Complainant

Respondent

Parties

Patrick  McGreal

Westmeath County Council

Complainant

Respondent

Anonymised Parties

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Representatives

David McEntee – Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00056577-001

10/05/2023

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

CA-00056581-001

10/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00051719-001

16/07/2022

The Complainant submitted three Complaint Forms to the WRC which have been filed under two different ADJ reference numbers as follows:

·       ADJ-00046270/CAs 00056581-001 and 00056577-001 – two Complaint Forms received by the WRC on 10/5/2023 @16:05:12 and 15:25:10 respectively wherein the Complainant selected the same redress option for both complaints – ie that he was seeking adjudication under Section 21 of the Equal Status Act [2000-2018]. By letter of 23 June 2023, the WRC informed Mr McGreal that these two complaints had been merged under ADJ-00046270.

·       ADJ-00040419/CA 00051719-001 – Complaint Form received by the WRC on 16/7/2022 @9:59:13 – wherein the Complainant stated that he was discriminated against on the family status ground and also referred to his complaint related to HAP. However he selected the following redress option on the Complaint Form:

“Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004”

At the commencement of the adjudication hearing the Complainant confirmed he did not have any complaint related to his pension or the Pensions Act (as amended).

Section 21 of the Equal Status Act [2000-2018] prescribes that a Complainant shall, “within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence…” notify the Respondent in writing of the nature of the allegation and the Complainant’s intention, if not satisfied with the Respondent’s response, to seek redress under this Act. In this regard the Complainant stated he hand delivered an ESI Form to the Respondent on 18/7/2022 and that he did not receive a response.  This was not disputed by the Respondent.

The Complainant stated the first date of discrimination was on 23/11/2021 and that the last date of discrimination was on 14/7/2022.

Post hearing the Complainant submitted documentation including in relation to complaints he had made to the Gardaí concerning the Respondent. In his written submission presented at the adjudication hearing the Complainant stated that he knew “…the WRC does not concern itself with crimescommitted by individuals & any course of action in bringing prosecutions in our criminal courts is up to me”/[Complainant] and that he understood “that pursuing people for crimes is not the remit of the WRC”. In any event, I am satisfied such matters are outside the scope of my decision making authority and that no issue arose at the adjudication hearing which would require me to consider otherwise. Accordingly, the documentation and emails submitted by the Complainant post hearing have not been taken into consideration by me for the purpose of my decision making with regard to the complaints set out under ADJ-00046270 and ADJ-00040419.

At the adjudication hearing I dealt with all issues related to the Complainant’s complaints of unlawful treatment and alleged discrimination on the grounds of family status and housing assistance payment scheme/HAP pursuant to the complaints raised under ADJ-00046270 and ADJ-00040419. In that regard, all relevant evidence, submissions and documentation received by me has been taken into consideration. Set out below is a summary of the Complainant’s and Respondent’s respective cases.

The Complainant submitted a detailed and comprehensive submission which he presented in the course of the adjudication hearing and he also referred to various other documentation and regulations in relation to HAP. He stated he was a self-employed seasonal worker who sold locally grown vegetables at a farmers market usually between September and December. He stated that from 2018 he was in receipt of a discretionary higher HAP payment of 20%  - ie – a “discretionary HAP top up”. The Complainant stated that he added his three children onto his housing application on 26/11/2021 accompanied by all the necessary paperwork. He stated that a housing official told him that the discretionary higher HAP payment was not warranted as his children did not live with him full-time. The Complainant stated he was advised he needed to be in receipt of child benefit. The upshot of these exchanges is that he was not told until 25 January 2022 – some two months later - that his children were being added to his application.

The Complainant stated that when his children were added to his application the higher HAP payment rate was withdrawn. In this regard the Complainant outlined in detail his dealings with various officials of the Respondent. He stated that as a single adult he was in receipt of a HAP payment of €540/month which included the  higher HAP payment of 20% which from 2018 brought his HAP payment from €450/month to €540/month. The Complainant stated when his children were reckoned for the HAP payment and his new rent cap calculated on 1 March 2022, his payment increased to €650 /month - however, the Respondent then withdrew the 20% higher discretionary HAP payment. The Complainant stated that had he been allowed to retain the additional 20% he would have been in receipt of €780 /month.

The Complainant stated he received false information from the Respondent in relation to his HAP payment entitlements. He stated that he was asked to provide evidence of income on 15 February 2022 and he strongly took issue with how his income was calculated for HAP purposes. In this regard the Complainant outlined his dealings with the Respondent’s officials.

The Complainant was cross examined on his evidence. In relation to his dealings with an official of the Respondent, the Complainant maintained that he was incorrectly and persistently asked if he was in receipt of child benefit and asked about the children’s living arrangements. It was put to the Complainant that he had not sought to include his three children on a previous application for HAP and the Complainant accepted that the children were added with effect from March 2022. It was put to the Complainant that it was not unreasonable to enquire where the children resided which he disputed. It was also put to the Complainant that he had provided incorrect information in relation to his income which he rejected.

In summary, it is the position of the Complainant that he was treated unlawfully and discriminated against because he is a single father of three children and that his request to retain the 20% higher discretionary HAP payment was rejected because he was then in receipt of an additional HAP payment in respect of his three children.  The Complainant maintained the Respondent discriminated against him as a co-parent by taking into account his children’s living arrangements and that because they were not living with him full-time he was denied the higher discretionary HAP payment. It is his position also that he was discriminated against on the housing assistance ground specifically in relation to the calculation of his income and resultant withdrawal of the discretionary higher HAP top-up payment of 20%.

The Respondent’s legal representative presented the Respondent’s written submission, referred to various documentation and made oral submissions.

The Respondent outlined that the discretionary higher 20% HAP payment/top up is governed by regulation and circulars issued by the Housing Department. The Respondent stated that the discretionary payment is linked to rental affordability by reference to standard criteria of affordability which – inter alia – provide that “no more than 35% of monthly household income is payable in rental top-ups and differential rent for households in employment and 30% of monthly income for households solely reliant on social welfare supports”.  The Respondent stated that having carried out a mathematical assessment and applying the standard affordability calculation, it wrote to the Complainant on 9 March 2022  and informed him that the higher discretionary HAP payment was no longer deemed necessary in circumstances where his rental contributions stood at 31% of his weekly disposable income which was regarded as sustainable.

The Respondent stated that although the Complainant had previously received the higher HAP discretionary payment, the regulations did not provide for it to be paid in its geographical area.

The Respondent stated that the Complainant's family status was not a factor in either the removal of the discretionary HAP payment or the refusal of the discretionary HAP top up. In this regard the Respondent stated that the assessment of the Complainant’s application was solely mathematical based on the prescribed income and financial formula set out in the relevant Housing Department Circulars.  The Respondent stated that in the case of the Complainant’s application, the household was classified as “one adult or a couple with three children” and on that basis his HAP payment increased from €540 to €650 from January 2022.  The Respondent further stated that HAP was based on the income of the household  and that as all of the Complainant’s children were under the working age and therefore not earning, they could not and were not factored in its assessment.

The Respondent outlined its decision making process and provided anonymised information for other similar applications in 2021 and 2022 to demonstrate its position that family status or single parent status does not in any way influence its decision making. It is the position of the Respondent that it did not discriminate against the Complainant either on the grounds of family status or housing assistance payment and further, that the Complainant has not produced any evidence or identified any other application that was decided differently or was the subject of differential treatment.

Preliminary Issues:

1.       In relation to the requirement at Section 21 of the Equal Status Act [2000-2018], I am satisfied the ES1 Form was delivered to the Respondent on 18/7/2022. Whilst the Complainant was refused the discretionary HAP payment on 9 March 2022 he continued to pursue the matter including through local elected representatives. In this regard I was furnished with a letter dated 14/7/2022 confirming the refusal of the HAP increase. In all the circumstances, I am prepared to exercise my jurisdiction pursuant to Section 21 of the Equal Status Act [2000-2018] and I decide that I have jurisdiction to hear this complaint.

2.       Section 41(6) of the Workplace Relations Act [2015 - 2021] provides that:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

In the case of the Complainant he submitted three Complaint Forms to the WRC – the first received by the WRC on 16/7/2022 under reference ADJ-00040419/CA 00051719-001. I am satisfied that in all three Complaint Forms, the Complainant stated his complaints of unlawful treatment and discrimination under the grounds of family status and housing assistance. Accordingly, I accept that his complaints in this regard – as per the 16/7/2022 Complaint Form -  were lodged within the prescribed six months of the Respondent’s letter of 9 March 2022 which refused the discretionary higher HAP payment.

Substantive Issue:

Section 3(1) of the Equal Status Act [2000-2018] states that 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)…..which ­­­---

(i) exists,

(ii) existed but no longer exists,

(iii) may exist into the future, or

(iv) is imputed to the person concerned,….”

Section 3(2) outlines the grounds of discrimination and specifically subsections 3(2)(c) and 3(3B) provide that as between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

“(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”)”, ….

(3B)“……the ground that as between any two persons, that one is in receipt of rent supplement….., housing assistance….. or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”).”

Section 5 (1) of the Equal Status Act [2000-2018] provides that “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 2 (1) of the Act defines “service” as “a service or facility of any nature which is available to the public generally or a section of the public….”

Section 38A (1) of the Equal Status Act [2000-2018] provides as follows in relation to establishing the burden of proof:

“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.”

The import of Section 38A(1) is that it requires the Complainant – in the first instance - to establish facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Accordingly,  the Complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination. In Southern Health Board v Mitchell [2001] ELR 201 – the Labour Court considered the extent of the evidential burden imposed on a Complainant as follows:

“The first requirement is that 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 is no infringement of the principle of equal treatment.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Having considered all the relevant evidence, submissions and documentation, I have come to the following conclusions:

·       I am satisfied that the granting of HAP is not automatic and required assessment by the Respondent including consideration of the Complainant’s income and the numbers of persons residing in the rental property. In this regard I note the exchanges of correspondence between the Complainant and the Respondent including on 15 February 2022 when the Respondent requested the Complainant to complete a new rent assessment form.

·       The Complainant applied to have his children added to his HAP application on 26 November 2021. The Complainant was dissatisfied with the delay in adding his children to his application form and also objected to the Respondent’s queries about their living arrangements. With regard to the latter I note the emails to the Complainant of 23 November 2021 enquiring as to whether he was in receipt of child benefit and also advising that the Respondent “would only consider your children as part of your application if they are with you full time and if you were in receipt of child benefit..[and]….I assume that the children live with their mother and that she receives child benefit”.   Whilst I accept that it was not unreasonable of the Respondent to enquire about the children’s living arrangements, I am satisfied that the emails issued to the Complainant went beyond enquiry and constituted incorrect information which caused distress for the Complainant.  The Respondent acknowledged this incorrect information in the course of the adjudication hearing.  Whilst the matter was corrected by the Respondent and the Complainant informed on 25 January 2022 that all three children had been added to his application, I am concerned that the Respondent’s initial response indicated a discriminatory approach which could have had the effect of delaying the Complainant’s application.

·       The Complainant has strongly disputed how his income was assessed by the Respondent. On his Rent Assessment Form signed on 17/2/2022 the Complainant stated that his occupation was a greengrocer and that he was self employed. I also note that on the same form he certified that he was in receipt of a social welfare payment of €208/week and that he answered “No” to the question as to whether he had any other income. There was considerable exchange between the Complainant and the Respondent in relation to his income including provision of revenue assessment documentation. Having heard all the evidence and submissions in this matter, I am satisfied the Respondent outlined in detail the basis for its refusal of the discretionary higher HAP payment – ie that the Complainant’s income was calculated on the basis of his social welfare payments coupled with information received from revenue in relation to his income from employment. As a result the Respondent deemed that his rent equated to 31% of his income which according to the Respondent’s interpretation of the regulations and guidelines was deemed financially sustainable. In all the circumstances, I am persuaded by the Respondent’s rationale in this matter. Furthermore, I am satisfied that in relation to the assessment of income for HAP purposes, the Complainant has not demonstrated that he was treated differently to any other person in similar circumstances.

·        I do not agree that the Complainant was treated unlawfully or discriminated against because he is a single father of three children or that his request to retain the 20% higher discretionary HAP payment was rejected because he was granted HAP for his three children.  In this regard, I am satisfied from the evidence, submissions and documentation, that the Complainant’s family status did not form any part of the assessment of his income for HAP purposes as none of his children were earning any income. I am further satisfied that the reckoning of his children occurred solely for the purposes of determining the household class of the applicant -  ie an adult/couple with three children – thereby securing the revised HAP payment of €650/month, which classification was requested by the Complainant.

In light of the foregoing, I am satisfied that the Complainant has failed to establish a prima facia case of unlawful treatment or discrimination on the grounds of family status and housing assistance as regards the HAP payment he received from January 2022 onwards and as regards the withdrawal and refusal to reinstate the discretionary higher HAP payment of 20%. That being said, I am concerned that the initial erroneous response of the Respondent – albeit mistaken – constituted an initial discriminatory approach to the Complainant’s application.

CA-00056581-001

CA-00056577-001

CA-00051719-001

For the reasons outlined, I decide these complaints are unfounded save in respect of the initial response of the Respondent to the Complainant’s application of 26 November 2021. Accordingly, in order to redress any possible resultant delay in processing the Complainant’s application, I order that the revised HAP payment of €650 – which was implemented from January 2022 - be backdated to the date of his application of 26 November 2021.

HAP payment; Family Status