ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00037299

Parties:

	Complainant	Respondent
Parties	Karen Duffy – A prospective Tenant	Frank McEvoy – a Landlord.

Representatives

Self-Represented

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-00048396-001	31/01/2022

Date of Adjudication Hearing: 26/10/2022

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

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

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.

Full cross examination of Witnesses was allowed and availed of.

There were no issues raised regarding confidentiality in the publication of the decision.

Regrettably the preparation of the Adjudication decision was delayed due to a Covid situation.

1: Background:

The issue in contention concerned a viewing / prospective rental of a Rental Property in North Dublin at the end of June 2021. On the prospective Tenant, the Complainant, informing the Landlord/ Respondent that she was a HAP Tenant the discussions ended. The prospective Tenancy never progressed beyond the viewing stage.

2: Summary of Complainant’s Case:

The Complainant, who gave an Oral Testimony, responded to an Advertisement and went to view the Property. All was going well, and a successful Tenancy seemed to be, in the Complainant’s view, in prospect. However, when she informed the prospective landlord that she was a HAP Tenant he sent back a text message to state

“Unfortunately, I do not have all the criteria in order to go the HAP route. I hope you find something soon “

This text was presented in evidence and was not denied by the Respondent.

Some further e mail exchanges followed regarding the length of a HAP Tenancy but nothing of consequence. The Complainant was not considered further and did not secure the Tenancy.

In all matters she was a very good prospective Tenant with young children and was of sufficient financial means. It was a clear case of Discrimination against HAP Tenants.

3: Summary of Respondent ’s Case:

The Landlord gave a detailed Oral testimony and a brief written statement. He absolutely denied any discrimination against HAP Tenants.

In this case it was important to note that the Complainant was only one of a good number of prospective Tenants invited to view the Property. She was completely wrong in her assumption that she had been “successful” in securing the Tenancy. The selection process the Respondent utilises at all his properties is detailed. It involves getting financial and character references and involves a detailed interview with prospective Tenants to assess their demeanour and general suitability. The viewing process was on going and there were other prospective Tenants to be seen. It was, he stated, only “Day One of the Viewings”. There were many other prospective Tenants.

The Respondent had requested the Complainant to forward to him all the HAP details. An issue that arose was the proposed duration of the prospective HAP Tenancy -two years. This was not possible for the Landlord as he had family likely to attend Third Level Education in that time frame who would need the property. He wished to keep the property on a one Year Lease basis to facilitate this possibility.

In addition, there were Regulatory & possible Revenue issues that he might possibly be exposed to. He would have to seek Accountancy advice before going down the HAP route.

The Complainant cannot base a HAP discrimination case on a purely hypothetical tenancy that was never even offered to her. This was a completely premature assumption to suggest that she was going to be offered a Tenancy.

The act of alleged Discrimination, refusal of a Tenancy, never took place as no Tenancy was ever offered.

In final summary the Respondent stated that he was not in any way opposed to HAP tenancies. He noted that the Complainant had stated in her emails that she had no issue personally with him, but it was the “Negative, for Tenants,operation of the Whole HAP system” she was against.

4: Findings and Conclusions:

4:1 The Law - Equal Status Act, 2000 and Discussion

Section 3: (3B) applies

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”).

However, it cannot be lost sight of that the normal provisions of the Act continue to apply -specifically Section 38 A.

Burden of proof.

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commissionunder section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary.

4:2 Discussion and Conclusions.

In Legal terms this case poses an interesting opening challenge on the well-known Legal grounds of Presumption of Innocence. The Landlord argued that as he had on or about the 26th June 2021, never offered a tenancy, simply a viewing which was only one part of a detailed evaluation of potential tenants. There were many other factors involved in selecting a Tenant and to assume that HAP was the deciding factor was a major assumption. The complaint of Discrimination cannot stand on this basis.

If he had offered a Tenancy and then withdrawn it on learning of the HAP status of the prospective tenant, he would have been carrying out a Discriminatory act. This never happened.

The difficulty here for the Respondent is that Section 38A allows for a situation where a Complainant may establish facts

“from which it may be presumed that prohibited conduct or a contravention -has occurred, it is for the Respondent to prove to the contrary”

In the evidence presented is the Respondent Text of the 28th of June and in the Oral Testimony the issues of Regulatory compliance, family member issues and the One-or Two-Year lease question. HAP has a preference for a Two-Year lease which the Respondent did not feel he could accommodate.

On balance and from a “reasonable bystander point of view” it has to appear to the Adjudicator that the HAP issue certainly militated against the Complainant’ Tenancy application being taken further in the selection process.

That Discrimination, on the HAP grounds did take place, has to be the reasonable conclusion.

5: Decision:

Section 41 of the Workplace Relations Act 2015 and 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 of the cited Acts.

Section 27 of the Equal Status Act,2000 allows for

(a) An order for compensation for the effects of the prohibited conduct concerned.

Any award cannot exceed the maximum amount that the District Court could award in civil cases in contract.

The Complainant had made it clear that a Financial compensation was not really her primary motivation rather a finding directed more against the HAP system in general. The Complainant spoke eloquently and with great feeling of the difficulties faced by people in her situation in securing Housing. HAP was in her view not fit for purpose.

Addressing this issue is not an area within the remit of the Equal Status Act 2000 or indeed the WRC generally.

While not a defence the Respondent had acted largely in good natured ignorance of the law as regards HAP and Equal status. There was no personal animosity between the Parties.

Accordingly, and having reviewed all the evidence, both written & Oral testimony, having considered the demeanour of the witnesses and their stated intentions an award of €500 is made in favour of the Complainant.

The Discrimination in this case was not egregious and the relatively modest size of the award reflects this view.

Dated: 16th March 2023

Workplace Relations Commission Adjudication Officer: Michael McEntee

Key Words:

HAP, Equal Status, Property viewing.