Complainant

Respondent

Parties

Michael  O'Connell

Meath County Council

Representatives

Ms. Jacqueline O'Connell

Mr. David McEntee, Regan & McEntee Solicitors  

Act

Complaint Reference No.

Date of Receipt

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

CA-00062165-001

12/03/2024

On 12th March 2024, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent discriminated against him on the grounds of disability by failing to award a housing assistance payment to him. In denying this allegation, the Respondent submitted that in considering the Complainant’s application, they abided by the relevant internal guidelines, and that the refusal of the Complainant’s application was in no way influenced by his disability.

A hearing in relation to this matter was convened for, and finalised on, 13th September 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing, same were expanded upon and contested in the course of the hearing. Given the nature of the application, no sworn evidence was called by the Complainant, while a representative for the Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

At the outset of the hearing, the Respondent raised two preliminary issues as to jurisdiction. Firstly, the Respondent submitted that the complaint had been previously decided in this forum and the Complainant should be estopped from presenting the present complaint. By response, the Complainant, via his representative, confirmed that the present dispute relates to a different set of facts that occurred during a different cognisable period. On foot of this clarification, the matter proceeded on the basis that these were the sole grounds to be relied upon in the hearing. In addition to the foregoing, the Respondent stated that they did not provide a service to the Complainant as defined by Section 2, and as such the Complainant did not enjoy standing to being the present complaint. Given the nature of this application, the same will be considered following a summary of the substantive matter.

By submission, the Complainant’s mother, on his behalf, stated that he was a young person with physical and intellectual disabilities. Given the nature of the Complainant’s disabilities, he was accepted on the Respondent’s housing list from 11th September 2021.

In July 2022, the Complainant moved to rented accommodation and made his first application for Housing Assistance Payment (HAP). Both this application, and a subsequent application dated 8th May 2023 were declined by the Respondent. Thereafter, in September 2023, the Complainant was removed from the Respondent’s housing list.

By submission, the Complainant, via his representative, stated that the Respondent had discriminated against him in numerous ways. In particular, he stated that disabled persons, and in particular disabled persons that are unable to work, encounter extreme difficulty in securing tenancies as required by the County Council. Notwithstanding the same, they submitted that the requirement for one year of rent payments represents a further discriminatory barrier in this respect. They submitted that these requirements do not have a legislative basis, but arise from a series of guidelines which have no binding legal status. The Complainant further stated that the Respondent’s practice of writing directly to him is discriminatory given the nature of his disability. The Complainant further stated that no process was following in removing the Complainant from their housing lists.

Regarding the preliminary issue raised by the Respondent, the Complainant accepted that while the Respondent is performing a statutory function, the basis for their refusal of his application his removal from the housing list was not prescribed by statute but was instead a decision arrived at by the Respondent. In this respect, the Complainant submitted that these decisions were discriminatory in nature, and on this basis the Complainant sought to ground his complaint under the Act.

By response, the Respondent accepted much of the factual matrix presented by the Complainant. In this regard, they accepted that the Complainant made an application for a HAP payment. This application was refused on 5th July 2022 on the basis that the Complainant was engaged in a tenancy with a family member  that had been registered with the RTB. This decision was challenged under the present legislation, in this forum. By way of decision dated 12th June 2023, the relevant Adjudicator found that this decision was did not constitute discrimination on the grounds of disability.

Thereafter, on 9th May 2023, the Complainant, via his parents, made a renewed application for a HAP payment. While it was apparent that the Complainant’s tenancy had, at this juncture, been registered by with the RTB, it was apparent that no evidence of rent payments for the previous 12 months were provided, as required by the relevant guidelines.

In August 2023, the Complainant’s housing applications were reviewed. Following a review of the Complainant’s documentation, and a visit to the Complainant’s premises, an agent of the Respondent formed the view that the Complainant was adequately housed, and that the Respondent could not provide more suitable accommodation in the circumstances. In September 2023, the Complainant was removed from the Respondent’s housing list.

By submission, the Respondent stated that Section 39(2)e of the Housing (Miscellaneous Provisions) Act 2014 provides that in order for HAP to be awarded, the Respondent must be satisfied that the “tenancy concerned is or would be tenancy in good faith”. In this regard, the Respondent submitted that the Complainant resided in a property owned by his parents. Regarding the refusal of the HAP payment in the first instance, it was apparent that the purported “tenancy” was not registered with the RTB. Regarding the second application, it was apparent that the purported tenancy had not been in existence for a period in excess of twelve months.

Notwithstanding the foregoing, the Respondent raised a preliminary issue as to jurisdiction. In particular, the Respondent submitted that the Commission has no jurisdiction to consider the present dispute in circumstances whereby they were a statutory body exercising statutory duties in the public interest. In such circumstances, they submitted that they were not providing a “service” as defined by Section 2 of the Act, and accordingly, the Complainant does not enjoy standing to being the present complaint.

Regarding the present case, the Complainant has submitted that the Respondent discriminated against him on the grounds of disability in refusing his application for a Housing Assistance Payment. While the Respondent denied this allegation on substantive grounds, they further submitted that the present complaint is misconceived, in that they did not provide a “service” to the Complainantwithin the meaning of Section 2 of the Act to the Complainant.

In this regard, Section 2 of the Act defines “Service” in the following terms,

“…a service or facility of any nature which is available to the public generally or a section of the public…”

In the matter of Beatty v the Rent Tribunal [2006] 2IR 191, the Supreme Court held that the Respondent was immune from certain legal challenges. In this respect, the Supreme Court found that in circumstances whereby the rent tribunal was “a statutory body exercising statutory duties in the public interest”, it was “in no different position from a court” and that in such circumstances, “there are public law remedies in the form of judicial review”.

Thereafter, in the matter of Niese -v- An Bord Plenala DEC-S2015-012, the Equality Tribunal, as it was then, considered the application of the authority cited above to the Equal Status Acts. In this regard, the Tribunal found that,

“…housing and planning are important areas of social integration or social stratification, as the case may be, and the discrimination of persons with protected characteristics under anti-discrimination law can certainly happen in these areas. However, at present any such allegations against the within respondent, i.e. that it discriminated against a person covered by the equality legislation by treating it less favourably than a person outside the protected groups, will have to be canvassed in judicial review proceedings against it.”

Finally, Equal Status Acts 2000-2011, Judy Walsh, 2012 edition, Blackhall Publishing, at page 43 states that,

“In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

In consideration of the foregoing, the relevant question is whether the Respondent is a statutory body exercising statutory duties in the public interest. Regarding the initial portion of the test, it is clear that the Respondent is a statutory body, in particular being governed by the Local Government Act 2001.

Regarding the second part of the test, as to whether the Respondent was, in this instance “exercising statutory duties” the matter is again uncontroversial. In this respect, it is noted that Section 39(1) of the Housing (Miscellaneous Provisions) Act 2014, provides that,

“A housing authority may…provide housing assistance to a qualified household in accordance with this Part.”

Subsection 2 of the provision cited above sets out a number of criteria that many be taken into account by the relevant housing authority, including the requirement for the existence of a tenancy “in good faith”- the issue in dispute regarding the present complaint. In this regard it is common case that the Respondent is a “housing authority” for these purposes.

In relation to the final part of test, the requirement that these duties are exercising the public interest, the issue was considered at some length by the Supreme Court in the matter of Beatty -v- Rent Tribunal. In considering this issue, Geoghan J. held that,

“Even though the Rent Tribunal (the appellant) is a tribunal which essentially determines rent disputes as between private parties it is a statutory body exercising statutory duties in the public interest. In these circumstances, I am quite satisfied that provided it is purporting to act bona fide within its jurisdiction it enjoys an immunity from an action in ordinary negligence. (I will comment later on the issue of immunity in respect of misfeasance in public office). In this respect it is in no different position from a court whether such court be traditionally categorised as “superior” or “inferior”

While it is the case that the exemption sought by the Respondent has been upheld in this forum on numerous occasions, it is noted that on these occasions the matter related to a tribunal or quasi-judicial entity exercising their statutory authority. Examples of the same include the Residential Tenancies Board in Complainant -v- Residential Tenancies Board ADJ-00026772, the Medical Council in Complainant -v- The Medical Council ADJ-00046550 and the Labour Court in A Legal Representative -v- A Chairman of the Labour Court ADJ-00042833. 

The application of the exemption to a statutory body was considered at some length in the matter of Jaroslaw Sutowicz -v- Office of the Ombudsman ADJ-00033044. Here, the Adjudication Officer, following a consideration of the extract from Beaty, cited above, held that,

“I accept that arising from the underlined section above it could be argued that any statutory body when it exercises a statutory duty in the public interest and which acts with bona fides, may be immune from a negligence (and by extension an ESA) suit.

However I consider that such an interpretation would be to over-expand the dicta of Geoghegan J. whose observations can only be read in the context of the quasi-judicial nature of the RTB, which is an adjudicative body that determines enforceable legal rights, which the Respondent does not.

I am not persuaded that that a public body, simply because they are charged with a statutory function to investigate a complaint, is immune from suit because they have a statutory duty to investigate.

Why not? Because if that were the case, that would severely limit the remedial purpose of the ESA the prevention of discriminatory conduct including by State service providers when they are involved in statutory administrative review processes.”

In this regard, it is noted that the creation of “public interest” arising from the test outlined above, has been limited to decision arising from administrative tribunals or quasi-judicial entities and does not extend to any decision from an emanation of the state taken under particular a legislative provision, subject to the exemption provided by Section 14, which will be discussed below.

In considering this application, I am mindful of the authority of G -v- Department of Social Protection [2015] IEHC 419. Here in considering the application of the Act generally, O’Malley J. stated that,

“...the Act is intended to cover a broad range of human life and activity, and that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally.”

If I were to accede to the Respondent’s application in this regard, it would be apparent that any decision created by virtue of a statutory provision by a body itself created by statute would be exempt from the Act. In effect, this would create a situation whereby any decision of an emanation of the state would fall outside of the scope of the Act, with the only recourse to an application being an application to the Superior Courts by way of Judicial Review.

Regarding the present case, it is noted that the Respondent is seeking to exempt itself on the basis that it is “a statutory body exercising statutory duties in the public interest” and that it is “in no different position from a court”. However, having regard to the factual matrix presented by the parties, it is apparent that the Respondent did not offer any of the procedural fairness expected of tribunals or quasi-judicial bodies. While the Complainant was entitled to make a submission to the Respondent, there was no hearing in relation to the matter, no opposing argument was put to the Complainant, the Complainant did not have an opportunity to meet, much less identify, the decision maker and there was no right of appeal of the decision. These observations are not in the way of criticism or a failure on the part of the Respondent, rather it is apparent that the Respondent has no ability to provide such a process to an applicant.  In this regard it can be seen that the Respondent is seeking to exempt itself from the Act on the basis of a quasi-judicial authority, without providing to the Complainant any of the protections normally associated with such a process.

By submission, the Respondent also sought to rely on the exemption outlined in Section 14(1)(a) of the Act which prohibits, “the taking of any action that is required by or under – (i) any enactment or order of the Court”. It was submitted that the above-mentioned provision provides a complete defence to any allegation that the Respondent’s practice is discriminatory, as the practice must be viewed within the statutory framework within which the Respondent operates.

I note that in his commentary on Section 14(a) of the Equal Status Act 2000 in the Annotated Statutes for 2000 by TJ McIntyre (at page 8-28), the author states that,

“This exception covers actions which are required to be taken by or under statute, court order, European Union Law or International Convention. Two limitations must be noted in relation to its scope. In the first place, it is limited to actions which are required by the relevant laws. Consequently, it would not appear to apply where, for example, a statute authorises discriminatory treatment in a way which is permissive but not mandatory. Secondly, the exception as far as it relates to domestic law, is limited to actions required by or under “any enactment or order of a court”. This wording makes it clear that the exception does not apply to discrimination provided for under administrative schemes or departmental circulars unless and insofar as these have statutory underpinning.”

Section 2 of the Interpretation Act 2005 defines an “enactment” as “an Act or a statutory instrument or any portion of an Act or statutory instrument”.

The application of Section 14(1)(a) was considered by the High Court in the matter of G -v- Department of Social Protection [2015] IEHC 419. Here, O’Malley J. stated that,

“In the proceedings as constituted before this court, the only legal standard by which she can make that claim is the standard set by the Equal Status Act. Since both are Acts of the Oireachtas, embodying policy choices made by the legislature, it is not open to a court to make a finding of unlawfulness in one on the basis of the policy of the other. There has been no assessment of the constitutionality of the choices made in the social welfare code, which would be the only legitimate basis for such a finding.”

O’Malley J. went on to state that complaints regarding an alleged deficiency in separate legislation,

“…raises the problem of whether the Equal Status Act can be relied upon in this fashion, to find that there is discrimination contrary to that Act embodied in another Act. In my view it cannot, whether by this court, or by the Equality Tribunal acting as the body primarily charged with dealing with complaints under the Act.”

More recently, in the case of A.B. -v- Road Safety Authority [2021] IEHC 217, in considering an allegation of discrimination arising from the Respondent’s failure to issue a driving licence, the High Court found that,

“The Court finds that the actions of the Respondent as they relate to the Appellant are required by legislative enactment and cannot be the subject of an adverse finding pursuant to the Equal Status Acts. The Court therefore agrees with the Respondent that the complaint under the Equal Status Acts made herein is misconceived as to what is in issue, which is the meaning and effect of the statutory enactments and not the individual treatment of the Appellant by the Respondent”.

As set out above, the relevant section relied upon by the Respondent is Section 39(1) of the Housing (Miscellaneous Provisions) Act 2014. This section provides that,

“A housing authority may…provide housing assistance to a qualified household in accordance with this Part.”

Section 39(2) goes on to provide that,

“In order for housing assistance to be provided under this Part to a qualified household in respect of a dwelling—

…

(e) the housing authority shall be satisfied that the tenancy concerned is or would be a tenancy in good faith.”

For reasons outlined above, the Respondent found that the Complainant’s tenancy with the Respondent was not “a tenancy in good faith” and as such, they declined to provide housing assistance to the Complainant. In this regard, a distinction can be drawn between a provision that provides a mandatory exclusion, such as a limitation based on age, and the above exclusion, which is open to interpretation by the relevant decision maker and may well be influenced by discriminatory factors. While the Respondent came to this decision in consideration of a series of internal guidelines, these are not “enactments” as envisioned by Section 14, and cannot operate so as to exclude the complaint from the provisions of the Act.

In consideration of the foregoing, I find that the Respondent provided a service within the meaning of the Act to the Complainant. I further find that the exclusion set out in Section 14(1)(a) is not applicable to the current complaint.

As a consequence of the foregoing, I accept jurisdiction to consider the substantive dispute. 

Regarding the present case, the Complainant has submitted that the Respondent discriminated against him on the grounds of disability in refusing his application for a Housing Assistance Payment. At the outset of the hearing, in response to the Respondent’s application in respect of potential res judicita, the Complainant, via his representative, confirmed that the present complaint relates to two allegations of discrimination. Firstly, the Complainant submitted that the Respondent discriminated against by declining his application for a Housing Assistance Payment on the grounds of a failure to demonstrate a tenancy in good faith. Secondly, the Complainant submitted that his removal from the Respondent’s housing list constituted a further act of discrimination or victimsation.

In this regard, Section 5(1) of the Act provides that,

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 2 of the Act defines “service” as follows,

“a service or facility of any nature which is available to the public generally or a section of the public”

Section 3(1)(a) of the Act provides that discrimination shall be taken to occur 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)”

Section 3(2)(g) specifies the following as such a ground,

“…that one is a person with a disability and the other either is not or is a person with a different disability”.

Section 38A of the Act 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.

In the case of Olumide Smith -v- The Office of the Ombudsman [2020] IEHC 51, Simmons J. stated that,

“The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”

In the present case, it is accepted that the Complainant is a person with a disability as defined by the Act.

Regarding the initial allegation of discrimination, the Complainant has submitted that the Respondent’s refusal of his housing assistance application was a discriminatory act. In this regard, he submitted that the Respondent’s finding, that he had not been engaged in a tenancy in good faith, was discriminatory on the grounds of his disability. He submitted that as a person with a disability, he encountered significant difficulty in providing one year’s history of rent payment as required by the council. He further submitted that the council had previously refused the application on the basis that he did not provide sufficient evidence of a bona fide tenancy. When that issue was rectified, the Respondent then created this further barrier to the Complainant’s application.

By response, the Respondent submitted that in considering any application for HAP, they refer to a set of guidelines prepared for this purpose. In this regard, one of the prerequisites to demonstrating a tenancy in good faith between family members was proof of the payment of rent for a period of time. While the Complainant did register the tenancy with the RTB as required, he also had to fulfil this obligation prior to being awarded the benefit. In this regard, the Respondent submitted that the Complainant was treated no differently to any other applicant, and it was absolutely denied that he was discriminated against in any manner.

Form the factual matrix presented by the parties, it is apparent that the Complainant’s application for a Housing Assistance Payment was refused by the Respondent on two separate occasions. On the first such occasion, the refusal was grounded that the Complainant had not provided sufficient evidence of a bona fide tenancy at the address. This refusal was referred to this forum as a complaint of disability discrimination and was rejected by way of decision number ADJ-00043415. Thereafter, the Complainant re-submitted his application with further evidence attached. On this occasion, the Complainant was informed that as he could not provide proof of payments of rent, the application would be refused on this basis. On both occasions the Respondent based their assessment on a series of internal guidelines to determine whether a tenancy is one to be deemed in good faith as required by the legislation. As observed in the previous matter, these guidelines apply to all applicants equally and cannot be said, of themselves, to constitute direct discrimination on the grounds of disability.

By virtue of the ES1 form, and his later submission, the Complainant suggested that these guidelines are indirectly discriminatory to a person suffering from a disability. In this respect, the Complainant stated that the nature of his disability was such that was not in a position to discharge rent payments. In response, the Respondent stated that they routinely approve housing assistance payments for disabled persons and that disability of itself is clearly no barrier to being awarded the benefit. In this regard, the Respondent opened numerous, anonymised applications from disabled persons that were deemed to meet the criteria were successful. In this respect, it is apparent that the operation of the guidelines was not indirectly discriminatory towards the Complainant. Rather, the primary issue in relating to the application was that the Complainant resided at a property owned by his parents. In such circumstances, the Complainant has encountered significant difficulties in demonstrating that the tenancy arising from this arrangement was a tenancy in good faith as stipulated by the legislation. While the Complainant, and his parents, hold strong views in relation to the rationale for the refusals, I find the same did not arise by virtue of the Complainant’s disability, and that he was not directly or indirectly discriminated against by the Respondent. 

Having regard to the accumulation of the foregoing points, I find that the initial allegation of discrimination is not well founded.

Regarding the second allegation, the Complainant stated that he was removed from the Respondent’s housing list without notification and without cause. By submission, the Complainant stated that his constituted a form of victimisation for formerly referring a complaint to this forum. By response, the Respondent submitted that the Complainant was removed from their housing list following an inspection of his premises. On foot of said inspection, the Respondent determined that the Complainant’s housing needs were being met, and that on this basis, they removed him from their housing list.

Having considered the factual matrix presented by the parties, it is apparent that for the relevant period for the purposes of the present complaint, the Complainant resided in a property owned by his parents. Both the previous matter referred to the Commission, and the earlier allegation of discrimination outlined in the present decision relate to the difficulties experienced by the Complainant’s parents in having this arrangement classified as a tenancy in good faith that would qualify for a housing assistance payment. This being the case, it is apparent that the Complainant’s parents viewed his residence as being suitable for his needs. From the submission of the Respondent, it is clear that once they view a person as being adequately housed, they remove the individual in question from their housing list. Such a process is far from discriminatory or the basis for a complaint of victimisation but rather represents the Respondent sensibly reserving their limited funds for those persons in most need.

In consideration of the above, I find that the removal of the Complainant from the Respondent’s housing list did not represent an act of discrimination or victimisation.

I find that the Respondent did not engage in prohibited conduct as defined by the Act.

Exclusion, Public Interest, Section 14, Disability Discrimination

Complainant

Respondent

Parties

Michael  O'Connell

Meath County Council

Representatives

Ms. Jacqueline O'Connell

Mr. David McEntee, Regan & McEntee Solicitors  

Act

Complaint Reference No.

Date of Receipt

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

CA-00062165-001

12/03/2024

On 12th March 2024, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent discriminated against him on the grounds of disability by failing to award a housing assistance payment to him. In denying this allegation, the Respondent submitted that in considering the Complainant’s application, they abided by the relevant internal guidelines, and that the refusal of the Complainant’s application was in no way influenced by his disability.

A hearing in relation to this matter was convened for, and finalised on, 13th September 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing, same were expanded upon and contested in the course of the hearing. Given the nature of the application, no sworn evidence was called by the Complainant, while a representative for the Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

At the outset of the hearing, the Respondent raised two preliminary issues as to jurisdiction. Firstly, the Respondent submitted that the complaint had been previously decided in this forum and the Complainant should be estopped from presenting the present complaint. By response, the Complainant, via his representative, confirmed that the present dispute relates to a different set of facts that occurred during a different cognisable period. On foot of this clarification, the matter proceeded on the basis that these were the sole grounds to be relied upon in the hearing. In addition to the foregoing, the Respondent stated that they did not provide a service to the Complainant as defined by Section 2, and as such the Complainant did not enjoy standing to being the present complaint. Given the nature of this application, the same will be considered following a summary of the substantive matter.

By submission, the Complainant’s mother, on his behalf, stated that he was a young person with physical and intellectual disabilities. Given the nature of the Complainant’s disabilities, he was accepted on the Respondent’s housing list from 11th September 2021.

In July 2022, the Complainant moved to rented accommodation and made his first application for Housing Assistance Payment (HAP). Both this application, and a subsequent application dated 8th May 2023 were declined by the Respondent. Thereafter, in September 2023, the Complainant was removed from the Respondent’s housing list.

By submission, the Complainant, via his representative, stated that the Respondent had discriminated against him in numerous ways. In particular, he stated that disabled persons, and in particular disabled persons that are unable to work, encounter extreme difficulty in securing tenancies as required by the County Council. Notwithstanding the same, they submitted that the requirement for one year of rent payments represents a further discriminatory barrier in this respect. They submitted that these requirements do not have a legislative basis, but arise from a series of guidelines which have no binding legal status. The Complainant further stated that the Respondent’s practice of writing directly to him is discriminatory given the nature of his disability. The Complainant further stated that no process was following in removing the Complainant from their housing lists.

Regarding the preliminary issue raised by the Respondent, the Complainant accepted that while the Respondent is performing a statutory function, the basis for their refusal of his application his removal from the housing list was not prescribed by statute but was instead a decision arrived at by the Respondent. In this respect, the Complainant submitted that these decisions were discriminatory in nature, and on this basis the Complainant sought to ground his complaint under the Act.

By response, the Respondent accepted much of the factual matrix presented by the Complainant. In this regard, they accepted that the Complainant made an application for a HAP payment. This application was refused on 5th July 2022 on the basis that the Complainant was engaged in a tenancy with a family member  that had been registered with the RTB. This decision was challenged under the present legislation, in this forum. By way of decision dated 12th June 2023, the relevant Adjudicator found that this decision was did not constitute discrimination on the grounds of disability.

Thereafter, on 9th May 2023, the Complainant, via his parents, made a renewed application for a HAP payment. While it was apparent that the Complainant’s tenancy had, at this juncture, been registered by with the RTB, it was apparent that no evidence of rent payments for the previous 12 months were provided, as required by the relevant guidelines.

In August 2023, the Complainant’s housing applications were reviewed. Following a review of the Complainant’s documentation, and a visit to the Complainant’s premises, an agent of the Respondent formed the view that the Complainant was adequately housed, and that the Respondent could not provide more suitable accommodation in the circumstances. In September 2023, the Complainant was removed from the Respondent’s housing list.

By submission, the Respondent stated that Section 39(2)e of the Housing (Miscellaneous Provisions) Act 2014 provides that in order for HAP to be awarded, the Respondent must be satisfied that the “tenancy concerned is or would be tenancy in good faith”. In this regard, the Respondent submitted that the Complainant resided in a property owned by his parents. Regarding the refusal of the HAP payment in the first instance, it was apparent that the purported “tenancy” was not registered with the RTB. Regarding the second application, it was apparent that the purported tenancy had not been in existence for a period in excess of twelve months.

Notwithstanding the foregoing, the Respondent raised a preliminary issue as to jurisdiction. In particular, the Respondent submitted that the Commission has no jurisdiction to consider the present dispute in circumstances whereby they were a statutory body exercising statutory duties in the public interest. In such circumstances, they submitted that they were not providing a “service” as defined by Section 2 of the Act, and accordingly, the Complainant does not enjoy standing to being the present complaint.

Regarding the present case, the Complainant has submitted that the Respondent discriminated against him on the grounds of disability in refusing his application for a Housing Assistance Payment. While the Respondent denied this allegation on substantive grounds, they further submitted that the present complaint is misconceived, in that they did not provide a “service” to the Complainantwithin the meaning of Section 2 of the Act to the Complainant.

In this regard, Section 2 of the Act defines “Service” in the following terms,

“…a service or facility of any nature which is available to the public generally or a section of the public…”

In the matter of Beatty v the Rent Tribunal [2006] 2IR 191, the Supreme Court held that the Respondent was immune from certain legal challenges. In this respect, the Supreme Court found that in circumstances whereby the rent tribunal was “a statutory body exercising statutory duties in the public interest”, it was “in no different position from a court” and that in such circumstances, “there are public law remedies in the form of judicial review”.

Thereafter, in the matter of Niese -v- An Bord Plenala DEC-S2015-012, the Equality Tribunal, as it was then, considered the application of the authority cited above to the Equal Status Acts. In this regard, the Tribunal found that,

“…housing and planning are important areas of social integration or social stratification, as the case may be, and the discrimination of persons with protected characteristics under anti-discrimination law can certainly happen in these areas. However, at present any such allegations against the within respondent, i.e. that it discriminated against a person covered by the equality legislation by treating it less favourably than a person outside the protected groups, will have to be canvassed in judicial review proceedings against it.”

Finally, Equal Status Acts 2000-2011, Judy Walsh, 2012 edition, Blackhall Publishing, at page 43 states that,

“In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

In consideration of the foregoing, the relevant question is whether the Respondent is a statutory body exercising statutory duties in the public interest. Regarding the initial portion of the test, it is clear that the Respondent is a statutory body, in particular being governed by the Local Government Act 2001.

Regarding the second part of the test, as to whether the Respondent was, in this instance “exercising statutory duties” the matter is again uncontroversial. In this respect, it is noted that Section 39(1) of the Housing (Miscellaneous Provisions) Act 2014, provides that,

“A housing authority may…provide housing assistance to a qualified household in accordance with this Part.”

Subsection 2 of the provision cited above sets out a number of criteria that many be taken into account by the relevant housing authority, including the requirement for the existence of a tenancy “in good faith”- the issue in dispute regarding the present complaint. In this regard it is common case that the Respondent is a “housing authority” for these purposes.

In relation to the final part of test, the requirement that these duties are exercising the public interest, the issue was considered at some length by the Supreme Court in the matter of Beatty -v- Rent Tribunal. In considering this issue, Geoghan J. held that,

“Even though the Rent Tribunal (the appellant) is a tribunal which essentially determines rent disputes as between private parties it is a statutory body exercising statutory duties in the public interest. In these circumstances, I am quite satisfied that provided it is purporting to act bona fide within its jurisdiction it enjoys an immunity from an action in ordinary negligence. (I will comment later on the issue of immunity in respect of misfeasance in public office). In this respect it is in no different position from a court whether such court be traditionally categorised as “superior” or “inferior”

While it is the case that the exemption sought by the Respondent has been upheld in this forum on numerous occasions, it is noted that on these occasions the matter related to a tribunal or quasi-judicial entity exercising their statutory authority. Examples of the same include the Residential Tenancies Board in Complainant -v- Residential Tenancies Board ADJ-00026772, the Medical Council in Complainant -v- The Medical Council ADJ-00046550 and the Labour Court in A Legal Representative -v- A Chairman of the Labour Court ADJ-00042833.  

The application of the exemption to a statutory body was considered at some length in the matter of Jaroslaw Sutowicz -v- Office of the Ombudsman ADJ-00033044. Here, the Adjudication Officer, following a consideration of the extract from Beaty, cited above, held that,

“I accept that arising from the underlined section above it could be argued that any statutory body when it exercises a statutory duty in the public interest and which acts with bona fides, may be immune from a negligence (and by extension an ESA) suit.

However I consider that such an interpretation would be to over-expand the dicta of Geoghegan J. whose observations can only be read in the context of the quasi-judicial nature of the RTB, which is an adjudicative body that determines enforceable legal rights, which the Respondent does not.

I am not persuaded that that a public body, simply because they are charged with a statutory function to investigate a complaint, is immune from suit because they have a statutory duty to investigate.

Why not? Because if that were the case, that would severely limit the remedial purpose of the ESA the prevention of discriminatory conduct including by State service providers when they are involved in statutory administrative review processes.”

In this regard, it is noted that the creation of “public interest” arising from the test outlined above, has been limited to decision arising from administrative tribunals or quasi-judicial entities and does not extend to any decision from an emanation of the state taken under particular a legislative provision, subject to the exemption provided by Section 14, which will be discussed below.

In considering this application, I am mindful of the authority of G -v- Department of Social Protection [2015] IEHC 419. Here in considering the application of the Act generally, O’Malley J. stated that,

“...the Act is intended to cover a broad range of human life and activity, and that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally.”

If I were to accede to the Respondent’s application in this regard, it would be apparent that any decision created by virtue of a statutory provision by a body itself created by statute would be exempt from the Act. In effect, this would create a situation whereby any decision of an emanation of the state would fall outside of the scope of the Act, with the only recourse to an application being an application to the Superior Courts by way of Judicial Review.

Regarding the present case, it is noted that the Respondent is seeking to exempt itself on the basis that it is “a statutory body exercising statutory duties in the public interest” and that it is “in no different position from a court”. However, having regard to the factual matrix presented by the parties, it is apparent that the Respondent did not offer any of the procedural fairness expected of tribunals or quasi-judicial bodies. While the Complainant was entitled to make a submission to the Respondent, there was no hearing in relation to the matter, no opposing argument was put to the Complainant, the Complainant did not have an opportunity to meet, much less identify, the decision maker and there was no right of appeal of the decision. These observations are not in the way of criticism or a failure on the part of the Respondent, rather it is apparent that the Respondent has no ability to provide such a process to an applicant.  In this regard it can be seen that the Respondent is seeking to exempt itself from the Act on the basis of a quasi-judicial authority, without providing to the Complainant any of the protections normally associated with such a process.

By submission, the Respondent also sought to rely on the exemption outlined in Section 14(1)(a) of the Act which prohibits, “the taking of any action that is required by or under – (i) any enactment or order of the Court”. It was submitted that the above-mentioned provision provides a complete defence to any allegation that the Respondent’s practice is discriminatory, as the practice must be viewed within the statutory framework within which the Respondent operates.

I note that in his commentary on Section 14(a) of the Equal Status Act 2000 in the Annotated Statutes for 2000 by TJ McIntyre (at page 8-28), the author states that,

“This exception covers actions which are required to be taken by or under statute, court order, European Union Law or International Convention. Two limitations must be noted in relation to its scope. In the first place, it is limited to actions which are required by the relevant laws. Consequently, it would not appear to apply where, for example, a statute authorises discriminatory treatment in a way which is permissive but not mandatory. Secondly, the exception as far as it relates to domestic law, is limited to actions required by or under “any enactment or order of a court”. This wording makes it clear that the exception does not apply to discrimination provided for under administrative schemes or departmental circulars unless and insofar as these have statutory underpinning.”

Section 2 of the Interpretation Act 2005 defines an “enactment” as “an Act or a statutory instrument or any portion of an Act or statutory instrument”.

The application of Section 14(1)(a) was considered by the High Court in the matter of G -v- Department of Social Protection [2015] IEHC 419. Here, O’Malley J. stated that,

“In the proceedings as constituted before this court, the only legal standard by which she can make that claim is the standard set by the Equal Status Act. Since both are Acts of the Oireachtas, embodying policy choices made by the legislature, it is not open to a court to make a finding of unlawfulness in one on the basis of the policy of the other. There has been no assessment of the constitutionality of the choices made in the social welfare code, which would be the only legitimate basis for such a finding.”

O’Malley J. went on to state that complaints regarding an alleged deficiency in separate legislation,

“…raises the problem of whether the Equal Status Act can be relied upon in this fashion, to find that there is discrimination contrary to that Act embodied in another Act. In my view it cannot, whether by this court, or by the Equality Tribunal acting as the body primarily charged with dealing with complaints under the Act.”

More recently, in the case of A.B. -v- Road Safety Authority [2021] IEHC 217, in considering an allegation of discrimination arising from the Respondent’s failure to issue a driving licence, the High Court found that,

“The Court finds that the actions of the Respondent as they relate to the Appellant are required by legislative enactment and cannot be the subject of an adverse finding pursuant to the Equal Status Acts. The Court therefore agrees with the Respondent that the complaint under the Equal Status Acts made herein is misconceived as to what is in issue, which is the meaning and effect of the statutory enactments and not the individual treatment of the Appellant by the Respondent”.

As set out above, the relevant section relied upon by the Respondent is Section 39(1) of the Housing (Miscellaneous Provisions) Act 2014. This section provides that,

“A housing authority may…provide housing assistance to a qualified household in accordance with this Part.”

Section 39(2) goes on to provide that,

“In order for housing assistance to be provided under this Part to a qualified household in respect of a dwelling—

…

(e) the housing authority shall be satisfied that the tenancy concerned is or would be a tenancy in good faith.”

For reasons outlined above, the Respondent found that the Complainant’s tenancy with the Respondent was not “a tenancy in good faith” and as such, they declined to provide housing assistance to the Complainant. In this regard, a distinction can be drawn between a provision that provides a mandatory exclusion, such as a limitation based on age, and the above exclusion, which is open to interpretation by the relevant decision maker and may well be influenced by discriminatory factors. While the Respondent came to this decision in consideration of a series of internal guidelines, these are not “enactments” as envisioned by Section 14, and cannot operate so as to exclude the complaint from the provisions of the Act.

In consideration of the foregoing, I find that the Respondent provided a service within the meaning of the Act to the Complainant. I further find that the exclusion set out in Section 14(1)(a) is not applicable to the current complaint.

As a consequence of the foregoing, I accept jurisdiction to consider the substantive dispute. 

Regarding the present case, the Complainant has submitted that the Respondent discriminated against him on the grounds of disability in refusing his application for a Housing Assistance Payment. At the outset of the hearing, in response to the Respondent’s application in respect of potential res judicita, the Complainant, via his representative, confirmed that the present complaint relates to two allegations of discrimination. Firstly, the Complainant submitted that the Respondent discriminated against by declining his application for a Housing Assistance Payment on the grounds of a failure to demonstrate a tenancy in good faith. Secondly, the Complainant submitted that his removal from the Respondent’s housing list constituted a further act of discrimination or victimsation.

In this regard, Section 5(1) of the Act provides that,

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 2 of the Act defines “service” as follows,

“a service or facility of any nature which is available to the public generally or a section of the public”

Section 3(1)(a) of the Act provides that discrimination shall be taken to occur 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)”

Section 3(2)(g) specifies the following as such a ground,

“…that one is a person with a disability and the other either is not or is a person with a different disability”.

Section 38A of the Act 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.

In the case of Olumide Smith -v- The Office of the Ombudsman [2020] IEHC 51, Simmons J. stated that,

“The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”

In the present case, it is accepted that the Complainant is a person with a disability as defined by the Act.

Regarding the initial allegation of discrimination, the Complainant has submitted that the Respondent’s refusal of his housing assistance application was a discriminatory act. In this regard, he submitted that the Respondent’s finding, that he had not been engaged in a tenancy in good faith, was discriminatory on the grounds of his disability. He submitted that as a person with a disability, he encountered significant difficulty in providing one year’s history of rent payment as required by the council. He further submitted that the council had previously refused the application on the basis that the tenancy was not registered with the RTB. When that issue was rectified, the Respondent then created this further barrier to the Complainant’s application.

By response, the Respondent submitted that in considering any application for HAP, they refer to a set of guidelines prepared for this purpose. In this regard, one of the prerequisites to demonstrating a tenancy in good faith between family members was proof of the payment of rent for a period of time. While the Complainant did register the tenancy with the RTB as required, he also had to fulfil this obligation prior to being awarded the benefit. In this regard, the Respondent submitted that the Complainant was treated no differently to any other applicant, and it was absolutely denied that he was discriminated against in any manner.

Form the factual matrix presented by the parties, it is apparent that the Complainant’s application for a Housing Assistance Payment was refused by the Respondent on two separate occasions. On the first such occasion, the refusal was grounded on the basis that the Complainant’s tenancy was not registered with the RTB. This refusal was referred to this forum as a complaint of disability discrimination and was rejected by way of decision number ADJ-00043415. Thereafter, the Complainant registered the tenancy, and re-submitted his application. On this occasion, the Complainant was informed that as he could not provide proof of payments of rent, the application would be refused on this basis. On both occasions the Respondent based their assessment on a series of internal guidelines to determine whether a tenancy is one to be deemed in good faith as required by the legislation. As observed in the previous matter, these guidelines apply to all applicants equally and cannot be said, of themselves, to constitute direct discrimination on the grounds of disability.

By virtue of the ES1 form, and his later submission, the Complainant suggested that these guidelines are indirectly discriminatory to a person suffering from a disability. In this respect, the Complainant stated that the nature of his disability was such that was not in a position to discharge rent payments. In response, the Respondent stated that they routinely approve housing assistance payments for disabled persons and that disability of itself is clearly no barrier to being awarded the benefit. In this regard, the Respondent opened numerous, anonymised applications from disabled persons that were deemed to meet the criteria were successful. In this respect, it is apparent that the operation of the guidelines was not indirectly discriminatory towards the Complainant. Rather, the primary issue in relating to the application was that the Complainant resided at a property owned by his parents. In such circumstances, the Complainant has encountered significant difficulties in demonstrating that the tenancy arising from this arrangement was a tenancy in “good faith” as stipulated by the legislation. While the Complainant, and his parents, hold strong views in relation to the rationale for the refusals, I find the same did not arise by virtue of the Complainant’s disability, and that he was not directly or indirectly discriminated against by the Respondent.  

Having regard to the accumulation of the foregoing points, I find that the initial allegation of discrimination is not well founded.

Regarding the second allegation, the Complainant stated that he was removed from the Respondent’s housing list without notification and without cause. By submission, the Complainant stated that his constituted a form of victimisation for formerly referring a complaint to this forum. By response, the Respondent submitted that the Complainant was removed from their housing list following an inspection of his premises. On foot of said inspection, the Respondent determined that the Complainant’s housing needs were being met, and that on this basis, they removed him from their housing list.

Having considered the factual matrix presented by the parties, it is apparent that for the relevant period for the purposes of the present complaint, the Complainant resided in a property owned by his parents. Both the previous matter referred to the Commission, and the earlier allegation of discrimination outlined in the present decision relate to the difficulties experienced by the Complainant’s parents in having this arrangement classified as a tenancy in good faith that would qualify for a housing assistance payment. This being the case, it is apparent that the Complainant’s parents viewed his residence as being suitable for his needs. From the submission of the Respondent, it is clear that once they view a person as being adequately housed, they remove the individual in question from their housing list. Such a process is far from discriminatory or the basis for a complaint of victimisation but rather represents the Respondent sensibly reserving their limited funds for those persons in most need.

In consideration of the above, I find that the removal of the Complainant from the Respondent’s housing list did not represent an act of discrimination or victimisation.

I find that the Respondent did not engage in prohibited conduct as defined by the Act.

Exclusion, Public Interest, Section 14, Disability Discrimination