Complainant

Respondent

Parties

Mariana  Gabor

Anna O'Reilly

Complainant

Respondent

Anonymised Parties

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Representatives

Threshold Advocate

 Self

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00052728-001

09/09/2022

The complainant alleges discrimination on the grounds of housing assistance when the respondent allegedly refused the complainant’s request to complete section B of the Housing Assistance Payment (“HAP”) Application Form. The complainant was a tenant of the Respondent since January 2020. The rent was €595 per month. 

The complainant was accepted on the HAP scheme on 29/06/2022. 

The ES1 Form was sent on 02/09/2022 with the respondent did not return the ES.2 form. The WRC received the Complaint Form on 09/09/2022. The first date of discrimination was noted as 05/09/2022 with the most recent being 01 February 2023.

The complainant gave evidence that the tenancy commenced in January 2020.  The complainant, her partner and three children lived in the house.  In June 2022 she applied for the HAP on medical grounds as her son had specific medical requirements.  She advised the respondent that she had been accepted on the HAP scheme and the respondent initially said that she would accept the HAP but may need to raise the rent by €100.00 but this was subsequently rescinded.  The respondent initially said that she would accept the HAP scheme and gave updates to the complainant by text that “I’m still working on that, I’m waiting on my tax clearance plus other documents to come through”.  On 30/08/2022 the respondent sent a text message to the complainant to say: “Unfortunately, we cannot meet the condition on the HAP for now.  So sorry about that.  Thanks”.

The complainant sought advice from Threshold who contacted the respondent on her behalf. The respondent initially maintained her reluctance to the HAP scheme and suggested that the tenant should seek a landlord who was in a position to accept the HAP scheme.  Sometime later the respondent confirmed that she would now comply with the HAP scheme but was looking to end the tenancy.

The respondent was able to comply with the HAP provisions and the complainant received the benefit from the HAP scheme from 20/02/2023.

It was submitted on behalf of the complainant that because of the respondent’s delay in accepting the HAP scheme the complainant was treated less favourably.  The complainant’s tenancy was at risk as she was not sure how she could manage to pay the rent.  The complainant gave evidence at the hearing that she had to borrow money from family and relatives, and she still must pay some of this back.  The complainant also gave evidence that she was unable to source alternative accommodation at the same market value. The delay in getting the respondent to comply with the HAP requirements caused a lot of stress for her and the seven-month delay has cost her €4,165.00.  This is calculated at the rate of €595.00 over seven months.

It was also submitted on behalf of the complainant that the failure to complete Section B of the complainant’s HAP application is a contravention of the Equal Status Act, 200 and in particular it is contravention of Sections 3 and 6 of the Act.

The respondent gave evidence on affirmation.  She was accompanied by her husband who attended the hearing in a supporting capacity.  The respondent said that they had rented out the house which was held in trust.  When she was asked to complete the HAP form, she realised that she had to meet a number of requirements such as valuation certificate, BER certificate and the delay in paying the property tax resulted in her not being able to get a tax-free certificate.  They were considering selling the property in order to pay the tax.  She and her husband were on very limited income, and they had to borrow money in order to become eligible landlords for the HAP Scheme. 

The respondent gave evidence that she would never discriminate against anyone, and she confirmed that she was happy with the complainant and her family as tenants.

The respondent did not wish to cross examine the complainant and when she sorted out all the documentation, she submitted these on 04/11/2022.

Housing Assistance Payments

Section 3(1) of the Equal Status Act, 2000 as amended provides:

“For the purposes of this Act discrimination shall be taken to occur— (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,”

Section 3(3B) of the Act provides:

“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”).”

Furthermore, section 6 provides:

6.—(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.

Burden of Proof

Section 38A of the 2000 Act, applies to all complaints of discrimination under the Equal Status Acts which places the burden of proof on the complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination.

The respondent did attend the hearing and the complainant gave her evidence under affirmation.  I note that the complainant made a number of efforts to get the respondent to sign and return the HAP form and the respondent did not do so for a period of seven months.  The respondent’s evidence was that in order to complete the HAP forms and allow the complainant avail of the Scheme she had to sort out her tax affairs and obtain the documentation which is required by the HAP Scheme.

Having concluded my investigation of this complaint, I find pursuant to Section 25(4) of the Acts, that the Complainant established a prima facie case of discrimination on the housing assistance ground. The respondent did not rebut this evidence.  Consequently, I find the Respondent engaged in prohibited conduct.

Section 21 sets out the requirement to notify the service provider in writing of the nature of the allegation and their intention, if not satisfied with the respondent’s response to the allegation, to seek redress pursuant to the Act. This notification must be made within two months of the alleged prohibited conduct. An ES1 was submitted on 02/09/2022 an ES2 was not received by the complainant and the complaint was received by the WRC on 09/09/2022.  I am satisfied that the complainant has satisfied the notification requirements.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the respondent engaged in prohibited conduct on the housing assistance ground.

The purpose of awards of compensation under the Act is to counteract the effects of discrimination but also to have a dissuasive effect in relation to prohibited conduct.  The complainant submitted that she was out of pocket to the amount of €4,165.00 due to the prohibited conduct.  Having regard to all the circumstances of this case, I consider that a compensation amount of €4,500 is appropriate in this case.

In accordance with Section 25(4) of the Equal Status Act, I am satisfied that Ms Mariana Gabor has been discriminated against on the housing assistance ground contrary to Sections 3 and 6 of the Act.   In respect of redress, section 27(2) of the Act has fixed any potential award at €15,000, which is the maximum that may be awarded by the District Court.

Ms Gabor was eligible for HAP of €950 per month.  Considering all the facts, I make an order for compensation for the effects of the prohibited conduct concerned to Ms Gabor of €7,000 inclusive of the seven months HAP payments of €4,165

HAP.  Discrimination.