Complainant

Respondent

Parties

Mark  Oconnor

Brendan Murray

Complainant

Respondent

Anonymised Parties

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Representatives

Cillian McGovern BL instructed by C.P. Crowley & 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-00062438-001

27/03/2024

The complainant submitted he was discriminated, victimized and harassed with regards Accommodation and the respondent denies this and submits that the complainant is out of time, has not reached the burden of proof and did not following procedures.

The complaint was received by the WRC on 27/03/2024 and the complainant submits that he was discriminated against on the grounds of Accommodation and that he submitted a ES1 Form to the respondent on 27/09/2023 and the alleged incident occurred on 28/11/2022 and most recent date of discrimination was 26/03/2024 and that he was victimized and harassed.  A copy of an ES1 form was not provided and a copy of a signature with the name of the respondent dated 27/09/2023 that the complainant submitted was proof of postage of the ES1 was provided.

The complainant submitted that the respondent utilise letting agency and they have harassed him for payment of rent arrears that did not exist and have continually subjected him to constant threat of eviction and have now issued him with Notice Of Termination all upon learning the complainant was in receipt of Housing Assistance Programme (HAP).  Prior to having that knowledge, the complainant said he was offered a new tenancy and that the respondent initially engaged the agency for a month long period but was persuaded by them that due to the complications of HAP that he would need them to act on his behalf going forward. He submitted that that the fact that they were in receipt of HAP the agency have created a toxic relationship for financial gain. Furthermore, he said the agent wrote to HAP requesting not ONLY current information but asked if the complainant was on HAP assistance one year prior to them becoming landlords which was a serious breach of their rights.

Complainant’s Evidence:

The complainant’s evidence was the property did not meet the standards and Mr Murray applied for HAP to be paid and the complainant had been a tenant since 2006 with a private landlord and was with him for many years.  The property went into receivership around 2000 and was purchased by the landlord and notice was issued on the basis that the new landlord wanted to sell the property.  An RTB hearing took place in October 2022.  He said that the agent was requesting details from HAP to confirm that the complainant was in receipt of HAP.  RTB advised that there was a valid notice to quit and a new landlord needs to apply for HAP and there was a change when HAP was mentioned.    He said the rent is now €1,500 and he said there was multiple requests that they were in arrears and they were not in arrears.  This continued for a while and they were harassed.  He said demands for them to quit the property is based on previous RTB order.  He confirmed that he has not received notice to quit in recent times and he does not know what is going on with the arrears request and the relationship has deteriorated. 

It was denied that there was discrimination, harassment or victimisation.  The respondent submitted that the respondent purchased the property and was happy for the complainant to remain and this was advised by the respondent on 15/11/2022.  On 25/11/2022 the complainant sent Mr Murray HAP forms.  Emails were sent by the respondent on 07/12/2022, 16/12/2022, 05/01/2023 to clarify and assist the tenant with HAP and there were questions regarding what rent was due.  The receiver involved in the previous sale of the property had advised that a rent review resulted in an increase in rent from €1,000 to €1,500.  The complainant provided a redacted RTB determination that indicated a rent of €1,080.  On 06/03/2023 rent review was served on the tenant deemed invalid on 06/12/2023 by RTB.  On foot of the determination by RTB the respondent liased with the tenant to attend the house to carry out the relevant works.  ON 26/04/2023 the respondent advised the tenant that HAP had approved revised monthly rent to €2,500 and 07/04/2023 the tenant advised that the contents of 26/04/2023 were incorrect and harassment.

It was denied that the complainant was harassed, victimised or discriminated and no ES1 was received and no acts of discrimination occurred during the relevant period.  Due to inconsistencies, there was further investigation required and to seek rent arrears is not harassment.  It was further denied that there was threat of eviction.  On 06/01/2023 the respondent advised the complainant that arising from the RTB adjudication report which the respondent had now seen, there had been a valid eviction notice served on the complainant.  On 12/01/2023 the complainant advised he would not be vacating the property as there was a ban until 01/04/2023.  The complainant was advised to direct correspondence to the respondent and not to the landlord.  A valid notice of rent review was served on 19/12/2023.

Despite a vacate date of 25/01/2023 the complainant remained and a fresh order was served on 17/01/2024.  It was denied the complainant was under threat of eviction.  It was evident from all correspondence that the landlord, letting agent engaged with HAP and was always willing to accept HAP payments.  Two valid notices of termination had been served one by a previous landlord and one by the current landlord.  The landlord and the respondent were assisting completion of HAP application.  On 17/01/2024 the landlord served his own notice of termination.  A wish to enforce the previous notice of termination and issuance of a fresh notice of termination is not related to HAP.  The respondent has always acted professionally, proactively and timely in dealing with the property. 

The landlord is unable to charge the full rent of €1,500 without carrying out the works that are necessary and took longer than expected owing to difficulties accessing the house.  The respondent made contact regarding HAP forms to clarify the rent due.  The respondent and landlord engage with HAP for other properties and always act professionally and appropriately.  Reliance on procedures and guidelines should not be conflated with discrimination.

The complainant submitted he was discriminated, victimized and harassed with regards Accommodation and the respondent denies this. 

The respondent did not call witnesses to give evidence and did not cross examine the complainant’s evidence.  The complaint was received by the WRC on 27/03/2024 and it was submitted that an ES1 was sent on 27/09/2023 and the respondent denied receipt of the ES1 and no ES1 was submitted.

Section 21 provides that

—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission…

(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 Commissionor, 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.

 (2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(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.

(4) The Director of the Workplace Relations Commissionor, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent

5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).

(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

 (b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court] may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

The complainant did not provide a copy of an ES1 form but did forward on an ‘An Post Proof of Delivery’ dated 27/09/2023 with a signature of the alleged landlord and the respondent denies this is the signature of the alleged landlord, the respondent.  Albeit I note that I do not have an ES1 to view, I also note that the complainant gave sworn evidence on the day which the respondent did not and therefore I accept as more credible that an ES1 was issued to the respondent based on the evidence.

The complainant’s evidence was largely around his unhappiness with many aspects of his engagement with the respondent and the agent for the respondent during 2022 and early 2023 and the upset caused by the many changes and possible eviction.  Section 21(6) of the Act provides complaints of discrimination may not be considered by an Adjudication Officer if it is referred to the WRC more than six months after the most recent incident of discrimination.  The complaint was received on 27/03/2024 and therefore, the cognisable period of the complaint is 28/09/2023 to 27/03/2024. The complainant spoke to many complaints going back to 2022 and early 2023 but struggled to particularise an act of discrimination by the respondent cited in the period of six months ending on the date on which he presented his claim and no reasonable cause to extend this time further has been submitted.  It would appear therefore, that his complaints in the main are statue barred.

Section 3(3)(b) of the Act provides that:

 (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”).

and Section 6 provides:

(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 38A of the Acts applies to complaints of discrimination under the Equal Status Acts and requires the complainant to firstly establish facts from which discrimination may be inferred. Where a prima facie case has been established, the burden shifts to the respondent to rebut the inference of discrimination.

While I note that there was a rent review served in December 2023 and notice to vacate served on 12/01/2024 this was not the subject of the complainant’s complaints and in any event, I find that the complainant has not established a prima facie case of discrimination and the respondent did not engage in a prohibited act of discrimination, harassment or victimisation on the housing assistance ground.

I find that the complainant has not established a prima facie case of discrimination and the respondent did not engage in a prohibited act of discrimination, harassment or victimisation on the housing assistance ground.

Housing assistance programme, equal status,