Complainant

Respondent

Parties

Constanta  Covaci

Kealan O'Connor

Complainant

Respondent

Anonymised Parties

Representatives

Isabel Whelan, B.L., instructed by  Barry Healy & Co. Solicitors

 Self

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065314-001

02/08/2024

The Complainant agreed to rent an apartment from the Respondent.  The Respondent confirmed that he would accept the Complainant as a HAP tenant.  The Complainant’s application was eventually rejected by HAP.

The Complainant believes that she was discriminated against by the Respondent on the grounds of race and housing assistance.

The Respondent submits that he has no difficulty accepting HAP tenants and has a number of HAP tenants renting his properties.  The reason for the application rejection was because HAP were relying on the rent a previous tenant paid.  This was incorrect as the property underwent refurbishment and it was rented to a tenant who was not on HAP.  When this tenant left he selected the Complainant and was supportive of her HAP application.  The Respondent denies that any discrimination took place.

The Complainant gave evidence on affirmation and with the assistance of a Romanian interpreter.   She is currently living in State accommodation in Dublin.  The Complainant confirmed that she is not a fluent English speaker and was assisted in trying to rent accommodation from the Respondent by her daughter.  The Complainant believes that the Respondent took advantage of her due to her lack of English and he did not provide documents to HAP that they requested. 

The Complainant, in response to a question from the Respondent, confirmed that she was living in State provided accommodation in Dublin but she continues to use her daughter’s address in Dundalk for all correspondence.  The Complainant stated that she moved into this accommodation around July 2024 as she daughter did not have a bed for her.

Ms Mirabela Covaci gave evidence, on affirmation, on behalf of the Complainant.  She confirmed that she is the Complainant’s daughter and she was the person who dealt with the Respondent in relation to renting the apartment.  Ms Covaci stated that she first applied for the apartment on 07/03/2024 and they were invited to view it on 17/03/2024.  There was no one else viewing the apartment at that time.  They liked the apartment as it was a quiet area and her mother particularly liked the apartment.

Ms Covaci confirmed that they informed the Respondent that her mother was a HAP tenant and was happy to proceed.  They filled out the on-line application.  Ms Covaci stated that the Respondent told them that he was familiar with the HAP process as he has other tenants who are also in receipt of HAP.

Ms Covaci initially clicked on a wrong link to begin the process and she was sent a new link by HAP and this was also sent to the Respondent.  Ms Covaci confirmed that the rent for the apartment was €1,200 per month and a deposit of the same amount was required.  The Respondent also asked for a weekly payment of €100 to hold the apartment until the HAP process was concluded.  Ms Covaci gave evidence that they paid the deposit and a total of four weeks holding payments of €100.

Ms Covaci stated that it was not normal to have to pay rent while the HAP process was being processed.  She asked the Respondent to confirm this request in an email and she received this.  She submitted all the documents to HAP on her mother’s behalf.  Ms Covaci stated that she was told by HAP that they were not happy with the volume of calls and emails they were receiving from her.  They required further documents from the Respondent.  Ms Covaci gave evidence that there was an issue with the amount of rent requested.  On the HAP system a previous tenant was paying €750 per month and they had requested documents from the Respondent to clarify the reason for the rent increase.  Ms Covaci stated that she was told by HAP that the Respondent did not reply to them.  Ms Covaci called the Respondent and he told her that the rent for her application was never €750.  Ms Covaci believes that the Respondent did not explain this to HAP and they closed her application.

The Respondent then offered her, and her mother, another apartment which he had.  Ms Covaci stated that her mother was not happy with the area where it was as it was not quiet and too near the town.  Ms Covaci stated that the second apartment would need a new HAP application and she started this.  Ms Covaci stated that the Respondent did not get back to HAP.  They put in all the documents and HAP refused to sanction payment of their rent.

Ms Covaci stated that she contacted the Respondent by text requesting the return of the €1,200 deposit and the rent.  The deposit was returned but the rent paid was not.

Mc Covaci stated that result of this is that her mother is now living in State provided accommodation in Dublin.  Ms Covaci stated that they did not view the second apartment and agreed to take it without viewing.

Cross Examination – Ms Mirabela Covaci:

Ms Covaci was cross examined by the Respondent.  She was asked why HAP did not proceed with the second application.  She stated that the reason was because of the rent of €1,200.    It was put to the Complainant that she gave evidence that she did not view the second apartment but she did in fact view it.  Ms Covaci stated that she did not view it.  It was also put to Ms Covaci that she stated that the apartment was loud and noisy and she was asked how she formed this view.  She said that it was from the outside that she formed that view.  Ms Covaci again confirmed that she did not view the apartment.

In response to a question form the Adjudication Officer Ms Covaci was asked what her evidence was that she and her mother were discriminated against on the race ground.  Ms Covaci stated that the only reason that they stated this was because the Respondent took money from his mother.

Closing Submission:

In a closing submission on behalf of the Complainant Ms Whelan stated that the law is very clear.  Discrimination has occurred as the apartment was given to a person who was not a HAP tenant.  The Respondent was only agreeing to HAP in the knowledge that the application would not be approved.  There was also indirect discrimination when the Complainant was not allowed to view the second apartment.

The Respondent was renting a property to a vulnerable person on HAP and he accepted €100 per week and this is not in accordance with the HAP process.  The Respondent refused to complete the first application to ensure the Complainant got approval and this amounts to discrimination. The refusal to hold the property so that the HAP process could be completed amounts to discrimination.

The Respondent gave his evidence on affirmation.  He outlined that he advertised the apartment to rent on DAFT.ie and he had 35 applications.  He selected 5 and arranged viewings on Saturdays and Sundays from 10.30 to 12 noon.   Four people viewed the property and he picked one person who was the Complainant who said that she liked it.

The application went into HAP.  The Respondent outlined that HAP contacted him and he sent in all the details.  The Respondent gave evidence that he has been dealing with HAP for the past 5 to 6 years and is familiar with the process.  He contacted HAP about the delay and they confirmed to him that they had a volume of applications at that time.  After  1 ½ weeks he told the Complainant that he could not continue holding the apartment.  The Respondent said that the Complainant offered €100 per week to hold the apartment.  The Respondent stated that it is his experience that a HAP application normally takes one week.  HAP contacted him looking for more details and he provided these.

The Respondent gave evidence that he told the Complainant he had another apartment and they seemed happy about that.  They looked at it but HAP did not approve the Complainant’s application.  The Respondent stated that the day after the HAP application was refused he was contacted by the Complainant and told he was a bad guy and threatened by them.  On one day alone the Complainant rang him 15/16 times and was again threatened.

In response to a question from the Adjudication Officer the Respondent stated that the documents which HAP requested were a utility bill to prove he owned the apartment and a copy of his insurance policy.  The Respondent was asked what happened on the second application.  The Respondent stated that the apartment was rented to a HAP tenant for €750 per month and when this tenant left it was rented to a non-HAP tenant for €1,200 per month.  When the HAP application was submitted they noted that when they previously approved a HAP payment it was for €750.  He was requested to provide documents to explain the increase and he provided a copy of the BER certificate which showed that it had increased and he also provided an architect’s certificate to confirm the works which were completed and signed off by him. 

The Respondent confirmed to the Adjudication Officer that he did show the apartment to the Complainant and her daughter as it was vacant at that time.  The Respondent was also asked by the Adjudication Officer to explain the holding rent rationale.  The Respondent confirmed that the Complainant offered this and he accepted it.

Cross examination – the Respondent:

The Respondent was cross examined by Ms Whelan, B.L., on behalf of the Complainant.  It was put to the Respondent that it was incorrect to state that it was offered by the Complainant and his text message to the Complainant reads: “Hi, I can hold it for your Mum but can you pay 100 per week to hold it until the HAP application is sorted?”  The Respondent confirmed that he sent that text after the Complainant offered to pay the holding rent.  The Respondent was asked if he would accept that it would be unusual to take a holding rent.  The Respondent stated that he would not accept that.  This application was going on for a few weeks and when the Complainant’s daughter offered the €100 he accepted it.  It was put to the Complainant that the facts are that he asked for the €100 and he accepted the €100.  The Respondent did not agree with that.

The Respondent was asked if he would accept that when a tenant is going through the HAP process that it is unusual to have a tenant pay rent and not allowed to live in the apartment.  The Respondent stated that he was actually losing money by holding the property for the Complainant.

The Respondent was asked if he accepted that the HAP application failed as he did not send in the additional paperwork.  The Respondent stated that he did not accept that.  He got everything that was requested and sent it in.

It was put to the Respondent that if he submitted the required exemption documents HAP would have accepted them as tenants.  The Respondent stated that was not correct.  It was put to the Respondent that he did not want the Complainant as a tenant and he broke the rules by increasing the rent before they began the application process.  The Respondent stated that he would not accept that and confirmed that he provided everything to HAP that they asked him for.

The Respondent was asked if he accepted that the person who is in the property now is not a HAP tenant.  The Respondent stated that the person who is now renting the apartment is not a HAP tenant but two of the four tenants in his apartments are HAP Tenants.

It was put to the Respondent that the reason he frustrated the HAP process was to get tenants who were not HAP applicants and that he did not require any of those documents for the non-HAP tenants.  The Respondent stated that he did have all the documents required and he submitted those to HAP.

Closing Submission; Respondent:

In a closing submission the Respondent stated that he selected the Complainants from the 35 people who had applied to view the apartment.  On the first day he met them he was told that they were HAP tenants and he was happy with this as he knows the process and the rent would be paid.

It was only when the process was dragging on that the Complainants offered to pay him €100 per week to keep it for them.  He accepted this and by doing so he was losing rent.  He has suffered a financial loss as result of his dealings with the Complainants.

It is the Respondent’s position that he tried at all times to help the Complainant and he sent in everything that was requested to HAP.  He stated that he did not discriminate against them and when the first application was rejected he then offered them a second apartment and this also fell through due to the HAP decision in relation to their application.  The Respondent has no difficulty with HAP tenants and has had many over the years and continues to accept HAP tenants.

The preamble to the Equal Status Act 2000 (“the Act”) states that its purpose is,

“…to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access.

Section 3(1) provides, inter alia, that 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) (in this Act referred to as the ‘‘discriminatory grounds)’’ which- {….]”

Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of race (h)  that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”).

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 38A (1) provides-

" 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."

Therefore, the Complainant must first establish a prima facie case of discriminatory treatment. It is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

In evaluating the evidence before me, I must first consider (i) if the complaint is properly before me and (ii) if the Complainant has established a prima facie case pursuant to Section 36A of the Acts.  This requires the Complainant to set out in the first instance, facts upon which she can rely on in asserting that prohibited conduct has occurred in relation to her.  It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

In relation to (i) above I find that this complaint is properly before the WRC and has been submitted within the requisite time-limits prescribed by Section 21 of the Acts, including those for giving notice of a complaint to the Respondent and referring the complaint to the WRC.

In relation to (ii) above there are three specific criteria which need to be met in order to show that a prima facie case has been established, namely:

1.       Membership of a discriminatory ground (eg, race, housing assistance). 

2.      Evidence of specific treatment by the Respondent.

3.      Evidence that the treatment received by the Complainant was less favourable that the treatment someone, not covered by the same ground(s) , would have received in similar circumstances.

If and when all three of these criteria are satisfied, a prima facie case has been established and the burden of proof then shifts to the Respondent which means that the difference in treatment is assumed to be discriminatory on the relevant ground(s).  When this occurs the Complainant does not have to prove that there is a link between the difference and membership of the ground(s), but rather it is for the Respondent to show that there is not.

The explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof is helpful:

“This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In relation to 1 and 2 above and the allegation that the Complainant was discriminated against on the ground of race and housing assistance I find that the complainant has failed to adduce any evidence, even on  prima facia basis in relation to her complaint of race discrimination.  The only evidence adduced was a belief that because of her vulnerability as a Romanian national the Respondent took advantage of this and asked her to pay a holding rent of €100 per week until such time as her HAP application was approved.  The Complainant’s business was conducted by her daughter who does not require the services of an interpreter and is competent to conduct business on behalf of the Complainant.

There is a significant conflict of evidence in relation to certain elements of this complaint.  The Complainant submits that the Respondent failed to provide all the required documents to HAP while the Respondent submits that he submitted all the documents requested by HAP.  The Complainant states that she was requested by the Respondent, in addition to her deposit, to pay a holding rent of €100 per week while the Respondent gave evidence that the Complainant offered to pay the holding rent and he confirmed his acceptance of this in an exchange of text messages.  The Complainant also submitted that they did not view the second apartment while the Respondent states that he did in fact show them the apartment.  The Complainant’s application to HAP for this apartment was also not approved.

In relation to the complaint of discrimination on the ground of housing assistance I note that the Respondent is familiar with the HAP process and had had dealings with HAP over several years.  The Respondent in his evidence stated that he welcomed the fact that the Complainant was a HAP tenant and he tried to assist with their application.  When this was not approved he then offered them the opportunity to rent an alternative apartment.  This was also refused by HAP.  It was submitted on behalf of the Complainant that the Respondent increased the rent in the knowledge that it would most likely not be approved by HAP and that he used this to prevent the Complainant from renting the apartment.  HAP rejected the application on the basis that the rent increase was outside the Rent Pressure Zone (RPZ) limits.  Meanwhile the Respondent has undertaken major refurbishment work since the previous HAP tenant was in situ and he had a non-HAP tenant in place before the Complainant looked at the apartment. 

It is difficult to conclude that the Respondent did not want a HAP tenant.  He has regularly engaged with the HAP process and had HAP tenants in his property.  I find that he did not set out to exclude the Complainant from renting his property as he engaged with HAP and, if he has other HAP tenants in situ he must be validated to receive the HAP payments.  The core issue is the amount of rent that he was asking and I note that this was outlined from the outset and it was not a figure that was manufactured once he had selected the Complainant as a tenant.

Having considered the totality of the evidence in this case I find that the Complainant has not established a prima facia case in relation to the complaint in relation to the ground of housing assistance. 

CA-00065314-001:  The complaint of discrimination on the ground of race and housing assistance brought by Constanta Covaci against Kealan O’Connor is not well founded.

Housing assistance.