Complainant

Respondent

Parties

Martha  O'Mahony

Colbert And Co

Representatives

James Colbert

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047058-001

09/11/2021

Correspondence from Adjudication Officer:

This is a case of alleged discrimination on the housing assistance ground as a result of alleged refusal by the Respondent to sign the Complainant’s application for the Housing Assistance Payment/HAP.

On the Complaint Form, the Complainant stated that she had made numerous attempts “to get the landlord’s agent to complete the Rent supplement form” and she cited the Agent as the Respondent to her case. The Complainant identified the Landlord by name and this was verified by the Respondent/Agent. I requested the Complainant and Respondent to provide a postal address for the Landlord and I wrote to the parties to this effect on 20 May 2024 and on 3 September 2024. In my letters to the Respondent I outlined the statutory obligations to cooperate with the WRC as prescribed by the Equal Status Act [2000-2018] – and in particular I highlighted  Sections 33, 34, 35, 36 and 37.  I also provided the parties with my direct email address to facilitate contact from the Landlord. Notwithstanding, I did not receive a postal address for the Landlord from either the Complainant or Respondent.  

The Respondent provided me with an email address for the Landlord on 22 May 2024. As I was aware from the evidence and documentation provided that the Residential Tenancies Board was also involved with the case, I contacted the RTB to obtain the Landlord’s postal address. I received the RTB reply and a postal address on 20 February 2025.

Having obtained an email address for the Landlord from the Respondent and a postal address from the RTB, I wrote to the Landlord on 18 September 2024 and on 26 March 2025 and advised there was a statutory obligation to cooperate with the WRC pursuant to the Equal Status Act [2000-2018] – specifically Sections 34, 35 and 37 of the Act. In addition the Landlord was issued written notification of the adjudication hearing scheduled for 25 August 2025 and a Webex link. There was no response or communication received by the WRC from the Landlord at any stage, he did not attend the adjudication hearing on 25 August 2025 and the written notification letter was returned to the WRC on 18 July 2025.

On 3 April 2024 I wrote to the Respondent and advised that the case can proceed against the Respondent as Agent. On 26 September 2024 I advised the Respondent that I did not propose to remove them as Respondent from the case.

All correspondence sent by the Adjudication Officer was copied to the parties.

Section 21(2) of the Equal Status Act [2000-2018]:

Section 21(2) prescribes that a Complainant 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 the nature of the allegation and the Complainant’s intention to seek redress under this Act. In this regard I note that on her Complaint Form the Complainant identified 5/5/2021 as the date of the first incident of alleged discrimination and 5/6/21 as the most recent date of discrimination. In the course of the adjudication hearing the Complainant referred to an email of 16/3/2021  sent to the Respondent on her behalf by Threshold in connection with her HAP application. The Complainant stated that she unsuccessfully endeavoured to follow up on her application on several occasions. The Complainant stated that she notified her complaint to the Respondent via the ES1 Form on 5/5/21 and that she did not receive a reply. The Respondent raised no issue in relation to the ES1 time frame. In all the circumstances I am satisfied the alleged prohibited conduct was ongoing and that in the circumstances, the ES1 Form was delivered to the Respondent within the two month time limit as provided for at Section 21 of the Equal Status Act [2000-2018].

Section 21(6) of the Equal Status Act [2000-2018]:

Section 21(6)(a) of the Act provides that a claim for redress may not be referred after the end of the period of 6 months from the date of occurrence of the discrimination or, as the case may be, the date of its most recent occurrence. In the instant case the Complainant stated she applied for the HAP payment in March 2021, that she continued unsuccessfully to pursue her application and on her Complaint Form she identified 5/6/2021 as the most recent date of discrimination. From the evidence I am satisfied the Complainant followed up her application on a number of occasions and accordingly I have no reason to doubt the date of 5/6/2021. In the interests of completeness I deem the complaint received by the WRC on 9/11/2021 was submitted within the prescribed six month time limit.

The Complainant stated that she had moved into the apartment in 2015 and was the named tenant. She stated that in 2021 she was living there with her children and her then partner. The Complainant outlined various difficulties including health issues. The Complainant stated that in March 2021 - during the Covid-19 pandemic period - she handed in the completed Rent Supplement Forms to the Respondent’s office and that an official working there stated she would pass the forms to the Respondent. The Complainant’s representative Threshold stated that they emailed the Respondent with regard to the matter on 16 March 2021 but received no reply and sent a follow up email on 28 April 2021. The Complainant stated that she was constantly told the forms would be completed but that this never occurred and that she was given the “run around” after that. The Complainant stated that she was going “back and forth” in an effort to get the forms signed, that she made numerous calls “and got nowhere” and that at one point the Respondent indicated they would not sign the forms as the names of both tenants were not on the form.

The Complainant stated that at the time her rent was €750/month, that her partner was due to pay half until she got the rent allowance and that she would have expected at least €300/month from HAP. The Complainant also stated that the HAP allowance would have been based on the total rent amount.

The Complainant stated that she was issued a Notice to Quit on 22 May 2021 and she outlined her dealings with regard to the termination of her tenancy. She and her family moved out of the property at the end of January 2022.

It is the position of the Complainant that she was entitled to the relevant HAP payment from March 2021 until end of January 2022 and that the failure of the Respondent to furnish her with the completed forms significantly impacted upon her financially and created unnecessary difficulties for her and her family. The Complainant agreed to furnish the relevant HAP amounts post hearing but did not do so.

The Respondent set out his position both in the course of the adjudication hearing and in various emails to the WRC. The Respondent referred to an email of May 2021 in relation to the Complainant’s application for HAP. The Respondent stated that as the Agent it could not sign the forms. The Respondent stated that it was a matter for the Landlord to sign the forms and that at the time the latter considered the tenants were overholding in relation to the tenancy. The Respondent stated that it was the responsibility of the WRC to contact the Landlord and that “As agents we do not have the deciding factor to deny anyone anything and only take instructions from our client”.

It is the position of the Respondent that he was not the Landlord, that he acted solely in a limited capacity as letting agent and that whilst he advised the Landlord to accept the HAP tenancy, he as Agent was bound by the Landlord’s instructions. The Respondent stated that it no longer managed the property or acted on behalf of the Landlord.

The Respondent strongly denied that it discriminated against the Complainant or that it should be liable for any such alleged discrimination. The Respondent further contended they should have no further involvement in the WRC proceedings and should be removed as Respondent. The Respondent also stated that they would not attend the final adjudication hearing on 25 August 2025 unless a formal witness summons was issued.

Section 3(1) of the Equal Status Act [2000-2018] states 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) or, if appropriate, subsection (3B)…..which ­­­---

(i) exists,

(ii) existed but no longer exists,

(iii) may exist into the future, or

(iv) is imputed to the person concerned,….”

Section 3(2) outlines the grounds of discrimination as may occur between any two persons and in that regard, subsection 3(3B) states:

(3B)“……the ground that as between any two persons, that one is in receipt of rent supplement….., housing assistance….. or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”).”

Section 2 (1) of the Equal Status Act [2000-2018] defines “service” as “a service or facility of any nature which is available to the public generally or a section of the public….”

Section 4 of the Equal Status Act [2000-2018] deals with discrimination on the disability ground – and whilst that is not applicable in this case – Section 4(6) of the Act elaborates on the meaning of “provider of a service” as follows:

Section 4(6) —

“provider of a service” means—

(a) the person disposing of goods in respect of which section 5(1) applies,

(b) the person responsible for providing a service in respect of which section 5(1) applies,

(c) the person disposing of any estate or interest in premises in respect of which section 6(1)(a) applies,

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

(e) ……, or

(f)…….,

as the case may be, and “service” shall be construed accordingly…..”

Section 5 (1) of the Equal Status Act [2000-2018] 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 6(1) of the Equal Status Act [2000-2018] deals with the disposal of premises and provision of accommodation and provides as follows:

6.—” (1) A person shall not discriminate in—

(a) disposing of any estate or interest in premises,

(b) terminating any tenancy or other interest in premises, or

(c) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities……”

Section 42 of the Equal Status Act [2000-2018] provides as follows in relation to Vicarious Liability:

1)     “Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

2)     Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

3)     In proceedings brought under this Act against an employer……”

Section 38A (1) of the Equal Status Act [2000-2018] provides as follows in relation to establishing the burden of proof:

“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.”

The import of Section 38A(1) is that it requires the Complainant – in the first instance - to establish facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Accordingly,  the Complainant must first establish a prima facie case of discriminatory treatment and 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 Southern Health Board v Mitchell [2001] ELR 201 – the Labour Court considered the extent of the evidential burden imposed on a Complainant as follows:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In light of the foregoing and having considered all the evidence, submissions and documentation I have come to the following conclusions:

·        I am satisfied the Complainant applied in March 2021 on the relevant forms for the Housing Assistance Payment (HAP) and that she followed up on her application on several occasions. In this regard I have taken on board the email from Threshold to the Respondent of 16 March 2021 and Threshold’s follow up email of 28 April 2021 seeking completion of the HAP documentation and its return to the Complainant;

·        I am satisfied the Respondent did not sign the HAP forms as the Respondent repeatedly made its position clear – ie that it was incorrectly named as Respondent and that in the alternative,  the matter was the responsibility of the Landlord;

·        In everyone’s interests, I endeavoured to contact the Landlord but without success.

In conclusion I am satisfied that once a request has been made to a Landlord to complete a HAP application form, the Landlord is required to take steps to comply with the request. The Respondent accepted that he was responsible for carrying out the Landlord’s instruction. I have no doubt that as a licenced Agent, the Respondent was familiar with the regulations in relation to HAP. I consider that in 2021 - when the Complainant applied for HAP - the Respondent was a provider of a service in accordance with the interpretation of those terms set out in the Equal Status Act [2000-2018] - already outlined.  Accordingly, I consider the Respondent failed and/or refused to fulfil the service of completing the HAP documentation. On this basis, I am satisfied the Complainant has established a prima facie case of discrimination on the housing assistance ground, which prohibited conduct has not been disproved by the Respondent.

In light of the foregoing, I do not propose to consider the issue of  vicarious liability notwithstanding that I have referred to Section 42 of the Equal Status Act [2000-2018].

CA-00047058-001

For the reasons outlined this complaint is well founded. Section 27 of the Equal Status Act [2000-2018] provides that:

(1) Subject to this section, the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or

(b) an order that a person or persons specified in the order take a course of action which is so specified.

(2) The maximum amount which may be ordered by the Director of the Workplace Relations Commission by way of compensation under subsection (1)(a) shall be the maximum amount that could be awarded by the District Court in civil cases in contract”. (ie €15K)

The Complainant submitted that between March 2021 and January 2022 she would have received at least €300/month HAP allowance. The Complainant stated that the failure of the Respondent to complete the HAP application negatively impacted upon her and her family. Having regard to these factors and my findings, I order the Respondent to pay the Complainant €7,500 in compensation for the effects of the prohibited conduct.

Discrimination on the Housing Assistance Ground; Non-Completion of HAP Forms