Complainant

Respondent

Parties

Eduard  Biryukov

 Galway City Council

Representatives

  Self-Represented

 Respondent Acting Administrative Officer.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00058089-001

02/08/2023

The complainant has submitted a complaint that he was discriminated against by the respondent on the grounds of civil status on 4/4/2023 when they failed to respond to his enquires concerning his housing application. He further contends that the respondent discriminated against him on the grounds of disability on 19/4/2023 when they failed to provide him with reasonable accommodation contrary to the provisions of the Equal Status Act.2000-2015 (“The Act”). The complainant has a severe hearing loss.

The most recent date of discrimination is 19/4/23.

The complainant is an applicant list for housing with the respondent housing service provider since December 2019

He submitted his complaint to the WRC on 2/8/2023.

The title of the respondent was changed to reflect its correct title which is Galway City Council by agreement.

This is reflected in this decision.

The complainant gave evidence under affirmation concerning his complaints of discrimination under both the civil status and disability limbs of the Act.

Complaint of discrimination on the grounds of civil status.

The complainant sent an email request on 30/3/2023 asking about his position on the housing list.

At the same time his wife, Alla Biryukova, requested the same information from her email address, and she got both a reply and a letter addressed to her name only on 4/4/23. They both sent separate applications for social housing as a married couple living together, and he expected Galway City Council to respect that fact. They had failed to reply to his previous identical request on 2O/9/2021, 15/10/2021, 22/08/ 22 though they had replied to the same request from his wife.

He received an apology from Galway City Council social housing department on 19/04/23 for the absence of a response to him on the 4/4/23; it was  explained as human error by the social housing staff. But the next letter from housing department was again addressed to his wife’s name only.

He considers the respondent’s failure to respond on the 4/4/23 to his request of the 30/3/23 to be an act of discrimination against him on the grounds of his civil status.

Complaint of discrimination on grounds of disability and failing to provide him with reasonable accommodation:

The complainant has a sensory disability; he has severe hearing loss.

He lives in private rented accommodation in Galway, paid for out of his own funds.

The act of discrimination is the failure of the respondent to accelerate his passage up the housing list. This amounts to a failure to provide him with reasonable accommodation.

 The respondent introduced a Plan for persons with a disability in November 2021. This plan gives a person priority status on disability or medical grounds, pushing them nearer to the top of the waiting list, as set out in the Authorised Allocation Scheme, Galway City Council housing department booklet, Strategic Plan for People with a Disability 2021-2026.

The respondent advised the complainant on 12/1/2021 that his place was in the cohort of 350+ applicants seeking housing from the respondent.

The complainant applied for priority housing based on his disability using the standard HMD- Form l for the priority housing queue on 6/12/2021. His HDM Form 1 was accepted by the social housing department on 14/12/2O21, but nobody from the social housing acknowledged receipt of or acceptance of this HDM Form 1 until 5/5/2022, when they confirmed his amended applicant status.

The complainant contends that after his submission of the HMD-1 Form, the respondent never gave him the priority status for social housing, because a few hundred people had jumped the queue in front of him and his wife. He makes this claim as the letters from the social housing department on 19/4/2023 placed him in the bracket of 1500-1550 applicants for 1&2 bed requirements for Galway City East and, for the Westside of Galway City in the cohort of 1700-1750 applicants, whereas in 2021 he had been advised that his application sat within the pool of 350+ applicants.

The act of discrimination was moving him from position number 350+, a position notified to him on 12/1/2021, to a position within the cohort of 1500 -1550 on the housing application list on 19/4/2023. He expected that the respondent would move him to a higher position on the list given his disability. The total number of persons with a disability on the Galway city Council housing list is 431 but the complainant states that rather than being notified that he was within this cohort, the respondent’s notification to him of the 19 /4/2023 bracketed him within the pool of 1500-1550 applicants even though the respondent knew that he had a valid notice of termination of tenancy since May 2020.

The complainant informed the social housing department that he lives in an overcrowded house, which was rebuilt and divided into four small apartments with six more people living there and with shared washing facilities.

Galway City Council informed him on 22.08.2022 that the social housing department gives reasonable preference to certain household groups when allocating dwellings, but he was not awarded reasonable preferences by them.

So based on information provided by the social housing department, his position on the social housing list became significantly worse without any confirmation that his disability would accelerate his passage to the top of the housing list in accordance with the respondent’s own policies.

 When asked by the adjudicator, he confirmed that his complaint was not that that he was treated less favourably than a person with a different disability or without a disability, but that his complaint was about the failure to place him nearer the top of the list of those persons waiting for housing.

The respondent denies that they discriminated against the complainant on any of the grounds cited in the complaint.

The Acting Administrative Officer, Social Housing gave evidence under affirmation.

He has been responsible for most of the past year for dealing with applications for social housing, assessments, and allocations.

 Complaint on the grounds of civil status.

The complainant requested to know his position on the list.

The complainant and his wife were joint applicants on the same application form.

The respondent staff noted that the complainant’s wife’s name was first on the application form for housing and that is the person to whom they replied. This omission did not in any way adversely affect his placing / number on the housing list. The respondent wrote apologising on 19/4 /2023 for failing to respond to his letter of 30/3/23; it was sent to his wife.

He had received correspondence previously. It was human error.

The respondent’s systems have been amended internally so that henceforth all applicants will be notified, and all applicants will be able to view their position on the housing list.

Complaint of discrimination on the grounds of disability and failure to offer the complainant reasonable accommodation.

The respondent states that the context in which they operate is that they are seriously challenged in terms of housing supply and a consequential ability to offer applicants accommodation.  Homelessness and the numbers seeking accommodation have surged. The service is under huge pressure to assist applicants.

The complainant’s claim that he was moved from position 350 up to number 1500 in April 2023 is baseless. The band 350+ did not mean that he was within a band of 350 or below a pool of 1750. It could have meant 350 to X, meaning no upper figure. The respondent now brackets applicants into more precise, accurate bands. His position on the list has always been improving. For example, he has moved from being within the band of 1700-1750 applicant tenants, Galway East, and within the band of 1800-1900 applicants, Galway Westside on 20/8/2022, to being within the bracket of 1500-1550 and 1700-1750 applicants, respectively on 4/4/2023.

His application on 6/12/2021 for inclusion on the priority list for persons with a disability was accepted and amended on the 14/12/2021. The respondent received his email of 3/5/2022 enquiring about his position and that was responded to on the 6/5/2022, advising that he had been accepted based on his need.

The respondent accepts that they failed to adequately communicate with the complainant, but his position was improving,

The number of persons with a sensory disability seeking priority placing because of their disability stands at 431. They are from both East and West Galway applicant’s list and are part of the overall cohort of 3300 waiting on housing. It’s a time-based list so many applicants are ahead of him in the queue because of the date of their application.

Upon questioning, the respondent was unable identify the average length of time that it takes an applicant to get accommodation. The respondent was unable to identify the complainant’s exact placing on the list- to say he was x or y on the list as opposed to the cohort in which he is placed. The witness stated that he was unclear as to whether the respondent had routinely and periodically informed applicant tenants of their position, but the system has now changed, and applicant tenants can see their place in the housing list.

Some applicants are waiting more than 4 years for accommodation.

All the respondent’s housing properties are advertised. Applicants are invited to view properties and indicate a preference. A multidisciplinary team assesses applicants and assigns applicant tenants with a disability to properties.

In conclusion the respondent witness stated that they had acceded to all the complainant’s requests, admittedly not as quickly as he had wished.

His position had improved year on year. Colleagues were available to assist him, and he was notified of this.

He asks the Adjudicator to reject this complaint.

Complaint of discrimination on the grounds of civil status.

I must decide whether the respondent discriminated against the complainant contrary to section 5 of the Act in failing to provide goods, service or facilities and in terms of section 3(2)(b) of the Equal Status Acts, 2000-2015

Relevant law

I am satisfied that the respondent is a provider of services within the meaning of section 6(2) (b) of the Acts.

I am satisfied that the complainant submitted an ES.1 form in compliance with section 21. (2) (a) of the Act.

Section 6(1) of the Act (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”

Section 3(1) of the Act provides, inter alia, that discrimination shall be taken to occur where:

“(a) 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) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(b) goes on to state that

“as between any two persons, the discriminatory ground can arise where persons are of “ a different civil status”

Burden of Proof.

In any complaint of discrimination, the first step for a complainant is compliance with Section 38A (1) of the Act. It provides that the burden of proof rests with the complainant and means that

 " Where in any proceedings 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."

It requires the complainant to establish facts upon which he/she can rely in asserting that the prohibited conduct has occurred. These facts must suggest a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

 The Equality Officer in Hallinan v. Moy Valley Resources DEC-S2008-25, in interpreting the obligation which a complainant must meet by virtue of section 38 A, held that to establish a prima facie case exists, the complainant is obliged to satisfy three elements of a test. They are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant    discriminatory ground is, has been or would be treated.

This test was followed in other decisions.

Application of the law and the above test to the circumstances of the instant case.

The complainant’s civil status is that he is married.

It is accepted that the respondent failed to respond to the complainant on 30/3/2023 concerning his placing on the housing list yet did notify his wife of her placement.

This treatment is less favourable than that afforded to a person of a different civil status, such as a single person.

I accept that this is a difference in treatment as, of necessity, a person of a different civil status such as a single, divorced or separated person could automatically receive notification.

Does the difference amount to less favourable treatment as envisaged by the Act.? Where was the disfavour? His wife’s separate, concurrent application named both of them and included information about his disability.  To elevate it from a discourtesy to an act of discrimination is unfathomable. The complainant even submitted a totally unnecessary piece of evidence-a marriage certificate- to show that they were married. The complainant was in no way in the dark or constrained from acting on the basis of the information supplied to him by the respondent in respect of the joint application. It did not affect his place on the housing list or deprive him of the possibility of acceleration up the list or deprive him of accommodation.

I make this finding as the complainant’s wife’s application was a joint application which included both their names on the form. Both separate applications carried the same application number. and while the complainant in his submission on 16/11/2023 cited similar omissions by the respondent to write to him as opposed to his wife whose name was first on the application form, he had never objected or asked the respondent to respond to both named applicants.

I find this complaint to be frivolous.

While I make this finding, I recommend that the respondent should amend their application form offering joint applicants the option of replying to one or both of the applicants.

 Complaint of discrimination on the grounds of disability and failure to offer the complainant reasonable accommodation.

The complainant has a severe hearing loss. This is not in dispute.

 I find that his disability complies with the definition of disability set out in Section 2.(1) of the Act which defines disability as

“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,”

I am satisfied that the respondent is a provider of services within the meaning of the Equal Status Acts.

The complainant clarified that he was not asserting that he was treated less favourably than a person without a disability or with a different disability. His complaint is that the respondent failed to offer him reasonable accommodation.

The last act of discrimination occurred on 19/4/2023 when the respondent advised the complainant of his placement on the housing list and failed to provide reasonable accommodation by  omitting to confirm the complainant’s accelerated placement on the housing list due to his disability.

Relevant law.

“4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(4) N/A.

(5) N/A

Application of the law to the circumstances of the instant case.

The complainant lives in private rented accommodation which he pays for out of his own income. Though advised by Galway City Council of the HAP option, he has not applied for this facility.

The complainant stated that it was imperative for Galway City Council to   elevate his position on the housing list because his disability, a severe hearing loss which  required him to be free of noisy neighbours -a feature of his current accommodation. He and his wife have their own apartment in a house divided into multiple apartments and they have to share some facilities with their fellow tenants. He states it is crowded.  He has requested a one or two bedroomed apartment with no tenants living above him on a higher floor as this generates a lot of noise, but not a stand-alone unit. He has no dependants living with him.

The respondent provides for accelerated access to housing for persons with a disability. Their policies state that the HMD-1application form for priority housing due to a disability,  and submitted by the complainant on 6/12/21 is for

“anyone applying for social housing or a social housing transfer due to a disability or on medical grounds.”

The respondent’s own Strategy document, Galway City Strategic Plan for Housing People with a Disability 2021 – 2026, published on November 2021 ,is used as the basis for determining if a person should be awarded a priority status. An acknowledgement of priority status means that the person will go higher up the list.

It goes on to state that

“Priority status may be awarded if you or someone in your household has a medical condition or disability and the current accommodation is not suitable to meet the needs of the person with a disability or medical condition.

A change in housing will improve or stabilise the circumstances of the person with a disability or medical condition.”

Which of the complainant’s needs were not met? His need for peace and quiet? But that would also be the preference of persons without a disability. He mentioned the noisiness of his neighbours in his current accommodation and his preference for accommodation in which nobody would live above him. But that is puzzling coming from a person who suffers from severe hearing loss as presumably the neighbours’ noise would impact more on persons without a hearing loss.

He mentioned that his current accommodation was crowded but did not make a case that it infringed what is set out in the Housing Act, 1966.

There was no guarantee that acceleration up the housing list and consequential accommodation would spare him such inconveniences. The respondent could not guarantee that outcome.

He did not provide evidence of how the failure to accelerate his request for housing aggravated his disability or medical condition when living in his current accommodation.

His evidence does not demonstrate that his current accommodation deprives him of access to the needs generated by his disability.

In a decision of the Equality Tribunal, Two Named Complainants v the Minister for Education and Science, DEC -S2006-077, the Equality officer held that

“The purpose of reasonable accommodation is to provide for a situation where people with disabilities can avail of the service on an equal footing with those who have no disabilities. It is to remove a disadvantage rather than to confer an advantage. It is to allow them to take part on a level playing field while allowing for their disability” .

The evidence does not support any conclusion that the respondent’s failure to provide reasonable accommodation by ‘fast tracking ‘his passage up the housing list constitutes a disadvantage relative to persons without a disability or an added obstacle to accessing housing; his disability is coincidental to his application. He is competing on an equal footing with those applicants without a disability. The complainant is seeking to have an advantage conferred on him due to a disability. Neither his disability nor the failure to offer him accelerated access to housing prevented  him from being ultimately housed by the respondent on a time-based application. It left him facing the same difficulties as all other applicants: a shortage of available accommodation and an excess of applicants.

The absence of acceleration on the basis of his evidence did not disadvantage him in the sense that his existing accommodation did not for example hinder his mobility or add to his illness or difficulties. It was below par, less than ideal, but that does not amount to a need for acceleration up the housing list on the basis of a disability.

While the  respondent’s information supply to applicant tenants was inadequate, failing  to explain the basis for assigning housing to a person with a disability, not disclosing the assessment involved , omitting to provide transparency about the criteria used to explain where the complainant stood in the ranking of  persons with a disability, the evidence  advanced by the complainant did not justify the need for reasonable accommodation in accordance with section 4 of the Act .The failure to provide reasonable accommodation did not, as the Act stipulates, make it

 “Impossible or unduly difficult for the person to avail himself or herself of the service”.

It was not his disability that impeded his access to housing or appropriate accommodation.

The evidence does not support the complaint that the respondent discriminated against the complainant on the disability grounds contrary to section 4 of the Act.

I do not find that the respondent discriminated against the complainant on the civil status grounds in terms of section 3(2) (b)of the Act.

I do not find that the respondent discriminated against the complainant by failing to offer him reasonable accommodation as required by section 4 of the Act.

Housing application; disability