Complainant

Respondent

Parties

Antonio  Tejeda Encinas

Jack Son Santos

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-00049774-001

04/02/2022

The Complainant was formerly a tenant residing in a house which was managed by the Respondent. The Complainant was a tenant for a period of approximately 9 months. The Complainant submitted a complaint of discrimination for attempting to avail of the HAP scheme.

The Complainant attended the hearing and gave evidence under affirmation and made extensive written submissions.

The Respondent did not attend the hearing. I am satisfied that he was on notice of it.

Scope of the Equal Status Act 2000 (“ESA”)

Section 5(1) of the ESA prohibits discrimination in the provision of services.

Section 6(1) of the ESA (as amended by the Equality Miscellaneous Provisions Act, 2015, provides that:

A person shall not discriminate in:

(a)    Disposing of any estate or interest in premises

(b)    Terminating any tenancy or other interest in premises

(c)   Subject to 1(a) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities

This case has raised an issue regarding “the Housing Assistance Ground” set out in Section 3(3)(b) of the ESA.

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 3 of this Act addresses the provisions of Prohibited Conduct.

 (1) 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,

The Complainant has previously brought a complaint to the RTB regarding his eviction and other matters related to the property. These matters were not before me, and I do not believe it would be appropriate to consider them again through a HAP discrimination lens.

The Complainant was approved for the HAP and sought to avail of the scheme to reduce his rent. His evidence was that he brought the forms to the attention of Mr Santos and the owners of the property but was dismissed. He had to continue to pay rent at full price of €600 per month.

While I Mr Santos is not the owner of the property the evidence available, including the previous RTB decision, point to him having acted as agent for the owners. As pointed out previously in A Service User v A Letting Agency ADJ-00004073 the Respondent, as a letting agent, is providing an accommodation-related service within the meaning of S. 6(1)(c) cited above and is subject to the provisions of the ESA.

Burden of proof.

I am required to establish whether the complainant has satisfied the burden of proof in this case.

The ESA provides for a shifting burden of proof. This is set out in Section 38A.

Where in any proceeding’s 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 Complainant’s oral evidence was clear and supported by written evidence. He sought to avail of the Housing Assistance Payment and was refused. He suffered monetary loss due to this.

The Respondent has not proved contrary.

Redress

Section 27 of the ESA provides that I can make an order for compensation for the effects of the prohibited conduct concerned. It is not entirely clear how much the HAP would have been worth to the Complainant in circumstances where he could not avail of the scheme due to the landlord. I note that he lived in the accommodation for less than a year and his rent was €600.

Having regard to all the circumstances and I am of the view that a sum of €1200 is appropriate.

I direct the Respondent to pay the Complainant €1200.