Complainant

Respondent

Parties

Paula  Bastos

Mark Dilloughery

Representatives

  Appeared In Person

 Appeared In Person

Act

Complaint Reference No.

Date of Receipt

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

CA-00061025-001

11/01/2024

On 11 January 2024, the Complainant, a Lay Litigant, submitted a complaint of Discrimination against her Employer on gender and race grounds initially under the Employment Equality Act 1998. As there was a reference to HAP Payment and Landlord, rather than employer, on 19 January 2024, the complainant was asked to clarify which Legislation her complaint fell under?

On 25 January 2024, she confirmed that the case involved a complaint regarding HAP Payment and a previous Landlord and forwarded a partly completed ES 1 form, notification of claim.

The WRC accepted the claim as a claim under the Equal Status Act, 2000.

The Respondent was notified of the claim on 30 January 2024.

Both Parties attended hearing on 15 November 2024 as Lay Litigants and both Parties took the oath to accompany their evidence.

I wish to apologise for the delay in completing this decision due to a period of unexpected sick leave.

At the conclusion of the hearing, I requested details of when the complainant was deemed to have a housing need as she seemed unclear when she was first permitted to apply for HAP supports.

I received an undated extract from some correspondence with Cork City Council which was not determinative. The Complainant was requested to resend but did not do so.

The Respondent considered the extract sent and confirmed that he had no further comment in the case.

The complainant is a native of Brazil and came to Ireland as a Spanish National in July 2022. She entered a rental arrangement with the Respondent, her former landlord 1 July 2022 and 10- November 2023. She paid €1,700 rent per month, with utilities included.

The complainant submitted that she had been discriminated on Gender, Race and Housing Assistance grounds between 15 December 2022 to 21 September 2023.

The Complainant outlined that she had been refused HAP/ Rent Supplement on three occasions by her ex-landlord.

The Complainant forwarded a partly completed ES1 form with a response dated 18 December 2023.

“Requested on three occasions for you to complete my HAP forms but was refused …. I suffered financial hardship as I did not receive the Housing Assistance Payment, which I was entitled to “

15 December 2022, 24 March 2023 -20 September 2023

Discrimination was linked to the sole ground of housing assistance.

This response recorded that the claim had been received outside the two-month notification period in note 5 on ES1, which made the claim invalid and not requiring of a further comment.

“Having taken advice and given the most recent allegation of discrimination (which is denied) is stated as having taken place on 20 September 2023. This is outside the allowed timeframe of 2 months as per note 5 on ES1, therefore not valid and requires no further comment from me. “

The Complainant also exhibited extracts from what’s app exchanges.

The Complainant came to hearing without the requested outline submission or any documentation.

The Complainant had not sought an Interpreter and confirmed that she understood English. Ms Bastos apologised for mistakes in filling out the complaint form and requested an opportunity to amend the form. I explained that as the Investigation had commenced and we were now at hearing stage, there was no opportunity to amend the complaint form.

In her evidence, Ms Bastos told the hearing that she had met the Respondent online before her arrival in Ireland with her young son aged 9 in July 2022. She intended to stay for 2/3 months in his rented apartment.

She sought advice regarding renting from a number of agencies. She was informed that if her landlord was registered with the Residential Tenancies Board, she could get Rent Supplement after 6 months.

She was advised to ask for HAP after 6 months. The Complainant was keen to generate savings on rent.

The Complainant asked the Respondent to take HAP forms in December 2022. He refused saying that it was a short-term rental, the price range of the rent made it ineligible for HAP.

The Residential Tenancies Board offered to make an intervention on the complainants’ behalf, but she refrained fearing that she may be asked to leave the apartment.

She was advised to try and secure a new Landlord and claim afterwards.

In September 2023, she advised the Respondent that she was leaving because he wouldn’t sign for HAP.  

It was the complainant’s evidence that lots of her neighbours were Immigrants and were too afraid to come to hearing to give evidence.

The Complainant described that she was her own Comparator and wanted fair treatment.

On Inquiry, the Complainant confirmed that she had been approved for the HAP Payment in September 2023. She had been on the Council Housing List since March 2023.

Ms Bastos confirmed that she secured a new home in November 2023. She then served the ES1 form on the Respondent. She accepted that she had not signed this form.

She was disappointed that the Respondent had termed her opportunistic, but did not exhibit this letter.

She submitted that she had been treated less favourably than her own self.

During cross examination, Mr Deloughery asked the complainant if she had attempted to get the RTB to engage with him as he had requested? Ms Bastos replied that while the RTB had helped her with forms, she had not requested that they intervene.  

In conclusion, the complainant contended that her arrival in Ireland was supposed to be a new start. Things could have been much better for her if the Respondent had given her fair treatment.

She confirmed that she receives HAP support in her new accommodation, but did not provide evidence of same.

The Respondent comes to this case as a Professional Landlord and Discrimination is denied. Mr Dilloughery has submitted that the claim was received outside of the Statutory time limits.

The Respondent came to this case with a very strong sense of disappointment as he understood that he had supported the complainant with her accommodation, and she had left the premises in an unhelpful state with a rental deficit.

By way of written submission on February 10, 2024, Mr Dil Loughrey outlined that he had been a Professional Landlord from 2005 and denied that he had discriminated against the complainant on race or housing need. He confirmed that he had let both properties to the complainant as a Private Tenancy, inclusive of light, heat, broadband, Refuse and Satellite Tv rather than a Fixed Term Agreement. He had a familiarity with both HAP and Rent Supplement as he has accommodated these arrangements within his property grouping.

He outlined that the complainant had booked the apartment from 4 July 2022 to August of that year. She extended her stay on a number of occasions. She moved to another apartment when that apartment had been pre booked.

The Complainant raised a query regarding a single parents help for pay of an apartment rent on 15 December 2022.

The Respondent did not receive a request to complete HAP forms at that time but responded by stating that the new apartment was “outside the general HAP limit as well as being substantially above the discretionary flexible increased limit of up to 35% above the general limit.”

On 24 March 2023, he received another text/ what’s app from the complainant:

“…. I went to apply for social allocation, but they said I had wait for the house. Then I went to Intro, and they said I can apply for some help, but they asked me for your RTBI “

He replied the arrangement was “an all-inclusive tenancy not a tenancy so does not qualify for any housing payments “

She replied “understand “

No HAP forms were produced.

On 27 March 2023, the Respondent received a message from the complainant that she had been in contact with Threshold, who would contact him directly if he refused to register. She queried why he was not legally required to sign HAP forms?

He explained the flexible serviced apartment let and permitted the complainant to send his contact details to her Advisor “if you would like me to discuss with them “.

He followed this up within a month and the complainant said that she had “understood his position”

The Respondent referred to the 18 September as the date of the last occurrence of Discrimination. The Complainant told him that she was now eligible for social housing but may have to wait 10 years. She was informed that “but they said they can help me pay my rent “and queried whether the respondent knew anyone she could apply with? “

When the Respondent stated that he did not know anyone, the complainant replied “I’m not going until find a new place “He was not presented with HAP forms to sign.

At hearing, the Respondent gave evidence that the Complainant came to him from Air B and B up to August 14, 2022, followed by extensions in this short let at €1,700 per month.

He agreed to a short-term letting arrangement 27 October to December 2022. Initially, the complainant sought a one-bedroom apartment before moving to a two-bedroom apartment.

He denied that he had been provided with HAP forms in March 2023.

Mr Dilloughery denied Discrimination and rejected the comparator relied on by the complainant.

He submitted that the complainant had not notified him by means of ES1 within the two months permitted.

It was the Respondent case that the circumstances of the case had become lost in translation.

He had not refused to fill HAP forms, as he had not been provided with these.

During cross examination, the Complainant put the question of what could RTB explain to you that she couldn’t?

He replied that the letting arrangement was “a different kind of letting “as it included utilities. The letting agreement was not covered by a Tenancy Agreement.

In conclusion, the Respondent confirmed that he felt aggrieved in the face of the complaint. He stated that he had not discriminated against the complainant. Instead, he felt that he had been taken advantage of by her. He had not refused HAP.

The Respondent asked that I consider that the exchanges between him and the complainant were of a “respectful and friendly tone “and without Discrimination throughout her stay in his property.

He felt strongly that the commencement of the complainant’s action in the aftermath of her stay should be regarded as frivolous and vexatious and an opportunistic attempt to extract a financial settlement, without her incurring costs

I have been requested to reach a decision on the facts of the case on whether the Complainant was discriminated against on Gender, Race and Housing Assistance?

In reaching my decision, I have listened carefully to both parties, and I have considered all written submissions.

I was troubled that the Complaint came to hearing without documentation of any kind as she herself had compiled a number of documents. She acknowledged that she had received the Respondent submission received of February 10, 2024. It is important to have all documents to hand at hearing.

The date of most recent discrimination is listed as 21 September 2023 on the WRC complaint form.

There is variance between the ES1 form and the WRC form in terms of the cause of action intended in both documents.

The document first in time ES1, was unsigned or dated. I accept this is a notification and not a statutory document. However, I would have much preferred to have seen it signed and dated by the complainant, who told the hearing, she had received help in this regard.

The ES1 notified that the complainant was discriminated on housing assistance grounds over the dates 15 December 2022, 24 March 2023 and 20 September 2023.

“Requested on three occasions for you to complete my HAP forms but was refused ……I suffered financial hardship as I did not receive housing assistance payment, which I was entitled to “

The Respondent accepts that he received this document on 28 November 2023 with a post mark dated 25 November 2023. I must accept that date, 25 November 2023 as the date of notification within the ES1 framework.

The WRC Complaint form received on 11 January 2024 faced administrative checks on receipt, as explained above. It listed the rental tenure as 1 July 2022 to 10 November 2023.

The Complainant listed receipt of ES2 as 28 December 2023.

She stated that she had been discriminated against on gender, race and housing assistance grounds, where the most recent date of discrimination was 21 September 2023. This was an expansion of the single ground of Housing Assistance recorded on the ES1.

“My ex-landlord refuses me in my HAP / Rent Supplement 3 times. I did not complain before because I was afraid to him to put my stuff in on street or make my life difficult. I had advised from a Solicitors, and they told me to claim after I found a new place.”

My Jurisdiction in this case is first drawn from Section 21 of the Act on the process surrounding notification.

Redress in respect of prohibited conduct.

21.— (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

(1A) If the grounds for such a claim as is referred to in subsection (1) arise—

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commissionunder subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).

(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.

Expansion of Claim:

For the purposes of my investigation, I must be sure that the Respondent has been properly notified of the same complaint subsequently presented to the WRC. In this case, the Complainant sought to expand the grounds on the WRC complaint form to include Race and Gender alongside Housing Assistance. Whereas the ES1 carried a complaint on Housing Assistance grounds. I am unable to expand those grounds for my investigation.

This remains a complaint of Discrimination on grounds of Housing Assistance as set out in the ES1 form sent on November 25, 2023.

Statutory Time limits:

(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 Commission or, 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.

I accept that the date of notification of ES1 is 25 November 2023. The date for  WRC Complaint receipt is 11 January 2024.

There is a variance of the most recent date of occurrence in the Es1 20 September 2023, WRC complaint 18 September 2023 and 21 September 2023.

The reference to HAP is difficult to identify in the main body of the WRC complaint, but I fully accept that it is present in the narrative.

On a strict application of Section 21(2), I must be satisfied that the Respondent was notified of the prohibited conduct within two months of 20 September 2023, the date of the last such occurrence.

The date of 25 November 2023 places the notification outside the provisions of Section 21(2) (a) of the Act.

The Complainant applied for a consideration of her vulnerable plight while a tenant with the Respondent which resulted her in delaying her ES1.

She relied on her immigrant status and her real fear of losing her home if she exerted her rights sooner.

She explained that she took legal advice which promoted her pursuing a cause of action when her association with the Respondent ended.

I have given an in-depth consideration as to whether I can apply the provisions of

Section 21 [(3) (a) On application by a complainant the Director of the Workplace Relations Commissionor, 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.

Section 21(3) (a)(i) permits a direction to expand the window of time from 2 months to 4 months on reasonable cause. The time limit can be extended or disregarded on exceptional grounds.

The Respondent rejected grounds to extend time.

The Complainant chronicled a long list of advisors who advised her to advance a claim for rent support payment. These included Housing Specilaity Agencies and included her own Family Solicitor, whom she attributes to advising to delay her claim to when she found a new home.

I must explore the delay between September 20 and November 25, 2023

I can appreciate that the complainant was a new arrival with her young family to Ireland from July 2022 onwards. I have struggled to identify when she identified as being covered by the Housing ground and find this evolved for her around March 2023 following her involvement with Threshold. She gave evidence that she was placed on the Social Housing list in September 2023, which allowed her to make application for HAP .

The Complainant has not exhibited the HAP forms which she requested the Respondent to sign for me to explore the datelines she has relied on .

The test for reasonable cause obliges the complainant to show that there are reasons which both explain the delay and afford an excuse for the delay Cementation Skanska v Carroll DWT 0338, at the Labour Court.

I have explored the climate of  anticipatory anxiety on loss of home  relied on by the complainant and can find no basis for it, the extensive communication feed tracks a mutually respectful business relationship, with clear leaway given in the case of late payment and other flexibilities by the Respondent.

I am struck by the statement of defiance which the Respondent pointed me to following the most recent request for a consideration of supports for rental payment, where the Complainant stated: “I’m not going until find a new place” There was no visible attempt to make the complainant homeless at that point.

This for me, at least  does not reflect a fear or apprehensive and stood in distinction to the facts in ADJ 48815

Josef Lips and David and Caroline Mc Carthy, which involved a landlord cessation of rental tenure.

I fully accept that the complainant has lodged her claim within 6 months of the occurrence of Discrimination. However, unique to the Equal Status Acts, she is also required to notify the respondent within 2 months of the most recent date of occurrence.

I find the circumstances as presented at hearing and by written submissions, do not satisfy the test for  reasonable cause as it is clear that the complainant had access to legal advisors for the majority of her rental tenure or from the very minimum March 2023. Wood v Aer Lingus DEC -S 2009-061

I could not determine with certainty when she made application for HAP as the letter from the Government Body was undated and not determinative.

While the complainant explained the delay, she did not excuse it as the inter party correspondence remained convivial to the end of the rental tenure. She had access to representation and advice during this period. I could find no basis to her delay.

I have not identified grounds on which I can expand the time permitted for notification to 4 months. Neither have I identified exceptional grounds for me to dispense with notification requirements.

In light of the shortfall in the notification of claim on ES1 of 25 November 2023, I find this claim is statute barred, and I am unable to progress this further.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

In light of the shortfall in the notification of claim on ES1 of 25 November 2023, I find this claim is statute barred, and I am unable to progress this further.

HAP during short term tenancy