CORRECTION ORDER

ISSUED PURSUANT TO SECTION 29 OF THE EQUAL STATUS ACT 2000

This Order corrects the original Decision ADJ-00039355 issued on 15/11/2023 and should be read in conjunction with that Decision.

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00039355

Parties:

	Complainant	Respondent
Parties	Philip Fox	Milfort Properties Ltd.

Representatives

Ms. Jackie Fox

Mr. Denis Lane

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00050909-001	30/05/2022

Date of Adjudication Hearing: 12/09/2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000 (as amended)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 of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation may be required and full cross examination of all witnesses would be provided for. The Hearing took place completely in public and 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. Post Hearing correspondence took place.

Background:

The Complainant claim relates to the failure of the Respondent to accept the Housing Assistance Payment (HAP) Application Form to allow the Complainant avail of HAP for a period of seven months. He also claimed that he was discriminated against on the grounds of his disability.

Summary of Complainant’s Case:

The Complainant gave evidence on affirmation that on April 11th 2022 he was approved for HAP by Limerick County Council. This approval document was subsequently submitted post the hearing at the request of the Adjudicator and confirmed the Complainant was approved for social housing. A copy was provided to the Respondent Owner, Mr. Denis Lane. Mr. Fox was informed that he was now eligible to apply for HAP and an application form for HAP was enclosed with the approval letter.

On April 15th 2022 the Complainant contacted Mr. Lane to complete the HAP papers.

The Complainant stated that between April 15th and 26th 2022 Mr. Lane was on the site of his apartments but he did not contact the Complainant.

On April 28th 2022 the Complainant heard Mr. Lane in the premises and met him at his car and gave the HAP approval form to Mr. Lane.

On April 29th 2022 the Complainant sent the ES1 form to Mr. Lane by text stating he was discriminating against the Complainant under the disability and housing assistance grounds.

On April 30th 2022 the Complainant received a text from Mr. Lane stating that he would not be accepting HAP payments on the basis the lease agreement was due to expire on July 28th 2022 and that there was nothing in the lease agreement that he had to accept HAP payments.

On May 13th 2022 the Complainant sent the ES2 Form to the Respondent but it was returned to hm by an Post, as refused.

The Complainant advised that he was denied a HAP payment between May to Dec 2022 and was at a loss of 670 Euros per month amounting to 4,690 Euros

The Complainant was given a housing assistance payment from January 2023 and suffered no loss thereafter.

The Complainant was issued with notice of termination to take effect in October 2023.This is the subject of a RTB hearing.

The Complainant advised he had chronic lung disease and this was certified by a Medical Consultant. The Complainant did not give any medical evidence of his disability and as to when he notified the Respondent of his disability.

The Complainant advised this issue has caused him to have anxiety and he has suffered a lot by going through this.

Summary of Respondents Case;

The Respondents owner, Mr. Denis Lane, gave evidence on affirmation and advised that he did not know the Complainant had a disability.

Mr. Lane advised that he never avoided the Complainant in the building.

Mr. Lane advised that when he was shown the HAP approval form that he had heard of HAP but did not know the details of it. He advised he rang Limerick County Council and was advised that because there was only two months left on the lease that he was not obliged to take HAP.

Mr. Lane advised that his sister was living in a mobile home and that she and her fiancé were moving into the apartment.

Mr. Lane advised of personal issues which were affecting him at the time.

Mr. Lane advised he never had a problem before with a tenant.

Mr. Lane explained the time lapse in responding to the ES forms correspondence was that it was going to an address in Kerry where four of the family have houses next to each other. Mr. Lane advised that all his post goes to his parents house and as the post was registered his parents did not sign for it and it was returned refused. Mr. Lane advised his parents were very elderly with dementia and would not sign anything in case they did something wrong.

Mr. Lane advised that when he subsequently got the HAP form he signed it straight away.

Findings and Conclusions:

The Law

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”).”

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.

Findings regarding the HAP complaint

The Respondent accepted that the Complainant requested that he take payments

from the HAP Scheme on April 15th 2022. From the evidence before me, it is clear

that at no stage did the Respondent agree to accept HAP despite being

requested on numerous occasions by the Complainant, both in text message

and in person. The Respondents Owner, Mr. Denis Lane, was

cross examined by the Complainants sister, Ms. Jackie Fox. Ms. Fox asked

Mr. Lane did he not understand what HAP was and Mr. Lane replied that he

did not really know the details of it. Ms Fox asked Mr. Lane did he receive the

text in April about the HAP form and Mr. Lane replied yes he did. Mr. Lane

advised that there are four family homes in the laneway where he lives and

the postman will drop post for him to his parents home and they will not sign

for anything.

Mr. Lane advised that he has since signed the HAP form but it was not signed

by him during the period in question, May to December 2022. Mr. Lane confirmed

he was given the HAP forms by the Complainant in April 2022 and rang the

County Council for advice and based on their advice he did not sign the form

at that time. Mr. Lanes evidence was that he was informed by the County Council

that as there was only two months left on the tenancy agreement that the Tenant

would not be approved for HAP by the County Council. However, in evidence, the

Complainant stated his application for HAP had been approved at the time

he requested the Respondent to sign the HAP form and all that was required

to complete the HAP approval was the Respondents agreement to accept HAP.

This was not disputed by the Respondent. Mr. Lane made no effort to advise the

Complainant that he was not signing the HAP forms on the basis of advice

from the County Council. The Respondent had a responsibility to accept the

HAP form and submit it to the Council.. It may well be the policy of a County

Council, from my investigations, that the imminent end of a lease could have

Resulted in a HAP payment being refused by the Council. If as the Respondent

suggested, it would not have been approved by the Council the Respondent

should have left the Council make that decision and not the Respondent

The non-signing of the HAP form in April 2022 resulted in a significant loss

to the Complainant. The Complainant stated his loss was 4,690 Euros.as a

result of the Respondent not signing the HAP form.

As Adjudicator I am required to make a decision on the exact wording in the

Act regarding housing assistance complaints. The Act is quite specific and

states “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’. The Complainant

confirmed he was not “in receipt of rent supplement” at the time he

requested the Respondent to sign the HAP form but was on a disability

payment and therefore his circumstances comply with this section of the Act.

Mr. Lane confirmed in post hearing correspondence that to his knowledge,

no other apartment let by the Respondent contains a tenant that is either in

receipt of a rent supplement or on a social welfare payment.

Considering the submissions and evidence I conclude that the Complainants

and Respondents circumstances complied with Section 3 (3) B of the Act

to enable the Complainant to benefit from the Act and that under

Section 38(A) 1 the Complainant has established that prohibited conduct

regarding the HAP payment has occurred and the Respondent has not

proven the contrary.

Conclusion regarding the HAP Complaint

Having taken consideration all the evidence before me, I am satisfied that the

Complainant has established a prima facie case of discrimination on the

housing assistance ground and consequently, has discharged the burden of proof.

I am also satisfied that the Respondent has not provided a reasonable defence for his

failure to accept and process the HAP form from the Complainant.

Findings regarding the Disability complaint;

Section 1 of the Equal Status Act 2000, as amended,

“disability” means—

(a) the total or partial absence of a person's bodily or mental functions, including

the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause,

chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently

from a person without the condition or malfunction, or

(e) a condition, disease or illness which affects a person's thought

processes, perception of reality, emotions or judgement or which results

in disturbed behaviour;

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

(2) As between any two persons, the discriminatory grounds (and the

descriptions of those grounds for the purposes of this Act) are:

(g) that one is a person with a disability and the other either is not

or is a person with a different disability (the “disability ground”),

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,”

With regard to the discrimination claim under the disability ground no medical

evidence was provided by the Complainant of his disability. He did assert that he

had a disability at the Hearing and there was no evidence supplied that the

Complainant made the Respondent aware of his disability. The only other

reference throughout the proceedings was during cross examination in relation

to the Respondent not giving the Complainant the codes to a disability lift for a

year which the Respondent denied. I do not have sufficient evidence to conclude

that the Complainant had a disability or that the Respondent was either made aware

or was aware of the Complainants disability and deem that the Complainant has not

established a prima facie case of discrimination on the disability ground.

Decision:

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 under section 27 of that Act.

Housing Assistance Complaint

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 and the Respondent

engaged in prohibited conduct.

Section 27(1) of the Act provides redress may be ordered where

a finding is in favour of the Complainant. Section 27(1) provides that:

"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."

I order that the Respondent pay to the Complainant the compensatory

sum of €4,690 which I consider appropriate in the circumstances where

the Complainant first requested the Respondent to sign the HAP Application

form on April 2022 and was denied the opportunity to access HAP funds

between May and December 2022.

Disability Complaint

Having concluded my investigation of this complaint, I find pursuant to

Section 25(4) of the Acts, that the Complainant has not established a

prima facie case of discrimination on the ground of disability and I find

that part of complaint is not well founded.

Dated: 15/11/2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

HAP Scheme

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00039355

Parties:

	Complainant	Respondent
Parties	Philip Fox	Milford Properties Ltd.

Representatives

Ms. Jackie Fox

Mr. Denis Lane

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00050909-001	30/05/2022