ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00039581

Parties:

Complaint(s):

Date of Adjudication Hearing:  09/06/2023

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

I have exercised my discretion to anonymise the Complainant’s identity having regard to sensitive medical and personal information shared at the hearing.

Background:

PRELIMINARY MATTERS

Counsel for the Respondent stated that pursuant to section 6 of the Act (as amended by the Equality (Miscellaneous Provisions) Act 2015) the Complainant to ground this complaint must be in receipt of a rent supplement allowance as defined in the Act and that means a payment made under the Social Welfare Acts and further that it is for long-term letting of accommodation and that does not apply to Hotel Accommodation. It is alleged that the Complainant never stated that she was in receipt of rent supplement allowance and to rely on the housing assistance ground it must be for long-term letting, a tenancy agreement, accommodation that is to be the Complainant’s home or residence. Counsel argued that the facts of this case related to refusal to accept payment by a third party, and it was entitled to do so. The booking made by the Complainant was a normal booking for a few days based on room availability. It did not constitute an act of discrimination having regard to what was intended by the Act with reference to the entirety of the Act. The Housing Assistance Ground is defined under the Act as:

Housing Assistance Ground:

(3B) 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”).

The Housing Assistance Payment on the Government Website is described as follows:

HAP is a form of social housing support provided by all local authorities. Under HAP, local authorities can provide housing assistance to households with a long-term housing need, including many long-term Rent Supplement recipients.

Section 3B references rent supplement and any payment under the Social Welfare Acts. Counsel for the Respondent stated the payment being made on behalf of the Complainant was not a payment being made under the Social Welfare Acts. The Complainant sourced the accommodation, and the Council would pay for it. The Complainant was not in receipt of rent supplement. Section 5 of the Interpretation Act 2005 states that where a provision is obscure and ambiguous that the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

The Respondent stated that this must mean housing and tenancy agreements within what is the normal rental market and not a normal hotel booking.

 The Equal Status Act provides at section 6 for the following accommodation providers to be excluded from alleged discrimination relating to the Housing Assistance Ground:

(5) Where any premises or accommodation are reserved for the use of persons in a particular category of persons for a religious purpose or as a refuge, nursing home, retirement home, home for persons with a disability or hostel for homeless persons or for a similar purpose, a refusal to dispose of the premises or provide the accommodation to a person who is not in that category does not, for that reason alone, constitute discrimination

The plain intention of the Oireachtas is to provide protection to those in receipt of a Social Welfare Payment or Rent Supplement and that they cannot be refused accommodation because they are in receipt of such a payment when compared to someone who is not. The question that then arises does a normal hotel booking come within the remit of the Act where the Complainant is not in receipt of a rent supplement and not directly paying the Hotel. The Act also defines what is and is not discrimination relating to accommodation and there are many exclusions. However, Hotel Accommodation is not specifically excluded.

The fact that the Council is paying does not negate the right to protection as the benefit is to the Complainant who is homeless. The Act provides for rent supplement and any social welfare payment. While the Act specifically refers to or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”). A literal interpretation that the payment because it was made by the Council was not a social welfare payment as provided for under the Act, and therefore the complaint is misconceived, would be absurd, as that was not the intention of the legislator. However, it is a valid question to ask is the Council payment made to secure a normal booking in a hotel a Housing Assistance Payment? There is no question that the circumstance of the Complainant is extraordinarily difficult. Discrimination is defined in the Act as:

6.—(1) A person shall not discriminate in—

(c) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities

The Complainant is in receipt of a social welfare payment and when that payment was revealed as a payment to be made by the Council was declined as the Hotel had no agreement with the Council. Clearly a hotel provides accommodation. So, a literal interpretation of this subsection would say yes, it is discrimination.

The question that does arise is the nature of accommodation provided by a hotel as part of what is normal short term stays such that it comes within the remit of the Act? There are incidences where a hotel in fact does become a person’s residence or home. However, based on the facts in this case that was not the case. The Complainant was approved to stay a few days based on room availability.

The intention of the legislator is that providers of accommodation should not discriminate against those in receipt of rent supplement or social welfare benefit. A literal interpretation of the Act could mean that is all accommodation. However, the Act specifically excludes several specific types of accommodation. Typically, the exclusions relate to accommodation providers where service could be classed as a residence or home; however, the purpose of the accommodation is for a very specific purpose or a person’s home. It is argued by the Respondent that the plain intention of the Act is to provide protection to Social Welfare Recipients to have protection when they are searching for accommodation that will be their home and residence. It may cover short periods of accommodation; however, the nature of this transaction which was a normal booking of hotel accommodation on the plain intention of the legislator is not accommodation that could be classed as the Complainant’s residence or temporary home.

The Act does not specifically exclude hotels on the Housing Assistance Ground; however, while hotels have become homes for many during this period of scarcity, that has involved contractual agreement where the nature of the accommodation is changing from normal short stay accommodation to the provision of accommodation that has the character of a residence and a person’s home.

The facts of this case are very difficult and challenging. However, the Respondent has made out a compelling argument that the Housing Assistance Ground in this case does not apply when the Act is read in its entirety and with reference to other statutory provisions:

Disposal of premises and provision of accommodation.

6.—(1) A person shall not discriminate in—

(c) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

(1A) Subsection (1)(c) is without prejudice to—

(a) any enactment or rule of law regulating the provision of accommodation, or

(b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.

(2) Subsection (1) does not apply in respect of—

(a) the disposal of any estate or interest in premises by will or gift,

(c) any disposal of such an estate or interest, or any provision of accommodation or of any services or amenities relating to accommodation, which is not available to the public generally or a section of the public,

(d) the provision of accommodation by a person in a part (other than a separate and self-contained part) of the person’s home, or where the provision of the accommodation affects the person’s private or family life or that of any other person residing in the home, or]

or

(e) the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender.

(3) References in subsection (2) to the disposal of an estate or interest in premises or the provision of accommodation or of any services or amenities relating to accommodation include references to the termination of any tenancy or other interest in those premises or ceasing to provide such accommodation, services or amenities.

(4

(5) Where any premises or accommodation are reserved for the use of persons in a particular category of persons for a religious purpose or as a refuge, nursing home, retirement home, home for persons with a disability or hostel for homeless persons or for a similar purpose, a refusal to dispose of the premises or provide the accommodation to a person who is not in that category does not, for that reason alone, constitute discrimination.

(6) Nothing in subsection (1) shall be construed as prohibiting—

(a) a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1998, or

(b) a body approved under section 6 of the Housing (Miscellaneous Provisions) Act, 1992, from providing, in relation to housing accommodation, different treatment to persons based on family size, family status, civil status], disability, age or membership of the Traveller community.

(7) (a) Nothing in subsection (1) shall be construed as prohibiting, in relation to housing accommodation provided by or on behalf of the Minister, different treatment to persons on the basis of nationality, gender, family size, family status, civil status, disability, age or membership of the Traveller community.

 (b) Nothing in paragraph (a) shall derogate from any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003 or any Act adopted by an institution of those Communities.

(8) In this section, ‘rent supplement’ means a payment made under section 198(3) of the Social Welfare Consolidation Act 2005 towards the amount of rent payable by a person in respect of his or her residence.

Section 5 of the Interpretation Act 2005 states:

5.— (1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—

(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or

(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned, the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

(2) In construing a provision of a statutory instrument (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of the instrument as a whole in the context of the enactment (including the Act) under which it was made, the provision shall be given a construction that reflects the plain intention of the maker of the instrument where that intention can be ascertained from the instrument as a whole in the context of that enactment.

The Department of Social Welfare and Protection state that Rent Supplement Allowance is:

What Rent Supplement is

Rent Supplement is a payment for some people living in private rented housing who cannot provide for the cost of their housing from their own income.

In the past, you could apply for Rent Supplement if you were qualified for social housing support and were on the local authority’s housing list. People in this situation should now apply for the Housing Assistance Payment (HAP).

It is clear why a person may receive a rent supplement. The reference to a payment made under the Social Welfare Acts must have regard to the statutory reason for receiving such a payment. Whether the payment is classed as a rent supplement payment or any social welfare payment in the Act, it would appear to relate to rented housing and accommodation.

On the 12th of July 2021 the Complainant was approved for Hotel Self Accommodation until the Council had sourced a suitable emergency homeless placement.

The nature of the transaction in this case is a licence and it is not a tenancy agreement.

The alleged prohibited conduct complained of is a method of payment. On or about the 20th of May 2022 the Respondent it is alleged declined payment when it became aware that the accommodation would be paid through the Dublin City Council Credit Card (DCC) for emergency accommodation. The Hotel would accept a personal credit card payment and declined to be paid on behalf of the Complainant by DCC.

The question raised by the Respondent is that the plain intention of the Act relates to a tenancy agreement and other longer term housing accommodation contracts and not to a licence.

The purpose of the Act is to:

AN ACT TO PROMOTE EQUALITY AND PROHIBIT TYPES OF DISCRIMINATION, HARASSMENT AND RELATED BEHAVIOUR IN CONNECTION WITH THE PROVISION OF SERVICES, PROPERTY AND OTHER OPPORTUNITIES TO WHICH THE PUBLIC GENERALLY OR A SECTION OF THE PUBLIC HAS ACCESS, TO PROVIDE FOR INVESTIGATING AND REMEDYING CERTAIN DISCRIMINATION AND OTHER UNLAWFUL ACTIVITIES, TO PROVIDE FOR THE ADMINISTRATION BY THE EQUALITY AUTHORITY OF VARIOUS MATTERS PERTAINING TO THIS ACT, TO AMEND THE EMPLOYMENT EQUALITY ACT, 1998, IN RELATION THERETO AND IN CERTAIN OTHER RESPECTS AND TO PROVIDE FOR RELATED MATTERS. [26th April, 2000]

The Housing Assistance Ground is defined at section 3B:

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”).

The Respondent stated that as the Complainant did not state that she was in receipt of any rent supplement within the meaning of section 6(8) of the Act or any payment under the Social Welfare Acts as contemplated by the section  and therefore her complaint is legally misconceived.

The plain intention of Part 4 of the Housing (Miscellaneous Provisions) Act 2015 relates to Housing and not to Hotel Accommodation.

Section 6(8) states:

(8) In this section, ‘rent supplement’ means a payment made under section 198(3) of the Social Welfare Consolidation Act 2005 towards the amount of rent payable by a person in respect of his or her residence.

The Housing Assistance Ground is defined at section 3B:

(3B) 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”).

It would be absurd that the protection afforded to person receiving any payment under the Social Welfare Acts would have additional rights to person in receipt of rent supplement and therefore it is important to look at the Social Welfare Consolidation Act so that the reference to any payment under the Social Welfare Act is understood in context.

Section 198 of the Social Welfare Consolidation Act 2005 as amended provides for:

Weekly or monthly supplements.198. (1) Subject to this Chapter, in the case of a person whose means are insufficient to meet his or her needs, regulations may provide for a weekly or monthly payment to supplement that person’s income.

(3) Without prejudice to the generality of subsection (1) and subject to subsection (4) subsections (3B), (3D), (4), (4A) and (4B) and section 198 A

regulations under subsection (1) may provide for the payment of a supplement towards the amount of rent payable by a person in respect of his or her residence.

This means that the payment being made under the Social Welfare Acts is to provide payment of a supplement towards the amount of rent payable by a person in respect of his or her residence.

A Hotel can provide a residence. However, the nature of this engagement was a normal hotel booking and that does not come within the definition of a residence.

Murdoch’s Dictionary of Irish Law define residence as:

the place of a person’s home; the place where he abides. Formerly, a person could be ordinarily resident in more than one electoral constituency: Quinn v Mayor of City of Waterford [1991 SC] ILRM 433; now, a person is deemed not to have given up ordinary residence if he intends to resume residence within 18 months after giving it up

In plain language the purpose of the Housing Assistance Ground is to prevent discrimination relating to obtaining accommodation that can be described as person’s home or residence and accommodation that is for a long term housing need. It is difficult to see how it relates to a person booking short stay accommodation in a hotel. There are other grounds that a hotel is subject to; however, I find for the Respondent that the Housing Assistance Ground does not apply in this case and therefore the complaint is misconceived.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 22 of the Equal Status Acts, 2000 – 2015 provides that 22.—(1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

Dated:  24th July 2023

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: