ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00033861

Parties:

	Complainant	Respondent
Parties	Brendon Lane	Colette Danaher

	Complainant	Respondent
Anonymised Parties

Representatives

The claimant represented himself

John O Neill

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00044828-001	28/06/2021

Date of Adjudication Hearing: 08/08/2022

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 25 of the Equal Status Act, 2000, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

The complainant furnished further submissions following the hearing on the 8th.August 2021 – these were forwarded to the respondent’s representative who responded to same on the 12th.Sept. 2022.

Background:

The complainant and his family commenced as tenants with the respondent on the 1stFebruary 2021.The complainant submitted that he was discriminated against by the respondent when he raised the matter of rent supplement / HAP supports to assist with payment of rent to the respondent after he was diagnosed with a brain tumour .The complainant asserted that the first incidence of discriminatory treatment arose on the 17th.March 2021 and identified the 28th.June 2021 as the most recent date of discriminatory treatment. The respondent disputed the complaint entirely, submitted that no discrimination arose and contended that there was no jurisdiction to investigate the complaint as the respondent was never served with an ES1 notice within the time frame set down in the Act.

Summary of Complainant’s Case:

The complainant summarised the details contained in his complaint form to the WRC and advised that the family moved into their rented accommodation on the 1st.Feb. 2021 – he submitted that they agreed a monthly rent of €1,100 per calendar month and were assured by the owner/respondent that they would be secure in the property into the future. For the initial period they enjoyed a good relationship with the respondent. The complainant referenced text messages from the respondent to the effect that she was glad she had chosen the family as tenants. The complainant stated that the respondent told him she did not have to pay tax on rental income. He insisted that the respondent was adamant she would only accept cash. The complainant subsequently fell ill with a brain tumour – he had to take time off work and his partner would have to care for their 3 young sons. They were advised that they could avail of rent supplement until HAP kicked in. The complainant submitted that when he approached the respondent about rent supplement she replied “if you can’t pay without the rent supplement, then you need to have a chat together about what you are going to do”. The complainant submitted that at this point, the respondent’s attitude changed completely. It was submitted that within 12 hours of hearing about the complainant’s plan to secure a rent supplement, the respondent called an instant inspection. The complainant submitted that the respondent returned their rent and told the family not to lodge rent into her account again. The complainant asserted that a recorded conversation between him and the respondent corroborated his allegations.

The complainant asserted that the respondent tried to evict the family from the house and disregarded the travel restrictions imposed as a result of Covid at the time. It was submitted that a few days after he raised the matter of housing assistance the respondent advised the complainant that she was selling the premises and that they would have to leave notwithstanding the government restrictions on evictions at the time. It was submitted that the respondent thereafter refused to communicate with the complainant.

The complainant asserted that the respondent refused to disclose her address to enable him to serve the ESI form. The complainant said the respondent never registered with the RTB. He asserted that her position was that if the family could not pay cash she did not want them in the house. The complainant stated it was an extremely stressful time culminating in a separation between him and his partner. It was submitted that the respondent then refused to engage with the complainant despite numerous Whatsapp messages. It was submitted that when the respondent and her husband and the Gardaí went to the house the 30th.April 2021, she had given a story of “complete rubbish “to the guards – the complainant advanced that the Gardai treated them like they had done something wrong. The complainant advised that they showed the Gardai their contacts with the RTB and Threshold and told them that the respondent had repaid their payments and told them not to put money into her account. It was submitted that the respondent texted to say she would be at the house the day she had told them to leave the premises. The complainant stated that he was unavailable owing to medical and other appointments but he asserted this was ignored and the respondent attended within 24 hours “ in an attempted illegal eviction “ with her husband and 2 gardai.

It was submitted that the respondent had changed the reason for eviction on 3 occasions. The claimant said that they received a letter from the respondent’s solicitor asking them to leave “with no reason needed”. It was asserted by the complainant that the respondent only accepted cash payments to avoid paying taxes. It was submitted that no problems arose until the matter of rent supplement/hap was raised. It was submitted that the respondent never registered the tenancy and failed to give her contact address to issue paperwork including the ES1 form. It was submitted that the respondent had discriminated against the complainant by reason of his request to her to facilitate rent supplements/ HAP.

Summary of pertinent evidence of the complainant:

The complainant reiterated the allegations in the complaint form against the respondent. He asserted that the respondent only wanted to deal in cash, that her attitude changed completely when the subject of HAP was raised and that despite his objections she insisted on visiting the property with the gardaí despite his expressed objections and despite the travel restrictions that were in place because of the pandemic. He asserted that when she said she only accepted cash, they were given 24 hours’ notice to leave the house. He said when he tried to obtain her address, she replied you have my address, you live in my house. He said this was clear from a voice recording he and his partner had made. The complainant stated that their tenancy was never registered with the RTB until after they referred their complaint against the respondent. The complainant said it was clear that if they could not pay in cash she did not want them in her house.

The complainant said that when he raised the matter of HAP with her she responded that she only accepts cash payment.

Under cross examination the complainant was asked if he accepted that the respondent sought a meeting to discuss the HAP arrangements. The complainant responded that he had sent her a letter asking her not to attend. They had other rental appointments on the day, were unavailable as a result and had suggested another date but they were ignored by the respondent. It was put to the complainant that the respondent involved the Gardaí as she was nervous about the tone of emails she had received from the complainant – it was put to the complainant that the respondent had said she wanted to meet to talk about rent supplement. He was asked if he gave the respondent any documents and was referred to the complainant’s communication to the effect that he did not want her to attend on that date. The complainant replied that the respondent had asked that the documents be sent to the house they were living in. It was put to the complainant that neither the respondent nor the respondent’s representative had seen the ES1 – the complainant replied that his partner had a copy of the document. The complainant said the respondent was notified that the document was available for collection on the 13th.April 2021 – the respondent’s representative said he was confused about how it was served on that date and the complainant responded that he gave the respondent 28 days’ notice and that the respondent knew where the papers were. It was put to the complainant that he had sent an email to the respondent’s representative on the 10th.June 2021 to the effect that he did not want the respondent near the property .He was questioned as to why he did not serve the paperwork on the respondent’s representative when he wrote to him on the 11th.June confirming that he had authority to accept service of any documentation but had failed to do so. The complainant responded that his partner had all of the documentation but they had separated in the meantime in late June 2021. The complainant said he never said he was leaving to the respondent – he said that what he had said was if I am being evicted I want it in writing. The complainant undertook to furnish the copy of the ES1 to the WRC following the hearing .

Summary of Respondent’s Case:

The respondent disputed the complaint in full and submitted that no discrimination arose. It was asserted that the respondent tried to meet the complainant to discuss the application for rent supplement but this did not happen owing to the actions of the complainant. It was submitted that 6 weeks into the tenancy the complainant said they wished to avail of some form of rent supplement and the respondent suggested they have a meeting. It was submitted that at this point the complainant became aggressive and said that the documentation would have to be signed immediately and that if this was not done the respondent was discriminating against him. It was submitted that the respondent did not attend at the house on the 30th.April 2021 to evict the complainant but was simply coming down to speak with them. It was submitted that the respondent would call at 1.30p.m. on the 30th April and would collect some post that was apparently left there for her by the complainant. It was submitted that the respondent was categorically refused entry by the complainant and that he did not drop out the post to her.It was submitted that the respondent and her husband had notified the Gardai in advance of attending the property because of the nature of the conversations that had gone on beforehand. It was advanced that having spoken with the complainant the Gardai suggested that the respondent speak with the complainant through her solicitor. It was submitted that the respondent at times feared for her safety when communicating with the complainant and set out the grounds for same. In an email of the 10th.June 2021, the complainant had referred to the respondent’s elderly mother; the complainant referred to hiring a private investigator to “track down the whereabouts of Collette”. It was denied that the respondent was in any way offensive to the complainant during the rent supplement discussions.

It was accepted that the first termination notice served by the respondent was incorrect – a second termination notice was served on the 26th.May 2021 for the property to be vacated by the 9th.July 2021.This was referred to the RTB and the notice was deemed valid. The applicants had lodged an appeal but this was withdrawn. It was submitted that the property was not vacated until the 9th.Dec. 2022 and no rent was paid from the 12th.July 2021 to the time the property was vacated.

It was submitted that the Landlord had no opportunity to deal with the complaint as they were not furnished with written details of the complaint as required under Section 21 of the Equal Status Act.It was submitted that the complaint was never sent to the respondent even after the complainant was informed that it would accept service of any documentation in respect to any complaints on the 11th.June 2021.It was submitted that the complainant had not produced a copy of the ES1 Form that they stated had been issued on the 13th.April 2021. It was advanced that the respondent had not received the ES1 Form within 2 months of the alleged incident and that consequently the WRC had no jurisdiction to investigate the complaint.

It was submitted that all payments were made through the Landlord’s bank and that there was no question of “Cash Payments”.

Summary of Pertinent Evidence of Respondent – Ms.C Danaher

In her direct evidence the respondent confirmed that a corrected termination notice had been served on the complainant. She stated that she never received any document regarding rent supplement. The respondent asserted that she never said she would not complete the paperwork – she asserted that what she said was leave it with me and we can discuss it. She said she was concerned about the complainant’s emails referring to “tip of the iceberg” and “other problems coming her way”. She referred to the complainant’s reference to her mother’s home address and stated that she was unwilling to give her address when she did not like the tone of the complainant’s communications. She went to the Gardaí as she felt in fear and said the Gardaí were well aware of her fears. The respondent asserted that she had never met the complainant before or had discussions with him – she dealt with his partner Sasha.

When cross examining the respondent the complainant asserted that the respondent had met him on the day she called to the house – on the 30th.April 2021 – accompanied by the Gardaí and asserted that the respondent was not being truthful. It was asserted that this raised issues about the credibility of the respondent and that the WRC should check with the Gardai to establish who was telling the truth. It was put to the respondent that she refused to give the address. She was asked if she had requested the paperwork to be sent to the complainant’s house – the respondent replied that the complainant had said don’t come in – the respondent said Mr. Lane did not give her the paperwork. She said Mr. Lane stood at the front door and watched her leave – she asserted that he had plenty of time to give her the paperwork. The witness said she had never met Mr. Lane before and that she did not like his tone – he had her email address and phone number. She was not giving her address to someone she had never met before. The witness said it was never her intention to evict anybody. It was put to the witness that evictions must be done correctly and nothing was followed correctly. Mr. Lane said they had been advised by Galway County Council that their application for housing assistance needed to be filled in and the respondent refused to sign the form. Mr. Lane asserted that the couple’s Social Housing application was rejected because the respondent refused to sign the paperwork. Mr. Lane asserted that the witness was lying and that this would be confirmed by the local Gardai. It was put to the respondent that the guards had to ask her to leave the premises on the 30th.April 2021.The respondent was asked when was the tenancy registered and she clarified that it was in late May 2021.

In summing up the respondent’s representative asserted that no details had been furnished by the complainant and consequently they had no opportunity to reply to the complaint – he asserted that the respondent was not put on notice. He asserted that he wrote to the complainant on the 11th June clarifying that he had authority to accept documentation but the complainant had failed to furnish same.

Findings and Conclusions:

Preliminary Matter of Jurisdiction

Section 21 of the Act states

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.
		(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 by referring the case to the Director,
		and
		(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director, 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.
		(3) If, on application by the complainant, the Director is satisfied—
		(a) that exceptional circumstances prevented the complainant from notifying the respondent in accordance with subsection (2), and
		(b) that it is just and equitable, having regard to the nature of the alleged conduct and to any other relevant circumstances, that the period for doing so should be extended beyond the period of 2 months provided for in that subsection,
		the Director may direct that, in relation to that case, subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.
		(4) The Director shall not investigate a case unless he or she is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.
		(5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).
		(6) Subject to subsection (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.
		(7) If, on application by the complainant, the Director is satisfied that exceptional circumstances prevented the complainant's case from being referred within the time limit specified in subsection (6)—
		(a) the Director may direct that, in relation to that case, subsection (6) 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
		(b) where such a direction is given, this Part shall have effect accordingly.
		(8) Information is material information for the purposes of this section if it is—
		(a) information as to the respondent's reasons for doing or omitting to do any relevant act and as to any practices or procedures material to any such act,
		(b) information, other than confidential information, about the treatment of other persons who stand in relation to the respondent in the same or a similar position as the complainant, or
		(c) other information which is not confidential information and which, in the circumstances of the case in question, it is reasonable for the complainant to require.
		(9) In subsection (8) “confidential information” means any information which relates to a particular individual, which can be identified as so relating and to the disclosure of which that individual does not agree.
		(10) This section is without prejudice to the other provisions of this Act relating to the obtaining of information.

It is clear that the parties are polarised with respect to the question of whether or not the respondent was on notice of a complaint being referred to the WRC under the Equal Status Act.

I have reviewed the submissions, the evidence and the documentation furnished by the parties. I note that the complainant advised at the hearing of the case that he had difficulty accessing paperwork because he had separated from his wife. It was acknowledged by the respondent in her evidence that most of the interaction with the family was with the complainant’s partner Ms. Sacha Haverty .Ms. Haverty also lodged a duplicate complaint at 20.55 on the 28.06.2021. Ms. Haverty did not attend the hearing which was scheduled for the same date and time as the complainant’s and did not seek an adjournment. Mr. Lane’s complaint was received by the WRC on the 28th.June 2021 at 21.15.

In his complaint form the complainant identified the 17th.March 2021 as the first incident of discrimination and the 28th.June 2021 as the most recent date of discrimination.

The complainant insisted that the respondent was unwilling to disclose her address to enable him to furnish the ES1 form .For their part , the respondent has argued that the complainant would not allow the respondent and husband to enter the house on the 30th.April 2021 and that there was ample opportunity for the complainant to hand over the paperwork on that date and at a later point after he indicated that he had authority to accept documentation on behalf of the respondent. .

In the respondent’s submission to the WRC dated 26th.July 2022, the respondent states “At this time Mr. Lane became aggressive and indicated that the documentation needed to be signed immediately and that the Respondent was discriminating against him if it was not done.” In the complainant’s submissions to the WRC, the complainant asserted that the respondent was uncontactable from the moment HAP was raised. It was asserted that the respondent would read the WhatsApp messages but would not respond. The following WhatsApp message from the complainant to the respondent dated the 14th.May 2021 states.

“Collette Holgate there is notice here of court paper work (sent registered to your correct address and your real name), there is also the hap papers, all issued to the address as you requested /registered , I don’t need to send them on as the recording clearly states where you want them sent. Or I can send them to your other address we found online via the land registry if you like? Either way threshold advised us today to let you know all the paperwork is awaiting your response”.

The complainant’s email of the 7th.June 2021 to the respondent’s solicitor states “We also want you to note that we have a ps1 form here for Collette”. The respondent’s representative replied on the 11th.June 2021 advising that “we have authority from our client to accept service of any documentation you wish to deliver in relation to the matter”.

The RTB Adjudication Report 0421-68916 references “a Live Dispute before the WRC in the respondent’s submission”.

At the hearing of the complaint on the 8th.August 2022, the complainant undertook to furnish a copy of the ES1 to the WRC and the respondent’s representative within one week.

The complainant furnished what appears to be part of an ES1 form in August 2022 but it was illegible – in a replying submission the respondent’s representative stated that the complainant would not allow his client to access her own property to pick up the ES1 and in those circumstances it was impossible for his client to respond to same. He referred to his email of the 11th.June 2022 to the complainant advising that he had the authority to accept documents on behalf of the respondent, but the form was not provided to the office. He asserted that when his client took possession of the property the form was not there. Mr. O Neill asserted that if the ES1 was in Mr. Lane’s possession “it is not possible that it was served on our client or left in our client’s house”.

Mr. Lane was requested to furnish a hard copy of the ES1 to the WRC and Mr. O Neill on 3 occasions between January and March 2023. Mr. Lane replied as follows on the 7th.March -:

“To be honest, I have followed all the requested rules, sent her all the documents. It is not my position to make sure she got them, she requested them to an address and they were sent there. Ask her what she did with them please – it isn’t fair on me”.

On the day of the hearing, the respondent’s representative emailed the audio file capturing the conversation between the complainant and the respondent about facilitating rent supplement/HAP.

On the basis of the chronology of events set out above and given the exchanges between the parties in March 2021 as recorded in the audio tape submitted at the hearing , and taken account of the fact that the ES1 is not a prescribed form , I am satisfied that the complainant has met his obligations under the Act with respect to putting the respondent on notice of his intention to pursue a complaint of discriminatory treatment. Accordingly, I am satisfied that I have jurisdiction to investigate the complaint.

The issue for determination in the instant complaint is whether the respondent discriminated against the complainant under the “housing assistance ground” contrary to section 3 and 6 of the Equal Status Act 2000 (as amended) by refusing to complete the HAP Application Form and by subsequent termination of the tenancy agreement.

The Equal Status Act 2000 was amended with effect from 1st January 2016 as outlined above such that discrimination in relation to “providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities” is now prohibited under the new “housing assistance ground” which provides 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”)

Section 38A of the Act requires the complainant to establish, in the first instance, facts from which the discrimination alleged can 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.

Having carefully considered all the evidence adduced, I am satisfied that the complainant requested the respondent to complete the appropriate forms in order to avail of rent supplement / HAP during the period when he learned of his brain tumour in March 2021 and he was anticipating an extended period of time off work while his illness was treated. I found the evidence of the claimant with respect to this approach to the respondent to be compelling and consistent while the respondent’s witness was evasive and unclear.This finding I believe is corroborated by the audio recording which was submitted into evidence at the hearing.The complainant made it clear that he wanted her address to serve her with papers , that he was alleging discriminatory treatment if she refused to complete the documentation and that she was obliged to give him her address .For her part , the respondent was evasive and non-committal about disclosing her address; she was initially reluctant to commit to completing the necessary paperwork for the rent allowance and by the end of the conversation she was negatively disposed to facilitating the complainant when she stated she would be returning their monies and to refrain from putting money into her account.

On the basis of the submissions made by the complainant , the claimant’s direct evidence and his evidence under cross examination , the chronology of events leading to the termination of the rental agreement and having regard to the respondent’s evidence at the hearing, I find the complainant’s version of events to be more credible than that of the respondent .I have concluded that the complainant was the subject of less favourable treatment than a tenant not requiring rent allowance and accordingly I am satisfied that the complainant has established a prima facie case of discriminatory treatment on the grounds of HAP.

I must now consider if the respondent has rebutted the prima facie case raised by the claimant. The respondent denied discrimination on HAP grounds and submitted that her reluctance to disclose her address related to her concern for her safety when communicating with the complainant. The respondent asserted that she was endeavouring to have a meeting with the complainant on the 30th.April 2021 to discuss the matter of rent allowance. However, it is clear from the chronology of events that the complainant had asked her not to attend at the house on that day because of medical and viewing appointments and because of the Covid restrictions that were in place at the time and that this was ignored by the respondent. I note that at this point in time, the respondent had already refunded their monies and told the complainant to refrain from putting money into her account. While I acknowledge that the recorded exchange between the parties was robust, I do not accept that it could be construed as a basis for declining to disclose her address. In light of all of the circumstances I find the complainant’s assertion that there had been no problem prior to raising the matter of rent supplement to be credible and compelling.

I find that the complainant has established a prima facie case of discriminatory treatment by the respondent landlord on the housing assistance ground and that the respondent has failed to rebut same.

DECISION

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 25 of the Equal Status Acts, 200-2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 27 of that Act.

Under Section 27(1) of that Act, redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:

“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.”

In considering the amount of compensation that I should award, I have considered the effect the discriminatory treatment has had on the complainant .Having regard to all the circumstances and pursuant to section 27(1)(a) of the Acts, and taking into account the distress caused at a time of ill health , I deem it appropriate to order the respondent to pay the claimant €5,000 compensation for the effects of the prohibited conduct concerned.

Dated: 19/06/2023

Workplace Relations Commission Adjudication Officer: Emer O Shea