Complainant

Respondent

Parties

Dorinda  Walsh

Martin Murray

Representatives

  Ms. Fiona Grattan, Threshold.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00053270-001

14/10/2022

The Complainant alleges discrimination on the grounds of housing assistance as the Respondent failed to complete the Housing Assistance Payment (“HAP”) Application Form, despite the Complainant’s repeated requests.

The Complainant outlined her complaint in the Complaint Form and provided documentary evidence in support. In addition to providing oral evidence, she also read out an “Impact Statement” at the Hearing.

In June 2020, the tenancy commenced, with the Complainant and her then partner living in the two-bedroom apartment. There were no issues regarding the tenancy. In February 2021, the Complainant was awarded Rent Supplement Allowance. In August 2022, the Complainant was advised by Dublin City Council (“DCC”) that she was no longer eligible for the Rent Supplement Allowance and that she had to transfer to the HAP Scheme.  On 16 August 2022, the Complainant emailed the relevant HAP Application Form to the Respondent for completion. On 26 August 2022, the Respondent replied, indicating that he had a tenancy agreement in place with the Complainant which he was happy to honour, unchanged, and that she could explain this to DCC. On 26 August 2022, the Complainant contacted DCC who informed her that the Respondent was legally obliged to accept HAP. The Complainant forwarded this response from DCC to the Respondent. On 2 September 2022, when there was no response from the Respondent, the Complainant emailed him again. On 2 September 2022, the Respondent replied, indicating that he was “happy to fully honour the terms of [the] contract” and that it was “unfortunate” that her rent supplement had been withdrawn. He did not refer to HAP. The Complainant replied again on that date, stating that she was obliged to transfer to the HAP scheme. She copied, into her email, the relevant information from DCC which stated that her landlord was legally obliged to accept HAP. On 7 September 2022, when she had received no response, the Complainant again emailed the Respondent. On 16 September 2022, the Complainant sent the Respondent an ES1 Form and an ES2 Form.  On 14 October 2022, the Complainant filed a complaint with the Workplace Relations Commission (the “WRC”). On 20 October 2022, the Respondent completed the ES2 Form. In the ES2 Form, under the heading “Request to Move to HAP, August 2022”, the Respondent stated that the Complainant was confrontational and “made any discussion on this matter extremely stressful … challenging and unproductive.” He also said that he never refused to accept HAP and stated that he will accept HAP. Despite this, the Respondent still did not complete the relevant HAP Application Form, preventing the Complainant from progressing her HAP application.

On 25 October 2022, the Respondent issued a Notice of Termination of Tenancy to the Complainant – to take effect in May 2023. The Respondent again refused to complete the HAP Application Form, this time on the basis that he did now know if he could accept HAP, now that he had issued a Notice of Termination. In November 2022, the Complainant contacted Threshold for assistance. Ms. McGrattan of Threshold, contacted the Respondent on 11 November 2022 to confirm that he could accept HAP even though he had issued a Notice of Termination. The Respondent continued to refuse to complete the HAP Application Form. In January 2023, the Respondent provided a new tenancy agreement to the Complainant which outlined a rent increase. The Complainant refused to sign this new tenancy agreement and continued to pay rent of €1,250 per month. The Complainant outlined her belief that the rent increase was invalid.

The Complainant outlined that she is a lone parent to an 18-month-old baby. She said that the Respondent’s delays and evasion, ultimately resulting in a refusal to complete the HAP Application Form, have had an enormously negative impact on her life, both in financial and emotional terms. She has been unable to return to work as she cannot cover childcare costs. As she is ineligible for rent supplement and cannot obtain HAP due to the Respondent’s actions, she has “begged and borrowed” from friends and neighbours to pay her rent. She is alone with her baby and she has nowhere to go. Her parents are both deceased and her sister lives in Australia. She stated that she believes that the Respondent served the Notice of Termination on her when she filed a complaint with the WRC. She does not believe that it was a coincidence. She feels bullied. She fears homelessness and cries herself to sleep with her baby by her side. She is anxious, has panic attacks and has lost weight. She believes that this entire episode and the stress that it has caused, has destroyed her experience of being a new mother.

Witness Evidence:  Ms. McGrattan, Threshold:

Ms. McGrattan outlined that on 11 November 2022, she called the Respondent, on behalf of the Complainant to clarify his queries. She explained that she answered his query regarding HAP and the issuing of a Notice of Termination. She explained to him that DCC will process a HAP application within six months of receiving a Notice of Termination.  Ms. McGrattan explained that she followed this telephone call up with an email to the Respondent.

When asked about the loss suffered by the Complainant, Ms. McGrattan outlined that the HAP Scheme would have, at least, covered the Complainant’s rent from November 2022 until May 2023. She estimated that the Complainant had suffered a loss of approximately €6,000.

The Respondent is the landlord of the property which the Complainant rents. The Respondent is also the landlord of one other property. The Respondent provided considerable detail regarding the tenancy and his dealings with the Complainant. He believed that he was a good and “supportive” landlord and that he had always treated the Complainant well. He believed that he had agreed to significant reductions in rent for a “luxurious” two-bedroom apartment for which the Complainant paid €1,250 per month. He outlined his belief that he was very generous to the Complainant and that did not receive the “market rent” for his apartment. The Respondent stated that he has not discriminated against the Complainant as a single mother or otherwise. He denied that he had bullied her.

The Respondent outlined that from August 2022, he did engage with the Complainant about her HAP Application Form. His position was that there was a tenancy agreement in place until January 2023 which he believed was preferential for the Complainant. He outlined that the Complainant could not unilaterally change the tenancy agreement by obliging him to accept HAP. He stated that he could look into HAP in February 2023. The Respondent then outlined that on 29 October 2022, he emailed DCC to enquire whether he was obliged to accept HAP once a Notice of Termination was issued. The Respondent confirmed that he had received an email from Threshold dated 11 November 2022 which confirmed that a HAP application could be processed within six months of a Notice of Termination being issued. The Respondent outlined that he wanted to independently verify this information himself and so he emailed the Residential Tenancies Board (the “RTB”) with his query on 14 November 2022. In January 2023, the Respondent outlined that he provided a new tenancy agreement to the Complainant which provided for a rent increase. The Respondent indicated that the Complainant would not sign the new tenancy agreement or pay the rent increase.

The Respondent took issue with alleged delays on the part of DCC and the RTB in responding to his queries. He outlined that he felt harassed by DCC about accepting HAP in January and February 2023. He stated that he has suffered stress because he has been accused of discrimination and bullying. He said that he will not rent the property out again. He again outlined his belief that he has been very generous to the Complainant regarding the rental value. He asked that the Adjudication Officer take into account the Complainant’s alleged breaches of the tenancy agreement, when reaching a decision in this matter.  

Under cross-examination, the Respondent refused to accept that there were inconsistencies in his evidence. He said that he engaged with the Complainant from August to October 2022 regarding HAP. However, he reiterated that he and the Complainant had a valid tenancy agreement in place until January 2023.

Under cross-examination, the Respondent outlined that in October 2022, he accepted that he was legally obliged to accept HAP. However, he wanted DCC to independently verify that he was obliged to accept HAP when he had issued a Notice of Termination. He also wanted to know the relevant procedure.

It must be determined whether the Respondent discriminated against the Complainant on the “housing assistance ground” contrary to the Equal Status Act 2000 – 2018 (the “ESA”) by failing to complete the HAP Application Form, despite the Complainant’s repeated requests.

The Law:

Section 3(1) of the ESA 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 ESA 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.”

Section 38A of the ESA requires the Complainant to establish facts from which the alleged discrimination may be inferred. It is only where such a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the inference of discrimination.  Therefore, the Complainant must show that she has been treated less favourably than another person is, has been or would be treated in a comparable situation on the housing assistance ground which requires that, as between any two persons, one is in receipt of housing assistance and the other is not. I accept that the relevant comparator in this case is a tenant of the Respondent who is not in receipt of HAP.

Finally, as regards redress, section 27(1) of the ESA provides:

“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.”

Findings:

The Complainant was composed and credible in her evidence. She clearly set out her efforts in asking the Respondent to complete the HAP Application Form. She also contacted Threshold for assistance, who corroborated her evidence. The Complainant provided extensive documentary evidence. I find that the Complainant established a prima facie case of discrimination on the housing assistance ground.

It was clear from the evidence that the Respondent engaged in delay and diversionary tactics to avoid completing the HAP Application Form. The Respondent initially argued that the HAP application was an effort on the part of the Complainant to unilaterally amend the terms of the tenancy agreement. In October 2022, after issuing a Notice of Termination on the Complainant, the Respondent queried whether he could complete a HAP Application Form in the circumstances. Despite assurances from the Complainant and Threshold that he could, and despite accepting that he was legally obliged to accept HAP, the Respondent still wanted independent confirmation from DCC and the RTB before proceeding. He took issue with alleged delays on the part of DCC and the RTB. It was clear from the evidence that the Respondent believed that he was generously allowing the Complainant to rent his apartment for €1,250 per month. He outlined that the Complainant had acted aggressively towards him, and that discussion with her was challenging. He provided no evidence of this. I find that the Respondent has failed to rebut the inference of discrimination on the housing assistance ground.

Conclusion:

Having concluded my investigation of this complaint, I find pursuant to section 25(4) of the ESA, that the Complainant established a prima facie case of discrimination on the housing assistance ground. The Respondent did not rebut this case.

In respect of redress, section 27(2) of the ESA has fixed any potential award at €15,000, which is the maximum that may be awarded by the District Court. The Complainant paid rent of €1,250 per month. Considering all of the facts - including the effects of the discrimination, both financial and otherwise, on the Complainant - I make an order for compensation of €12,500.

The Complainant has established a prima facie case of discrimination on the housing assistance ground which the Respondent has failed to rebut. The complaint is therefore well founded.

In the circumstances, I make an order for compensation of €12,500.

Equal Status Act, Housing Assistance Payment.