ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044588

Parties:

	Complainant	Respondent
Parties	Gavin O Reilly	Sian Keary

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00055298-001	27/02/2023

Date of Adjudication Hearing: 11/07/2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This Notice in writing shall be brought within two months of the said prohibited conduct or the last instance of same.

Pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me by the Director General for the purpose of conducting an investigation into claims of discrimination and I have heard where appropriate interested parties and have considered any relevant documentation provided in advance of the hearing and in the course of the hearing. At the conclusion of any such investigation I am obliged to make a decision and, if I should find in favour of the Complainant, I shall provide for redress (s.25 (4)).

Generally, discrimination under this Act – per Section 3 - is taken to have occurred where a person is treated less favourably than another person is (or would be) treated in a comparable situation and by reason of any of the discriminatory grounds (as specified).

Broadly, the Equal Status Act prohibits discrimination in the context of buying and selling goods from and to the public (or a section thereof) and also in the context of using and providing services available to the public (or a section thereof). The service is not necessarily being provided for consideration. Section 5 (1) prohibits discrimination in the following terms: -

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public”.

In relation to the applicable burden of proof, Section 38A of the Acts is applicable to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which a discrimination can be inferred. It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.

Under Section 27(1) of the Act redress may be ordered where there has been a finding in favour of the Complainant. The Act allows for an Order for compensation (up to a maximum amount) for the effects of the prohibited conduct. The Adjudication Officer can direct that a person or persons take a specified course of action. The AO can also order that the service provider has to do something aimed at ensuring that similar discrimination does not happen again. For example, to take a specific course of action to upskill and train up staff. The maximum amount of compensation which can be awarded under the Equal Status Act is €15,000.00 (which is in line with the maximum award available in District Court contract cases per Section 27(2). In assessing compensation, I can consider the effect that the discriminatory treatment has had on the Complainant.

Discrimination is set out in Section 3 of the Act (as amended). Of significance in these proceedings is Section 3 (3B) which sets out that the Providers of accommodation services are prohibited from discriminating against someone on the “housing assistance” ground i.e. on the ground that they are in receipt of a rent supplement, housing assistance payment or other social welfare payment. The housing assistance ground protects anyone who has applied for and is eligible to receive such payments. The protection is intended to apply to existing tenants and to those looking for accommodation. Discrimination may take the form of refusing to allow a person look at or rent a property, refusing to accept the rent supplement or a refusal to complete the appropriate forms etc.

Providers of accommodation services are prohibited from discriminating against someone on the “housing assistance” ground i.e. on the ground that they are in receipt of a rent supplement, housing assistance payment or other social welfare payment. The housing assistance ground protects anyone who has applied for and is eligible to receive such payments and applies to existing tenants and those looking for accommodation. Discrimination may take the form of refusing to allow a person look at or rent a property, refusing to accept the rent supplement or a refusal to complete the appropriate forms etc.

Background:

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. There was no conflict of evidence herein.

Summary of Complainant’s Case:

The Complainant was not represented and his position was as presented in the Workplace Relations Complaint Form dated the 27th of February 2023.

The Complainant had orally agreed with the Respondent Landlady that he would rent a property that was situate to the side of the Respondent’s family home. The Complainant described it as a “granny flat”.

The Complainant requested that the Respondent would fill in the appropriate HAP forms so that he could qualify for the Housing Assistance payment.

Summary of Respondent’s Case:

The Respondent and her Husband attended the hearing. I had been provided with some paperwork in advance of the hearing.

The Respondent had been initially happy to take the Complainant on as a tenant. However, once the Respondent learned that the Complainant was hoping to be a HAP recipient, she backed out of the agreement stating that she was not “HAP Compliant”.

Findings and Conclusions:

I have carefully considered the evidence adduced by both parties int eh course of this hearing. At the outset I am stating that I am satisfied that the Respondent was providing a service to the public as described in the Equal Status Act.

In or around the month of January 2023 the Parties had agreed that the Complainant would rent a small unit situate to the side of the Complainant’s own family home. I understand that there are some shared facilities and that this makes the set up quite intimate. I gathered from shared text messages that the parties were amenable to the arrangements, and talks were underway to put together a formal Contract.

The Complainant asked that the proposed Landlord if she would facilitate his application for HAP by filling out the appropriate forms. The Complainant indicated in evidence that he had been a recipient previously when he rented a property in Dublin. He anticipated no difficulty in receiving the same in Wicklow.

The Respondent immediately stated that she was not HAP compliant and suggested that something about the internal lay out of the property meant that the property could not meet the Housing Assistance programme. This happened in or around the 16th of January 2023

The Workplace Relations Complaint Form is dated the 27th of February and I am satisfied that the Complainant notified to the Respondent (in Writing) of the allegation of prohibited conduct within two months of the last instance of that prohibited conduct having occurred.

In evidence the Respondent indicated that she was concerned that the Tenant would come into the property as a HAP recipient, and that a subsequent inspection (by HAP) would result in the withdrawal of the Assistance. In evidence, the Respondent indicated that she was not willing to risk the property (which was part of her family home) being rented out to someone that she perceived may not be in a position to cover rent further down the line. The Respondent acknowledged that this was an assumption she had made.

No evidence was adduced to suggest that an inspectorate with the Housing Assistance programme was likely to perform an unbidden inspection and override a Tenant’s wish to rent a particular property.

As previously stated - discrimination may take the form of refusing to allow a person look at or rent a property, refusing to accept the rent supplement or a refusal to complete the appropriate forms. I also would accept that discrimination may also take the form of making assumptions about the financial status of a person in receipt of HAP. This is exactly the type of assumption that was sought to be avoided by inclusion of the Housing Assistance ground of discrimination.

I am satisfied that the Complainant has made out a Prima Facie case of Discrimination on the Ground of housing assistance. The Respondent was not able to refute this discrimination and quite fairly agreed that this was a grey area she had not understood.

Decision:

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.

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

CA-00055298-001 - The Complainant was discriminated against. In considering the effects of the prohibited conduct I am awarding compensation in favour of the Complainant in the amount of €500.00.

Dated: 31-07-2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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