Complainant

Respondent

Parties

Ciaran Tully

John Connolly

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

Tom Halligan of  Gaffney Halligan & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043544-001

09/04/2021

The complainant was a tenant of the respondent for approximately 30 years.  He alleges that the respondent discriminated against him by refusing to complete and sign a Housing Assistance Payment (HAP) application form.  The complainant alleges that the first incident of discrimination occurred in May 2018 and the most recent date of discrimination was January 2021.  The complainant sent an ES1 notice to the respondent on 04 February 2021.  The respondent replied to the notice by letter dated 24 February 2021.  The complainant submitted a complaint to the WRC on 09 April 2021.

The respondent’s position is that he never refused to sign the HAP application form for the complainant.

The complainant has been a tenant of the respondent for approximately 30 years.  On the complaint form he states that he first asked the respondent if he would he sign a HAP form in May 2018.  Further, the complainant states on the complaint form that the most recent date of discrimination was 04 January 2021.

The complainant sent an ES1 notice to the respondent on 04 February 2021.  In the notice the complainant stated that the respondent has discriminated against him by refusing to fill in a HAP form in May 2018, December 2019, September 2020, 04 and 31 January 2021.

The complainant in his evidence said that he had retired in 2018.  He was a long-term tenant of the respondent and he decided to look for the HAP payment.  He did not know if he would be granted this payment, but he wished to apply.  He spoke with the respondent about HAP and In December 2018 he supplied the application form to the respondent.  The complainant said that the respondent would not sign the form, but he took it away with him.  The complainant later met the respondent on the street and the position was the same.  The complainant said that the respondent was refusing to sign the form because it would cost him money to bring the property up to standard and he would not give his bank account details.  The complainant said he then left it for a while.

The complainant stated that because of the respondent’s refusal he sought advice from Dublin City Council, the IHREC, the RTB and the WRC.  The outcome was that he needed the respondent’s signature to make his application for HAP.  He then obtained another form from Dublin City Council in 2021. 

The complainant said that the respondent in his letter to the WRC, dated 10 May 2021, had for the first time given the excuse of not signing the HAP form because the complainant had not given him Section A of the form.  The complainant stated that he gave the respondent the HAP form to sign but he had refused to accept it and to sign the form.  Due to the respondent’s refusal he, the complainant, had been denied being considered for the HAP payment. 

He had submitted the tenant’s section of the original HAP form to Dublin City Council in December 2020 but, it was returned because it was not signed by the respondent, the landlord.

The complainant’s case is that he was discriminated against by the respondent on the housing assistance ground.

The respondent’s position is that he never refused to sign the requisite HAP application forms for the complainant.

The respondent received an ES1 notice from the complainant in February 2021.  He replied by letter dated 24 February 2021 noting that he had no record of receiving HAP application forms from the complainant and requesting copies of the said forms.  Further, the respondent stated in his letter that on receipt of the documents he could provide the necessary documentation to Dublin City Council to process the HAP application.

In a letter to the WRC, dated 10 May 2021, the respondent stated, inter alia, that he had never refused to sign the HAP application form for the complainant.  However, he had requested to view the completed application form prior to signing.  The respondent considered this to be an acceptable request as the landlord and owner of the property to which a State financial assistance would be attached.  The respondent contends that the complainant would not provide a copy of the full application form but rather insisted that he, the respondent, sign a separate section of the application form.

The respondent’s letter further states that the HAP application form has two parts.  Part A to be filled in by the tenant and Part B to be filled in by the landlord.  The respondent, as landlord, failed to see why he could not be provided with the entire completed form prior to submission to the Housing Authority.

The respondent asserts that the complainant’s application was refused by Dublin City Council because the full application form was not provided by him, the complainant, and not for any discriminatory reasons. It is the respondent’s case that he did not discriminate against the complainant.

The complaint in this case is that the respondent refused to comply with a request to complete a HAP application form and in doing so discriminated against the complainant.  The issue for decision is whether the respondent discriminated against the complainant on the housing assistance ground contrary to sections 3 and 6 of the Equal Status Act 2000 (as amended), in relation to an ongoing refusal to sign HAP application forms for the complainant

Legislation

Sections 3(1) and 3(3B) of the Act provide as follows:

3.— (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,

 (2) …

(3) …

(3) (3A) …

(3B) 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”).

Sections 6(1) and 6(1A) of the Act provide as follows:

6.— (1) A person shall not discriminate in—

(a) disposing of any estate or interest in premises,

(b) terminating any tenancy or other interest in premises, or

(c) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.

(1A) Subsection (1)(c) is without prejudice to—

(a) any enactment or rule of law regulating the provision of accommodation, or

(b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.

Section 38 of the Act, dealing with the burden of proof, provides as follows:

38A.—(1) 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.

This section applies to all complaints of discrimination made pursuant to the Equal Status Acts.  It 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 the complainant has established such a prima facie case that the burden shifts to the respondent to rebut the inference of discrimination.

Findings

The complainant in this case claims that he was discriminated against by the respondent, his landlord, when the respondent refused to sign a HAP applications form.  The respondent asserts that he never refused to sign the requisite HAP application forms. 

The complainant provided a copy of the ES1 notice he sent to the respondent and a copy of the replying letter he received from the respondent, together with a letter from Dublin City Council (DCC) returning the incomplete HAP application form.  The respondent submitted a statement about the complaint and copies of documents he received from DCC in response to a Freedom of Information request.  I have read all the documents received from both parties and considered them together with the oral evidence before completing my investigation.

The complainant in his evidence stated that he decided to apply for a HAP payment in 2018.  He applied to DCC for an application form.  The documents provided by DCC confirm that a HAP application form was issued to the complainant on 26 September 2018.  The complainant stated that he provided the respondent with the HAP application form in December 2018, and he took the form away with him.  The respondent later refused to sign the form.  The respondent in his evidence stated that he was not approached by the complainant in 2018 to sign a HAP application.  The respondent in his reply to the ES1 notice states that he has no record of receiving such form on such dates.  Further, he states that during the period May 2018 – December 2019 he underwent emergency surgery from which it took him several months to recover.

The complainant did not submit an application to DCC in 2018.  He stated that because the respondent had refused to sign the application, he left it for a while.  There is a note on the DCC document on 11 December 2018 stating, “landlord won’t accept hap – advised to speak to … about issue”.  The complainant did not make a complaint to the WRC in 2018.

The complainant next sought advice from DCC, the IHREC, the RTB and the Simon Community.   He stated that he was told that the respondent had to sign the application form.  In December 2020, the complainant decided to send the tenants part of the HAP application form to the DCC.  By letter dated 10 December 2020 the DCC returned the application form to the complainant because “this HAP application is incomplete as Section B from your landlord has not been submitted.”

The complainant stated that the respondent’s letter of 10 May 2021 to the WRC was the first time he had given the excuse for not signing the application form because the complainant had not given him Section A of the application form.  The complainant was of the view that the respondent did not need to see Section A of the form.

Under cross examination the complainant stated that in 2018 he had given the respondent Section B of the HAP application form.  He also confirmed that he received three HAP applications forms from DCC, one in September 2018 and two in January and February 2021.  The January 2021 form had not arrived, so he requested a second form, but then he received both forms.  The DCC document confirms that HAP application packs were sent to the complainant on 26 September 2018, 18 January 2021, and 01 February 2021.  The complainant in reply to questions stated that he had given the respondent Section B of the HAP application form in 2018, the respondent took the form but later refused to sign it.  Then on 04 February 2021 the complainant tried to hand the HAP application form to the respondent but, he refused to take the form.

The respondent in his evidence stated that he had not been given a HAP application form in 2018.  The first approach to him about HAP was in October or November 2020.  He said the complainant told him that he was going to apply for HAP, and he had responded that he would have to see the form, but he was not given a form at that time.  The respondent stated that the complainant (tenant) should have filled out Section A of the form and he (landlord) should fill out Section B.  The complainant asked him to sign a piece of paper that showed a rent of €145 per week, which was incorrect.  However, he stated that he was never sent an application form by the complainant.  The respondent stated that he met the complainant again in early January 2021.  The complainant asked him to sign the application and he replied that he would have to see the full form, but the complainant did not send it to him.  The next he received the ES1 notice from the complainant alleging he had discriminated against the complainant.  He had replied by letter stating that on receipt of the documents he could provide the necessary documentation to DCC to process a HAP payment, if required.

The respondent’s letter dated 10 May 2021 to the WRC states that he had never refused to sign the HAP application form.  He had requested to view the completed application form prior to signing.  He considered this to be an acceptable request as the owner of the property.  However, the complainant had refused to give him a copy of the full form.  On the DCC document, provided by the respondent, it is noted that the on 05 February 2021 “landlord phoned to say that the tenant had filled in Section B himself and had then given it to landlord to sign.  Landlord said he refused to sign it because tenant had already completed it instead of him and had written incorrect details such as incorrect weekly rent.  Confirmed that landlord is responsible for filling in Section B and not the tenant”.  This document supports the complainant’s evidence that he attempted to give the respondent the application form to sign.

Having carefully considered the submissions, documents provided and the evidence I find that it is well established that the HAP application form was never completed by the respondent.  I find the complainant has established facts from which the alleged discrimination may be inferred.  It is then for the respondent to rebut the allegation of discriminatory treatment.  In reaching this conclusion I had regard to the documents provided by both parties and the DCC documents provided by the respondent.  The complainant sent a HAP application to DCC in December 2020, this was incomplete and was returned to him.  He obtained another application form in 2021 and approached the respondent to sign that form.  The respondent does not dispute this.  However, the respondent wished to see the full form, Sections A and B before he would sign.  The complainant did not show the respondent Section A. 

The complainant and the respondent are two strong willed people who had know each other as tenant and landlord for approximately 30 years.  The complainant is entitled to apply for HAP payment but for whatever reason he only wished to provide Section B of the application form to the respondent.  The respondent as landlord is required to complete Section B of the application form before the relevant authority will consider the tenant’s application but, he refused to accept the form and complete it because he had not been shown Section A.  The respondent did not need to see or have a copy of Section A of the application form.  The result was that the complainant was unable to have his application considered by DCC.  The HAP information for tenants and landlords makes it clear that a landlord may return Section B of the application form separately to the appropriate council.  The respondent in refusing to accept the Section B part of the application form in 2021 and to complete it denied the complainant the opportunity to have his application assessed by DCC.  I find that in so doing the respondent discriminated against the complainant on the housing assistance ground. 

The complainant was given another opportunity to provide the appropriate forms to the respondent when he received the reply to the ES1 notice but I note that he did not avail himself of this opportunity.

Having concluded my investigation of this complainant I find, pursuant to section 25(4) of the Acts, that the complainant was discriminated against by the respondent on the housing assistance ground.  I am satisfied that the complainant did not avail himself of the opportunity to re-submit the relevant application form to the respondent when invited to do so in the respondent’s reply to the ES1 notice.  I have taken this into account in deciding the appropriate compensation for the effects of the prohibited conduct.  In all the circumstances I find an award of €1,090, equivalent to 9 weeks rent is appropriate.

Having concluded my investigation of this complainant I find, pursuant to section 25(4) of the Acts, that the complainant was discriminated against by the respondent on the housing assistance ground. 

In all the circumstances I decide it is appropriate to award the complainant compensation for the effects of the prohibited conduct.  Accordingly, I order the respondent to pay the complainant €1,090, the equivalent of 9 weeks rent, by way of compensation for the effects of the prohibited conduct.

HAP application

Failure to sign landlord form

Housing Assistance