Complainant

Respondent

Parties

Khalil  Ahmed

Leslie Salter

Complainant

Respondent

Anonymised Parties

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Representatives

Megan McCarthy 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-00062982-001

22/04/2024

The Complainant alleges discrimination on the housing assistance ground on the basis that the Respondent failed to complete the Housing Assistance Payment (hereinafter referred to as “HAP”) application form despite the Complainant’s requests and served a Notice of Termination when he was directed by Cork County Council (hereinafter referred to as “the Council”) to return a portion of the deposit paid by the Complainant. The Respondent denies that the Complainant was discriminated against on the housing assistance ground and asserts that he completed Part B of the HAP application form and engaged in correspondence with the Council regarding the Complainant’s application for HAP, refunded the over payment of the deposit and that the tenancy was lawfully terminated for reasons unconnected with HAP.

It was submitted on behalf of the Complainant that the issue in this case is that the Respondent landlord failed to comply with the Complainant tenant’s request to complete Part B of the Housing Assistance Payment application form and that he breached sections 3 and 6 of the Equal Status Act 2000 (as amended).

The Complainant gave evidence that before he entered into the tenancy agreement with the Respondent they met and the Respondent agreed to accept HAP. The Complainant signed a tenancy agreement and paid the Respondent a deposit of €1400 and €700 rent for the period from the 5th December 2023 to the 5th January 2024.

According to the Complainant he had no issue with the Respondent, it was the HAP department of the Council that had an issue with the double deposit paid. On the 12th January 2024 the Complainant received a text message from the HAP department. They requested further pay slips and they informed the Complainant that €550 should be repaid to him. The Respondent said the rent was €700 per month however on the HAP application form he stated that the rent was €850 per month. The Council accepted €850 as a deposit and considered that €550 was an extra payment that should not have been made. The Complainant was aware that the Respondent also received a text message from the Council on the 12th January 2024. The Complainant stated that the Council were aware that he had made a complaint to the Respondent regarding the fridge and he confirmed that his complaint only related to a shelf in the fridge.

According to the Complainant the Respondent informed him on the 15th January 2023 that he was not happy to accept a HAP tenant and that he was going to rent the apartment to someone for cash because HAP was too much hassle. The Respondent also informed him that he was not retuning the deposit and that he was giving him 90 days’ notice. The Respondent had a letter stating that the deposit of €550 was repaid however the Respondent crumpled up the paper and threw it in the bin.

On the 17th January 2023 the Complainant’s representative contacted the Respondent on the Complainant's behalf and advised the Respondent that the Complainant's HAP application could not be processed while the over payment of the deposit was outstanding and that the €550 had to be repaid so the application could be processed. The Respondent agreed to repay the €550 to the Complainant and the payment was made on the 17th January 2024.

On the 18th January 2023 the Respondent served a Notice of Termination on the Complainant and therefore the Complainant’s HAP application could no longer her processed.

The Complainant continues to reside in the apartment but is not in receipt of HAP. There is a case before the RTB which is at the adjudication stage.

The Complainant sent an ES1 form to the Respondent on the 9th February 2024 with an ES2 form for reply. The Complainant received a response from the Respondent on the 8th March 2024 stating that the Notice of Termination was not served due to the issues with HAP but due to the Complainant requesting repairs.

The Complainant submitted that his HAP payment would have covered the full €850 per month rent and that from January 2024 to June 2024 the Complainant missed out on €5,100 in HAP payments.

The Respondent stated that he rented the apartment to the Complainant on the 1st December 2023. The Complainant was a friend of the previous tenant. The Respondent was accepting rent of €700 per month from the Complainant’s friend. The Respondent was aware from the outset that the Complainant was applying for HAP. The Complainant informed the Respondent that under the HAP scheme he was entitled to €850 per month and he offered to pay the Respondent €850 per month rent. It was agreed that once the Complainant was approved for HAP the rent would be €850 per month. The Respondent stated that his usual practice was to look for two month’s rent by way of a deposit for more security. The Complainant paid €700 rent for the month of December 2023 and a deposit of €1400.

The Complainant viewed the apartment before he moved in and his only complaint with the apartment was that he did not like the couch. The Respondent informed him that he was not in a position to change the couch but suggested he could put a rug or throw over the couch.

The Complainant moved into the apartment on the 5th December 2023. On the 11th December 2023, and not on the 12th January 2023 as stated by the Complainant, he raised an issue with the fridge which the Respondent resolved. After that more problems came up. There was an issue with the cooker, the shower and with the fact that there was no vent out through the wall in the bathroom. The Respondent recommended opening the window in the bathroom as previous tenants had done. The Complainant did not believe that this was an adequate response and wanted a holed drilled into the wall and an extractor fan installed which the Respondent could not afford to do. In addition, there was a big window in the apartment and the Complainant wanted a smaller window installed into the larger window for ventilation. The Respondent did not say no to anything and committed to investigating the cost of the issues being raised by the Complainant. He stated that he got a quote for the window however financially he was not in a position to have the window replaced.  The Complainant also claimed that the toilet was leaking but it was a newly installed toilet and the plumber who attended the apartment to address the complaint confirmed that it was not leaking, that there was just condensation dripping down the side of the toilet bowl and again suggested opening the bathroom window. All the problems raised by the Complainant were met on the day they were raised and the Respondent tried to deal with all the problems as they arose.

The Respondent stated that he does accept HAP and that two of the apartments in the building are rented to HAP tenants. The Respondent completed and signed the landlord section of the HAP application form and the sum of €850 per month rent was put down on the form because that is what the Complainant said he was entitled to.

The Respondent received a text message from the HAP section of the Council on the 12th January 2024 and he immediately replied by sending the Council the documentation it requested and confirming that the additional payment of €550 would be returned to the Complainant.

The Respondent telephoned the Complainant to advise him that he would be returning €550 and that he was happy to accept HAP.

The Respondent met the Complainant on the 15th January 2024. He could not fix all of the issues being raised by the Complainant and therefore he informed the Complainant that he was going to give him notice of termination. The Complainant responded by threating the Respondent. The Respondent had the notice of termination ready to give to the Complainant but in light of the threats being made by the Complainant the Respondent put the document in the bin. The Respondent stated that he had only just met the Complainant and he was worried about what might happen if he handed him the notice of termination. The meeting ended, the Complainant left and he remained a tenant. 

The Respondent spoke with the Complainant’s representative and he refunded the Complainant €550 on the 17th January 2024.

The Complainant continued raising problems with the apartment and placing demands on the Respondent as to when things would be done. The Respondent believed that the apartment was up to standard and that everything worked fine and that the Complainant was being unreasonable particularly given the Complainant had visited the premises before he rented it and moved in and the only problem he raised was with the couch. A decision was therefore made to serve a notice of termination on the Complainant.

In conclusion the Respondent disputed that he terminated the tenancy because of HAP. According to the Respondent he terminated the Complainant’s tenancy because of the ongoing complaints regarding the dwelling which were minor in nature and which financially he was not in a position to remedy to the Complainant’s satisfaction. The Respondent stated that he has nothing against HAP and that he has no difficulty renting to a tenant in receipt of HAP. In the building there are four apartments – one was rented to the Complainant, one tenant pays the rent by way of bank transfer and the two remaining apartments are let to HAP tenants. Since he started getting HAP tenants he has never had to ask for the rent money which he said was a great relief because he did not have unlimited resources. He stated that his experience has been that when he rents to individual tenants he is constantly chasing the rent but with HAP the tenant is a godsend because the money is in the bank every month and he has the comfort of knowing that the mortgage repayments will be met.

In response to questions from the Adjudication Officer the Respondent stated that prior to serving the notice of termination on the Complainant he had signed the landlord section of the HAP application form and had responded to all of the queries raised by the Council and had sent back the information they requested on the 12th January 2024 and that there was no paper work outstanding to send to the HAP department.

Cross Examination of the Respondent

Under cross-examination the Respondent stated that the Complainant was incorrect when he said in evidence that the letter the Respondent crumpled up and threw in the bin on the 15th January 2024 was a letter confirming the refund of €550 or that the Respondent refused to refund the sum of €550. The Respondent stated that once it was explained to him by the Complainant’s representative and the servant and/or agent of the Council that he was not permitted to require the payment of two months deposit he returned €550 to the Complainant. The Respondent’s evidence was that the letter he had to give to the Complainant on the 15th January 2024 was the notice of termination.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral submissions made by and on behalf of the parties at the hearing.

It must be determined whether the Respondent discriminated against the Complainant on the “housing assistance ground” contrary to the Equal Status Act 2000 (as amended) (hereinafter referred to as the “ESA”) by failing to complete the HAP application form, despite the Complainant’s repeated requests and by serving a notice of termination.

The Law:

Section 3(1) of the ESA provides:

“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) of the ESA provides:

“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”).”

Furthermore, section 6 of the ESA provides:

“6(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.”

Section 38A of the ESA sets out the burden of proof and provides that:

38(A)(1) 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.

Findings:

Section 38A of the ESA requires the Complainant to establish facts from which the alleged discrimination may be inferred. It is only where such a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the inference of discrimination. Therefore, the Complainant must show that he has been treated less favourably than another person is, has been or would be treated in a comparable situation on the housing assistance ground which requires that, as between any two persons, one is in receipt of housing assistance and the other is not. The ESA provides for a hypothetical comparator.

 In the case of Pierce Parker v. Office of the President and University Advocate and University of Limerick DEC-S2013-004 the Equality Officer stated that:

“Although the instant case is taken under the Equal Status Acts, Section 38A is analogous to Section 85A of the Employment Equality Acts. In this regard, I consider that it is appropriate for me to consider the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LP in Madrassy v Momura International plc [2007]IRLR 246, and stated that “…the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent…”.

The Equality Officer went on to say that:

“I am mindful of the decision of the Labour Court in the case of Melbury Developments Limited and Valpeters (ADE/09/16). In that case the Labour Court stated, inter alia, that: Section 85A of the Act provides for the allocation of  the probative burden in cases within its ambit. This requires that the Complainant must 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 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 assertion, 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 evidence rule.”

Once the prima facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.

The Complainant alleges discrimination on the housing assistance ground on the basis that the Respondent failed to complete the HAP application form despite the Complainant’s requests and served a Notice of Termination when he was directed by the Council to return a portion of the deposit paid by the Complainant. The Respondent denies that the Complainant was discriminated against on the housing assistance ground and asserts that he completed Part B, the landlord section, of the HAP application form and engaged in correspondence with the Council regarding the Complainant’s application for HAP, refunded the over payment of the deposit and that the tenancy was lawfully terminated for reasons unconnected with HAP.

As highlighted in the Valpeters decision:

“the Complainant must first establish facts from which discrimination may be inferred.”

and that such facts must

“be of sufficient significance to raise a presumption of discrimination.

Crucially, it also highlights that these

“must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In the instant case the Complainant only made assertions that he was discriminated against on the housing assistance ground and these assertions were unsupported by relevant evidence. Whilst the Complainant's evidence was that the Respondent failed to complete Part B of the HAP application form and that the Respondent was not happy when he was contacted by the HAP department of the Council and required to return the over payment of €550 I did not find his evidence to be credible. I find that the oral and documentary evidence supports the Respondent’s case that he did complete Part B of the HAP application form, that he engaged with the Council in relation to the Complainant’s application for HAP, that it was his practice to require two months rent by way of deposit from all tenants, whether or not they were in receipt of HAP, and that upon being informed that he was not permitted to require the payment of two months rent by way of deposit he returned the over payment of €550.

Furthermore, taking into consideration the oral evidence of the Complainant and the Respondent I find that the Complainant’s assertion that his tenancy was terminated because the relevant Council raised queries with the Respondent regarding the Complainant’s HAP application lacked credibility. The Respondent submitted documentation to the WRC which evidenced his positive engagement with the Council regarding the Complainant’s application. Furthermore, I found the Respondent’s evidence regarding the ongoing issues raised by the Complainant and his attempts to address same as credible and consequently I find that it was the ongoing complaints regarding the rented property rather than his HAP status that was decisive in the Complainant’s tenancy being terminated by the Respondent. Therefore, I cannot find that he has established a prima facie case of discrimination.

Accordingly, I find that the complaint is not well-founded.

For the reasons set out above I decide that the complaint is not well-founded.