Complainant

Respondent

Parties

Michael  Powell

James Martin C/O Cathal O Dea

Complainant

Respondent

Anonymised Parties

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Representatives

Alex O Connor Threshold

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055522-001

13/03/2023

Following the purchase of the property in which he lived, in November 2022, the Complainant asserted that the Respondent failed to submit the necessary documentation to the Council in support of his application for Housing Assistance Payment (HAP). He asserts that this constitutes discrimination under the Act.

The Complainant first asked the Respondent to comply with his HAP application on 24 November 2022 after learning that the Respondent had bought the property. Subsequently, on 8 December 2022, the Complainant stated that he had been informed by the Council that the landlord was processing the paperwork. Further to this, on 18 January 2023, the Complainant requested an update and asked the Respondent if he was going to register with HAP but did not get a response.

On 26 January 2023, the Complainant stated that Threshold, on his behalf, contacted the HAP section of the Council and were informed that the Respondent had not submitted any documentation in relation to a HAP application. On 3 February 2023, the Respondent replied to a text message from the Complainant inquiring about his HAP application, stating “I am awaiting relevant documentation”. Later that day, the Complainant posted a completed ES1 form to the Respondent.

The Complainant also stated in cross-examination that he only made a payment of €120 per month to the Respondent which represented the difference between the rent of €600 per month and the HAP payment that he would have received.

The Respondent stated that after purchasing the property in which the Complainant lived, he was waiting for certain documents to be furnished to him before he could submit his part of the Complainant's HAP application. He also pointed out that the Complainant was only paying him €120 per month, which represented the gap between the monthly rent of €600 and the expected HAP payment. He anticipated recovering the remaining amount once the Council processed the Complainant's HAP application.

It must be determined whether the Respondent discriminated against the Complainant on the “housing assistance ground” contrary to the Equal Status Act 2000 – 2018 (the “ESA”) by failing to complete the HAP Application Form, despite the Complainant’s repeated requests.

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 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 Act 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. I find that the relevant comparator in this case is a tenant of the Respondent who is not in receipt of HAP.

Finally, as regards redress, section 27(1) of the ESA provides:

“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.”

Findings:

I note firstly that the Respondent acquired the property where the Complainant resides in November 2022. Just over 2 months later, on 3 February 2023, the Respondent informed the Complainant that he was waiting for documentation from the previous owner, which was necessary for the Housing Assistance Payment (HAP) application to be processed according to the Council's requirements. In my view, it is credible that there was still documentation outstanding in relation to the purchase of the property a few months after it had been completed.

In support of the Respondent’s position that he intended to comply with the application for HAP when he received the required documentation, I note, crucially that the Complainant only paid the Respondent €120 per month, which represents the difference between the rent of €600 per month and the HAP payment that he would have received. The Respondent anticipates receiving the entire shortfall from the Council once the Complainant's HAP application is processed. Therefore, the delay in submitting the required paperwork has not caused any financial loss to the Complainant.

Considering all of the foregoing, I find, pursuant to section 25(4) of the ESA, that the Complainant has failed to establish a prima facie case of discrimination on the housing assistance ground.

For the reasons set out above, I find that the Respondent did not engage in prohibited conduct under the Act.