“TENANTS WHO FEEL that landlords are prejudiced against them because the HAP scheme is being used to pay their rent – and where they have good evidence to back this up – should bring the case to the WRC.”

The Workplace Relations Commission (WRC) was established on 1 October 2015, taking over the functions of the National Employment Rights Authority, the Labour Relations Commission and the Director of Equality Tribunal. 

The WRC provides advice on workplace issues to employers and to employees. When disputes arise between both parties, they can bring a case before the WRC’s adjudication service, which investigatives grievances and claims that workers make.

In recent times, however, there has been a rise in tenants taking cases against landlords. For the most part, these cases are taken due to tenants claiming the landlord is discriminating against them in relation to the Housing Assistance Payment (HAP) scheme. 

HAP is a form of rental benefit payment to assist lower-income households.

Under HAP, a tenant’s main rent is paid directly to a landlord, with the tenant paying a differential rent to their local council. The tenants must cover their own deposit, and no rent is paid by the council in advance of them entering the home.

So, if the WRC deals with employer and worker issues, how can landlords and tenants take disputes to the Commission? 

TheJournal.ie has spoken with the WRC’s acting director general Liam Kelly to help break it down. 

“We’re called the Workplace Relations Commission and that’s a very clear ‘what it says on the tin’, but we’re also responsible for equal status and equality issues as well,” Kelly said. 

“For example, our mission statement is around fair and compliant workplace, but also equality treatment in services. It’s very much an arm of what we do.” 

With that, a person can take a case with the WRC if they feel they have been discriminated against under the Equal Status Acts 2000-2015. 

The Equality (Miscellaneous Provisions) Act 2015 has added a 10th ground into the acts – the housing assistance ground. 

These are all the grounds on which discrimination is outlawed by the Equal Status Acts:

• The gender ground
• The civil status ground (formerly marital status)
• The family status ground
• The sexual orientation ground
• The religion ground
• The age ground
• The disability ground
• The ground of race (includes ‘race, colour, nationality or ethnic or national origins’)
• The Traveller community ground
• The housing assistance ground (only in the provision of accommodation)

This is where tenants facing discrimination over HAP come into the picture. 

There are a number of cases over the past year where such cases have been taken before the WRC on these grounds. 

In July 2018, a landlord was ordered to pay €6,000 in compensation to a rent allowance-approved couple after being found to have had seriously discriminated against them. 

Due to the landlord’s refusal to allow the family of six supplement their monthly rent with rent allowance, the family was at a loss of €555 per month or €4,440 during the eight months.

The following August, a woman who claimed that she was discriminated against because she was receiving HAP was awarded €4,200. 

She had claimed that when she told her landlord she was in receipt of HAP, he said he didn’t want to deal with it after having problems with such payments in the past, and she was then told to move out.

And last November, another woman who took her landlord to the WRC over his refusal to accept HAP was awarded €7,000. 

The woman submitted that by refusing to accept HAP, the landlord was treating the family less favourably and putting them at a financial disadvantage, causing them to struggle every month.

Kelly provided an example as to why HAP cases can often be open-and-shut examples: “A prospective tenant might get onto the landlord and say ‘I see you have a place to rent and I’m in the HAP scheme’ and the landlord writes back, and it has happened, and says ‘We don’t take HAP tenants’. 

That’s straight away an indication that there’s clearly, on the face of it, some discrimination taking place. 

What about the Residential Tenancies Board? 

The Residential Tenancies Board (RTB) provides information to tenants, landlords and the general public on their rights and obligations with regards to living and providing accommodation in the rental sector.

Since 2004, the RTB has replaced the courts in dealing with the majority of disputes between landlords and tenants through its dispute resolution service. 

While tenants and landlords bring cases to the RTB on a regular basis when disputes arise, HAP discrimination cases don’t fall under the board’s remit. 

As HAP discrimination cases fall under the Equality (Miscellaneous Provisions) Act 2015, jurisdiction in relation to the hearing of such complaints only lies with the WRC. 

“This means that RTB independent decision-makers do not have jurisdiction to determine whether there has or has not been a breach of the Equality Act, as amended; such power is vested in the Workplace Relations Commission,” the RTB said in a statement. 

The RTB noted that it can, however, proceed to determine on other aspects of a case. This includes notices of termination which may have been served following on from arrears of rent potentially accruing from what a tenant considers discrimination where the landlord refuses to accept HAP.

“It is important for tenants to be aware of this along with the obligation to pay rent even when there is an issue in dispute and, where possible, to attempt to bridge the gap until the WRC matter is processed in full,” the RTB said. 

How does a tenant take such a case with the WRC? 

If a tenant or prospective tenant feels they have been discriminated against over the HAP scheme, there is a number of steps they must take before they can bring a case before the WRC. 

First, they must send a written notification to the landlord containing specific information regarding the alleged discrimination. This must be received by the landlord within two months of the incident in question. 

If the tenant hasn’t received a reply from the landlord within one month, or if they are not satisfied with the reply they have received, they can then make a complaint to the WRC using the complaint form here.

A complaint must be made to the WRC within six months of the incident the tenant is complaining about. 

Once the WRC receives a valid complaint, it will forward a copy to the landlord. The case will then be allocated to an adjudication officer and an adjudication hearing will take place. 

The adjudication officer will then look into the case and provide both parties with the opportunity to be heard by them and to present any relevant evidence for the case. The officer will then make a decision in relation to the complaint, in accordance with the legislation. 

Kelly noted that “very few landlords” have won a case in front of the WRC. 

He said that “unlike most equality issues”, HAP cases are “quite clear cut”. 

Kelly also pointed out that the person taking the case doesn’t have to be a tenant in the property at the time the case is taken, they could be a prospective tenant, too. 

“You could say ‘Look, I’ve seen an ad in the paper and I’m very interested in that place, I’d be hoping to rent it via the HAP scheme’ … you don’t have to be a sitting tenant,” Kelly said. 

“In fact, if you are a sitting tenant and the landlord says ‘I’m going to renovate this place and I’m letting all the tenants go’, but then you subsequently find out that not all the tenants were let go, in fact, only half the tenants were let you, go also have a case in that,” he explained. 

What benefits will a tenant get from taking a case?

Kelly noted that some tenants may be apprehensive of bringing a case to the WRC if they feel they have been discriminated against. 

According to Kelly, around 50% of people who come to the WRC, whether they’re taking a discrimination case over HAP or another issue, represent themselves. 

“No matter who you are you will get a hearing. In these particular cases, it’s fairly clear cut,” he said. 

Usually when an adjudication finds in favour of the tenant, compensation will be given out. 

“It’s never really gone lower than €5,000 where there has or hasn’t been an award for distress,” Kelly said.

“We’re constrained at the upper end because the limits that apply to the district court apply to us. The maximum we can award is €15,000 and we’ve gone very close to it on a few occasions,” he said.

Reflecting on whether tenants who are apprehensive of taking cases should go ahead and do so, Kelly said: “I would recommend that tenants who feel that landlords are prejudice against them because the HAP scheme is being used to pay their rent and where they have good evidence to back this up, should bring the case to the WRC. 

“Many such cases where there is clear evidence have been successful to date.”

Tenants or prospective tenants who feel they have been discriminated against can find more details about taking cases with the WRC here.