Complainant

Respondent

Parties

Gareth  Flynn

Elaine Reily

Representatives

Threshold

Brian Morgan Morgan McManus 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-00054059-001

08/12/2022

The Complainant alleges discrimination on the grounds of housing assistance as the Respondent failed to complete the Housing Assistance Payment Application Form, despite the Complainant’s repeated requests.

The Complainant stated that he was unsure who owned the property in which he was living and initially made a request of the Respondent’s brother in June 2022 to sign the HAP form when he became entitled to receive the payment. Given that the HAP form was not signed, the Complainant contacted Threshold who called the Respondent’s brother on 29 June 2022. Although he agreed to complete the application form, he failed to do so.

The Complainant’s representative subsequently checked the land registry on 21 September 2022 to find the address of the landlord to whom to send the ES1 form. During the search, he discovered that the owner of the property was in fact the Respondent and not her brother to whom the Complainant was paying his rent. He sent the ES1 form to the Respondent on 28 September 2022 but did not receive a reply.

The Respondent stated that at no time was the Complainant a tenant of hers and that although she accepted that she was the registered owner of the building, which housed the apartment where the Complainant lived, she held the building in trust for herself, her father, and her brother. She further stated that individual apartments in the building were assigned individually to herself, her father, and her brother and that the apartment which the Complainant rented was assigned to her brother. Moreover, she stated that her brother’s names was on the letting agreement with the Complainant and the rent he paid was paid into her brother’s account. Accordingly, there was no onus on her to sign the Housing Assistance Payment Application Form.

It must be determined whether the Respondent discriminated against the Complainant on the “housing assistance ground” contrary to the Equal Status Act 2000 – 2018 (the “ESA”) by failing to complete the HAP Application Form, despite the Complainant’s repeated requests.

The Law:

Section 3(1) of the ESA 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 ESA 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”).”

Furthermore, section 6 provides:

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

(a) disposing of any estate or interest in premises,

(b) terminating any tenancy or other interest in premises, or

(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.”

Section 38A of the Act requires the Complainant to establish facts from which the alleged discrimination may be inferred. It is only where such a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the inference of discrimination.  Therefore, the Complainant must show that he has been treated less favourably than another person is, has been or would be treated in a comparable situation on the housing assistance ground which requires that, as between any two persons, one is in receipt of housing assistance and the other is not. I find that the relevant comparator in this case is a tenant of the Respondent who is not in receipt of HAP.

Finally, as regards redress, section 27(1) of the ESA provides:

“Subject to this section, 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.”

Findings:

The Complainant set out the efforts he made in seeking to have the HAP Application Form signed. He also contacted Threshold for assistance, who corroborated his evidence. Having considered the evidence, I find that the Complainant established a prima facie case of discrimination on the housing assistance ground.

While the Respondent stated both that the rent on the property was received by her brother and that the tenancy agreement was made between the Complainant and her brother, it was not disputed that she was the registered owner of the property, as the Complainant asserted. In such circumstances, I find that she was ultimately responsible for signing the Complainant’s HAP form because she was the person providing the accommodation.

Having concluded my investigation of this complaint, I find pursuant to section 25(4) of the ESA, that the Complainant established a prima facie case of discrimination on the housing assistance ground, which the Respondent failed to rebut.

As outlined above, I find that the Complainant successfully established a prima facie case of discrimination on the housing assistance ground which the Respondent failed to rebut and that she therefore engaged in prohibited conduct under the Act.

The Complainant stated that he was at a loss in the amount of €612 by not having the benefit of HAP. Considering all the facts - including the effects of the discrimination, both financial and otherwise, on the Complainant - I make an order for compensation of €1,000.