Complainant

Respondent

Parties

Margaret  McDonagh

Cork City Council

Representatives

Cathal Malone Thomas Coughlan & Co. Solicitors

 Karen O’Shea, In house Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00048310-001

25/01/2022

On 25 January 2022, the complainant lodged a complaint of discrimination in accordance with the Equal Status Act, 2000, against Cork City Council.

 In August 2022, the complainant’s representative came on notice in the case. A copy of an ES1 form dated 26 October 2021 was received alongside a certificate of postage for the same date.

On the day of hearing, the Complainant was represented by Cathal Malone, Solicitor, who came on record on short notice.

The Respondent in this case is Cork City Council, which has denied the claim. On the morning of hearing, time was given to facilitate the appearance of Ms. Karen O’Shea, In House Solicitor to join the respondent delegation.

The Complainant is a member of the Travelling community and has submitted a complaint of discrimination on those grounds. Ms Mc Donagh submitted that she had been treated unlawfully by discriminating against her in accommodation.

She submitted an ES1 form detailing the nature of the complaint on 26 October 2021. she had not received a response by ES2 or otherwise. The Complainant representative stated that this omission deprived the complainant of an earlier opportunity to engage with the respondent and a chance to resolve the matter.

The complaint of discrimination centred on the circumstances of the Complainants bid for tenancy on a house in early August 2021, for which she was not considered. The complainant introduced herself on her complaint form as a Traveller, lone parent social housing applicant who was almost 14 years on the respondents housing list. The Complainant chronicled a number of unsuccessful bids for which she contended that her protected status, her vulnerable and temporary housing situation were not “properly taken into account on this bid “

Details of the Complainants son reaching 18 prompted the complainants attempt to remove him from her application for housing, but this has been obstructed by requests for proof of address for this person. This has further hampered the complainant attempt to secure a tenancy on a 3-bed house as the complainant’s son remains on the application.

At hearing, Mr Malone opened and confirmed that the complainant had been unsuccessful in obtaining a house from the Respondent. It was the method of allocating housing that calibrated the order of priority, which ran through the claim of discrimination. He said the complainant was a long-term participant on the housing list operated by the respondent and she should have been housed by now.

On 24 April 2017, the complainant’s application got as far as “pre allocation “but the application failed due to a familial criminal conviction.

The Complainant lived in private rental accommodation funded by rent supplement until she received a notice to quit. She has been living in homeless accommodation with her 4 children, one of whom has special needs.

Mr Malone submitted that the respondents Allocation of Housing Policy raised issues of Indirect Discrimination. The Complainant had a number of points supporting a prioritisation but there was no sign that these points were considered or applied.

He submitted that the complainant had been held back in her application due to her association with familial criminality.  He acknowledged that the Ombudsman had addressed this, and the matter was now closed.

He asked that inferences be drawn from the respondent omission to respond to the ES1 form by ES2, or otherwise.

He sought a direction that the CBL (Choice based letting) system be equality proofed.  He requested a high level of compensation should be awarded to the complainant in respect of discrimination.

Evidence of complainant under oath

The Complainant confirmed that she had been on the housing list for 14.5 years. she currently ahs 4 family members living with her. she gave personal details of her life.

She recalled losing a potential housing arrangement in 2017.

She had lived at her previous home for 11 years in appalling conditions, photos of which she had shared with the Respondent. She received her first notice to quit in 2017.

She explained that she has lived in homeless accommodation for 4 months with her 4 children, but there was no privacy, and they were struggling to cope. she was concerned that opportunities for education which she had been denied were being lost to her family as a result. she said she was embarrassed to be in a state of homelessness.

The Complainant gave an overview of CBL. It was an app and required a password.

The complainant confirmed that she has currently been nominated for a house in a city suburb. She recalled being questioned in the context of that engagement, (October 2022) whether she had ever lived in a caravan? “

She contended that there could be no other reason outside of her traveller status which had kept housing from her. She added that all her settled friends had been housed by the respondent.

During cross examination:

The complainant confirmed that she had kept the respondent up top speed with any familial updates.

She confirmed that she had withheld rent at her previous dwelling. she added that the respondent was fully aware of the substandard housing.

The Complainant confirmed that she had not been provided with a record of October 2022 meeting. she clarified that the exchange had taken place by phone.

The Complainant confirmed that she had not actioned a bid on CBL in August 2021.

At this point, the complainant’s representative made an application to extend the statutory time limit associated with this complaint. He confirmed that the application for housing was June 23, 2021, and sought that the circumstances of the case be viewed as a continuum.

The Complainants representative submitted that he may have to consider making an application under section 23(1) of the Equal Status Act, 2000 as the silence which followed the careful submission of ES1 had not helped the situation, where being a Traveller, the status held by the complainant was a clear impediment.

For my part, I confirmed that precision was a requirement for both parties in the case management of this case.

In closing, Mr Malone placed an emphasis on the Professorial report on “ethnic identifier “There is no provision for the category of settled traveller on CBL or House or in the human oversight. He relied on this being the neutral provision leading to indirect discrimination.

He argued that the ad hoc treatment of the complainant as a traveller amounted to indirect and not direct discrimination.

He undertook to consider the requested records on how many members of the traveller accommodation were accommodated per year.

He submitted that the allocation system was designed without reference to Equality.

He submitted that it was impossible for a Traveller to surmount the challenges of CBL. The Respondent faced a difficulty in complying with the positive duty provided for in section 6 of the Act.

He concluded that the average time from application to housing was 7.5 -8 years and the complainant had been 14.5 years waiting.

He submitted that he could not see any other reason for not being housed outside of the complainant being born within a protected ground of membership of the travelling community.

The Respondent operates a City Council and has denied the claim of discrimination lodged. The Respondent submitted that in denying this claim, they wanted to hear to understand that the Council fully supported housing for members of the traveller community through accepting advocacy, providing Traveller Liaison and more recently an Accommodation placement service.

The Respondent, in opening confirmed that the application for housing referred to in this case dated June 2008 was not a Traveller specific request for housing. The housing need was initially assessed for a four-bed property. The need is currently identified for a three-bedroom property. The application was last updated in March 2022.

She submitted that the ES1 form fell through the cracks at the council as delays had occurred in recruiting staff. She confirmed that it should not happen again.

The Respondent explained that the priority for the council was safe management of housing stock.

The Respondent took the hearing through the process which governs a housing application for tenancy with the Council. The complainant was acknowledged as being on the housing list with her husband and 5 children from June 2008. The Council acknowledged that the complainant entered emergency accommodation in August 2022.

In describing the CBL (Choice based letting system), the Respondent outlined that the system operates on an “advertise and bid “basis where eligible households express their interest in living in a particular property which has been advertised as vacant by either a housing authority or an approved housing body “

The Respondent added that applicants are considered for properties appropriate to their housing composition.

Step one   CBL, a computer system receives and records applications.

Step two    I House a further process of filtering applications. (To be shared)

Step three   Advocacy 

Before an offer and allocation of housing tenancy is made

The ultimate decision makers are the Housing Officer and Area Manager following an interview with the potential tenant, consideration is also given to section 14 of the Housing Miscellaneous Provisions Act 1997

The Respondent detailed a chronology of expressions of interest lodged by the complainant from 2015. 118 4 b ed properties were advertised on CBL from November 2015 to end March 2022. The Complainant made 7 expressions of interest but was not successful.

The Respondent confirmed that 53 expressions of interests were submitted by the complainant March 2016 to November 2022, most of which she was deemed ineligible as qualified for a 4 bed. Some bids were successful, and the complainant was placed on a list.

The Respondent chronicled the bids in the possible cognisable period of this claim i.e., 6/12 months prior to 25 January 2022

6 January 2021 ,19 on bidding list

21 April 2021 15 on bidding list

23 June 2021 9 on bidding list

There were four further bids during 2022 and the complainant has been nominated for a 3-bed house since 16 November 2022.

It was the Respondent position that the Complainant had been mistaken in her bids and the situation had improved for her following her reassessment for a three-bed property in March 2022

The Respondent referred to a Report undertaken on the CBL system, which made 5 recommendations, inclusive of the appointment of a Traveller Liaison Officer.

The Respondent committed to sharing this report titled Equality Review of CBL, Cork City Council, 2021/2022, by Prof Cathal O Connell, which recommended.

1 appointment of advocacy Traveller Liaison Officers (appointment in Q4, 2022)

2 Engagement with relevant technical experts in accessibility, design, operation, language, and messaging of CBL

3 Insertion of an ethnic identifier option (April 2022, application form updated for Irish Travellers to identify under part 8)

4 compliances with GDPR

5 Traveller cultural Awareness training

6 consideration of CEO monthly report on traveller housing applications, progression/status, and outcomes. (Presented to Local area committees and An Chomhairle)

The Respondent outlined that the complainant’s husband had not been a participant in the housing application since 2019. Her son, now over 18 is no longer a participant from March 2022.

The Respondent acknowledged that the complainant had not been offered a house outside of the unsuccessful allocation of 2017. They acknowledge that she is officially homeless.

The Respondent confirmed that the CBL system has faced an “immense housing demand “

There are   4,600 on the housing support list and 3,200 on long term rentals. The Respondent did not have an immediate recollection of the present-day population of the catchment area.

Evidence of Ms Horgan, Housing Allocations Officer. Ms A.

Ms A manages housing allocations up to the point of tenancy.

She confirmed that the application for housing recorded on both CBL, and I House did not contain a reference to the complainant’s traveller status.

She confirmed that from April 2022, an “ethnic identifier “is now highlighted.

The complainant made an application for standard social housing.

CBL receives information on

Name

Address

Phone

Household number

Credit time on list, this is reviewed by annually, with an opportunity to amend.

Ms A acknowledged that the complainant was in Homeless Emergency Accommodation.

I House is an electronic tool to generate a classification of need, based on a record of need.

The pathway of application is CBL, I House and the human oversight undertaken by the Housing Assessment Office

During cross examination,

Ms A described CBL as a repository which generates a spreadsheet. the objective is to help people to choose where they want to live.

Categories for Older Person Housing and Housing for applicants with disability co-exist.

There is a 20% target assigned to providing housing for disability.

 SI 73/2022 Social Housing Assessment (Amendment) Regulations 2022. March 2022

Ms A said she was aware that 6% of the population are travellers, but applicants may not wish to describe themselves in that category.

Ms A explained that a 4 week turn around time is associated with an application on CBL and there is no appeal available.

Miss Colette Dennehy, Traveller Accommodation Unit, Ms B

Ms B outlined the support provided in accepting representations for members of the traveller accommodation who seek housing.

Ms O’Shea confirmed that the turn around time for bids was not 8 weeks, but rather 4 months.

In conclusion, Ms O’Shea submitted that the complainant was confused surrounding the events which led to her claim for discrimination, and she had still not identified them.

The Respondent had upheld the responsibilities as a public body with responsibility for housing provision.

The Ethnic Identifier had followed from the Professorial report; however, this development is not directly relevant to the facts of this case.

The Respondent rejected all allegations of Discrimination.

I have been requested to reach a decision in this complaint of discrimination on grounds of membership of the Traveller Community lodged before the WRC on 25 January 2022.

In arriving at my decision, I have listened carefully as both parties gave focussed oral submissions and three witnesses gave evidence at hearing.

I have also had regard for written submissions and submitted documentation, the last of which I received in February 2023 and copied by the Respondent to the complainant.

I have been provided with the Equality Review and endorsement by the Council, A record of offers of housing, but not the requested record of allocation of houses 2019-2021. A record of the complainant’s passage through the bidding on CBL.

A Preliminary Issue has arisen regarding the cognisable period allowed for this complaint and I will return to that.

However, firstly, I must address the carriage and passage of the ES1 form in this case.

 1  Issue of Notification of Claim of Discrimination ( ES1 form)

The Equal Status Act has provision for a first step notification process, provided for in section 21 of the Act. Just as a Complainant is expected to exhaust local procedures before moving to seeking third party intervention and decision, a complainant in an Equal Status case is explained to notify a respond within 2 months of the alleged incident, setting out the nature of the complaint and indicating a preparedness to refer the case onwards to the WRC, if unhappy with the outcome.

Redress in respect of prohibited conduct.

21.— (1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission].

(1A) If the grounds for such a claim as is referred to in subsection (1) arise—

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commission] under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).]

(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 Commissionor, 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.

The instant claim was received by WRC on 25 January 2022. The ES1 form, copy of  notification to the Respondent CEO of the claim was received some 7 months later and dated as sent on 26 October 2021.

The ES1 was unsigned but had a typed record of the complainants then representative. I have incorporated a review of this ES1 form in my investigation.

The form reflected a complaint of discrimination on grounds of membership of the Traveller community. I accept that the ES1 form was served on the Respondent on 26 October 2021 and was not processed or responded to.

It mentioned an application submitted through CBL” in around August 2021” Discrimination was said to be “ongoing up until the date of this notification “60 bids on 3- or 4-bedroom houses were unsuccessful.

The bids were catalogued as                  

1 In around August 2021

2 April 2021

3 January 2021

4 February 2020

5 December 2019

The Respondent has countered at hearing that the Complainant did not bid in August 2021. The Complainant agreed  with that declaration, in evidence .

These utterances occurred some 14 months after the ES1 was submitted and some 11 months after the claim was made at WRC. All Parties accept that the complainant and her family entered emergency accommodation in August 2022. It was clear to me that this had a harrowing impact on the complainant .

For my part, I was astounded that the ES1 form had not been responded to by the Public Body charged with responsibility for housing. The WRC has commented on this omission in previous decisions ADJ 30980, 31985, 31984 and the omission to respond appears to have continued.

I addressed both parties on this point at hearing. Both parties had a valuable opportunity , albeit on a voluntary basis ,  to engage on the contents of the ES1 prior to the commencement of my investigation.

During the hearing, I heard at first hand on the positive advancements on moving towards an equality proofing of the CBL system. The WRC had flagged this in ADJ 18849, and the Ombudsman Office had also chased it.

However, any journey starts with a single step and that step in this case was the notification of claim.

The complainant’s representative submitted that consideration be given to the provisions of section 26 in assisting the complainant attain the burden of proof set down in section 38A.

Inferences from failure to supply information, etc.

26.—If, in the course of an investigation under section 25, it appears to the Director of the Workplace Relations Commission]—

(a) that the respondent did not reply to a notification under section 21(2)(a) or to any question asked by the complainant under section 21(2)(b),

(b) that the information supplied by the respondent in response to the notification or any such question was false or misleading, or

(c) that the information supplied in response to any such question was not such as would assist the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission],

the Director of the Workplace Relations Commission] may draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c).

I realise that I write with a certain clarity here. I addressed the parties with that same clarity at hearing. I have extreme reservations about how an ES1 notification form addressed to the CEO of the Respondent body “could fall through the cracks “I appreciate that the HQ of the Respondent was in public usage for vaccinations during this time and may well have had staff shortages. However, given, on one level the Equality Review recommends to the Council that the CEO monthly reports are the window of measurement of housing allocation to Travellers, on another, a vortex appears to have accompanied the ES1 submitted on October 26, 2021.

It is of significance that I take this opportunity to mention that the complainant submitted that a previous ES1 directed at a 2019 application went missing during the pandemic and was not actioned to WRC. No details were furnished of that ES1 outside that mention.

I have addressed the parties with further clarity on this issue and requested that this “vortex “situation end immediately. I explained that were I to meet this again and considering the Positive Action responsibilities held by the Respondent under Section 6 of the Act, I would consider exercising my discretion by delegation under Section 34(1) of the Act in the context of any future investigation.

 Requirement to provide information.

34.— (1) For the purpose of enabling the Director of the Workplace Commission to exercise his or her functions under this Part, the Director of the Workplace Relations Commission]—

(a) may require a person who, in the opinion of the Director of the Workplace Relations Commission] is in possession of, or has in his or her power or control, any information relevant to the exercise of those functions, to furnish that information to the Director of the Workplace Relations Commission], and

(b) where appropriate, may require such person to attend before the Director of the Workplace Relations Commission for that purpose,

and the person shall comply with the requirement accordingly.

(2) A requirement under subsection (1) may specify a time and place at which information is to be furnished or a person is to attend, and if no such time or place is specified in the requirement, the person to whom the requirement is addressed shall comply with it as soon as is reasonably practicable.

(3) A person required to attend before the Director of the Workplace Relations Commission under subsection (1)(b)—

(a) shall answer fully and truthfully any question put to him or her by the Director of the Workplace Relations Commission (other than a question the answer to which might incriminate the person), and

(b) if so, requested by the Director of the Workplace Relations Commission], shall sign a declaration of the truth of his or her answers to any such question.

I make these plain observations as what emerged at hearing was that both parties now accept that there was no bid made by the complainant during August 2021.

Had the Es1 form been managed at a much earlier stage than at my investigation, this matter could have been resolved for the parties.

2 Statutory Time Limits      Preliminary Issue

This development now places the claim for consideration within the preliminary issue of

Section 21(6) of the Act on statutory time limits

6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

 (b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

The complainant cited early August 2021 as the date of the prohibited conduct on her complaint form and Es1 form.

April 2021

January 2021

February 2020

December 2019

The Respondent submitted that there was one application in June 2021, where the complainant was placed 9th on bidding list.

The Complainant has not placed any further dates within the cognisable period after August 2021 and before 25 January 2022 as dates of most recent occurrence. There were no occurrences raised in conjunction with the date cited as the most recent date of 19 January 2022 on the complaint form.

The Complainant Representative made application to extend the cognisable period to 12 months to incorporate the June 23, 2021, bid for housing.  He said that he would consider calling on section 23(1) powers of IHREC.

The Respondent opposed this application to extend time.

Section 21(6) (b) provides that is a complaint is not submitted within 6 months of the alleged contravention, an extension may be granted to 12 months on reasonable cause.

Cementation Skanska v Carroll DWT 38/2003

The Complainant must demonstrate that there are reasons which both explain and excuse the delay.

I have not been given reasons which allow me to expand the statutory time limits on this occasion. The Complainant had an advocate, familiar with WRC procedures and statutory time limits when this claim was lodged.

I fully appreciate that the Complainant was disadvantaged by the failure of the Respondent to furnish a response to Es1 form, however this failure does not amount to misrepresentation as provided for in section 21(7)

(7) Where a delay by a complainant in referring a case under this Act is due to any misrepresentation by the respondent, subsection (6)(a) shall apply as if the references to the date of occurrence of prohibited conduct were references to the date on which the misrepresentation came to the complainant’s notice.

I find that I must resolve this Preliminary Issue  of time limits in favour of the Respondent.

The Complainant has not observed the statutory time limits for this claim as she has not identified an occurrence of prohibited conduct during the cognisable period. I have not identified an opportunity to extend the statutory time limit to 12 months as provided in section in 21(6) (b) of the Act.

I find that I lack the jurisdiction to investigate this claim beyond this point.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 27 of that Act.

I have concluded my investigation on the Preliminary Issue of Statutory Notification. The complaint does not comply with statutory time limits in section 21(6) (a), and I have not identified an opportunity to extend the time as provided in section 21(6) (b) of the Act.

I have resolved this conflict in favour of the Respondent.

I lack the jurisdiction to take the matter beyond this preliminary issue.

I write in obiter and human interest  that I hope that the parties have managed to agree housing for the Complainant from our last meeting in December 2022.

Discrimination on grounds of membership of the traveller  community