Traveller Law Database
James McCarthy v. Cork City Council ADJ-00018849
|Date of Decision:||Thu, 02 Jul 2020|
|Decision Making Body:||Workplace Relations Commission|
|Law Applied:||Equal Status Acts (2000-2018), Housing (Miscellaneous Provisions) Act 2002, Housing (Traveller Accommodation) Act 1998|
|Keywords:||Discrimination, Gender Discrimination, Refusal of Service, Local Authority, Housing, ES1 Form|
|Full Case Details - Download Full Judgment (pdf)|
The Complainant submitted a complaint against the Council to the WRC arguing discrimination on grounds of gender and membership of the Traveller Community in accessing housing under the Equal Status Acts 2000-2018. The adjudicator found discrimination had occurred based on McCarthy’s membership of the Traveller Community, but not on gender grounds.
Mr McCarthy, a single father with two children, and a Traveller submitted a complaint of discrimination on the grounds of gender and membership of the Traveller Community. At the date of hearing in July 2019, he had been on the housing list for 22 years and 10 months and had been struggling significantly medically throughout.
The Complainant was living in “wholly inadequate accommodation in a damaged caravan on a halting site”. Mr McCarthy had been engaging with the use of a new housing allocation system, Choice Based Letting (CBL).
After meeting with Cork City Council representatives Ms. A and Mr B in May 2018, the Complainant believed he had a 99% chance of securing a house in his desired area. However, by September, he was told by Ms A, that he would not receive an allocation to that property. The basis for this was alleged anti-social behaviour of his special needs son, of throwing stones and intimidation in the area. Mr McCarthy was not aware of the reported behaviour, and no evidence of the behaviour was produced.
Mr McCarthy’s representative asserted that the CBL system lacked transparency and that the Complainant had been denied a housing opportunity in the face of available funds. The Complainant’s representative further submitted that Protected Categories under the Act were not provided for in the CBL system and it was not equality proofed.
Mr McCarthy countered the suggestion that there were purposeful gaps in his efforts to seek housing, which were in reality caused by medical issues limiting his availability to attend the City Council housing unit. He submitted that had he been a female single-parent or a member of a settled family he would not have been left on the housing list for 22 years but agreed to continue engaging with the council to try acquiring housing.
He contended that he had met the burden of proof required in the case of proving discrimination and re-affirmed that meetings were not minuted or documents generated before or after the offer of social housing was managed.
Cork City Council’s (Respondent’s) Case:
The Respondent rejected all claims of discrimination in relation to the provision of goods and services under the Equal Status Acts 2000-2018 and highlighted significant gaps in the Complainant’s application for housing. They argued that the Complainant had been delayed in his engagement with the new CBL scheme until 2017, referencing custody confirmation only being provided by the Respondent by affidavit in September 2017.
The Complainant had also only indicated two areas of interest which had limited the abilities of the Respondent to find suitable accommodation. The Complainant had since been considered for one property out of the 15 bids made, a three-bedroom home in July 2018 and as part of the pre-allocation process, an interview took place. This was followed by a Garda vetting which highlighted the sons alleged anti-social behaviour.
The Council argued this was a standard pre-allocation process and outlined their powers under Section 14 of the Housing Act 1997, allowing them to refuse to make or defer the making of an allocation of a dwelling to a household where the authority considers that the allocation would not be in the interests of good estates management owing to anti-social behaviour.
Ms A, an allocation officer with equality training, and Mr B, a housing officer for seventeen years, had been engaging with the Complainant. Mr B undertook the interview with the Complainant and sought to secure housing outside the area where the son's alleged anti-social behaviour had taken place. He confirmed he had consulted with broader management, but this was not reflected in a written report, nor was there a copy or record of the exchange with the Complainant.
The Respondents met with McCarthy and explained that he had not been refused housing but that he was not successful in this instance and should continue to bid on CBL. The Respondents stated that the CBL scheme acted blindingly to categories and that it was impossible to discriminate against the Complainant.
The Council contended that Section 14 of the Housing (Miscellaneous Provisions) Act, 1997 should bind the Adjudicator in the case as the objection had been issued a communication of “mayhem” from a Garda source. A balancing exercise followed and there was no presumption of discrimination. They also contended that the Housing Scheme was unbiased and that they had acted in accordance with Section 22 of the Housing (Miscellaneous Provisions) Act 2009.
Complaints to the WRC, require a complainant to submit an ES1 form to the Respondent within a two-month period of the instance of discrimination occurring. Here, the Respondents argued that the ES1 that the Complainant had lodged was outside of the 2-month statutory time limit provided by Section 21 of the Equal Status Act 2000-2018. The ES1 had been submitted on the 8th of November 2018, but the meeting referred to by the Complainant concerned the refusal of housing that had taken place on 6 September 2018. The Complainant’s representative acknowledged the time limit raised by the Respondent but requested a relaxation of the time limits considering the ongoing nature of the complaint, as permitted under the WRC submission guidelines
The Complainant submitted he had been discriminated against on grounds of gender and Traveller Community grounds in relation to his seeking allocation of a Council property e.g. discrimination in accessing goods and services under the Equal Status Act 2000-2018 and in particular the protected grounds of gender and membership of the Traveller Community.
On the issue of the time limit, WRC Adjudication Officer Doyle granted a short extension of time in line with the ‘reasonable cause’ clause in Section 21(3)(I) and this had the effect of the case not exceeding 4 months under Section 21(2)(a).
Turning to the substantive issue, the Officer considered the Allocation Scheme dated 24th April 2017 which provides a means for determining the order of priority for allocating dwellings. Criteria included membership of the Irish Traveller Community, current accommodation being unfit for human habitation, medical reasons and physical and sensory needs. Engagement in anti-social behaviour is also identified as a ground to defer the allocation of a dwelling
The Officer noted that there were large gaps in the Complainant’s purported commitment to relocating from his base at the halting site. Neither party could produce a complete record of the attempts made by the Complainant to secure a house. She cautioned that a Court should not direct how policy is applied, “unless a clear error in the decision-making process is established by a disappointed applicant the courts may not intervene to quash the decision that led to that disappointment.”
She found there was a clear error by the lack of medical review taken by the Respondents, and thus the Respondent did not act within its schemes priorities to address medical, psychiatric, and compassionate grounds for housing.
Additionally, she cited the lack of traceability on the documents pertaining to the application. The Respondent referred to the presence of a file in evidence but did not exhibit a record of or minutes of meetings at any level of the Respondent enterprise held with or concerning the Complainant on the offered property in July and September 2018. Officer Doyle found such a lack of transparency worrying.
The lack of traceability of the Garda report was also regarded as unsettling, especially given rise to its prevention of the Complainant receiving housing in his desired area. The Respondent's lack of inquiry and lack of a valid report into the anti-social behaviour, being put to the Complainant for rebuttal was identified as a “defined error on behalf of the Respondent”.
In addition, the communication of the withdrawal of allocation was given orally, without a collateral written script.
The Adjudication Officer found the “shroud of secrecy” in the face of clear denial from the Complainant to be tainted with discrimination, noting the less favourable treatment of the Complainant was directly related to his imputed Traveller Status.
Moreover, the Adjudication Officer found that the withholding of the email purportedly linked to anti-social behaviour by the Complainant’s son constituted less favourable treatment on Traveller community grounds. This was because the Complainant was treated less favourably than a settled person would have been treated. Most notably, it was highlighted that the CBL scheme does not reference police checks as a component of its application protocol. Such conduct amounted to a 14-month delay in the Complainant in securing housing.
In relation to the substantive issue, Adjudication Officer Doyle held that she could not accept that CBL system was equality proofed, given the Complainants application was subject to positive action under Section 6(6) of the Equality Status Acts 2000-2018 and this did not occur.
The Respondent was found to have not successfully rebutted the inference of discrimination on Section 2(i) Traveller Community Grounds. The Complainant was founded to be discriminated against contrary to Section 5 and Section 6 of the Equal Status Acts 2000-2018.
However, the Complainant was not well-founded for discrimination on gender grounds and did not meet the prime facia test.
The Respondents were ordered to pay the Complainant €8,000 in compensation for the effects of the prohibited conduct and to engage in a full review of the CBL scheme to ensure Equality Proofing. This review must occur within three months of the decision and be implemented within 6 further months.