Complainant

Respondent

Parties

Rachel  Few

Dr. Rafid Kashan

Representatives

Mr Keating of Threshold

Self-Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055541-001

14/03/2023

The issue in contention concerned the issue of a HAP Payment to a Tenant. The Complainant alleged that she had been discriminated against on the HAP and Accommodation grounds.

This was vigorously denied by the Respondent.

In discussions at the Hearing, it became clear that HAP had been eventually accepted by the Landlord after an alleged unnecessarily convoluted process.

The Tenant was seeking compensation for the delays occasioned by the Landlord in approving her application and processing the Paperwork with the Local Authority.

For clarity the Property in question was a shared House with multiple Tenants -the Complainant appeared, at the time, to be the only Tenant requesting HAP.

The Complainant gave an oral testimony and was assisted by Mr Keating from Threshold. A written submission was provided in support.

She had requested the Landlords’ Agent “Mr G” to complete the HAP forms on the 25th January 2023. He was most unenthusiastic and clearly implied that the Landlord did not “do HAP”.  The Agent engaged in intimidatory behaviour towards the Tenant and her Housemates leading to a fear that all would be evicted unless the Tenant dropped her HAP case. The Tenant, on receipt of Threshold Advice advised Mr G that HAP was a legal issue, and she served an ES1 form on the Landlord via Mr G on the 13th February 2023.

On the 17th February Mr G informed the Tenant that the Landlord will agree to HAP, but all tenants would need a new Tenancy Agreement.

The Landlord via Mr G informed the Tenant that the Estate Agents OMD would handle all the paperwork from then on.  Mr D was the OMD Agent handling the case. After much pointless time wasting, the Forms were sent to the Council on the 29th March. HAP was eventually approved form the 1st April 2023.

As a result of all the unnecessary delays and incessant bureaucratic roundabouts the Tenant was left short of the HAP for the months of February and March. She estimated her loss as to be €874 Euro.

Regrettably Mr G nor Mr D were present to give oral evidence and much of their interactions had to be treated as Hearsay by the Adjudicator. However, the Complainant had copy Text messages and was under Sworn oath which gave credibility to her version of events.

The Landlord Mr K gave an oral testimony supported by copy E mails and correspondence. He never had any issue with HAP for the Tenant but at the initial stages his Property/Tenant affairs were being handled by his Agent, Mr G and latterly by Mr D of OMD Agents.

Neither Mr G nor Mr D was not present at the Hearing

The Landlord outlined his case as one where he had agreed to HAP on the 17th February but due to excessive bureaucratic delays at the Local Authority and the HAP Central Office in Limerick his registration was delayed. Issues of Family names (neither being common Irish format names) on the Registry of Deeds, the question of a former owner still showing, the issue of Bank Accounts in his wife’s name all contributed to the delays. There was nothing untoward or unhelpful in his version of events. He was absolutely willing to accept HAP, but it fell foul of an excessive string of unfortunate queries from the Local Authority and the HAP Central office. Mr D of OMG had fallen ill in March which further added to the delays.

The actions of Mr G in January he could not answer for. If he, Mr G, had been a bit “off handed” to the Complainant he could only apologise for but realistically did not have any detailed knowledge of what may or may not have happened. He had numerous Tenants, and all were treated in keeping with the Law and he hoped respectfully.  

The Witness appeared to the Adjudicator as most genuine and not in any way seeking to avoid any legal responsibilities.

3:1         The Legal Position – Definition of “Discrimination”

Discrimination (general).

3.—(1) 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,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a personreferred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

(3B) 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”).

Accordingly, the questions that arise in this case are

1.       Was the Complainant treated less favourably than a non-HAP applicant?

2.       Did the delays in the process constitute discrimination against the Complainant?

3.       Were the actions of Mr G Discriminatory in themselves.?

3:2         Was the Complainant treated less favourably than a non-HAP applicant?

The evidence pointed to the Complainant remaining in her accommodation and successfully securing HAP albeit after some delays.  There was no suggestion that the Complainant lost her accommodation in favour of an actual or hypothetical comparator non-Hap prospective tenant.

The evidence is that she was subject to bureaucratic delays but to extend this to a complaint of Discrimination under the Equal Status Act,2000 is not sustainable.

3:3          Did the delays in the process constitute discrimination against the Complainant?

From the evidence presented it was clear that the HAP process was subject to considerable delays in the Local Authority raising legitimate questions, the HAP national office in Limerick also raising queries and the sickness in the office of the OMG Office.

These delays were most unfortunate for the Complainant but realistically could have happened to any category of applicant irrespective of Gender, Race, Background etc.

Bureaucratic delays are extremely frustrating but do not constitute “Discrimination” under the Equal Status Acts 2000

The question of the financial burden the delays imposed on the Complainant are again not really for the Equal Status Acts. They might possible be an issue for the Ombudsman Service should the Complainant choose to purse this avenue.

3:4        Were the actions of Agent, Mr G, Discriminatory in themselves.?

Mr G was the Agent of the Landlord who, accordingly, has to be seen as vicariously liable.

The problem for the Adjudication is that Mr G was not present for cross examination or to offer any explanation /denial as to his actions.  Mr G appeared to have been a general maintenance person, described at one stage as a “Builder”.  The only witness was the Complainant who gave her evidence under Sworn Affirmation. The position of the Perjury legislation was explained to her.

From her evidence, it appeared that Mr G was initially quite aggressive in his replies and statement that the Landlord “did not do HAP”. However, on further contact from the Complainant and direct mail to the Landlord the HAP situation was resolved favourably.

However, on a strict legal basis the actions of Mr G towards the Complainant and her Housemates were clearly discriminatory. The Landlord should have had him better briefed on how the deal with HAP situations.

However, his actions were in the final analysis of lesser order than what might have been if HAP had been absolutely refused.

None the less a finding of Discrimination has to be made on these grounds.

3:5       Overall conclusion

There was no Discrimination of the HAP basis or the Accommodation Ground.

There was minor Discrimination in the initial actions of Mr G, the Landlord’s maintenance person.

HAP discrimination, Equal Status Act, 2000