Complainant

Respondent

Parties

David  Colledge

Vincent Smith

Representatives

 Patrick J. Carolan & Co. Solicitors

Act

Complaint Ref. No.

Date of Receipt

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

CA-00060235-001

24/11/2023

The complainant gave evidence on affirmation.

He has been a tenant of the respondent for some twelve years. He is in receipt of rent allowance and when he became eligible for HAP he requested the respondent to sign the relevant form. The complainant says the respondent has consistently refused to do so since 2019 in particular and most recently on June 17th, 2023.

Because  the landlord has been refusing to sign the relevant forms his rent supplement has been frozen at the same amount for seven years, resulting in considerable financial difficulty while caring for his disabled mother and particularly so during the Covid years when he needed that financial assistance.

He submits that he has had years of the landlord refusing to sign his rent supplement forms and harassing him, and also in more recent years refusing to sign the HAP forms which he initially handed to the respondent on December 16th, 2019. Some evidence was submitted in support of this.

In the most recent incident in June 2023 the respondent retaliated to his request to sign the HAP forms by serving him with an eviction notice which was overturned on appeal to the RTB. This has caused him financial hardship and the rent has increased two or three times since he first raised the issue.

He says that he has been the subject of continuing harassment through text messages, telephone calls, the landlord entering the premises uninvited (including to issue the eviction notice). He says that the respondent is obliged to sign the form and has consistently refused to do so.

The respondent submits that he was asked in 2019 to enter into an agreement for a four-year lease with the complainant which he could not do due to difficult personal circumstances related to his own accommodation situation.

He says that the connection with the lease was the reason that he did not then process the HAP application.

This related to circumstances creating uncertainty of tenure in his current principal residence and which might require him to use the complainant’s rented premises for his personal use.

These circumstances have not been resolved and have been the subject of separate legal proceedings and the respondent has re-issued the notice to the complainant to quit the premises as he will need it for his personal use.

He had no objection to signing the forms but did not wish to extend the lease unnecessarily.

The respondent says that the complaint actually relates to an incident in 2019 and is therefore not within the time limits in the Act.

The issue in this case is whether the respondent discriminated against the complainant on the “housing assistance ground” contrary to the Equal Status Act 2000, 2018 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 ESA 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.

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.”

The complainant’s evidence on affirmation was of consistent refusal by the respondent to act on his obligation to assist with the submission of the HAP application since 2019.

I am satisfied that he has discharged the burden of proof and I find pursuant to section 25(4) of the ESA, that the complainant established a prima facie case of discrimination on the housing assistance ground, in respect at least of the incident on June 17th, 2023, which is sufficient to do so. It was the latest in a continuous pattern of obstruction by the respondent.

The respondent did not rebut this case but submitted that the general timeframe placed the complaint outside the time limits.

However, I am satisfied that the most recent attempt by the complainant to get the respondent’s cooperation took place on June 17th 2023, and well within the relevant time limits. This also establishes a sequence of refusals by the respondent which I take into account in my award.

No evidence was offered to contradict this save for certain submissions made in mitigation of the respondent’s actions but which, unfortunately for him, provide no defence against the complaint.

The possibility that the respondent might need the premises for his personal use at some unspecified time in the future does not permit him to obstruct a tenant’s application. Any need that may arise to acquire the premises for his personal use at a future point could, at that point have been activated in accordance with the applicable law.

The complainant made serious, and credible allegations about the respondent’s conduct in support of his complaint of harassment, and which, likewise were not contested and. I take them into account in my award below.

There is extensive authority emanating from decisions of this tribunal on the obligations falling on a landlord to process an application for HAP as clearly to do otherwise would be to frustrate the entire purpose of the protections introduced into the Act for tenants.

(See for example, ADJ 44659 Kebran v Mubarak Ali, ADJ 39856, Gavin v Murphy, ADJ 43396 Pop v Phillips, ADJ 46966 Odina v Smith, ADJ 42786 Flynn v Reilly and ADJ 40910 Keane v Corley.)

Having concluded my investigation of this complaint, in respect of redress, section 27(2) of the ESA has fixed any potential award at €15,000, which is the maximum that may be awarded by the District Court.

Considering all of the facts, I make an order for compensation of €7,500.

I also order the respondent to immediately comply with the complainant’s application for HAP and to take all necessary steps to ensure the application is processed as long as the tenancy remains in force.

For the reasons set out above complaint CA-60235-001 is well founded and I award the complainant €7,500.

 I also order the respondent to immediately comply with the complainant’s application for HAP and to take all necessary steps to ensure the application is processed as long as the tenancy remains in force.

HAP, Landlord failure to cooperate with application