ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00046010

Parties:

Complaints:

Date of Adjudication Hearing:  24/11/2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

These complaints were referred under Section 21 of the Equal Status Acts 2000-2018 (ESA) to the Workplace Relations Commission (hereinafter ‘WRC’).  A complaint of discrimination was referred by complaint form received by the WRC on 23rd May 2023 and a complaint of victimisation was referred within a written submission received by the WRC on 31st July 2023.  Following delegation to me by the Director General, I inquired into these complaints and gave the Parties an opportunity to be heard and to present any relevant evidence.  These complaints were initially listed for a remote hearing on 29th September 2023.  On that date, there was no appearance by or on behalf of the Respondent Landlord.  I deemed a face-to-face hearing to be more suitable.  Although satisfied that the Respondent had been properly notified of the hearing details by ordinary prepaid post to his correct address, out of an abundance of caution, I directed notification of the new hearing date by registered post.  I was satisfied that the Respondent’s address was correct as it had been stamped onto Rent Supplement forms completed on behalf of the Complainant.  As the Respondent’s wife occasionally completed such forms stamped ‘Landlady’, she was also notified to attend the hearing.  Accordingly, the second notification letter issued by registered post on 4th October 2023 and by ordinary prepaid post on 10th October 2023 and neither letter was returned undelivered. 

These complaints were listed for hearing in Lansdowne House on 24th November 2023.  The Complainant was in attendance along with his brother and two Representatives from Threshold who had assisted with the matter and also represented him at the hearing.  Threshold had proffered comprehensive written submissions and supporting documentation.  An Arabic Interpreter was present to assist with translation.  There was no attendance on behalf of the Respondent or his wife.  Before commencing the hearing, I allowed a period of time to elapse and confirmed with the Administrative Section that there had been no application for an adjournment and no difficulty attending had been indicated by or on behalf of the Respondent.  Having taken these steps, I commenced the hearing.  I outlined the changes to procedure under the Workplace Relations (Miscellaneous Provisions) Act 2021 and the relevant statutory provisions for these complaints.  The hearing was held in public and all of the evidence was adduced under oath or affirmation.  There has been no engagement from the Respondent or his wife to date and no explanation for their non-attendance. I have considered all of the evidence, documentation and submissions proffered herein. 

Section 30(1) of the Equal Status Acts provides that every decision shall be published on the internet in such form and manner as the Director considers appropriate.  On the basis of information and vouching received post-decision regarding the Respondent’s current health status from his wife, I have exercised my discretion to anonymise this decision and accordingly, direct that any information that might identify the Parties including their names and addresses should not be published hereon.  

Background:

The Complainant holds a tenancy for a bedsit with the Respondent Landlord and was in receipt of Rent Supplement which discharged most of his rent.  He contends that as a consequence of the Respondent’s ongoing refusal to provide paperwork requested on foot of a Department of Social Protection review in February 2022, he has lost his entitlement to Rent Supplement thereby placing his accommodation in jeopardy and causing him extreme anxiety and distress.  Furthermore, he contends that following the loss of his Rent Supplement the Respondent has been abusive towards him, demanding that he either pays his rent in cash or leaves the premises, and this conduct has escalated since furnishing ES1 Forms.  He seeks redress for discrimination and victimisation under the ESA along with directed action required to reinstate his Rent Supplement.  The Respondent has not engaged with the WRC, did not attend the hearings or make any written submissions in rebuttal.

Summary of Complainant’s Case:

The Complainant commenced a tenancy on 7th December 2009 for a bedsit located within a house on a road off the South Circular Road, Dublin 8 containing rental units.  He was never furnished with a lease but did hold a rent book until it was taken back and retained by the Respondent.  He described the bedsit as being in poor condition.  He initially paid €109 rent per week which was increased to €160 per week from 2012.  He suffers from significant health difficulties and is in receipt of Disability Allowance.  Based upon his circumstances, he had been deemed entitled to Rent Supplement from the commencement of this tenancy which was paid directly to the Respondent.  Rent Supplement is a means-tested payment available to certain people living in private rented accommodation who cannot pay the cost of their accommodation from their own resources and is administered by the Department of Social Protection.  The Complainant paid €32 weekly directly to the Respondent and the €128 balance was covered by Rent Supplement and paid directly.  The Respondent collected the €32 rent in cash on Fridays and payments were noted in the rent book.

The Respondent had completed and signed all necessary forms for the purposes of the Complainant receiving Rent Supplement including compliance with Department of Social Protection reviews until February 2022.  Examples of forms previously completed by the Respondent were furnished.  As part of a routine review by the Department of Social Protection, the Complainant was required to provide various vouching documentation listed in a letter dated 1st February 2022 within 21 days thereof.  The Complainant provided the Department of Social Protection with all of the documentation within his possession.  The outstanding documentation comprised of: “Swa1, swa3 forms fully completed by yourself and your landlord.”, “Proof of Ownership for your address (a copy of the insurance document, LPT receipt, solicitor’s letter outlining ownership or mortgage statement on the property – the document must clearly state your landlord’s name and your address and be dated within the last 12 months)”; “Evidence of rent being paid to your landlord.  Please provide a rent book, bank lodgements or receipts signed by you and your landlord” and “A copy of your current lease.”  When the Complainant approached the Respondent seeking the remaining documentation, he refused and responded angrily: “Just pay me cash or leave.”  Each week when the Respondent came to collect rent on Fridays, the Complainant repeated his request for this documentation but was met with outright refusal and verbal abuse.  His brother also made repeated requests on his behalf to no avail. 

Meanwhile, the Complainant received reminders on 28th February 2022, 21st March 2022, 13th April 2022 and 23rd June 2022 from the Department of Social Protection seeking the outstanding documentation and warning that failure to return same would result in the closure of his Rent Supplement claim.  However, owing to the refusal of the Respondent to provide same, he was unable to furnish the requested documentation.  The officials at the Department were made aware of the Complainant’s difficulties and exercised considerable forbearance before suspending the Complainant’s Rent Supplement on 28th February 2022 and closing his claim on 13th July 2022. 

Thereafter, the Complainant alleges that the Respondent refused to accept his portion of the rent and in or around July 2022, took back and retained his rent book.  He has become increasingly abusive, demanding that the Complainant leave the property without notice of termination.  The Complainant has nowhere else to go and has become so afraid of him that he leaves the building on Fridays to avoid further confrontation.  He has been depositing the rent that he would have paid the Respondent into an account for safekeeping.  On a number of occasions, the Respondent has opened the door to his bedsit with his key without notice and shouted expletives at him threatening to replace him with another tenant.  The electricity has also been disconnected on a few occasions.

The Complainant furnished the Respondent with an ES1 Form by registered post on 28th February 2023.  Having received no response, he attended at Threshold for assistance in April 2023 and a further ES1 Form dated 11th April 2023 was furnished to the Respondent by registered post.  Both ES1 Forms outlined details of the alleged discrimination and victimisation against the Respondent.  Having received no response to same, the Complainant referred these complaints to the WRC.

One of the Representatives from Threshold outlined the assistance provided to the Complainant.  In a final effort to compel the Respondent to provide the requisite paperwork, she rang two mobile numbers provided on previous Rent Supplement forms.  On 22nd April 2023, the Respondent’s wife answered her call to one of the numbers.  The Representative explained the Respondent’s legal obligations towards the Complainant.  His wife said that he was ill-disposed but as she was responsible for completing forms they would comply.  The paperwork was not forthcoming and on 28th April 2023, the Respondent attended at the Complainant’s bedsit and confirmed that he would not provide the requested paperwork, once again demanding that he leave.  Following a further demand for full cash payment in early May 2023 after the Respondent had been particularly threatening towards the Complainant, he felt pressured to pay him €480 cash for three weeks rent.  As a consequence of the stress and anxiety caused, he became extremely unwell and was admitted to Hospital between 11th and 22nd May 2023.  To date, there has been no change in the situation causing the Complainant significant distress with a constant fear of homelessness hanging over him.

Submissions

On behalf of the Complainant, it was submitted that the Respondent’s ongoing refusal to complete/sign forms and provide documentation requested on foot of the Department of Social Protection review of his entitlement to Rent Supplement resulting in the loss of same constitutes discrimination under the housing assistance ground contrary to Sections 3 and 6 of the ESA as set out below.  In so acting, the Respondent has treated the Complainant less favourably than another tenant of the Respondent not in receipt of Rent Supplement or other Social Welfare payment, being the relevant comparator.  The Complainant is in a particularly vulnerable and precarious situation regarding the tenancy in that he cannot afford to pay the full rent without the Rent Supplement to which he is legally entitled.  As Rent Supplement is a secondary state support for tenants, the Respondent’s actions are tantamount to a refusal to continue to rent to the Complainant.  It was further submitted that the Respondent’s abusive conduct towards the Complainant following the loss of his Rent Supplement and service of the ES1 Forms constitutes victimisation under the ESA. 

As observed in relation to the housing assistance ground by Simons, J. of the High Court in Smith -v- Copeland (2020) IEHC 42: “The effect of these provisions is that, subject to certain statutory exceptions, it is unlawful to discriminate against a prospective tenant on the ground that he or she is in receipt of housing assistance.”  Discrimination may also occur between a landlord and an existing tenant.  In A Tenant -v- A Landlord - ADJ-00004100, ADJ-00004101 and ADJ-00004705, this Adjudication Officer noted the comments of Ms Justice O’ Malley in G-v-The Department for Social Protection 2015 IEHC 419, where the High Court held that the Equal Status Act was a ‘remedial social statute’ and required a liberal interpretation.  Following this authority, this Adjudication Officer held that: “Adopting a purposive approach to the Act which requires a wide and liberal interpretation and taking the provisions as a whole, it is clear that the Oireachtas intended to legislate for a wide gamut of possible discrimination that could arise in relation to the provision of accommodation including the manner in which rent is accepted.  In particular, I note the all-encompassing nature of the wording contained in Section 6(1)(c) as prohibiting discrimination in relation to: “providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.”  The inclusion of the word ‘ceasing’ would appear to envisage that discrimination under any of the prohibited grounds can arise in relation to existing tenants.”

Summary of Respondent’s Case:

The Respondent did not attend at the hearing or make any written submissions in rebuttal.

Findings and Conclusions:

I am required to determine whether (1) the Respondent has acted as alleged by the Complainant and (2), if so finding, whether his actions constitute discrimination under the housing ground and victimisation.  In this respect, it is firstly necessary to set out the requisite legislation as follows:

Section 6(1) of the Equal Status Act 2000 provides: “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.”  Section 6(1) of the ESA has to be read and interpreted in conjunction with Section 3 of the ESA which gives meaning to ‘discrimination’ across ten grounds including the ‘housing assistance ground’.  Specifically, Section 3(1) 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(1)(b) provides for discrimination by association and Section 3(1)(c) for indirect discrimination. 

Introduced by the Equality (Miscellaneous Provisions) Act 2015 with effect from 1st January 2016, Section 3(3B) provides that in addition to the existing prohibition of discrimination in relation to the provision of accommodation under the nine protected grounds, discrimination is prohibited under the ‘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”).”  Section 6(8) defines Rent Supplement as follows: “In this section, ‘rent supplement’ means a payment made under Section 198(3) of the Social Welfare Consolidation Act 2005 towards the amount of rent payable by a person in respect of his or her residence.”  It is well settled law that the aforesaid provisions apply to both prospective and existing tenants.

Section 3(2)(j) of the ESA affords protection to persons seeking to enforce their rights under the ESA against retaliatory action, constituting the ‘victimisation ground’ as follows: “3(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are: (j) that one- (i) has in good faith applied for any determination or redress provided for in Part II or III, (ii) has attended as a witness before the Authority, the adjudication officeror a court in connection with any inquiry or proceedings under this Act, (iii) has given evidence in any criminal proceedings under this Act, (iv) has opposed by lawful means an act which is unlawful under this Act, or (v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the “victimisation ground”).  The criteria to be satisfied for such a complaint was outlined in the Equality Tribunal Decision in Collins -v- A Public House DEC-S2003-071 as follows:

• (1) That he/she applied in good faith for redress under the Act, indicated an intention to do so or otherwise satisfied Section 3(2)(j);
• (2) That he/she was subjected to specific acts of treatment by the respondent after he/she did so and
• (3) That this treatment was less favourable than would have been afforded to a person in similar circumstances who had not taken the action at 1 above.

Section 38A of the ESA provides for the applicable burden of proof and requires the Complainant to establish, in the first instance, facts from which the discrimination or victimisation alleged may be inferred.  It is only where such a prima facie case of discrimination or victimisation, as the case may be, has been established that the onus shifts to the Respondent to rebut that inference. 

I am satisfied that all the jurisdictional prerequisites including notification have been met in this case and that the Respondent is correctly named.  As set out in ADJ-00004100, ADJ-00004101, ADJ-00004705 and ADJ-00028448, Section 3(3B) clearly imposes a legal obligation on landlords to accept recipients of housing assistance payments as tenants (subject to statutory exceptions) and intrinsic to that, to take such steps as are necessary to ensure that they can access the housing assistance payments to which they are entitled.  Turning to the factual matrix, I am satisfied on the balance of probabilities that since February 2022, for whatever reason, the Respondent has refused to complete/sign the forms and provide documentation requested on foot of a Department of Social Protection review of the Complainant’s entitlement to Rent Supplement.  I am further satisfied that this has resulted in the Complainant’s claim to rent Supplement being closed with the consequence that he is unable to avail of Rent Supplement towards payment of his rent.  In this respect, I found him to be a very credible witness and his account was corroborated by the Representative from Threshold and the documentation provided.  I further found his account of the alleged abusive conduct by the Respondent towards him to be wholly credible as corroborated by contemporaneous notes.  Having so found, I am further satisfied that the Complainant has established a prima facie case of discrimination.  I find that he has been treated “less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds”, in this case the ‘housing assistance ground’, “…which requires that as between any two persons, that one is in receipt of rent supplement (within the meaning of section 6(8))… and the other is not.”  In this respect, I find that the Respondent’s ongoing refusal to complete/sign the forms and provide the requested documentation amounts to less favourable treatment than a tenant not entitled to Rent Supplement and/or otherwise in a position to discharge his/her rent.  The Respondent’s conduct has led to the Complainant being unable to discharge his rent and has placed his accommodation in jeopardy.

I am further satisfied on the balance of probabilities that the Respondent’s conduct towards the Complainant after he sought to enforce his rights under the ESA constitutes a prima facie case of victimisation.  The ES1 Form is a non-statutory form used to give a potential respondent notice of an intended claim and afford an opportunity to explain the reasons for the alleged impugned conduct.  This is a statutory prerequisite to referral of a complaint to the WRC (subject to dispensing of same in exceptional circumstances) under Section 21(2) of the ESA.  Albeit that such written notice may be given in any form, the ES1 Forms used in the instant case are headed: IMPORTANT: This document warns of a possible legal claim.”  I am satisfied that this constitutes “notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),” falling under Section 3(2)(j)(v) of the ESA.  I find the Complainant’s evidence that after service of the ES1 Forms on the Respondent, there was an escalation of abusive conduct towards him to be entirely credible.  This included an instance in early May 2023, when the Respondent was particularly threatening towards him, such that he felt pressured to pay him €480 cash for three weeks’ rent.  In this respect, I find that he was subjected to specific acts of treatment by the Respondent after he served the ES1 Forms and that such treatment was less favourable than would have been afforded to a person in similar circumstances who had not taken such action.  Accordingly, the legal test set out above has been satisfied.

Decision - CA-00056798-002 – Discrimination under the ESA:

Section 25 of the Equal Status Acts 2000-2018 requires that I make a decision in relation to this complaint of discrimination, and if finding in favour of the Complainant, do so in accordance with the relevant redress provisions under Section 27 which provides as follows:

“Subject to this section, the types of redress for which a decision of the Director of the Workplace Relations Commissionunder 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 Commissionby 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.  (3) The maximum amount specified in subsection (2) applies notwithstanding that conduct the subject of the investigation constituted-(a) discrimination on more than one of the discriminatory grounds (other than the victimisation ground), or(b) both discrimination on one or more than one of those grounds (other than the victimisation ground) and harassment or sexual harassment.”

Given the real and tangible effects of the Respondent’s ongoing refusal to complete/sign the forms and provide documentation requested on foot of a Department of Social Protection review of the Complainant’s entitlement to Rent Supplement, I consider this discrimination to be at the more serious end of the scale.  By definition, recipients of housing assistance payments are more vulnerable, and the Complainant is particularly vulnerable given his health status and inability to work such that he is dependent upon state supports to meet his daily living and accommodation needs.  The Respondent’s refusal to complete and provide the requisite paperwork has also occurred over a lengthy period.  This has been aggravated by his abusive conduct towards the Complainant following the consequent loss of his Rent Supplement including demands for payment of rent in cash and threats that he leave his accommodation.  As a consequence of the Respondent’s actions, the Complainant has been unable to discharge his rent placing his accommodation in jeopardy and he has had to live in constant fear of losing his accommodation.  This conduct has further caused him significant anxiety and distress adversely affecting his health and leading to his hospitalisation. 

Subject to EU law exceptions, by virtue of Section 27(2) of the ESA, this jurisdiction is limited to a maximum award of €15,000, being fixed at the maximum District Court civil jurisdiction (noting that separate awards of up to the maximum may be made in respect of discrimination and victimisation).  Having regard to all the circumstances and pursuant to Section 27(1)(a), I deem it appropriate to order the Respondent to pay €12,500 to the Complainant for the effects of the discrimination.  Pursuant to Section 27(1)(b), I further direct the Respondent to complete/sign all forms and provide all documentation required to reinstate the Complainant’s claim for Rent Supplement forthwith.

Decision - CA-00056798-002 – Victimisation under the ESA:

In relation to the investigation of a complaint of discrimination along with a related complaint of victimisation under the ESA as arises in the instant case, Section 25(1A) provides as follows:

“(a) Claims to have been discriminated against on more than one of the discriminatory grounds (other than the victimisation ground) shall be investigated as a single case, and (b) claims to have been discriminated against on discriminatory grounds which include the victimisation ground may, in an appropriate case, be so investigated, but a decision shall be made on each of the claims.”

Having regard to all the circumstances and pursuant to Section 25(1A) requiring a separate decision, I deem it appropriate to order the Respondent to pay a further €5,000 to the Complainant for the effects of victimisation arising from the escalation of abusive conduct following service of ES1 Forms. 

Overall Award:

For the avoidance of any doubt, I therefore direct that the Respondent pays the total sum of €17,500 in compensation to the Complainant within a period of 42 days of the date herewith.

Dated: 15th July 2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Sections 3 & 6 of the Equal Status Acts 2000-2018 – discrimination under the housing assistance ground - ADJ- 00004100, ADJ-00004101, ADJ-00004705 & ADJ-00028448 - Smith -v- Copeland (2020) IEHC 42 – victimisation - Collins -v- A Public House DEC-S2003-071