Complainant

Respondent

Anonymised Parties

KA

LC and OC

Representatives

  In person

 In person

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057188-001

15/09/2023

The Complainant alleges that the First Respondent, LC, who at all material times, acted on behalf of the Second Respondent, OC (LC’s father) –the owner and the landlord of the house (a section of which the Complainant and her family rented from March 2019) discriminated against the Complainant (and her family) when in response to the Complainant’s request on 20 March 2023 that LC sign a Housing Assistance Provision (HAP) application form,  LC refused. The Complainant alleges that LC thereafter asked the Complainant and her family to move out of OC’s house. The Complainant alleges that the refusal to sign the HAP form and the termination of the tenancy were prohibited acts of discrimination.

The Respondents deny the complaint. They contend that the complaint is exempt because the rented accommodation was not a self-contained part of OC’s house (applying section 6(2)(d) of the ESA) and furthermore, if it is not exempt, that LC’s refusal to sign the HAP form was not discriminatory conduct but rather was because LC had been trying to get the Complainant to vacate OC’s house for over two years, since 2021, because of unpaid rent, disagreements between the Complainants and OC, which adversely impacted OC’s health and well-being.

The Complainant gave evidence (under affirmation) and with the assistance of a (sworn in) Polish interpreter as follows:

1.       The Complainant and her husband moved into and rented a section of the house of OC, an elderly separated man, in March 2019.

2.       It was a lease that was renewed initially every 6 months and later every 12 months. LC signed the lease on behalf of OC and LC also managed the rental income on behalf of OC.

3.       The last lease that was signed by the parties was in March 2021 and was due to last until March 2022.

4.       The arrangement worked fine initially but became problematic after Covid and when the Complainant had a baby. They had arguments with OC which were caused by OC’s alcohol misuse, when he would shout at them and bang doors. They were always very good to OC.

5.       The Complainant accepts that in or around August 2021 that they were asked by LC to leave the accommodation. LC told then that it was because OC was unwell and that she needed to move in to care for him, but that never happened.

6.       The Complainant accepts that in 2021 they started being less able to pay the rent on time [which was €1000 per month.] This started in July 2021 after the Complainant’s husband could no longer work due to an accident. She said that they looked for alternative accommodation but could not obtain another place to live, not least because there was nothing in writing from the landlord to prove that they were tenants of the Respondents. The rent was paid by them in cash each month. They communicated with LC by text alone. They suspected that it was a way to avoid paying tax.

7.       The Complainant accepts that they were allowed by LC to remain renting the premises for two further years after 2021 and that two more leases were signed until they left in January 2024. They were told to leave after asking LC in March 2023 to sign a HAP form and she refused.

8.       They accept that when they ultimately moved out in January 2024 left €2650 in rent owing to the Respondents, which has not been repaid.

9.       The Complainant says that the reason that they were unable to pay the full rent each month from July 2021 on was because the Complainant’s husband became unable to work. This caused stress to the Complainant and as she had a baby to mind this meant that she too was unable to work. Their only option by mid-2023 was to apply for housing assistance.

10.   HAP would have allowed them to pay the rent that was owed and pay the rent going forward but LC refused to sign the form when asked on 20 March 2023.

11.   The Complainant sent an ES1 form to LC before issuing a WRC complaint. She also brought a case to the Residential Tenancy Board, which has yet to be heard.

12.   The Complainant issued a WRC complaint on 14 June 2023, complaining that LC had refused to sign the HAP form the previous March and that this was discriminatory because LC did not want to have HAP recipients renting the accommodation.

13.   In response to the application that the case was exempt because it was part of OC’s house and was not a self-contained part , the Complainant alleged that while the rented area within OC’s house started off as having shared kitchen and bathroom facilities, as time went on OC bought his own separate kitchen equipment and from then on he rarely used or entered the kitchen or bathroom. She accepts that LC and guests of OC did access these areas when she visited. She accepts that there was a door between their living areas which OC had a key to which could be opened or locked by him so that he was able to and did enter their rented accommodation (into the kitchen and toilet) but they were not able to enter into his living area. His access through this door in fact was a problem if he had been drinking.

14.   The Complainant denies that the part of the house that they rented was exempt.

15.   The Complainant alleges that LC discriminated against them by refusing to sign the HAP form and by terminating the tenancy.

LC gave the following evidence under affirmation:

1.       The Complainant’s tenancy commenced in March 2019.

2.       LC managed the tenancy on behalf of her father, OC. She signed the leases and collected rent money from the Complainant and her husband.

3.       OC has alcohol abuse problems and is a vulnerable person.

4.       The tenancy started without problems, but arguments later developed between OC and the Complainants/her husband.

5.       At the start of the tenancy OC offered that the Complainant’s husband could keep some things in a corner of his shed. Over time however they took over the shed so much that OC could not fit in his tractor into the shed.

6.       OC’s generosity was abused by the Complainants. He gave them lifts and helped them but over time they became threatening and abusing to OC. He became intimidated by them. The tenancy lasted much longer than it should have.

7.       OC’s health worsened in 2021 and LC told the Complainant that they would have to leave because she needed to move in with her father and look after him.

8.       LC accepts that in March 2023 she refused to sign the HAP form when asked by the Complainant but that was because at that point, she had been trying to get them to leave for 2 years. They were slow on paying rent, which was often short. She had to send them several solicitor’s letters. The Complainant’s allegation that nothing was in writing was false (there were signed leases.) LC’s refusal to sign the HAP form had nothing to do with not wanting HAP recipients as tenants, it was because her father was not in good health (medical evidence provided in evidence) and he was fearful of them, LC needed to move in to mind him but most significantly,  they owed OC a lot of rent. They still owe OC a lot of rent and they do not deny it.

9.       In addition, LC argues that the section of the house that was rented by the Complainant and her family was not a self-contained rental space and is therefore, as part of OC’s house, it was exempt under section 6(2)(d) of the ESA.

10.   The shared facilities were a kitchen and a downstairs bathroom which OC,  LC and OC’s guests used regularly. The Complainant accepts this herself and accepted in evidence that OC was able to open a door to access the kitchen ie to their section of the house.

11.   The lease document itself refers to the rent as being to “a section” of the house.

12.   Text evidence shows that the Complainant accepted LC and OC’s right to enter and use the kitchen and bathroom because, on a number of occasions,  the Complainant texted LC to tell her that the rent was in an envelope in the kitchen (on the microwave/ on the fridge) in the kitchen which shows that the kitchen was allowed to be accessed by LC and that it was not a self-contained living space.

13.   LC denies discrimination as alleged.

Special Circumstances: Application of section 25 (2) of the ESA.

Due to references made in the sworn evidence during the Adjudication hearings to OC’s health and challenges in respect of alcohol addiction, I determined that this Equal Status Act (ESA) investigation should take place other than in public and that the decision should be anonymised.  The special circumstances that I found pertained were that OC had mental health problems and alcohol problems and I did not consider that it would be in the interests of OC and his efforts to get treatment for these problems if this information were put into the public realm. I am satisfied that the interests of justice may be equally served if the parties names are redacted by applying initials, which may or may not relate to the Respondent’s actual names. I make this determination applying section 25 (2) of the ESA.

Adding a Respondent to the complaint.

LC was the only Respondent cited in this complaint form. However, LC was not the landlord of the premises. The owner of the premises is referred to in this decision as OC. LC acted on behalf of OC, signing leases, collecting rent, and for this reason, so both LC and OC should have been named as Respondents.  With the consent of the parties, which was provided to me during the Adjudication hearing, I added the owner of the premises, OC, as a Respondent to the complaint, which is reflected in this decision. The two Respondents to this complaint are therefore OC, the owner of the premises and LC, his daughter who at all material times acted on behalf of OC in respect of the tenancy.

I made this amendment to the complaint form relying on County Louth VEC v Equality Tribunal [2009] IEHC 370 as approved by the Supreme Court in County Louth VEC v Equality Tribunal [2016] IESC 40 and the Supreme Court judgment in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] I.L.R.M 293, and Kiely v Minister for Social Welfare (No 2) [1977] R 267 and  Simons J’s recent dicta in Iyaba v Residential Tenancies Board [2023] IEHC 491 and Stulpinate v Residential Tenancies Board [2021] IEHC 178. These authorities permit an Adjudicator flexibility to amend the details on statutory complaint forms, where the complaint is not changed but where inaccuracies need to be remedied to ensure that the remedies of quasi-judicial tribunals, including the WRC, are made accessible to unrepresented parties to ensure effective access to justice.

The Relevant Law

Section 6(1) of the Equal Status Act 2000 prohibits discrimination on the ground of being in receipt of rent supplement.  This section is to be read in conjunction with Section 3 of the Act which defines “discrimination” in general and specifically defines the “housing assistance ground.” 

Section 3(1) provides that:

“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) provides that discrimination in relation providing accommodation is prohibited under all the existing protected grounds and inserts the new housing assistance ground as follows:

“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.”)

FACTS

The Complainant’s case is that she was discriminated against on the housing assistance ground when LC, on behalf of OC, refused to sign a HAP form to allow the Complainant seek housing assistance for her rent.

LC denies discrimination but as a preliminary point, relies on section 6(2)(d) of the Act, which provides that, “a separate and self-contained part” of a person’s home dis-applies section 6(1). 

I note a similar case, reference number ADJ-00042814 in which the exemption was not applied by the Adjudicator on the basis that the rental area of that privately owned house was not “a separate and self-contained part” of the owner’s home.

The Legislation

Sections 6(1) and 6(2) provide that,

(1) A person shall not discriminate in—

(a) disposing of any estate or interest in premises,

(b) terminating any tenancy or other interest in premises, or

(c) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

(1A) Subsection (1)(c) is without prejudice to —

(a) any enactment or rule of law regulating the provision of accommodation, or

(b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.

(2) Subsection (1) does not apply in respect of -

(a) the disposal of any estate or interest in premises by will or gift,

(b) (deleted by the Equality Act 2004)

(c) any disposal of such an estate or interest, or any provision of accommodation or of any services or amenities relating to accommodation, which is not available to the public generally or a section of the public,

(d) the provision of accommodation by a person in a part (other than a separate and self-contained part) of the person’s home, or where the provision of the accommodation affects the person’s private or family life or that of any other person residing in the home, or

(e) the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender.

Considering how the ESA should be applied to this complaint, the relevant part of these two sub-sections may be summarised as follows:

A person shall not discriminate in providing accommodation or any services or amenities related to accommodation.  This sub-section does not apply in respect of the provision of accommodation by a person in a part (other than a separate and self-contained part) of the person’s home, OR where the provision of the accommodation affects the person’s private or family life or that of any other person residing in the home.

Findings

Prior to considering the various matters of dispute that exist between the parties, I am obliged to consider the preliminary matter, of whether the rented accommodation is exempt from the ESA.

Based on the Complainant’s own description of the area of the house that she (and her family  rented) I am satisfied that the part of the house that was rented was not “a separate and self-contained part” of the house and is therefore it is exempt from qualification for the HAP as provided for at section 6(2)(d) of the Equal Status Act. 

I have reached this conclusion on the following bases:

The rental area of OC’s house that was used by the Complainant and her family had shared facilities with OC.  The Complainant accepts this stating that at the start of the tenancy the kitchen and downstairs bathroom were shared between them and OC but claims that over time it became used almost exclusively by them. She accepts that the lease document identifies the rental area of the house as being “a section of the house” and she also accepts that OC, his guests, and his daughter were able to unlock a door to access and use the kitchen and downstairs bathroom. Indeed, not only is this access by OC not denied, but the Complainant gave evidence that OC accessing these areas when he was under the influence of alcohol became problematic for them.

Lastly and significantly the Complainant accepted that she texted LC several times to tell her that the rent (in cash) was on the microwave or the fridge in the kitchen for LC to collect – which is evidence that the kitchen was an area which was not exclusive to the Complainant’s use and was not therefore self-contained.

The words in section 6 (2) (d) “self-contained” presupposes that the renter can contain the rented area to one own (“self”) use, whereas the Complainant accepts that OC, LC, and OC’s guests were free to access and use these kitchen and toilet facilities. And while I accept that towards the end of the tenancy these facilities were in the main used by the Complainant’s family alone, access to the facilities by OC and LC was both consented to and took place up until the end of the tenancy.

Due to the wording of section 6(2) (d) when determining if an exemption applies, the section needs to be construed disjunctively - ie the ESA does not apply either if the accommodation is part of a house which is not self-contained or the ESA does not apply if the provision of the accommodation affects the owner’s (or other person residing in the home) private or family life.

On the basis of the Complainant’s evidence alone, I am satisfied that the exemption applies by virtue of the first part of section 6(2)(d) because the part of the house that was rented by the Complainant is a part of the house that was not self-contained.  Given that this is so, I do not need to go on to consider whether the second part of section 6(2) (d) applies (which is just as well because given the vague and ambiguous use of the word “affect” in the second part of this section I fear that statutory construction problems may well arise in future cases.)

Conclusion

I am satisfied that, based on the evidence of the Complainant that the part of the house that the Complainant and her family rented from the Respondents is exempt.

I am satisfied therefore that the Complainant has not discharged the onus of proof that the Respondent discriminated against the Complainant.

The Respondent did not engage in prohibited conduct.

Equal Status Act – HAP – exempt – section 6(2)(d) of ESA