Complainant

Respondent

Parties

Bernadine  Gavin

Ruth Murphy

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051250-001

21/06/2022

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

CA-00051775-001

20/07/2022

This is a case of alleged discrimination on the housing assistance ground as a result of alleged refusal by the Respondent to sign the Complainant’s application for the Housing Assistance Payment scheme/HAP.

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 I note the Complainant identified 7/2/2022 as the date of the first incident of alleged discrimination and 14/6/2022 as the date of the most recent incident. The Complainant stated that she posted the ES1 by registered post on 9/5/22 and that it was delivered to the Respondent on 11 May 2022. The Complainant furnished an An Post proof of delivery docket to this effect.  The Respondent signed receipt of the ESI Form on 10/5/2022 in her completed ES2 Form of 2/6/2022 which was received by the Complainant on 3/6/2022.  At the adjudication hearing the Respondent stated she had no issue in relation to the ES1 time frame.

The Complainant withdrew CA-00051775-001 in the course of the adjudication hearing.

The Complainant stated that she started renting a property owned by the Respondent on 4/6/2018. She stated she was a good tenant and always paid her rent. The Complainant stated she lived at the property with her son. The Complainant outlined various repairs and work she did on the property.

The Complainant stated that she sought a reduction in her rent as a consequence of reduced income due to the impact of Covid-19 on her employment situation. This she stated was refused by the Respondent. The Complainant stated that she applied for housing assistance payment and referred to a letter dated 1 February 2022 from the local authority – Westmeath County Council – which approved her application and advised that she was eligible to apply for HAP. 

The Complainant stated that she delivered the HAP application form to the Respondent on 11/2/2022. She stated that she engaged with the Respondent from February 2022 in order to obtain her signature on the HAP form. The Complainant stated that the Respondent had informed her that she never takes on people who want HAP as it is too much paperwork. The Complainant referred to various text messages - copies of which I was furnished – in relation to her enquiries to the Respondent about completing the HAP form. These included:

·       The Complainant’s text message to the Respondent of 7 February 2022 which stated as follows:

“Just letting you know I’ve eventually been approved for an application for HAP to help with my rent. Can I leave the landlord application part in the post box and could you please fill it in for me? I want to get it into the council as soon as possible….”

·       The Respondent’s text message of 9/2/2023 which stated as follows:

“…. I will look at the application form on Friday night….. as I will be back that night… Just so u have a heads up I haven’t done the Haps scheme and when I’m renting apartments…..I have turned away people who have wanted me to do haps scheme….”

·       The Complainant’s text message to the Respondent of 22 February 2022:

“….Have you any news on the form. Please and Thanks….”

·       The Respondent’s text message of 22/2/2023:

“….It’s been in with my accountant…. I will ring him later to see what he thinks…. I doubt though he will advise me to do it and Christ the amount of verification they need is unbelievable…..”

The Complainant sought assistance from the local authority and Threshold in order to obtain the cooperation of the Respondent in signing the HAP form but she stated these efforts were not successful. On 29 April 2022  the Complainant stated the Respondent served her with a Notice to Quit (NTQ) to take effect on 4/11/22 – copy of which I was provided with. The NTQ was accompanied by a sworn declaration that the property was to be sold within nine months. The Complainant stated that at the time of the adjudication hearing the property had neither been put up for sale or sold. The Complainant stated there was a lack of rental properties available in her area and the rents were higher. Notwithstanding, the Complainant obtained alternative rental accommodation and she moved out of the Respondent’s property on  11/11/2022.  

In the course of the adjudication hearing, the Complainant raised other matters including her parental obligations and the position of tenants in other properties owned by the Respondent.

It is the position of the Complainant that the Respondent discriminated against her on the housing assistance ground and treated unlawfully contrary to the provisions of the Equal Status Act [2000-2018]. The Complainant also maintained that her application for the HAP payment resulted in her being issued with the NTQ. The Complainant outlined her losses as a result of her non-receipt of the HAP allowance.

The Respondent stated that she never refused to sign the HAP application form and never verbally refused the Complainant. The Respondent maintained that she was “not in a position” to sign the form. The Respondent made written submissions to the WRC prior the adjudication hearing on 1/9/22 and 10/2/23 wherein she stated that it was not her practice to discuss any of her personal or financial issues with any of her tenants and that “Perhaps, this is why I think [Complainant] is somewhat confused in the reasoning behind why I cannot sign up the HAPS scheme papers”. The Respondent also stated that the property being rented to the Complainant “will have to be sold”. In her evidence at the adjudication hearing the Respondent outlined the following:

·       Her dealings with the Complainant when she commenced her tenancy in 2018;

·       That she previously signed a Rent Allowance application for the Complainant;

·       Various personal and health issues she had encountered including that there was consideration her ex-husband may move into the property rented by the Complainant;

·       That she was considering selling the property and was concerned that HAP would impact/slow down any proposed sale;

·       That she had sought and relied on the advice of her accountant and/or solicitor that HAP was only for long term tenancies or persons with long term housing needs;

·       That the NTQ was overtaken by the eviction ban which came into effect on 31/10/2022 and that as a result, she did not pursue the NTQ or the Complainant’s eviction;

·       That at the time of the adjudication hearing, the property was unoccupied and had not been put up for sale or sold.

The Complainant cross-examined the Respondent on her evidence. She put it to the Respondent that in the statutory declaration which accompanied the NTQ, there was no mention that the property may be required for a family member. In response, the Respondent stated that she did not wish to include personal details in the statutory declaration.

It is the position of the Respondent that she did not discriminate against the Complainant.

Preliminary Issue:

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 11/5/2022.  Whilst this date was outside two months of the first date of alleged discrimination on 7/2/2022, having considered the evidence and submissions, I am satisfied that on 11 May 2022 the alleged discrimination was ongoing in that the Respondent had not completed the HAP form by that date. Furthermore, I am satisfied the Complainant was in ongoing communication with the Respondent between 7/2/22 and 11/5/2022 in order to obtain her agreement to complete the HAP form. I consider the nature of the text messages demonstrate that the Complainant had every hope and expectation this would occur. In all the circumstances, I am prepared to exercise my jurisdiction to extend the two months period by a further two months for reasonable cause, as provided for at Section 21(3) of the Equal Status Act [2000-2018]. Accordingly, I consider that the Complainant has complied with her obligation under Section 21 of the Act and that I have jurisdiction to hear this complaint.

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 as may occur between any two persons and in that regard, subsection 3(3B) includes:

(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”.

In light of the foregoing, I must first consider whether or not the Complainant has established a prima facie case of discrimination. In this regard, I have considered all the evidence, submissions and documentation including:

·       Copies of the text messages exchanged between the Complainant and the Respondent and in particular the texts of 7 and 9 February 2022 in the course of which the Complainant advised the Respondent that she had been approved for HAP and that she was requesting the Respondent to complete the Landlord section of the application form;

·       The Respondent’s evidence in relation to the HAP application including her statement on the ES2 Form that “HAP situation is based on selling the house nothing to do with rights or laws against anyone”;

·       The fact that the Complainant was served with an NTQ within weeks of her request to the Respondent to complete the HAP application;

·       The Complainant’s evidence in relation to her contacts with Threshold and Westmeath Co Co in seeking the cooperation of the Respondent to sign the HAP form.

In light of the foregoing, I am satisfied the Complainant has established facts from which an inference of discrimination on the housing assistance ground can be drawn. Accordingly, I find that the Complainant has established a prima facie case of discrimination and for the following additional reasons, I find the Respondent has not rebutted this presumption nor demonstrated that discrimination on the housing assistance ground did not occur:

·       There is considerable public information available on the HAP scheme from government websites. Consequently I am of the view that the Respondent as a Landlord of a number of tenancies, knew or ought to have known the purpose of the HAP scheme and that once approved by the local authority, the Complainant was entitled to draw down the HAP allowance;

·       I am not persuaded by the Respondent’s argument that she was not in a position to sign the HAP form – whether as a consequence of personal reasons or advice she stated she obtained from her solicitor or accountant or for reasons that she wanted to sell the property. On the contrary, from the evidence and submissions, I am satisfied the Respondent was simply not disposed to facilitating the Complainant’s HAP application.

CA-00051775-001

Withdrawn in the course of the adjudication hearing.

CA-00051250-001

For the reasons outlined this complaint is well founded.

Section 27 of the Equal Status Act [2000-2018] provides that:

(1) Subject to this section, the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or

(b) an order that a person or persons specified in the order take a course of action which is so specified.

(2) The maximum amount which may be ordered by the Director of the Workplace Relations Commission by way of compensation under subsection (1)(a) shall be the maximum amount that could be awarded by the District Court in civil cases in contract”. (ie €15K)

The Complainant submitted that between February and November 2022 she would have received an amount of €408.70/month HAP allowance – which figure was not disputed by the Respondent. In addition, she stated that she had no alternative but to obtain alternative accommodation in November 2022 at an increased monthly rent of €290. The Complainant stated that the failure of the Respondent to complete the HAP application caused her stress and hardship at a time when her income had been reduced due to the impact of Covid-19 on her employment situation. Having regard to these factors and my findings, I order the Respondent to pay the Complainant €7,000 in compensation for the effects of the prohibited conduct.

HAP