Complainant

Respondent

Parties

Michael  O'Connell

Meath County Council

Complainant

Respondent

Anonymised Parties

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Representatives

N/A

Regan, McEntee and Partners

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00053768-001

19/11/2022

The Complainant is a 27 year old man with intellectual and physical disabilities. Although he is currently on the Respondent’s housing waiting list and has been accepted for the Housing Assistance Payment (HAP), his application for the HAP in respect of a property purchased by his parents was refused. He asserts that this refusal was discriminatory.

The Complainant, through his parents, stated that he is a 27 year old adult with intellectual and physical disabilities who is unable to work due to these disabilities. He is on the Respondent’s Housing List as his parents’ two storey house has been identified as being unsuited to his needs and his only income is Disability Allowance. The Respondent is currently unable to provide the Complainant with suitable accommodation and family efforts to find suitable accommodation to rent from a third party have been unsuccessful. He has been accepted by the Respondent for the HAP, but when he applied for the payment in July 2022 in respect of a house purchased by his parents, his application was refused. In their letter of refusal, the Respondent stated:

"As per Residential Tenancy Guidelines a bona fide tenancy must be registered with the RTB for a period of 1 year and on submission of an application for the Housing Assistance Payment after this period of time a full record of payment from both landlord and tenant must also be submitted".

The Complainant further asserted that the Respondent has criteria for a bona fide tenancy which are unpublished and which:

1)      are outside the Government’s Housing Assistance Payments Regulations/Guidelines

2)      discriminate against a disabled person who is unable to work and does not have the means to pay rent for one year prior to applying for the Housing Assistance Payment.

The Complainant also stated that the "HAP Scheme - Landlord Terms and Conditions" are on the HAP website and evidence that the tenancy of the property, in respect of which the Complainant’s HAP application was refused, is a bona fide tenancy, as required under the HAP Scheme, was

submitted to the Respondent on 1st July 2022. It was also highlighted that attempts to appeal the Respondent’s decision to refuse the HAP application were denied which the Complainant asserts is not only a breach of natural justice but also a breach of Section 48 of the Housing (Miscellaneous Provisions) Act 2014.

The Respondent’s representative in his submission stated that the Respondent was correct to have concerns about whether the property was a bona fide rental property as is required by their guidelines prior to approving a HAP application and stated that the house was purchased for the Complainant by his parents.

It was further asserted that the Complainant’s parents never intended to rent out the property that they purchased and that it was at all times bought with his needs in mind and may even have been adapted to fit his circumstances. It was also stated that the decision by the Complainant’s parents to purchase the property for his benefit creates difficulties for the Respondent both in terms of providing evidence that the property might not be a bona fide rental property but also raising questions as to whether his housing need has now been met.

The Respondent’s representative also highlighted that the Respondent has frequently provided Housing Assistance Payment (HAP) to people who are disabled both intellectually and physically or both, and has also provided Local Authority Houses to disabled people. All of the individuals who have been provided with a Local Authority Houses or who benefited from HAP entered into the relationship of Landlord and Tenant whether directly with the Local Authority, in the case of a Local Authority House, or with a private Landlord in the case of HAP.

The Alleged Prohibited Conduct

The alleged prohibited conduct arises from the failure of the Respondent to approve the Complainant’s HAP application in respect of a property purchased by his parents on the grounds that he is disabled.

The Legislation

The discriminatory ground is defined in the Act at section 3(2)(g)

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

And discrimination is defined at section 3 as occurring when:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation which exists

The Burden of Proof

At section 38(A) the burden of proof that the Complainant is required to establish is:

38A. — (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

Both Adjudication Officers and Equality Officers in complaints made under the Equal Status Act have drawn on the Labour Court decision in Mitchell v Southern Health Board [2001] ELR 201 to explain what constitutes presumed prohibited conduct, also referred to as a prima facie case, stating that :

“aclaimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

Establishing a Prima Facie Case

In line with the legislation and the case law cited above, the Complainant must therefore establish, in the first instance if, on the balance of probabilities, a prima facie case of discrimination on the grounds of his disability has been established in respect of his complaint. To determine whether the Complainant has established a prima facie case, a three-tier test is employed and all three tiers must be satisfied.

First, the Complainant must establish that he is covered by the relevant discriminatory ground.

Second, he must establish that the specific treatment alleged has occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground i.e. a person who is not disabled.

In the first instance, I note that the Complainant’s parents asserted that he has a disability and that was not disputed by the Respondent. It was also not disputed by the parties that the Respondent denied the Complainant’s HAP application in respect of a property that he wished to rent on the grounds that there was not enough evidence presented to confirm a bona fide tenancy at the address. Specifically, the Respondent’s guidelines state that “a bona fide tenancy must be registered with the RTB for a period of 1 year and on submission of an application for the Housing Assistance Payment after this period of time a full record of payment from both a landlord and tenant must also be submitted”. I am therefore satisfied that the Complainant has met the first two tiers of the test set out above.

In relation to the third tier however, I note that there was no evidence presented to suggest that the Respondent’s guidelines in relation to a Housing Assistance Application were applied only to the Complainant and that no comparator was presented by him to suggest otherwise.

As the Complainant has not met the requirements of the third tier therefore, I find that a prima facie case of discrimination has not been established because all three tiers must be satisfied, as outlined above.   

As a prima facie case of discrimination was not established by the Complainant, I find that the Respondent did not engage in prohibited conduct.