Complainant

Respondent

Anonymised Parties

Complainant

Public Representative/Councillor

Representatives

 Decision without hearing

 Decision without hearing

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057045-001

07/06/2023

This complaint is concerned with an allegation of discrimination on the housing ground by the Complainant against the Respondent as a councillor and mayor in a local authority.

The issue at the centre of this complaint is concerned with the representations made or otherwise by the Respondent on behalf of the Complainant when she was seeking housing in Council owned property. The Complainant has received financial and accommodation support from the Council since 2011. However, at the time of the complaints she had not succeeded in her aim of  obtaining accommodation from the Council in property which they own. Certain locations were named as places where the Complainant believed that the Council had vacant properties which they would not provide to her on discriminatory grounds, including nationality. Those issues are the subject of other complaints against different named respondents.

The complaint against this Respondent is that the Complainant wrote to him in October 2022 and met with him at his office in February 2023 when he was the Mayor of the Local Authority area. It is her case that he only pretended to write letters of support and make representations on her behalf - that as Mayor he could have spoken directly to employees of the Council as in his position he had the authority ‘to just give me a house.’ When she wrote to him to speak directly to the employees on her behalf -he did not reply. In her written statement, the Complainant maintained the Respondent helped others obtain their Council houses-questioning whether his failure in her case is because she is foreign.

The complaint on the complaint form is one of discrimination on the housing assistance ground.

In a statement on behalf of the Respondent submitted to the Director General of the WRC, the Representative  stated that as an elected representative, the Respondent could choose on whose behalf they would make representations. In this case the Respondent made representations on behalf of the Complainant. Functions related to the allocation of council housing are reserved functions under local government legislation but not reserved to the elected representatives. The functions reserved to the elected representatives are mainly in the area of policy.

Under Section 49 of the Local Government Act 2001,every function of a local authority which is not a reserved function(to elected representatives) is an executive function which can only be executed by staff of the Council on behalf of the Chief Executive of the Local Authority. There is no provision under the 2009 Act for a reserved function for elected representatives such as the named Respondent  regarding the allocation of housing. The Complainant has  named the wrong Respondent.

The first point of note is that the Complainant did not strictly comply with the terms of Section 21(2) of the Equal Status Act.

EQUAL STATUS ACT 2000

REVISED

Updated to 29 July 2021

Redress in respect of prohibited conduct.

21.— (1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission.

(1A) If the grounds for such a claim as is referred to in subsection (1) arise —

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commission under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).

(2) Before seeking redress under this section the complainant—

(a) 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—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3)   (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may —

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

(b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including —

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

(4) The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

(5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).

As can be seen, a person who believes they were discriminated against under the Act shall, in the first instance, serve a notice on the Respondent of their complaint. The purpose of the notice is to seek information and secondly to place a potential Respondent on notice that the Complainant may take proceedings against them under the Equal Status Act. A Respondent is allowed a period of up to one month in which to respond following which the aggrieved person may decide to make a formal complaint against the Respondent. The Complainant in this case failed to give notice to the Respondent and failed to put them on notice of her intent prior to sending an ES1 to the WRC. On 07.06.23, the WRC received the completed ES1 form. On 13.06,the WRC informed the Complainant that ‘submission of an ES1 form does not constitute referral of the actual complaint’ and informed the Complainant that she was obliged to complete an online complaint form for referral of a complaint to the WRC. While this is not accurate as matter of law-a Complainant is not legally obliged to complete the online form before a complaint can be considered, the file I received does not contain any complaint form-only the ES1 form and additional documents.  The Complainant then submitted a complaint form to the WRC. The WRC continued to record the date of receipt of the ES1 form as the date of receipt of the complaint.

The Respondent acknowledged  receipt of the ES1 from the Complainant on 19.06.23 and replied on 27.06.23.

 In short, the Complainant submitted a complaint to the WRC without prior notice to the Respondent and without allowing the Respondent an opportunity to respond within one month before referring a complaint to the WRC. In her first communication to the WRC, the Complainant used the ES1 form as her complaint. Subsection (4) clearly states, ‘shall not investigate…’ and allows for no exception or exceptional circumstances to waive the requirement to give notice of a complaint and intent. By application of Section 21(4) I do not have jurisdiction to investigate the matter further unless I decide that the facts that the  Respondent was placed on notice of a complaint-by the WRC on 06 July 2023, only after the ES1 was issued by the Complainant and also after the Respondent had replied to that notice brings the complaint within the ambit of Section 21(2) and that Section 21(4) is not breached in this case.  At no stage did the Respondent object to the complaint proceeding on grounds of any of the terms of Section 21. I have therefore decided to allow the complaint to be considered further, not least because this was not a procedural issue which was notified to the Complainant by the WRC at any stage  or by the Respondent.  I also consider there is an important matter of principle to be decided here, and which the Complainant would in all likelihood want to have decided, the question of the status or otherwise of the Respondent in respect of the matters complained of under the Equal Status Act.

The status of the Respondent under the Equal Status Act

Disposal of goods and provision of services.

5.— (1) 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.

This is a complaint of discrimination under the Housing Ground. Leaving aside the question of the comparable treatment of another person as defined under the selected ground, the question of substance is whether the Respondent is a service provider at all for the purposes of the Complaint. In so far as advocating or making representations might be considered a service and in my view this is a doubtful proposition, the service provider to whom the representations are made is the local authority. Neither the mayor or a councillor actually provide social housing or financial supports for social housing in their own right or name or in the name of the Local Authority. Policies around social housing are decided either by the local authority or the relevant Minister or Government and the elected representatives to some extent, depending on the nature of the policy. The legal entity which provides the services associated with social housing and the one which would be liable for any discrimination in providing housing directly, is the local authority. While the legislation does say that a consideration is not necessary in order to define something as a service, the European law underpinning the national legislation(in part at least) does seem to have been concerned with the provision of goods and services which are transactional in nature. If this characteristic  is applied, the provision of an representational service through the exercise of local democracy where the advocate is not the ultimate decision maker and cannot provide the service sought, can hardly be described as a transaction of any kind. Based on this analysis, the complaint is misconceived as a complaint of discrimination against the Respondent.

In support of this analysis, I would refer the parties to the terms of the interpretation section of the Equal Status Act which defines a service:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;

Allowing for the fact that this list may not be exhaustive, each example of a service denotes the provision of or access to a tangible place or service. Lobbying as part of the exercise of democracy is just that, lobbying and is not a service which could be equated with any of the examples within the Equal Status Act. Effective local representatives will in all likelihood develop w working relationship with local authority staff or officials. However, they do not provide the service which the Complainant claims in this instance i.e., the allocation of housing and neither do they directly control the staff in the decisions to be taken in respect of specific allocation of local authority housing. It is the Council as an entity and not individual councillors who would be liable for  any discrimination in the allocation of housing supports on the housing ground.

In conclusion, the complaint against the Respondent is misdirected towards him  and therefore is misconceived.

CA—00057045-001 The Complaint of discrimination made by the Complainant against the Respondent is misconceived and is therefore not well founded.

Complaint against a public representative-misconceived.