Complainant

Respondent

Parties

Daniela  Krause

Agnes Flemming

Representatives

  Galway Threshold

 MHP Sellors LLP 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-00046643-001

12/10/2021

The complainant submits that she was discriminated against on the grounds of housing assistance payment (HAP) and the respondent has denied the complaint.

The complainant submits that she issued an ES1 to the respondent on Monday 30th August 2021 and received no response to it.  The complaint was received by the WRC on 12 October 2021.  The complainant submitted that she was discriminated against on 29th August 2021 and that the most recent date of discrimination was 30th August 2021. 

It was submitted that the legislation prohibits discrimination on the grounds of HAP and that the complainant was offered the accommodation on Friday 27th August under the terms of €1,000 rent and €1,000 deposit and the complainant paid €150 by way of a deposit with more monies to follow.  The complainant had to look for accommodation as she was under notice to leave her previous accommodation and as far as she was aware the acceptance by the respondent of her as a tenant meant she could confirm to her current landlord the date she was leaving. 

It was submitted that the complainant received a call on Sunday 29th August 2021 from the respondent asking the complainant to take on responsibility for wifi and electricity in the complainant’s name.  The complainant said she needed HAP forms completed and the respondent said that she needed someone who could pay cash and that she would need to think about it.  The offer of the accommodation was then withdrawn by the respondent who said she was returning the complainant’s deposit and arranged to meet on the Monday 30th August to return the deposit.

On Monday 30th August 2021, the complainant handed the respondent an ES1 form.  The complainant submitted that the respondent accused the complainant of being a scammer and it was submitted that the respondent looked for employer references which should not be considered when providing accommodation.

The complainant gave evidence that she met the landlady on the Friday 27th August 2021 to view the accommodation and told the respondent that she was interested in it, what her job was and that she would prefer to rent the accommodation on her own as she works remotely.  The complainant did not have the full deposit for the respondent and the complainant was able to go to the ATM and get €150 and was to come back with the rest of the deposit.  The complainant said she was going to pack her belongings and give notice to her existing landlord and arrange a moving company to move her belongings.  The complainant said she was devastated when the respondent said she would not accept HAP and that the respondent said she doubted that the complainant would stick to her payments and returned her the deposit.  She said that it caused her a lot of distress and that her employer was not impressed that the complainant might become homeless.  The complainant messaged the respondent on 30th August 2021 looking for her documents to be returned and the respondent replied.

“I’m not discriminating because u are on hap.  If hap was paying your full rent I would rent to u.  I am not renting to u because I think that I may have serious problems with u in the future and that you may not be able to pay your share of the rent.” (sic)

The complainant gave evidence that she got a taxi to meet the respondent on Monday 30th August and had an ES1 form and a ES2 form in the envelope that was handed to the respondent.  The complainant said another lady arrived and the respondent abused the complainant and said that she should go back to Germany and that she was a hitler girl and that the complainant had no money.  The complainant said that the respondent told the other lady who arrived that she could come in and the complainant had to leave in a taxi and was devastated. 

Under cross examination the complainant denied that she was refused the accommodation because the complainant could not pay the deposit.  The complainant confirmed that she told the respondent that she would seek legal representation owing to the way that she was treated.  The complainant confirmed that the respondent looked for a receipt of the deposit and that the complainant would not return a receipt as she needed it for evidence. The complainant confirmed that she messaged the respondent saying that she was a fraudster and that she had the respondent’s address.  The complainant said that she told the respondent she would watch her and that she was a fraudster as she advertises property but does not accept HAP.  The complainant said that the age of the respondent did not matter as the respondent should not discriminate.  The complainant said she felt vulnerable and that on the Sunday the complainant was advised by the respondent that she would not accept or complete HAP and withdrew the offer of accommodation.  The complainant said that the call on Sunday came as a surprise to her.  The complainant said it was irrelevant if she had previously taken a case with another landlord.

The evidence of Mr Murphy was that the complainant contacted him distressed and told him that the conversations with the respondent took place on Friday 27th August 2021.

In advance of the hearing the respondent submitted that it would be more appropriate that a face-to-face hearing proceed.  The respondent was advised that the hearing would proceed virtually, and no further submissions were raised by the respondent with regard to this matter.

The respondent disputes the complainant’s claim that she was discriminated against in the provision of accommodation by reason of being in receipt of HAP. The respondent’s position is that she offered to rent the apartment in question to the complainant on condition of payment of one month’s rent in advance and a deposit of €1,000.00. This was initially agreed to by the complainant. However, the complainant reneged on the agreement to pay one month’s rent in advance and the balance of the deposit (having made a part payment of €150.00) the day after payment of the part-deposit as agreed. At this stage it became clear to the respondent that the complainant was not able to meet the terms agreed in respect of the proposed letting of the apartment and it was on those grounds that the letting of the apartment to the respondent did not proceed. The respondent refutes any suggestion that she “does not accept HAP” as alleged by the complainant. The respondent submits that she rents other properties to HAP tenants and provided details of this including a copy letter dated 25th November 2022 from Galway City Council confirming that the respondent is the landlady for two active HAP tenancies as of November 2017 and November 2018 respectively and a redacted extract of payments from Limerick City and County Council Housing Assistant Payment Section showing the respondent as a recipient of HAP payments in respect of rented properties.

The evidence of the respondent was that the complainant seemed pleasant when she contacted her about the accommodation and that she told the complainant that the deposit was one month rent, namely €1,000.  The complainant said she would not have that money but would go to ATM and went and then gave the respondent €150.  The respondent said the next day the complainant said that her hours might be reduced, and the complainant said HAP does not pay a month in advance.  The complainant did not have the money required and therefore the respondent withdrew the offer.  The respondent said that the complainant got very aggressive and said she was discriminated against.  The respondent said that the complainant was very abusive and told the respondent that the respondent was discriminating against her, and the respondent said she would meet her to give back the deposit.  The respondent said there were 3 meetings with the complainant namely on the Saturday 28th August, Sunday 29th August and Monday, 30th August.  The respondent denied raising her voice and said that it is normal to tell her tenants that they have to get the wifi connected.  The respondent said if the complainant had the monies for deposit, she would have secured the accommodation. 

The respondent said that she has good experience with HAP as the money is also lodged on time and that the respondent enjoyed her role as a landlord. The respondent said that since her experience with the complainant she does not have as much engagement with tenants as she has handed properties over to someone else to look after the tenants as she has lost her confidence.

Under cross examination the respondent said that the complainant saw the accommodation on 28th August 2021 which was a Saturday and not a Friday and that she told the complainant on Sunday that she would be giving back the deposit.  The respondent said she had a lot of experience renting accommodation and that she would always look for a deposit and that she was scared by the complainant’s behaviour and abuse.  The respondent said that when she met the complainant the complainant could only get €150, and arrangements were made to get the remainder.  The respondent said that when the complainant arrived on Monday 30th August 2021, she called the respondent a fraudster and the complainant said that she would call the gardai.  The respondent said she did not recall getting an envelope or seeing anything in the envelope or where she might have left the envelope.

The evidence of Ms Egan was that she arranged to meet the respondent at 6:15pm on Monday 30th August to view the accommodation and there was a taxi already there.  The lady in the taxi which was the complainant asked the Ms Egan if she was there to view the property and Ms Egan said yes.  The complainant told Ms Egan that the respondent was a fraud.  Ms Egan said she saw the complainant hand the respondent an envelope and that the complainant said she was going to speak to her solicitor.  Ms Egan said she heard the complainant call the respondent a fraudster and that she found the complainant to be intimidating and she got louder and louder.  There was no cross examination of Ms Egan.

The complainant submits that she was discriminated against on the grounds of HAP and the respondent has denied the complaint.

The Equal Status Act, 2000 as amended prohibits discriminating on Housing Assistance grounds in the provision of rental accommodation.

Section 3(3)(b) of the Act provides that:

 (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”).

and Section 6 provides:

(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 Acts applies to complaints of discrimination under the Equal Status Acts and requires the complainant to firstly establish facts from which discrimination may be inferred. Where a prima facie case has been established, the burden shifts to the respondent to rebut the inference of discrimination.

The complainant submits that the respondent discriminated against her by withdrawing the offer of accommodation because the complainant is in receipt of HAP.  The respondent denies this complaint and submits that she has other tenants in receipt of HAP and that she finds HAP useful for easier management of monies as a landlord.

There was conflict in evidence between the respondent and the complainant regarding dates and the location of their interactions.  There was no conflict however, in the evidence that the complainant did not have the full deposit when she saw the property which required her to pay a deposit equivalent of a month’s rent and that she gave €150 as an initial payment towards the deposit. The complainant did not dispute that she referred to her working hours possibly being reduced in the context of paying the remainder of the deposit.  It would appear that the complainant questioned the deposit required.  I note the complainant said that the offer of accommodation was withdrawn when the respondent found out that the complainant was in receipt of HAP, however, I note that the respondent has accepted HAP in the past and that the respondent spoke positively of her HAP experience. 

There was agreement by the parties that they met each other on Monday 30th August 2021 when the complainant arrived in a taxi to collect the deposit of €150 following the withdrawal of the offer of accommodation.  The respondent could not recall if she received an envelope from the complainant, but I note the credible evidence of Ms Egan who confirmed an envelope was handed to the respondent and it would be reasonable to assume that this contained the ES1.  I also accept Ms Egan’s evidence that the complainant called the respondent a fraud and that the complainant’s voice was very loud.  Ms Egan said she did not hear the respondent say anything disparaging to the complainant on Monday 30th August 2021.  The complainant messaged the respondent on 30th August 2021 and the respondent replied that she withdrew the offer because of worries that the complainant could not pay the rent.

It is clear that there was upset on both sides regarding events which may explain the differing version of events as to when discussions happened or even whether events took place through telephone or meeting up.  I am struck, however, that there was agreement between parties regarding a discussion of the deposit and that the complainant did not have the initial required deposit and there was a further discussion that the complainant might have her working hours reduced.    Taking into consideration all the evidence and submissions I find it more credible that the offer of accommodation was withdrawn as the respondent was concerned the complainant could not pay the relevant deposit.  In all the circumstances I find that the complainant has not established a prima facie case of discrimination and I do not find that the complainant was discriminated against on the housing assistance ground.

Taking into consideration all the evidence and submissions I find it more credible that the offer of accommodation was withdrawn as the respondent was concerned the complainant could not pay the relevant deposit.  In all the circumstances I find that the complainant has not established a prima facie case of discrimination and I do not find that the complainant was discriminated against on the housing assistance ground.

Equal status, housing assistance payment