Complainant

Respondent

Parties

Tom  Cronin

Cork City Council

Representatives

O'Flynn Exhams Solicitors LLP

 Cork City Council Legal Department

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00056915-001

30/05/2023

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

CA-00057706-001

14/07/2023

Mr Thomas Cronin gave evidence on Affirmation. Detailed submissions were received in advance of the hearing.

Ms Aideen O’Dwyer, AO in the Housing Allocation Office of the Respondent gave evidence on Affirmation. Mr Michael Sheehan, were Executive Housing Officer, gave evidence on Oath. Detailed submissions were received in advance of the hearing.

The Complainant alleged that he was discriminated against by the Respondent since 25 October 2001. He is currently paying a weekly rent of €52.10 to the Respondent for a property at Barrett’s Buildings in Cork.

CA-00056915-001 - Complaint of 30 May 2023

The Complainant provided evidence that he was discriminated against on the grounds of his age and housing assistance, with the first alleged act of discrimination occurring on 25 October 2001 and the most recent on 4 May 2023. He further alleged that the Respondent discriminated against him by failing to provide reasonable accommodation for a disability and for his housing needs.

CA-00057706-002 - Complaint of 13 July 2023

The Complainant provided evidence that he was discriminated against on the grounds of his age, with the first alleged act of discrimination occurring on 25 October 2001 and the most recent on 13 July 2023. He alleged that the Respondent failed to provide reasonable accommodation for a disability and for his housing needs.

Response to the Respondent’s Preliminary Objection

The Complainant submitted that there was ongoing correspondence between himself and/or his solicitor and the Respondent in 2002, 2007, 2008, 2009, 2013, 2021, 2022, and 2023. It was argued that designating an age limit on a proposed occupant of the Complainant’s property, pursuant to a swap under the Choice Based Letting (CBL) Scheme, constituted a continuum of discrimination.

Complainant’s Evidence

The Complainant gave evidence that he had been a tenant for 21 years and had been seeking a transfer for over 19 years. He described his engagement with Cork City Council, beginning on 18 October 2008, where he sent between 12–15 letters to the Respondent over the years but only ever received standard acknowledgment letters in response.

He testified that he sought to swap his current property, where he is a tenant of the Respondent, for a larger property. However, he was unable to do so because his current property had a minimum age requirement of 65 years. He stated that he was 73 years old. Other tenants were contacted about his property and were interested but did not meet the age criteria.

The Complainant referred to two medical reports, dated 4 August 2021 and 8 September 2021, and submitted that the Respondent did not contact him to update his requirements on their system. He testified that he required additional space, including a second bedroom, for his medical equipment.

Describing his interaction with the Choice Based Letting (CBL) System, the Complainant gave evidence that he made approximately 190 bids on mostly one- or two-bedroom properties or three beds where the third bedroom was often a box room. He never received confirmation that he had been successful in securing any of these properties.

When asked by his solicitor why a one-bedroom property would be unsuitable, the Complainant testified that he lived with his wife, and a one-bedroom property would not be suitable given his medical conditions.

During cross-examination, it was put to the Complainant that both medical reports referred to properties with level access and no stairs. The Complainant agreed and added that a stairlift could be installed if necessary.

Referring to the medical reports, the Respondent pointed out that neither report requested an additional room. The Complainant responded that Mr Molloy had informed him that he needed space for exercise. He added that, while he did not want to discuss personal matters, he required a two-bedroom property.

When asked about his allegations of discrimination, the Complainant stated that he was discriminated against on the grounds of age, as the property he currently lived in had age restrictions.

It was put to the Complainant that his current property had a garden and stairs, to which he responded that he could manage going up and down the stairs. When asked if he had informed his doctors that he could manage stairs, the Complainant stated that he had told them he lived in a property with stairs.

Under re-examination, the Complainant agreed that the Respondent had not sought to discuss his medical reports with him.

The Complainant relied on ADJ-00018849 - James McCarthy v Cork Co Co and ADJ-00031985 - Timmy McCarthy v Cork Co Co. He submitted that the Respondent acted contrary to both Section 5 (1) and Section 6 (1) of the 2000 Act by virtue of the CBL Scheme.

Preliminary Objection

The Respondent objected to the complaints where the Complainant failed to identify any particular act of discrimination alleged to have occurred on 4 May 2023, as per CA-00056915, and on 13 July 2023, as per CA-00057706. It was submitted that there was no supporting documentation presented regarding any act of discrimination on either of those two dates.

It was further submitted that the period to which the complaints relate is limited from 5 November 2022 to 4 May 2023 in terms of CA-00056915, and from 14 January 2023 to 14 July 2023 in relation to CA-00057706. No acts of discrimination occurring during these periods have been identified by the Complainant.

Referring to the tenancy agreement signed in 2001, it stated that the building in which the Complainant resides is designated as a building for persons over the age of 55 years. The letters sent by the Complainant notifying him of this restriction were dated 2003 and 2008.

Respondent’s Evidence

Ms O’Dwyer gave evidence on the age limits for Barrett’s Buildings, which are in accordance with Section 6 (5) of the Equal Status Act 2000. It was her evidence that the Complainant was reassessed in 2021 based on an MD1 Medical Form he had completed. The Allocation Section deemed a one-bedroom property or bungalow suitable for the Complainant.

In August 2009, the Complainant refused a two-bedroom ground-floor apartment as he was seeking a three-bedroom property to accommodate his stepson, who was due to come and live with him. It was Ms O’Dwyer’s evidence that the properties offered were in line with the medical report received, which did not state that he required a larger property.

It was the Respondent’s evidence that the Complainant had access to and engaged with the CBL system since 2021. She added that there were apartments listed on the CBL system in which the Complainant did not express an interest.

Ms O’Dwyer stated under cross-examination that the Complainant was approved for a transfer in 2003 and that an offer was made in 2009 but refused. She was unable to give an answer as to why no offers were made to the Complainant between September 2021 and 6 June 2023. She noted that there were approximately 3,000 people seeking one- or two-bedroom properties from the Respondent.

She accepted that it would be difficult for the Complainant to find tenants who wanted to and were eligible for a swap to Barrett’s Buildings, as the Respondent was not in a position to disclose other tenants’ personal data.

Ms O’Dwyer was questioned on the steps taken to comply with the Workplace Relations Commission Decision, ADJ-00018849, which ordered a time-bound quality review of the CBL system. It was accepted that the review was ongoing but not yet complete. It was also accepted that there was no policy document for the CBL system.

Mr Sheehan gave evidence regarding an offer made in 2023 of one-bedroom ground-floor accommodation, but the Complainant was clear that he would only accept a two-bedroom property. It was accepted that when the offer was made, the Respondent was aware of the referral of a complaint to the Workplace Relations Commission. It was Mr Sheehan’s evidence that the Complainant was living with his wife; the normal criteria would allow for the allocation of a one-bedroom property.

It was submitted by the Respondent that there were Regulations – Social Housing Allocation Regulations 2011, Social Housing Allocation (Amendment) Regulations 2011 and 2016, Section 19 and Section 22 of the Housing (Miscellaneous Provisions) Act 2009, along with the Respondent’sAllocation Scheme and Section 6 of the Equal Status Act 2000.

Preliminary Objection

CA-00056915-001- Complaint of 30 May 2023

It is first necessary to consider if the Respondent was correctly notified by the Complainant in advance of the referral of the complaint to the Workplace Relations Commission.

Section 21(2) of the Equal Status Act 2000 sets out the required steps to be taken when raising a complaint of discrimination.

“(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.”

It is undisputed that there has been a series of correspondence over the years from the Complainant to the Respondent. Of particular note are the following:

•            On 28 May 2003, the Respondent wrote to the Complainant, informing him that under the City Council Tenant Purchase Scheme, “any dwelling designed for the elderly” is not available for a Tenant Purchase. This appears to be the first indication the Complainant received of the age restriction on the property, where the letting agreement is silent.

•            In August and September 2021, the Complainant furnished updated medical evidence of his requirements.

•            On 17 June 2021, the Complainant sought assistance with his transfer application, noting, “I cannot purchase this house,” which would provide him with an “escape route.” He stated, “I cannot transfer with another tenant as it’s age limited, which I think is a form of discrimination.” I find this to be the first evidence that the Complainant raised the issue of discrimination on the grounds of age and the provision of accommodation.

•            On 18 October 2021, he stated that he had been on the transfer list for 19 years, could not purchase the house, and could not swap it due to the age limit. He added that he was disabled, and his health was affected as a result of the house not being suitable for his requirements. He concluded that he believed it was discrimination. I find this to be the first evidence the Complainant raised the issue of discrimination on the grounds of reasonable accommodation.

•            On 2 December 2021, the Respondent reassessed his application based on the medical reports and approved him for a level-access/ground-floor/bungalow one-bed adapted property. No assessment was carried out on the grounds of age or any other ground.

•            On 16 May 2022, the Complainant again wrote, stating he had received a transfer request from another tenant, but due to the age limit, he was unable to proceed. He stated, “This is discrimination of the highest order; do your job and sort this red tape out.”

•            By letter dated 2 September 2022, the Complainant’s solicitor wrote to the Respondent seeking a transfer for the Complainant, referring to his medical requirements that needed to be accommodated. It concluded that it was clear the age limitation on the accommodation constituted discrimination on the basis of age and was a continuum of discrimination. The Respondent was given 21 days to respond, failing which a formal complaint would be made to the Workplace Relations Commission.

•            The next correspondence on behalf of the Complainant was by letter dated 6 January 2023, again threatening to refer the matter on the grounds of discrimination to the Workplace Relations Commission.

•            On 1 June 2023, the Workplace Relations Commission wrote to the Complainant seeking the date that he notified the Respondent in writing of the nature of his complaint. No response was received by the Workplace Relations Commission.

The first consideration under Section 2(a) of the Act is whether the Complainant discharged the notification requirement in his correspondence, where no ES.1 Form was delivered. The Equality Tribunal was clear in Mongans v Clare County Council, DECS2008-39, that the ES.1 Form is not mandatory, and an ordinary letter will suffice.

Section 21(3)(a)(2) of the Equal Status Act 2000 (as amended by the Civil Law (Miscellaneous Provisions) Act 2008) provides for further consideration of the notification of equal status complaints.

Considering the test set out in Section 21(3)(a)(2), I find the wording of the letter of 2 September 2022 is clear as to the nature of the prohibited conduct of discrimination on the grounds of age, the provision of accommodation, and the failure to reasonably accommodate being complained of and the intended steps. However, it is noted that discrimination on the ground of housing assistance is not referred to.

In relation to the second limb of the test set out in Section 21(3)(b), the Respondent did not make any submissions on prejudice.

In conclusion, I am satisfied that the Respondent was notified of the Complainant’s complaint pursuant to Section 21(3)(b) on the discriminatory grounds of age, provision of accommodation, and failure to reasonably accommodate. However, I do not find that the Respondent was notified on the ground of housing assistance and, therefore, do not have jurisdiction over this complaint.

The next step is to consider the timing of the notification.

I find I do not have jurisdiction in this complaint, where the alleged prohibited conduct was raised by the Complainant himself on 17 June 2021 in terms of the age and accommodation ground, with reasonable accommodation first referred to on 18 October 2021. This was the date on which the 2-month period began. On three more occasions, the Complainant sent similar correspondence in October and December 2021 and May 2022. I have already found that the Respondent was notified for the purposes of the Act on 2 September 2022, and there was a similar letter of 6 January 2023.

I find the last occurrence of alleged discrimination was on 16 May 2021, when the Complainant sought a transfer but was restricted, as the other tenant agreeable to the transfer did not meet the age criteria attached to the property at Barrett’s Buildings. For these reasons, I do not find that there was a continuum of discrimination, where the Complainant repeatedly raised the issue of discrimination since 2021 with the Respondent yet failed to act within the timeframe provided in the Act. This does not constitute a continuum of discrimination for the purposes of Section 21.

For these reasons, I find the notification of the complaint on 2 September 2022 falls outside the 2-month period required by Section 21(2) of the Act. While no application for an extension was sought, it would have been fruitless given the passage of time.

For the avoidance of doubt, I find that CA-00056915-001 was not referred within the 6-month time limit provided by Section 21(6)(a), where the Complaint Form was received on 30 May 2023.

In conclusion, I find the Complainant acquiesced in bringing this complaint before the Workplace Relations Commission.

CA-00057706-002

In relation to CA-00057706-002, an ES1 Form, dated 13 June 2023, was sent to the Respondent, with the Complaint Form filed on 14 July 2023. The ES2 Form from the Respondent was dated 27 July 2023. I find the Respondent was sufficiently notified of the Complainant’s complaint pursuant to Section 21(3)(b) on the discriminatory grounds of age, accommodation, and failure to provide reasonable accommodation.

The first incident of discrimination is stated as 25 October 2001, with the most recent being 13 July 2023 on the Complaint Form. However, in light of the findings of complaint CA-00056915-001, which remained open, I find I am limited in the period in which I can consider CA-00057706-002 to 31 May 2023 up to 14 July 2023, the time period between the two complaints.

Section 1 of the Equal Status Act 2000 (As amended) defines discrimination as:-

“(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,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(f) subject to subsection (3), that they are of different ages (the “age ground”),”

Burden of Proof

Section 38A of the Act, applies to all complaints of discrimination under the Equal Status Acts which places the burden of proof on the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination

Having considered the evidence of the parties, I find that between May and July 2023, the Respondent offered the Complainant a one-bedroom ground-floor accommodation property. This was refused by the Complainant, stating he would only accept a two-bedroom property. The Respondent’s evidence is accepted that this property satisfied the medical advice provided by the Complainant’s medical attendants on 4 August and 8 September 2021 regarding his requirement for ground-level or single-storey accommodation with no stairs. There was no medical evidence provided to support the Complainant's requirement for a second bedroom; this was based on the Complainant’s own evidence. It is also noted that the Complainant’s evidence contradicts his own medical advisers, which is concerning.

There was no evidence or challenge made suggesting that this offer came with an age restriction. I find that the Complainant was, in fact, offered suitable accommodation by the Respondent on 6 June 2023. Consequently, I find the Complainant has not discharged the burden of proof on the grounds of age and accommodation as required by Section 38A of the Act.

The Complainant did not notify the Respondent of a complaint on the grounds of disability in the ES.1 Form, nor was there a referral to the Workplace Relations Commission in the Complaint Form. The concept of reasonable accommodation, which recognises the inherent characteristics of disability, is set out in Section 4 of the Act. It is not a standalone ground for discrimination under Section 3(2) of the Act. Consequently, I find there is no jurisdiction to make a finding on reasonable accommodation in the absence of a complaint of discrimination on the grounds of disability.

In light of the above findings, there is no need to consider the Section 6(5) defence relied upon by the Respondent.

CA-00056915-001

I find there is no jurisdiction where the Complaint is statue barred.

CA-00057706-002

I find the Respondent did not engage in prohibited conduct.

Equal Status – Age – Accommodation – Housing Assistance – Reasonable accommodation.