Complainant

Respondent

Parties

Karin  De Vries

David McCarthy and Caroline McCarthy

Representatives

  Self-Represented

 Self-Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059958-001

08/11/2023

The Complainant submits she was a joint tenant with her partner in a property owned by the Respondent joint owners (the Respondents). She claims that when she sought papers to be signed by the Respondents to facilitate the payment of Housing Assistant Payment, the Respondents refused, and that this refusal amounted to discrimination under the Equal Status Acts 2000-2015 (the Act).

The Respondents claimed that the Complainant was part of a joint sub-tenancy with the then tenant in the property, without their agreement. They were not aware of this arrangement and furthermore they had been advised that they were not in a position to sanction a HAP payment.

The Complainant, together with her partner, entered into a written agreement with Mr A, the tenant, to occupy the property from 15 January 2022 until 15 September 2022 (exhibited). Mr A had travelled to Mexico for a period at the time, but subsequently remained there.

On 15 March 2022, the Complainant received a message from the Respondents requesting that she vacate the property by April 2022. The Respondents claimed they were unaware that the Complainant would be staying for a longer period.

The Complainant then received a letter from the Respondents stating that she had to leave by 15 May 2022. She subsequently approached Threshold to enquire about her rights. The advice given was to initiate a procedure with the Residential Tenancies Board (PRTB), which she did. She later received a further notice of termination dated 8 June 2022. The decision of the PRTB was that the notice of termination was invalid (exhibited).

In the meantime, the Complainant and her partner were accepted by Cork County Council as valid social housing applicants. The Council sent her HAP forms, but she did not complete them as her two sons were still living with her and contributing towards the rent, which was €1,000 a month, paid to Mr A, who then passed it on to the Respondents.

In January 2023, her two sons found their own accommodation and moved out. The Complainant sent the HAP forms to the Respondents, but although they were not signed by the Respondents, the Complainant did not pursue the matter until August 2023, when she sent the HAP forms by registered post. The forms remained unsigned.

On 13 March 2023, the Complainant received a letter from Mr A stating that she had to vacate within 180 days. She initiated a new procedure with the PRTB, as Threshold had advised her that the letter was not valid because Mr A was no longer a tenant, having ended his agreement with the Respondents in May 2022. The Complainant submits that she was a direct joint tenant at the material time as a result of Mr A terminating his contract. She further submits that the PRTB found the Respondents were the landlords and that the notice to quit was invalid.

The Complainant and her partner vacated the property on 3 December 2023 after being offered a Council house. The Complainant submits that they suffered considerable monetary loss due to not receiving HAP assistance.

The Respondents provided a description of how the Complainant became a sub-tenant of the property. Mr A was their tenant under a full tenancy agreement. In November 2021, they were asked if his friends could stay and look after the house. The Complainant and her partner moved into the property in January 2022. In March 2022, the Respondents asked Mr A if he intended to renew his lease so they could arrange a temporary lease for the Complainant and her partner.

The Respondents requested references on two occasions, which they did not receive. At this point, they became uncomfortable with the arrangement, as they were advised that they should not have agreed to it. In addition to Mr A not having a valid lease with them, the agreement also prohibited subletting. The Respondents state that at this stage, they were unaware Mr A had already provided a lease, and they subsequently asked Mr A to return and surrender the house to them.

The Respondents acknowledged receipt of HAP forms from the Complainant but were advised they could not comply for the following reasons:

1.       They did not have a lease agreement with the Complainant.

2.        They did not have a tax clearance certificate as their accounts were not up to date.

3.       There was no rent book. Rent was paid to Mr A via a bank account, and Mr A subsequently transferred the rent to the Respondents.

4.       Their official tenant remained registered as Mr A.

The Relevant Law

Section 6(1) of the Equal Status Acts 2000-2015 (the Act) prohibits discrimination on the ground of being in receipt of rent supplement. This section is to be read in conjunction with Section 3 of the Act which defines “discrimination” in general and specifically defines the “housing assistance ground.” 

Section 3(1) provides that:

“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) provides that discrimination in relation providing accommodation is prohibited under all the existing protected grounds and inserts the housing assistance ground as follows:

“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.”).

To initiate a claim, a complainant must initially inform the party being accused in writing about the details of the allegation and express their intent to pursue a claim in the event of an unsatisfactory response. This notification should occur within two months from the occurrence of the latest discriminatory incident.

However, under s.21(3) of the Acts, this time limit can be extended or disregarded. The relevant provision provides:

(3)( a ) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court ] may —

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

( b ) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including —

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’ s ability to deal adequately with the complaint.”

I am satisfied that the Complainant complied with the notification requirements under section 21 of the Act when an ES1 form was sent to the Respondents on 20 September 2023, in light of the fact that the Respondents had received the HAP forms by registered post on 16 August 2023.

Section 38A(1) of the Equal Status Act stipulates that "where in any proceedings facts are established by or on behalf of any 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" .

Section 26 of the Act allows inferences to be drawn from a respondent's failure to provide "material information "("Material information" includes reasons for any act or omission, relevant practices, or procedures) and information about comparators. sought under section 21(2)(b) of the Equal Status Act, where it provides:

“If, in the course of an investigation under section 25, it appears to the Director of the Workplace Relations Commission—

(a) that the respondent did not reply to a notification under section 21(2)(a) or to any question asked by the complainant under section 21(2)(b),

(b) that the information supplied by the respondent in response to the notification or any such question was false or misleading, or

(c) that the information supplied in response to any such question was not such as would assist the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission,

The Director of the Workplace Relations Commissionmay draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c).

 I note that the Respondents did not reply to the ES1 form. I can infer in those circumstances that the Complainant discharged the initial burden of proof as demanded by section 38A and the burden of proof shifted to the Respondents as they had the means or knowledge to dislodge or not, the inference of discrimination.

After considering the evidence presented in the Adjudication Report from the PRTB, where the adjudicator found that the Respondents were aware that the property was occupied by the Complainant and her partner on 18 January 2022, I conclude that the Respondents had full knowledge that the Complainant was residing in the property. Furthermore, after reviewing documentation and hearing evidence from both parties, I find that the Respondents were fully aware that, when Mr A officially vacated the lease agreement in May 2022, they became the property owners for the purposes of the Act. Although the rent was still being paid by the Complainant to Mr A, he was passing it on to the Respondents, thus becoming their agent without maintaining any continuing interest in the property.

It is clear from the evidence that the Respondents received the HAP forms and provided a number of reasons for not believing they were obliged to return the forms, duly signed, to the Council. However, the reasons they cited—such as not having a proper lease, lacking a tax clearance certificate, or not maintaining a proper rent book—were within their control and, therefore, did not absolve them of their responsibilities under the Act. I am satisfied that the Complainant has established she was discriminated against on the grounds of housing assistance when the Respondents refused to submit the necessary signed documentation for her to complete the HAP application.

I conclude that the relevant period for considering redress was from 16 August 2023, the date the HAP forms were received, until 3 December 2023, when the property was vacated. However, a significant factor in this case was that the Complainant was entitled to HAP for a considerable period before that date but did not demonstrate a willingness to pursue the matter seriously. Therefore, I am not convinced that the prohibited conduct in this instance, considering all the circumstances, was at the more serious end of the scale. I thus find that the appropriate sum for compensation is €500.

Pursuant to Section 25(4) of the Equal Status Act, I find that the Complainant experienced discrimination on the basis of housing assistance, contravening sections 3 and 6 of the Act. Taking into account all pertinent facts and the impact of the discrimination on the Complainant, I hereby direct the payment of €500 as compensation.

Equal Status Act 2000, HAP.