Complainant

Respondent

Parties

Rebecca  Kiernan

Abbey Capel Pari

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-00060648-001

20/12/2023

The Complainant is a single parent who is homeless. She is continuously searching and applying for vacancies but, as of the date of hearing, she has been unsuccessful.

In October 2023 a friend of a friend of the Complainant was moving out of their apartment and recommended the Complainant to the Respondent letting agent. She was actively engaging with this person, who was liaising with the Respondent and it appeared from the messages being sent to her that she was going to be able to move in imminently.

The Respondent then communicated that the apartment was not available. The Complainant believes that she was discriminated against because she would have been a HAP tenant.

The Complainant submitted an ES1 form then submitted a complaint to the WRC. A hearing was held on the 16th of April 2024. The Complainant attended the hearing and the Respondent did not.

The Complainant submitted copies of text messages and emails and gave evidence under affirmation.

She was extremely excited to get the news that she would get the apartment. Lack of housing has been stopping her from returning to work and has been extremely stressful for her and her children. They currently reside with an extremely supportive family member who has children of their own.

The Complainant had emailed her details, including the fact she would be in receipt of HAP, to the existing tenant who had passed them on to the Respondent. Everything was looking positive until it was suggested that the Complainant would pay her deposit to the existing tenant. This was not something that the HAP scheme would facilitate as all payments must be made directly to the landlord.

As soon as the Complainant pointed this out everything changed. The Respondent notified the tenant that the room was no longer available. Initially the Complainant accepted the Respondent’s position though she did email them to express her disappointment. She received a reply suggesting the matter was out of the Respondent’s hands and being managed directly by the landlord.

However, the Complainant then noticed the apartment appeared on daft.ie. When she emailed the Respondent it was taken down but it went back up again almost immediately. She applied for the tenancy through daft but heard nothing back. At this point she believed she was being discriminated against and took advice from her local TD. She submitted the ES1 to the Respondent by registered post and then the WRC complaint form 8 weeks later.

The Respondent did not attend the hearing. They sent an email the day before the hearing denying discrimination and stating that all tenancy decisions lie with the landlord.

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 is approved for the HAP and is reliant on it to be able secure accommodation. She has alleged that Respondent has treated her less favourably than a person who was not in receipt of the HAP was or would be treated.

While I note the position of the Respondent, that decisions related to tenancy are the landlord’s and not theirs, I do not accept that this gives them any sort of immunity under the ESA. 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.

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.

She appeared as if she was going to get the apartment until she was asked to transfer the deposit to the exiting tenant, something that the HAP scheme would not permit. After she raised this issue, the Respondent told her that the tenancy was no longer available. However, soon after the Respondent were advertising the same apartment online. The Complainant applied again but was not considered.

The Respondent chose not to attend the hearing and provide any contradicting evidence. I note that what reasons they had previously provided to the Complainant do not appear to stack up. They told the Complainant in emails that the landlord wanted to handle the letting themselves, but the ad that appeared soon after this seems to have been put up by the Respondent and no one else. The ad explicitly referred to the Respondents who are listed as the letting agents.

I am satisfied that the Complainant has established facts from which prohibited conduct can be presumed. That she was discriminated against by the Respondent based on the housing assistance ground.

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.

The Complainant provided evidence of the effects of the discrimination on her. She was given false hope of home for her and her two children and then had that taken away. It was extremely stressful and hurtful experience. Despite constantly searching for accommodation, she remains homeless sleeping on the couch of a family member. That family member has their own children and lives in a small house and the situation has caused considerable strain to everybody involved.  

Having regard to all the circumstances and I am of the view that a sum of sum of €8,500 is appropriate compensation for the effects of the prohibited conduct.

I order the Respondent to pay the Complainant the sum of €8,500 in compensation for the effects of the prohibited conduct.