Complainant

Respondent

Parties

Eric  Okunola

Cork City Council

Representatives

  Self-Represented

Diana Kelleher -  Office of Legal Affairs, Cork City Council

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041505-001

10/12/2020

The Complainant was a recipient of Housing Assistance Payment (HAP) in private accommodation. He  was on the social housing list and lived within the Rent Pressure Zone (RPZ) that comprised the entire  City of Cork as defined  within the boundaries of the Respondent’s local authority area. The Complainant  was refused the additional top up payment for RPZ areas. He claims that this refusal was the inappropriate  exercise of a discretion on race grounds and is therefore prohibited conduct under the Equal Status Acts 2000-2015 (“the Acts”).

The Respondent submits that the refusal of the HAP top-up payment was because the Complainant did not qualify under criteria that is  applied to all applicants regardless of race.

The Complainant was refused HAP top-up payment under the scheme because the Respondent stated that he was “over-accommodated”.  The Complainant demanded of the Respondent  that it should provide him with   the regulation on  “over accommodation” ,   but the Complainant submits he saw no copy of such a regulation. The Respondent further  required a RPZ property size calculation from the Complainant. The Complainant enquired as to why such a calculation was necessary, the answer he received was that it was required for all applications. 

The Complainant submits that the Respondent exercised its discretion in a discriminatory way and excluded him from the payment because of his race.

The Complainant contacted the Respondent and   expressed the  opinion that the Rent Pressure Zone (RPZ) where he was renting could be a qualifying factor for the 20% Discretionary Top Up of the HAP rate he was already receiving.

Mr Tim Howard, of the Respondent’s Housing Department,  gave evidence that  when the Respondent  is faced with a decision on whether to sanction, or not sanction, the 20% Discretionary Top Up of the qualified HAP rate, the normal practice is as follows:

1. Establish what the Applicant qualifies for on the Social Housing List. In the Complainant’s  situation, he qualified for a 2 Bed Property but was renting a 3 Bed Property.
2. Assess the income details of the Applicant i.e., whether the differential rent and the top up to the Landlord is greater than 35% of the Applicant’s disposable income. In the Complainant’s  situation, this was not the case. The Complainant’s  differential rent and top up came to 32% of his disposable income.
3. Consider any health or medical issues that the Applicant had disclosed. In the Complainant’s situation; no such issues were disclosed by the Complainant  to the Respondent.

The Respondent submits that this  is the standard normal practice of  the Respondent when it is faced with a decision whether to sanction the 20% Discretionary Top Up of the qualified HAP rate. The practice used in the Complainant ’s case was consistent with all HAP applications processed by the Respondent regardless of race and ethnicity.

Section 3 (1)(a) of the Acts 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- exists, existed but no longer exists, may exist in the future, or is imputed to the person concerned"

The relevant discriminatory grounds are set out in sub-section (2) of Section 3, in its relevant part states:

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”

The Burden of proof provision of the Equal Status Acts 2000-2015 at section 38A provides

(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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

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 Graham Anthony & Company Limited v Mary Margetts EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

In order for the burden of proof to shift to the Respondent, the Complainant must show primary facts of discrimination on the grounds of race.   The Complainant did not produce a comparator, nor did he give any evidence at the hearing of prohibited conduct on race grounds, outside of a bare assertion in his complaint form.  The Respondent gave convincing evidence that the policy of assessment for HAP Top Up payment  is consistent and  measured, based on reasonable grounds of calculation.  The Complaint had a grievance with the qualifying criteria, which is his prerogative,  but the plain fact of the matter is  that the uncontested  evidence given was that  the policy and its rules for qualification, applies to all applicants, regardless of race. Unfortunately, the Complainant did not qualify under the regulations, and I am satisfied that the refusal was based on a reasonable and equitable administration of policy which was devoid of discrimination on the grounds of race.  

Having heard the evidence and submissions in this case I conclude that the Complainant did not establish a prima facie case of discrimination. I find that the Respondent did not engage in prohibited conduct under the Acts.

For the reasons outlined above, I decide that the Complainant did not establish a  prima facie case of discrimination.  I find that the Respondent did not engage in prohibited conduct under the Acts. 

Equal Status Acts 2000-2015, Race.