlined that he had been a patient of the local Mental health services since 2008 and that he was further diagnosed with narcolepsy and sleeping issues in 2016.

In his complaint form he described his sleeping issues as creating a situation where he was likely to sleep for up to 16 hours per day, inability to wake up, difficulty in remaining awake.  He also described needing to partake of high energy drinks and various medications to address those issues, but with little or no positive impact.  He stated that he advised the local authority of these circumstances.

The complainant described that when a vacancy arises for a 1 or a 2-bedroom property in an area, all applicants who have been identified as having a 1 or 2 bedroom need and who have identified that location as one of their 3 preferred locations are all assessed for that property. If there is more than one person for the 1-bedroom vacancy, then priority is based on the criteria outlined in the Housing Allocation Policy as follows:

·        1st preference is to those deemed to be living in dangerous accommodation

·        2nd preference goes to those deemed to be homeless

·        3rd preference is for those living in unfit accommodation

·        4th preference is to those living in overcrowded accommodation

·        5th preference is for those on disability

·        6th preference is exceptional medical or compassionate grounds

·        7th preference is for those living in unsuitable accommodation

·        8th preference is for those dependent on rent supplement

·        9th preference is for those involuntary sharing and who have a reasonable requirement for separate accommodation

·        10th preference is for those whose mortgage is unsustainable

The complainant described that, in accordance with that policy, when if an individual’s housing need was assessed, if it was determined that his/her need was categorised as “involuntary sharing” then as such, he/she fell into the 9th category.  Hence, any applicant seeking a 1 or a 2-bed unit in the area would be offered that unit if they were categorised above you.  He described that the policy stated that, in the interest of good estate management, , where 2 individuals lie within the same category, only then will length of time on the waiting list come into consideration, and the individual who is longest on the list will then be offered the accommodation.

The complainant submitted that, in circumstances where he had been incorrectly categorised as “involuntary sharing” and in circumstances where, if he had been correctly categorised according to his disability, then he would have been allocated the housing unit in the specific named location in his preferred area.

The complainant outlined that he had continually advised the local authority over the course of 12 years about the details and the impact of his disability, that he had provided evidence to them to confirm that disability but that the local authority had never reassessed him on the basis of that information.  He stated that the local authority did not disclose or make people aware of the information required to confirm a disability, making it difficult to know what should be provided by way of evidence.

The complainant further submitted that at every review with the local authority over the previous 10 years he provided medical evidence and disability allowance payment slips to demonstrate that he was on disability and he submitted that the local authority should have reassessed him based on that information.  He stated that it was unreasonable to expect the average person to know the internal workings of the local authority assessment process, and to know how to ask for an amendment.

The complainant submitted that the definition of a disability contained in the 2005 Act is “a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the Irish State or to participate in social or cultural life in the Irish State, by reason of an enduring physical, sensory, mental health or intellectual impairment.” He advised that both his medical conditions fall within the definitions as set out in the act.

The complainant submitted that the person who was allocated the specific named house, while she had the same mental health problems that he suffered from, was already in larger accommodation by choice. She had already been adequately housed on 3 previous occasions by three housing bodies and she had failed to disclose to the local authority that she had been evicted for arson.  He submitted that the local authority had failed to remove her on 3 occasions from the housing list, and despite the fact that she was already adequately housed, they had housed her in contravention of the local authority rules of non-disclosure and notifying them of changes in circumstances.

Evidence given at hearing under oath

The complainant stated that he first applied for a house from the local authority in July 2008, that the local authority had operated as the Thurles District Council at that time, that his sister had applied later and that she had been housed and re-housed on 3 occasions. He stated that his sister was a comparator for the purpose of the legislation.  He stated that all his family members suffer from depression and anxiety and he believed that on medical grounds he and she would both be assessed equally.  He noted that she was housed 3 times by different housing bodies, who all come within the broad scope of the local authority.  He stated that he believed the local authority could make a recommendation based on the length of time an individual was on the list.

The complainant advised that when he first applied, he was living with his parents in a 3-bedroom house but that now they were in a small house more akin to the size of a granny flat.  He stated that never before had the local authority put 3 people in to the house currently occupied by him and his family.

The complainant confirmed that he had a number of medical conditions and that he has a sleeping disorder.  He stated that his sister was housed ahead of him, that he had been assessed as “involuntary sharing” and that if he had been correctly assessed as having a disability then he would have been assigned to that unit first based on his length of time on the housing waiting list.  He advised that the medical evidence provided by him was not taken into account and therefore he was incorrectly assessed.  He stated that as a result he had lost out and that now he had been changed from a 2-bedroom requirement to a 1-bedroom requirement he had no real hope of securing accommodation as he was aware that no 1-bedroom units exist in the local authority area. 

The complainant advised that he had asked the local authority to show proof that they had acquired stock of 1-bedroom units, that he had sent in medical evidence o 7th October 2020 and still he remained categorised as “involuntary sharing”.

In response to the respondent case the complainant stated that between 2008 and 2020 he had never received any communication or information from the respondent to indicate that they required a consultant report.  He stated that it was never mentioned throughout those years.  The complainant also denied that he had turned down an offer of accommodation.  He stated that on 4th October 2011he had received correspondence from the Thurles District Council asking him to make contact if he was interested in being considered for units that “may become available”.  He stated that he had made a phone call by way of response, that he had never put voluntary accommodation on his application form and that his hope was to secure a local authority property, that he might one day be in a position to purchase outright.

The complainant undertook to send in copies of the relevant documentation outlined above post hearing.  He also pointed out that in relation to the medical evidence provided the individuals who were then making the assessment had no medical training, yet they felt able to disregard medical evidence provided.

The complainant referenced the meeting held with Ms. NR and confirmed that he had completed the required form and sent it on  to the HSE Mental Health Services for their input, as required.  He stated that he hadn’t heard back from them and that he had assumed that they had completed their element of the form and returned it directly to the local authority.

Post hearing submissions

The complainant submitted a number of documents on 6th July 2022 post hearing to support the position outlined by him at hearing as follows:

·        Copy of letter from Hospital to his GP containing medical details (dated 12th September 2018)

·        Copy of letter of 4th October 2011 from a Voluntary Housing Scheme in relation to an expression of interest in a 1-bedroom property which was about to become available

·        HNA Form for 2020 – in which he expressed an interest in a 2-bedroom property (circa Mar April 2020) and which he indicated received no response from the respondent

·        Correspondence from the complainant to the respondent seeking clarity in relation to the assessment that changed his requirement from a 2 bedroom to a 1-bedroom property (issued to respondent on 6th July 2022)

Some days later the complainant also sent a copy of email received 6th July 2022 from the local authority indicating that

·        clarification of the assessment process would issue under separate cover,

·        no 1-bedroom units had been acquired or built by the local authority since 2020,

·        the assessment that changed his requirement from a 2 to a 1-bedroom unit took place on 21st April 2022, and that he had not been excluded from 2-bedroom units prior to that date

·        new 3-bedroom unit allocations were available on the allocations system

In addition, the complainant provided details of the individuals assigned to 2-bedroom units in his immediate area from 1978 to 2021 showing that many were occupied by a single tenant and showing the house occupied by him and his parents was the first occasion during that time when 3 occupants were assigned to a 2-bedroom unit. He also provided details of his medical history and his medication history, as well as a history of receiving payment for illness/supplementary welfare allowance and disability allowance.

At the hearing the respondent advised that if the complainant was claiming to have a disability, he would need to provide a letter from a consultant confirming his disability.  He confirmed that there was a letter on file, dated 30th September 2018 and he quoted that letter as saying

·        “glad to say that the sleep study was negative”

·        “(the complainant) has vivid dreams some nights and wakes up tired, but no evidence of narcolepsy”.

The respondent stated that there was correspondence on file from the complainant’s GP dated 26th August 2013 which stated that “this man is suffering from depression/panic attacks” and indicating that this had been on-going for 6 years.  However, the respondent again advised that the complainant would need a consultant letter to verify his disability.

In response to a query from the Adjudication Officer the respondent confirmed that there was nothing on the file to indicate that the complainant had been notified at any time of the requirement to provide a consultant’s letter.

The respondent stated that the complainant had been offered aa 1-bedroom apartment in Thurles but had refused it on the basis that he couldn’t take his dog with him.

The respondent confirmed that the complainant had been assessed as “involuntary sharing.”  He advised that Ms. NR from the local authority had met with the complainant on 7th April 021 and had advised the complainant to complete a HMD medical form and return same.  He advised that this would formalise the complainants’ request to have his disability recognised for the purpose of assessment.  He advised that the local authority had not yet received that form.

The respondent noted that the complainant had made a complainant which had been reviewed by Ms. SC and that she had responded to him, setting out the hierarchy of how he had been assessed as “involuntary sharing”.

In conclusion, the respondent confirmed that it was the preference of the local authority to build housing to meet the needs of the population within their remit.  He stated that during the down turn in the economy this had not been possible due to financial constraints and that this was the case for all local authorities.  He confirmed that more recently financial support was coming on stream to begin building but unfortunately this had been further impacted by the pandemic.  He advised that stock of housing units is severly limited

He stated that in relation to the expression of interest, the complainant would not have been contacted in relation to a house unless there was a “good chance” that one would become available.  He also pointed out that in relation to the HNA form 2018, under question 6 of the guidelines it states “the nature of the medical condition/disability (consultant certificate to be submitted in support of application)”

At the hearing Mr G undertook to revert post hearing with information in relation to the assessment that changed the complainant’s requirement from a 2 to a 1-bedroom unit and with information regarding how the complainant was advised of the requirement for a consultant letter to confirm his disability.

Respondent submission post hearing

The respondent wrote to the WRC on 6th July 2022 and confirmed the following in relation to the change from 1 to 2-bedroom requirement:

·        That the complainant had been approved initially for a 2-bedroom unit in May 2012

·        That this had not been changed in the intervening 10 years

·        That the respondent launched a new system “Choice Based Lettings”(CBL) in April 2022

·        That using this system the complainant could apply for 2-bedroom properties only

·        That the system was designed to only allow an applicant to express an interest in a property with the same number of bedrooms for which they have been approved

·        That the complainant had expressed interest in every 2 bedroom property that went up on CBL in the area

·        That the complainant was unsuccessful due to the large number of applicants, including small families, competing for the same property

·        That there is an extreme shortage of available properties and unrelenting competition to obtain them when they do become available

·        That in order to increase the complainant’s chance of getting a property his bed number was amended just prior to a 1-bedroom unit coming available

·        That this was done to allow the complainant “the opportunity of actually being considered and possibly being successful in his application

·        That while the complainant expressed an interest in the property it was ultimately allocated to a client with a higher basis of need

·        That the complainant will now be switched back to a 2-bedroom preference with effect from July 2022 and the IT system supplier would be asked to amend the system to allow those assessed for 2-bedroom units to also express interest in 1-bedroom units.

In that same correspondence the respondent advised that the complainant had requested a re-assessment of his social housing application with the local authority in 2021.  The respondent confirmed that

·        The Housing Assessment Officer and the Senior Social Worker met with the complainant on 4th April 2021 regarding this matter

·        The complainant advised that he suffered from depression, anxiety and narcolepsy and outlined that he found things difficult at home, that he needed a quiet place to sleep and that space is limited in his current living arrangements.

·        He is attending a consultant in St. Mary’s for the last number of years

·        It was explained to the complainant that a medical report was required, detailing his disability/condition and how this impacts on his housing requirements and he was given a HMD form 1 for completion.

·        That the complainant was advised that upon receipt of the form the Housing assessment Officer would conduct a full review of his file

·        That the complainant has never returned that form.

Preliminary Matter:

Based on the post hearing submission by the complainant it is evident that the complainant did submit an ES1 Form to the complainant and did so by email of 28th March 2021.  It is also evident that the respondent did receive that form as the complainant provided a copy of an email from a staff member of the respondent looking to make phone contact with the complainant on foot of receipt of the form.

In this context, I am satisfied that the complainant has fulfilled his obligation to put the respondent on notice of his intention to take a case under the Equal Status Act and therefore I find that the case can proceed.

The Substantive Case:

This is a complaint of discrimination pursuant to the Equal Status Act.  It is on the grounds of disability.  It relates to the alleged failure of the respondent to take account of the complainant’s disability.

Statutory background - Equal Status Act:

Section 4 of the Equal Status Act addresses disability discrimination and reasonable accommodation in the following terms: “4. (1) For thepurpose of this act, discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. (2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question. (3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination. (4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination”.

Application of the Law to the facts:

Section 4 of the Equal Status Act refers to the reasonableness of a party and the assessment of reasonable in this case must take account of the length of time the complainant was on the waiting list, the number of times he made contact with the respondent to have his status reviewed, the detailed medical information provided by the complainant to the respondent and the fact that from 2008 and to 2021 there was no evidence that anyone, on behalf of the respondent, had ever brought to his attention the requirement to substantiate his assertion that he had a disability by providing a consultant letter.

Section 4 (4) refers to: “Harm” and it was not disputed in this case that the complainant was suffering from anxiety and depression (among other conditions) and that in such circumstances prolonged processes and lengthy delays and lack of clarity at a minimum had the potential to exacerbate those conditions.

As noted above, the respondent in outlining the case, advised that there was a requirement to provide a consultant letter to “back up” the position that he had a disability.  In his letter of 6th July to the WRC the respondent confirmed that the complainant had been asked to complete a HMD form 1 which required completion by his treating consultant.

There is no evidence that this form was ever presented to the complainant prior to 4th April 2021 and in fact, Mr. G confirmed that there was no documentation on file to suggest that this had happened prior to April 2021.

The complainant was on the waiting list from 2008 and it is evident that in all that time no member of staff of the local authority advised of the need for the consultant letter nor of the need to complete the HMD form 1 prior to April 2021.  This failure to explain the process required and engage with the complainant in a meaningful and supportive manner, in circumstances where he had made repeated efforts to demonstrate that he had a disability demonstrates, in my view, “a failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment”. Indeed, the provider (the respondent) had made no provision to clearly set out the requirements of an individual seeking to have their disability considered when assessing their entitlement/priority for housing.  It is clear to me that the complainant repeatedly struggled to understand the process and to ascertain what was required of him to have his disability factored into the local authority assessment process and as a result he found it unduly difficult to avail himself of the service of the local authority in relation to housing.  In all these circumstances I find that the complainant was discriminated against.

The respondent did behave in prohibited conduct in respect of the complainant and did discriminate against the complainant.  In these circumstances it is my decision that this complaint was well founded. It is also my decision that the respondent be ordered to pay the complainant the amount of €5000 as compensation for the discrimination. 

In addition, it is my decision that the Housing Assessment Officer must meet again with the complainant and “walk him through the process required” to have his disability factored into the local authority assessment of his case.  The complainant must co-operate with the requirements of the respondent and upon receipt of a completed HMD form 1, the Housing Assessment Officer must complete the review of the complainant’s application within 10 working days of receipt of that document. In assessing his eligibility for specific properties, the fact that he lost out on options over the intervening period must be factored into his ranking for any such future property.

Discrimination on the prohibited ground of disability