Complainant

Respondent

Parties

Elube  Kapengule

Tipperary County Council

Representatives

  Fiona McCaul, Doras

Shane Grogan

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00056991-001

03/06/2023

The Complainant is a 64-year-old lady from Malawi.  When she obtained a Stamp 4 Visa under The Regularisation of Long Term Undocumented Migrant Scheme, she lost her accommodation and was homeless.  She presented at the Respondent’s housing offices and was not provided with emergency accommodation, and she submits that this was due to her race.  The Respondent denies this suggestion and submits that its housing policy is applied equally to all applicants.

The Complainant’s representative made a preliminary application for a postponement of the hearing on the basis that they had only recently come on record as representing the Complainant at the WRC hearing.  A similar application was refused the day prior to the hearing.  The Adjudication Officer explained that as the complaint was submitted on 03/06/2023 and the Complainant had ample time to have her representative briefed and that the notice of the hearing was issued on 01/10/2023 to the Complainant’s then representative.  The adjournment was not granted, and the hearing proceeded as scheduled.

The Complainant attended the Respondent’s housing offices on 09/12/2022 seeking emergency accommodation as she had become homeless.  The Complainant had a role as a nanny/housekeeper and due to her undocumented status, she was exploited for several years. The Complainant spoke to the office manager and presented her Stamp 4 Visa, GNIB Card, PPS Number, Public Services Card, and her Passport. All documents were in date and copies were made and the originals returned to her.  She was advised to return to her former employer.  The Complainant explained why this was not an option.  She was asked to leave, and she refused.   As a result of her refusal to leave the Respondent called the Gardaí who arrived and escorted her out of the building with her belongings.  The Complainant submits that the Respondent’s staff laughed at her, pointed, and ridiculed her.

The Complainant remained outside in the cold and snow and a member of staff spoke with her and asked her if she contacted her family to come and get her.  She was given a paper with a map and details of emergency accommodation as part of the Cold Weather Initiative in 2022.

The Complainant returned to the offices on 12/12/2022 and submits that she was told that she should go back to where she came from and asked who dropped her off in Ireland in 2011.  The Complainant explained that she was in Ireland on her own and as she had no legal status, she could not visit a nephew in the UK. The Complainant also explained that her family in Malawi were depending on her to send some money.   The official dealing with the Complainant then told her that she had to go to Waterford and gave her a piece of paper and told not to return to the housing offices again.    Due to the continuing cold weather the Complainant was granted a further three days in emergency accommodation.

The Complainant sought advice from the Citizens Information Office in relation to the Waterford suggestion.  They were unable to contact the Waterford service and advised her to return to the Respondent’s Homeless Action Team (HAT) when the emergency accommodation expired.  She returned to the HAT on 15/12/2022 and she submits that she was belittled and shouted at for not going to Waterford. 

There were a number of interactions between the Complainant and the HAT representatives and when she asked where she should go the Complainant submits that she was told to go back to Malawi.  She was provided with a further three days emergency accommodation.  At one stage the Complainant submits that a representative of the Respondent escorted her to the Garda station.  They checked her GNIB and other documents and confirmed that these were in order and that she was legally entitled to be in the State.  The Complainant returned to HAT and when the office closed, she was escorted outside.  The Complainant states that she slept outside the building that night and returned to the office the following morning.  The Complainant submits that she was told to go to the Gardaí who would organise to send her back to Malawi.

The Complainant states that she was advised by a person to go to Limerick, and she used the last of her money to pay for a B & B.  She was observed by someone to be struggling and she was put in touch with Doras which is an independent organisation working to promote and protect the rights of people from a migrant background in Ireland.  The Complainant has been supported by this organisation.

On 22/12/2022 the Complainant was told that as it was approaching the Christmas period the Respondent would contribute €60 for five nights totalling €300.00.  The Respondent was contacted on 4/1/2023 about the Complainant’s situation and they advised that they required a housing application which was required to be handed in-person along with an original birth certificate, passport and 5 years of pay slips or social welfare payments.  As the Complainant was undocumented and exploited, she could not provide pay slips or social welfare documentation.  Doras is continuing to pay for the Complainant’s housing support. 

The Respondent accepted a housing application but stated that they would not pay for emergency accommodation.  The Complainant’s housing application was refused on 17/01/2023 on the basis of reckonable residency. 

The Respondent is a local authority and as a housing authority they have to operate within the parameters set out in the relevant legislation.  The Respondent submits that all applications are treated equally, and it is denied that the Complainant was discriminated against.  There are restrictions on who gets emergency accommodation, but the Respondent categorically submits that country of origin is never a factor.  The Respondent also denies that any of its employees would belittle or make fun of someone who was in a vulnerable situation.  All staff who deal with housing and homelessness are aware of the requirement to operate within the confines of the legislation and in conformity with the Respondent’s policies.  Every application is assessed on its own merits against the criteria laid down in law and in the Respondent’s policies. 

There are two areas that the Respondent submits are important to understand in relation to this complaint.  The first is Housing Support and the second is Homeless Support.  To support an applicant with emergency accommodation the Housing Support criteria are applied.  Section 20 of the Housing (Miscellaneous Provisions) Act, 2009 requires a local authority to undertake a social housing assessment to determine the eligibility and need of a person applying for social hosing support. The Social Housing Assessment Regulations, 2011 (as amended) sets out the manner in which a local authority determines an applicant’s eligibility.

The criteria below must be applied in assessing a household’s eligibility for Social Housing Support:

·       Income

·       Residency Status

·       Availability of alternative accommodation

·       Rent arrears owing to the local authority.

The failure of an applicant to meet any of these criteria will result in an applicant deemed ineligible for social housing support.  In this case the Complainant was deemed ineligible on the grounds of residency status.  The Complainant’s race was never a determining factor.  The Respondent provided the hearing with a copy of the decision in relation to the Complainant’s application.  This decision states that the Complainant recently received a Stamp 4 with an expiry date of 20/10/2024.  This does not give her a 5-year reckonable residency and is therefore not eligible for social housing.

In relation to homeless support the Respondent submits that it has discretion in the application of the 1988 Homeless Act when considering a person for homeless supports.  Section 2 of the 1988 Act states:

2.  A person shall be regarded by a housing authority as being homeless for the purposes of this       Act if –

(a) there is no accommodation available which, in the opinion of the authority, he, together with any other person who normally resides with him or who might reasonably be expected to reside with him, occupy or remain in occupation of, or

(b) he is living in a hospital, county home, night shelter or other such institution, and is so living because he has no accommodation of the kind referred to in paragraph (a),

And he is, in the opinion of the authority, unable to provide accommodation from his or her own resources”.

Section 10 of the 1988 Act provides that a housing authority may make additional provision through services and funding provided to homeless persons.  This may include:

(a)    “Make arrangements, including financial arrangements, with a body approved of by the Minister for the purposes of section 5 for the provision by that body of accommodation for a homeless person,

(b)    Provide a homeless person with such assistance including financial assistance, as the authority considers appropriate, or

(c)     Rent accommodation, arrange lodgings or contribute to the cost of such accommodation or lodgings for a homeless person”.

The Act also provides that a request for accommodation may be made to a housing authority by or on behalf of a homeless person.

The Respondent submits that the working of both Section 2 and Section 10 of the Act of 1988 is not mandatory in nature.  Section 2(a) expressly states: “in the opinion of the authority” and Section 10 uses the word “may” in dealing with the provision of accommodation for homeless persons.

It was submitted on behalf of the Respondent what when they were considering the application or homeless supports from the Complainant regard was had to the following:

1.        As the Complainant was ineligible for social housing supports there can be no exit plan to support the Complainant’s transition from emergency accommodation to permanent accommodation.

2.       Other competing demands on resources.  The Respondent has 3,500 applicants on the housing waiting list and it cannot give priority to applicants who do not qualify for social housing support.

3.       The available housing stock and housing resources available to the Respondent.

4.       The Respondent’s own policies in relation to homeless supports.  This is known as “Homeless Procedures” and a copy was provided to the hearing.

It is the Respondent’s position that they were not in a position to provide emergency accommodation to the Complainant based on the above analysis.  At no stage during this process was the Complainant’s race considered or commented upon.

The Respondent also strongly refutes the submission that the Complainant was laughed at by staff or ridiculed in any manner.  Likewise, the claim that she was threatened with deportation and told to go back to Malawi is refuted.

The Respondent submits that they agreed to fund part of the cost of accommodating the Complainant in Limerick over the Christmas and New Year period.  The Respondent did not receive a housing application from the Complainant until 12/01/2023.

The Respondent clarified that they do not employ security staff in its housing offices and if a person refuses to leave, they contact the Gardaí to assist them.  This is standard practice which is only invoked when they are unable to assist a person and that person refuses to leave their officers. 

The Respondent also clarified that the Complainant was not escorted to the Garda station.  The Immigration officer is based in the Garda station and an employee of the Respondent accompanied the Complainant to the Garda station.  This was done in a caring manner.  The Respondent submits that its “staff are not an uncaring bureaucracy“.

The Respondent submits that it is not their intention to refuse to provide a service.  They must operate by the legislative requirements, the availability of resources and the parameters of their policies.  These are intended to allow the Respondent to assist the greatest number of people in a transparent and equitable manner.  At no stage in this process do they discriminate against any person.

In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. Prior to making such a referral there is a requirement that the Complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This notice in writing shall be brought within two months of the alleged prohibited conduct or the last instance of same.

A Respondent may choose to reply with an explanation for the treatment by returning the attached ES 2 Form.

The Respondent was notified by the Complainant’s representative on 27/01/2023 and this included the ES 2 form.    The Respondent replied to this form by way of letter and confirmed that this was their ES 2 response.    The Complainant submitted her complaint to the WRC on 03/06/2023.

I am satisfied that the Complainant has complied with the relevant notification requirements as provided for in Section 21(2)(a) of the Acts.  Accordingly, I find that I have jurisdiction to investigate the complaint of discrimination in this case.

As the Complainant’s representative had requested an adjournment, I facilitated a short recess before the end of the hearing to allow the parties review their submissions.  Both parties made closing arguments and confirmed that they were satisfied that they were able to present all relevant evidence and submissions in relation to this complaint.

Law: Burden of Proof

Section 3(1)(a) of the Equal Status Act, 2000 (as amended) provides that discrimination shall be taken to occur:

“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—

(iv) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Race/nationality is one of the grounds of discrimination specified in section 3(2).  Section 5(1) provides that a person shall not discriminate in the provision of a service, whether such provision is for consideration or otherwise.

Section 38A(1) provides that:

“Where in any proceedings 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.”

Accordingly, section 38A (1) provides that it is for the Complainant to establish a prima facie case sufficient to raise a presumption of discrimination.  Only once this has occurred does the burden shift to the Respondent to disprove the claim.

In Mitchell v Southern Health Board [2001] 12 ELR 201, the Labour Court set out the process for determining when a Complainant has established a sufficient prima facie case such that the Respondent must meet the burden of disproving it, as follows:

“the claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates 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 these 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.”

 Accordingly, before the burden can shift to the Respondent to disprove the claim, the tribunal determining the matter must be satisfied that:

a. the Complainant has proven the primary facts upon which he/she relies in seeking to raise a presumption of discrimination, and

b. the proven primary facts are such as give rise to a presumption of discrimination.

Section 38A of the Act mirrors Section 85A of the Employment Equality Acts 1998-2015 in its main provision with regard to the initial burden of proof for a Complainant under equality legislation.  In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how Section 85A is to be interpreted.

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

In the present case, the Complainant has not identified any fact as would indicate that the Respondent treated her different in any way on the basis of her nationality. The height of the Complainant’s claim is that the refusal to provide Housing Support and Homeless Support was based on her race. On that basis, the Complainant has failed to establish a prima facie case such as would give rise to a presumption of discrimination, and such as would shift the burden to the Respondent to disprove the claim. Further, the Complainant has not identified a comparator to demonstrate that she was treated less favourably than another person of a different nationality.

In conclusion, I find the Complainant, on the balance of probabilities, has failed to establish a prima facie case of discrimination (for the purposes of this Act) on the grounds of race in relation to her. On the basis of the foregoing, I find that this complaint is not well.

I find the Complainant was not discriminated against on the grounds of race by the Respondent.

Discrimination.  race ground.