Complainant

Respondent

Parties

Una  Broderick

Brendan Mannix

Complainant

Respondent

Anonymised Parties

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Representatives

Threshold

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057875-001

16/08/2023

The Complainant attended with her partner, Mr. Rhys Kelly and both swore an Affirmation at the outset of the hearing. Emails and text messages along with letters were received from the Complainant and relied upon as documentary evidence.

Mr. Brendan Mannix appeared in person and swore an Oath. The owner of the property appeared but did not give evidence. Documentary evidence was also furnished in advance of the hearing.

It was the Complainant’s evidence that in May or June 2023, she applied for the Housing Assistance Payment (HAP) from Kerry County Council. She was successful in the first stage of the application and furnished the second part of the application to Mr. Mannix, as agent for the landlord, for completion.

By email dated 8 June 2023, the Complainant was contacted by a “very helpful” member of the HAP Section of the Housing Department in Kerry County Council, advising that there was still outstanding documentation from the landlord on their application. Kerry Co. Co. further advised that it had been in touch with Mr. Mannix, as agent for the property, and informed him of the outstanding documentation required, stating that “a current insurance policy or schedule is one of the approved proof of ownership options,” along with alternative options.

The first HAP deadline was missed by the Complainant due to the failure to provide the insurance documentation. This deadline was extended until 14 July 2023 by Kerry Co. Co., but the Complainant’s application was “sent back” as it was incomplete.

The Complainant presented numerous emails and messages documenting exchanges with Mr. Mannix, seeking a copy of the insurance document to complete the application.

The Complainant gave evidence of her financial difficulties as a result of the Respondent’s failure to provide the required document and her subsequent inability to secure the housing assistance payment for which she had been approved.

The Respondent chose not to put any questions to the Complainant in cross-examination.

Mr. Kelly gave evidence of a phone call he had with Mr. Mannix in June 2023 while at work. He stated that Mr. Mannix warned him about “being led down the garden path” by Threshold and advised him not to proceed with the complaint.

Mr. Kelly also gave evidence of text message exchanges with Mr. Mannix, seeking the documentation and advising of the pending deadline for submission.

Again, the Respondent chose not to cross-examine the witness.

Mr. Mannix gave evidence that he only became aware the property was not insured when he was requested to complete the Complainant’s HAP application form on 21 May 2023. Once this became evident, he informed the landlord and put him in touch with an insurance company.

He was advised by the landlord that he did not have access to the documentation as it was in a locked cabinet in his office in Castleisland, Co. Kerry, while he was in Turkey at the time. He also mentioned that the landlord only visited Co. Kerry a few times a year.

Mr. Mannix gave evidence that the insurance company was unable to discuss the policy with him due to data protection reasons and noted that “it was not for me to chase the policy.”

He further gave evidence that he sent Kerry Co. Co. the RTB letter, but because it was addressed to him, it was refused. He explained that the landlord’s letter was also in the locked office.

Mr. Mannix said, “if the landlord does not buy into it, I cannot be running around like a headless chicken” gathering the necessary documentation. He claimed that he did not have any of the documentation the landlord was obliged to provide.

When asked during cross-examination, Mr. Mannix disputed that it was a legal requirement for a landlord to have insurance on a property. He asserted, “there is no requirement for a professional agent to ask for insurance from a landlord.” He also accepted that he was the one who placed tenants in the property.

Regarding the letter from the RTB, Mr. Mannix explained that the RTB would not provide him with the landlord’s copy. When it was suggested that the RTB would have provided him with this copy, Mr. Mannix stated they refused. He maintained that he did everything he could to facilitate the application.

Mr. Mannix suggested that the Complainant make a second application. When asked why they should do that after being refused, Mr. Mannix responded that the documentation would become available. It was then pointed out that the Complainant and her partner were struggling financially as a result of not receiving the Housing Assistance Payment, to which he replied, “I don’t know they were struggling; that’s not my responsibility.”

Upon inquiry, Mr. Mannix explained that there was a manager in the landlord’s business, but she did not have access to his office. When asked why he did not follow up on the application when the landlord returned to Co. Kerry, he said he had many tenants on his books and did not have time. He also stated that he did make contact with the Complainant in March 2024, but they cancelled the appointment due to bad weather.

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.”

Section 3(3B) of the Act provides:

“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 4 (6) includes an agent under the definition of a provider of a service:

“(6) In this section—

“provider of a service” means—

(d) the person responsible for the provision of accommodation or any related services or amenities in respect of which section 6 (1)(c) applies,”

Burden of Proof

Section 38A  of the 2000 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.

Findings

The Respondent accepted that he was a licensed property agent responsible for letting the property in Castleisland, Co. Kerry, to the Complainant and her partner. Consequently, he is a provider of a service for the purposes of Section 4(6) of the Equal Status Act 2000.

There was no dispute that the application for HAP was not completed by the Respondent, nor was there any dispute regarding the reasons the Complainant did not receive HAP. Although invited to do so, the Respondent decided not to cross-examine the Complainant or the witness. Consequently, it can only be concluded that he accepts their evidence.

On this basis, together with the Complainant’s evidence and the numerous emails and text messages presented before me, I find that she did discharge the burden of proof and that a prima facie case of discrimination was established. In arriving at this conclusion, I have particular regard for the communication between the staff member of the HAP Section of the Housing Department in Kerry Co. Co. and the Respondent. It is clear that every effort was made to assist the Complainant in her application and Mr. Mannix in obtaining the correct documentation. The HAP application requires supporting documents that the Respondent ought reasonably to be aware of, given that he is a licensed letting agent. By his own admission, Mr. Mannix has signed several HAP applications.

One of the required documents is proof of insurance. While the Respondent strongly disputed the legal requirement for a landlord to hold insurance on the property, the Complainant’s submission is accepted with regard to Section 12(1)(c) of the Residential Tenancies Act 2004. “ subject to subsection (3), effect and maintain a policy of insurance in respect of the structure of the dwelling, that is to say a policy—

(i) that insures the landlord against damage to, and loss and destruction of, the dwelling, and

(ii) that indemnifies, to an amount of at least €250,000, the landlord against any liability on his or her part arising out of the ownership, possession and use of the dwelling,”

While it is accepted that the Respondent is not the landlord, he is acting as the landlord's agent. Consequently, it is entirely reasonable that all requirements under the 2004 Act would have been verified and kept on file by the agent in advance of letting the property to tenants.

It is accepted that the Respondent made numerous attempts to obtain the necessary information and did submit a schedule of insurance. However, the schedule did not account for a rental property. Again, this was highlighted to the Respondent, and practical advice was provided by Kerry Co Co to assist the process, but the relevant documentation was not furnished by the Respondent. The application form was returned by Kerry Co Co.

Unfortunately, it appears that once the ES.1 Form was sent to the Respondent, he chose a different path. It is accepted, and not disputed by the Respondent, that Mr. Mannix called Mr. Kelly in late June 2023 upon receipt of the ES.1 Form and made unsettling comments about the Complainant’s decision to seek the assistance of Threshold.

Having concluded my investigation of this complaint, I find, pursuant to Section 25(4) of the Acts, that the Complainant was discriminated against on the ground of housing assistance by the Respondent, who engaged in prohibited conduct by failing to complete the HAP application form by presenting documentation required by the 2004 Act.

I find the Complainant was discriminated against by the Respondent.

Section 27(1) of the Act provides redress may be ordered where a finding is in favour of the Complainant. Section 27(1) provides that:

"the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstance

(a)    an order for compensation for the effects of the prohibited conduct concerned; or (b) an order that a person or persons specified in the order take a course of action which is so specified."

While it is accepted that the Respondent did go to some efforts to retrieve the documentation, it is alarming given his field of business that he did not consider the financial impact on the Complainant when she could not access HAP. Of most concern was his comment in evidence that it was “not my responsibility”.  This together with the failure to have regard for the legal obligations placed on an agent when letting a property.

In such circumstances, I order the Respondent to pay the Complainant €2,400, the equivalent of three months’ rent, by way of compensation for the effects of the discrimination.

HAP – Discrimination – Agent – Service Provider - Redress