Complainant

Respondent

Anonymised Parties

A Complainant

A Local Authority

Representatives

M Keane MHP Sellors Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00053120-001

05/10/2022

The Complainant has lodged a complaint of discrimination on ground of gender, civil status, and disability as well as a claim of failure to provide him with reasonable accommodation for a disability.   He submits that the Respondent has failed to provide him with suitable accommodation following an road accident which left him with a number of disabilities.  

His complaint was submitted on 5th of October 2022 and so the cognizable 6-month period of the complainant dates from 6th of April 2022.

The claims on grounds of gender and civil status were withdrawn at the hearing.

The complainant submits that

He is a person with a disability for the purpose of the Act following a crash in December 2020.

In August 2021 he was released from hospital and transferred to a nursing home for a period of 10 weeks.

He contacted the respondent seeking appropriate accommodation to be put in place for his release from hospital in November 2021 as he was unable to return home due to being separated from his wife.

The complainant submits that he was then advised by Ms. M that his discharge plan was not being actioned and she advised him to try to repair relations with his family in order that he could return home.

He spent a further period of time in hospital in February/March 2022.   At the end of March 2022, he got back in touch with the respondent regarding his accommodation needs.

A respondent official Ms. F met with him on the 4th of May 2022.   ln this meeting a Social Worker Ms F repeatedly referred to the fact that the complainant would be difficult to place due to his physical disability.

The complainant has since requested his full file from the respondent and submits that there is no record of this meeting, and that no assessment took place for the few weeks after.

The complainant submits that the respondents Housing Assistance Team (HAT) did not re engage with him until August 2022 following a complaint made by him about their lack of response. The complainant submits that he remains without suitable accommodation.

The complainant submits that it was put to Ms. F of the respondent that his needs have never been fully assessed by an appropriate professional.

The complainant submits that he then contacted his local Primary Care Team (PCT) who agreed to provide an assessment as appropriate.  He was advised that there was no availability to do this for a period of at least 6 weeks.  He informed the respondent of same.   

The complainant submits that the HAT Team made no further contact with him and didn't return his calls.

The complainant lodged a complaint with the respondent and also submitted an FOI request in respect of his file held by the respondent.

The respondent submits that the complainants claim relates to lack of access to housing for him based on his needs.

The respondent has advised the complainant that he does not qualify for social housing due to his interest in a property i.e., the family home.   Should the complainant relinquish his interest in the property then his social housing application can be reconsidered.  In this regard the respondent is bound by legislation governing access to Social housing.

The complainant was advised that he does however qualify for HAP and to that end it is up to him to source private rented accommodation to meet his needs.   The HAP Place finder is available to support the complainant in securing private rented accommodation.

The respondent submits that the complainant had previously advised them that he did not wish to be considered for emergency homeless accommodation, however in August 2022 he was assessed for access to homeless emergency accommodation.

The respondent has made a number of offers of accommodation to the complainant all of which have been refused for various reasons.

The respondent requested an up-to-date Occupational Therapists (OT) report for the purpose of assessing the complainant’s accommodation needs but same has not been provided.

The respondent has a finite pool of resources and has sought to accommodate the complainant with a number of offers of accommodation which he has refused.

The respondent has over 400 families with applications for accommodation where a family member has a disability.

The Legislation

Discrimination is defined at section 3 as occurring:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation which exists

and the discriminatory ground of disability is defined in the Act at section 3(2)(g)

(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 4 of the Act also states: -

“4. (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination. 

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

The Burden of Proof

At section 38(A) the burden of proof that the Complainant is required to establish is:

38A. — (1) Where in any proceeding’s 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.

Both Adjudication Officers and Equality Officers in complaints made under the Equal Status Act have drawn on the Labour Court decision in Mitchell v Southern Health Board [2001] ELR 201 to explain what constitutes presumed prohibited conduct, also referred to as a prima facie case, stating that:

“a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

Establishing a prima facie case of discrimination and failure to provide Reasonable accommodation

Disability

The complainant advised the hearing that he has a number of disabilities following a motorcycle accident in December 2021.  The complainant advised the hearing that this left him with a fractured pelvis and substantial peripheral nerve damage to his left leg which means he has to walk with a crutch.  He stated that he had also suffered a perforated intestine due to the accident which necessitated an emergency colostomy being put in place.  The complainant advised that he suffers from incontinence and needs to be able to access a toilet at all times.

The complainant advised the hearing that he still walks with the aid of a crutch and cannot put weight on his left foot. The respondent does not dispute the existence of a disability.

I am satisfied from the evidence adduced that the complainant is a person with a disability within the meaning of the Act.   

While it was not disputed that the Complainant had a disability, the Complainant must also establish a prima facie case of discrimination.    He must demonstrate in the first instance that a person without disability would have been treated differently and more favourably or a person with a different disability would have been treated differently or more favourably.   In addition, he must demonstrate that the Respondent failed to provide reasonable accommodation for him by not providing him with suitable reasonable accommodation appropriate to his needs.

In the matter of Kim Cahill V Department of Education and Science, 2017 IESC 29, McMenamin J stated that,

“The Circuit Court and High Court dealt with s.4(1) as a question of “reasonable accommodation”. That is not the test set by the words of the section. In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

McMenamin J went on to state that, 

“The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element…but second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient. These are objective tests.”

In assessing whether the Complainant was discriminated against due to the Respondent’s failure to afford him reasonable accommodation in terms of the properties offered to him, I note the complainant’s submission that he requires accommodation on the ground floor as he is unable to navigate stairs.

The complainant advised the hearing that he had a meeting with Ms. F of the respondent in May or June 2022 and that she had told him that he would be very difficult to accommodate due to his disabilities.

Following this Ms. S of the respondent in August 2022 advised him that he should get assessed for emergency accommodation.  The complainant stated that he then filled in another assessment form.  He stated that Ms. S was to get back to him in a week, but she then went on sick leave, and he did not hear from her until the start of September with an offer of a first-floor room in Hostel A.

The complainant advised the hearing that he refused this accommodation as it was on the first floor of the hostel and there was no lift available which meant it had to be accessed via stairs.  The complainant advised the hearing that he is unable to place any weight on his left foot and walks with the aid of a crutch and so would not be able to access accommodation on the first floor via stairs.

The complainant stated that he had at this point suggested that an OT assessment might be needed to clarify his requirements.  He stated that the respondent replied that he should get himself assessed himself and so he contacted Ms. R of the Primary Care Team.    The complainant advised the hearing that Ms. R told him that she was not available for 6 weeks and so no one was available to assess the room being offered to him in hostel A.

The complainant advised the hearing that he was at a later date offered different accommodation on the ground floor of the same hostel but he stated that the shower was not accessible for him as the shower base had a height of about 6 to 8 inches and he could not navigate that due to the fact that he cannot put any weight his left foot even on dry ground let alone on a wet surface to step in and out of the shower. 

The complainant stated that he rang the respondent to inform them that this accommodation was not suitable. 

The complainant stated that he was also offered accommodation in hostel B, but he stated that this was a ‘wet hostel’ which meant that residents were allowed to consume alcohol and other substances.  The complainant advised the hearing that given his current disability he would not feel safe living there as he would not be able to defend himself if an altercation were to take place with a resident under the influence of alcohol or drugs.

The complainant advised the hearing that he was offered another location, location E but that it was not on a good bus route, he advised the hearing that he needed to be on a good bus route to be able to get to his hospital appointments as the accident had left him unable to drive himself apart from with the use of an automatic vehicle which he does not own and cannot afford.

The complainant advised the hearing that he was unable to return to the family home due to the fact that he had separated from his wife and also due to the fact that he had a son with special needs who was prone to violent outbursts.  The complainant also stated that he needed accommodation in a specific local area C in order that he could see his children and have them stay over.

The complainant advised the hearing that following the accident he had spent over a month in Hospital A following which he contracted Covid and then sepsis and was transferred to another hospital, Hospital B.   He advised the hearing that while in hospital he had undergone a number of operations.

The complainant advised the hearing that prior to his accident he had applied for a council house for himself and his daughter but since the accident this was not an option as he had no way of financing it as he was not able to work.  While in Hospital B he contacted Mr. D of the respondent HAT team and was advised that he would only be entitled to HAP due to his having an interest in a property, his name is on the family home.  

The complainant stated that he told Mr. D that he needed a place to recover safely and get himself back to normal.  He stated that he was released from hospital and was then sent to a nursing home for a period of 10 weeks.

He stated that he was waiting to be discharged from the nursing home in October when he received a phone call from Ms. M of the respondent advising him that he was not entitled to any anything and that he should try to get his family to sort him out.  The complainant advised the hearing that he told Ms. M this was not possible due to the toxicity between himself and his wife from whom he was separated.

The complainant advised the hearing that he had eventually moved to another county after Christmas 2022 where he had been staying with a friend for the past few months and couch surfing which he stated in his condition was far from ideal.    I note that the requirement to be placed in accommodation in area C or its surrounding areas was not met when he moved to another county to stay with a friend.

 The respondent advised the hearing that the complainant had been assessed for emergency accommodation in August 2022 and since then had been offered a number of options and locations as outlined in his evidence.  In addition, to those mentioned by the complainant the respondent stated that he had been offered HAP accommodation in location E in December 2022 which he refused.

The respondent advised the hearing that its homeless accommodation service is at capacity but that it had sought to find accommodation for the complainant and stated that he was offered a number of options in this regard.  The respondent advised the hearing that it has a finite pool of accommodation and that it has four hostels, and the complainant was offered rooms in two of those hostels but refused for the reasons set out in his evidence.

The respondent stated that it had received an OT assessment for the complainant in October 2021 which stated that he needed a ground floor accommodation which was wheelchair accessible with access to a toilet.  The respondent stated that it has very little ground floor wheelchair accessible accommodation and that it has a serious supply and demand issue regarding the high demand for accommodation.  The respondent added that wheelchair accessible accommodation was available in Hostel B but stated that the complainant refused to go there due to its being a ‘wet’ hostel.

 The respondent advised the hearing that its first suggestion to applicants who have the option of being accommodated a family home is to try to look at repairing relationships with family and this was also suggested to the complainant.

The respondent advised the hearing that it had held two accommodation assessment meetings with the complainant.  The respondent stated that the complainant had been offered two options in hostel A.  

The respondent stated that the complainant was initially assessed for wheelchair accessible accommodation as he was at the time in a wheelchair.  The respondent advised the hearing that the only hostel with wheelchair accessible accommodation was Hostel B which the complainant refused to consider due to it being a ‘wet hostel’.

The respondent stated that the complainant also ruled out the offer of accommodation at location E due to its location and stated that it was not on a good bus route.

The respondent advised the hearing that its homeless service is under severe pressure and that it has 400 households on its books with a family member who has a disability.

The respondent stated that against this background it had made four separate offers of accommodation to the complainant as well as offering him HAP assistance via the HAP place finder.

The respondent added that it still doesn’t have an up-to-date OT assessment for the complainant as he has been unable to provide one to date.   The respondent advised the hearing that they requested this in September 2022 but have still not received it.  The respondent advised the hearing that it was operating under scarce resources and is constrained by the lack of availability of suitable accommodation.

The complainant at the hearing raised issues in respect of respondent officials whom he had been dealing with and from whom he had received no further contact.  The respondent agreed that one individual had been on sick leave, and another had moved on to another area of work.  The respondent advised the hearing that these changes did not have any impact on the complainant as all communications are received into a shared mailbox and dealt with by other staff in circumstances where a particular staff member is off work or no longer in the area.

The respondent stated that it had sought to accommodate the complainant within the confines of the scarce resources available to them and stated that the complainant had refused these offers for various reasons including due to their location and access to good bus routes.    The respondent added that it had no recent OT report to assist them in assessing the complainants needs or reasonable accommodation requirements as the complainant had been asked to provide such a report in September 2022 and had still not provided one to date.

The respondent advised the hearing that the only report it had to work from was one provided in October 2021 when the complainants needs had been very different and it had recommended wheelchair accessible accommodation which narrowed the options available to offer the complainant as the respondent only had wheelchair accessible accommodation in hostel B, a location which the complainant had refused.

 The complainant in his complaint form had stated that he was refused access to Social housing due to the fact that he retains an interest in a property namely the family home at which his wife resides.

The respondent at the hearing clarified that the social housing option was not available due to the complainant’s shared ownership of the family home.  The respondent advised the hearing that it had in a letter dated 16 August 2022 advised the complainant that he could access social housing if it is the case that he has relinquished his interest in that property.  This letter also outlined the evidential requirements which are necessary to prove that he no longer holds an interest in the property if that is the case.

I note that the complainant in his evidence stated that he had refused accommodation at Hostel B due to its being a ‘wet hostel’.  I note that the complainant later refused other offers of accommodation due to the lack of a good bus route.  Finally, I note that he refused another offer due to its location as he had stated that he wished to remain in area C where he could visit his children.   While I don’t doubt that this was a factor in the complainant’s consideration of suitability of the accommodation offered, I do however note that post-Christmas 2022 the complainant moved to another county to stay with a friend which was completely outside of the catchment area where he had previously refused accommodation.

In considering the respondents obligations to provide the complainant with reasonable accommodation for his disability I note that the respondent had requested an up-to-date OT assessment in order that they could properly assess the complainants needs in a structured manner, but I also note that such a report was not provided.

While I accept that the lack of a good bus route would have caused difficulty for the Complainant I also note, crucially, that there was no advice/evidence presented from an OT or medical consultant regarding how close the complainant needed to be to public transport or what amount of walking he was capable of.   

In this case, while I can sympathise with the Complainant and the situation, he has found himself in after the accident the Respondent cannot be said to have refused or failed to provide him with reasonable accommodation for his disability.

Considering all of the foregoing and having regard to the totality of the evidence adduced I find that the respondent did not discriminate against the complainant on grounds of disability and that the Respondent has not failed in its obligation to provide him with reasonable accommodation in accordance with Section 4 of the Act.

I find that the respondent did not discriminate against the complainant on grounds of disability and that the Respondent has not failed in its obligation to provide him with reasonable accommodation in accordance with Section 4 of the Act.