Complainant

Respondent

Parties

Karen  Duffy

Catherine Kavanagh CK Media Training

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048400-001

31/01/2022

The Complainant submitted a complaint under the Equal Status Acts concerning the Respondent Landlord’s alleged discrimination against her on the grounds that she was receipt in HAP.

The Complainant submitted her complaint on 31st of January 2022.

A hearing was held to consider the matter on the 14th of March 2023. As this was an online hearing the WRC was in touch with both parties in advance.

The Respondent in her interactions with the WRC indicated that she would not be engaging in the hearing.

On the day of the hearing the Respondent was called again. She indicated at that time she was taking a family member to hospital.

I opened the hearing online with only the Complainant present. I heard the complainant’s evidence and then adjourned the case in case further evidence was to come in from the Respondent substantiating what she had said to the case officer on the phone.

No such information was received nor was there any request for the hearing to be reconvened. As such I proceeded to draft this decision some eight weeks after the hearing was held.

The Complainant provided evidence under affirmation.

In June 2021 the Complainant was viewing potential rental properties. She viewed the Respondent’s property in Balbriggan and was delighted when she was offered it.

On the 21st of June the Complainant emailed the Respondent HAP forms which needed to be completed. The Respondent then called her that same day and explained that she didn’t accept HAP tenants for a variety of reasons.

The Complainant was really upset by this as she had been looking for secure accommodation for a number of weeks and was staying with family and friends on a rolling basis.

The Complainant later took advice from a housing NGO who told her she had between 4 and 6 months to submit an ES1 form and then had to wait at least a further month after that before submitting complaints to the WRC. She provided text messages outlining this advice.

She did not send the ES1 form until 8th of October 2021 and this complaint to the Workplace Relations Commission  on the 31st of January 2022.

The Respondent did not attend the hearing

Timing of Complaint

Section 21.1 of the Equal Status Act states that:  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 of the Workplace Relations Commission.

Section 21.2 goes on to state that: 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 under this Act,

The Complainant in this case sent her ES1 form to the Respondent around the 8th of October 2021 when the above time limit was reached on the 21st of August 2021.

Section 21.3 of the Act goes on to state:  (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant 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, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

 (b) In deciding whether to give a direction under paragraph (a)(ii) the F38[Director of the Workplace Relations Commission]F39[or, as the case may be, the Circuit Court] shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

I note with reference to b.i.ii I am satisfied from the evidence available to me that the Respondent was aware of the circumstances in which the prohibited conduct occurred and I can see no risk of prejudice to the Respondent’s ability to deal with the complaint.

Complainants in receipt of HAP are, by definition, of limited means and are unlikely to be able to afford professional legal advice, especially considering the maximum limit to any award of €15,000 and the position that parties before the WRC carry their own costs. As such they are entirely reliant on advice given by NGOs. In this matter the Complainant was given incorrect advice by a well established and entirely reputable housing NGO. It was reasonable for her to accept their advice and rely on it.  Having regard to the above section and the Complainant’s reason for delay I am satisfied it is fair and reasonable to extend the time period and allow the Complainant’s request for me to consider her complaint.

The Complainant in this case referred her complaint to the WRC on the 31st of January 2022. Some 7 months and 10 days after the date of the alleged contravention of the Act.

Section 21.6 of the Act states that:  (a) Subject to subsections (3)(a)(ii) and (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.

 (b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) 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, where such a direction is given, this Part shall have effect accordingly.

The Complainant was specifically advised by the above-mentioned housing NGO against bringing the complaint within time and has provided written evidence of this advice.

Having regard to this and the practical realities of HAP complaints I have already outlined I am of the view that this constitutes reasonable cause and this time limit should also be extended to allow me to consider the complaint. For the sake of transparency I would note that this application arises in the context of the Equal Status Act and I am of the view that it would be inappropriate to apply the body of case law arising from the Labour Court when deciding time extensions in complaints under unrelated employment legislation. 

Substantive Complaint

Section 6.1 of the Act states that: A person shall not discriminate in—…..(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.

Section 3.B states that: 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”).

Having regard to the Complainant’s unchallenged evidence, that she was offered a tenancy by the Respondent that this offer with then withdrawn when the Respondent discovered that she would have to comply with the terms of the HAP scheme, I conclude that prohibited conduct has occurred. 

Award

Section 27.1 of the act states that: Subject to this section, 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.

(2) The maximum amount which may be ordered by the Director of the Workplace Relations Commission] by way of compensation under subsection (1)(a) shall be the maximum amount that could be awarded by the District Court in civil cases in contract.

Having regard to the Complainant’s evidence as to the effect of the prohibited conduct I am of the view that an award of €3000 is appropriate.

 I find this complaint to be well founded.

I order the Respondent to pay compensation to the amount of €3000 to the Complainant for the effects of the prohibited conduct concerned.