Case Number: ADJ-00027729. Workplace Relations Commission.

Docket NumberADJ-00027729
Hearing Date09 October 2020
Date01 December 2020
CourtWorkplace Relations Commission
ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00027729

Parties:

Complainant

Respondent

Parties

Ehab Ebaid

Fidelma Byrne

Representatives

Francesco de Martino, Threshold

Aisling Mulligan, BL

Complaint:

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035553-001

02/04/2020

Date of Adjudication Hearing: 09/10/2020

Workplace Relations Commission Adjudication Officer: Catherine Byrne

Procedure:

This complaint was submitted to the WRC on April 2nd 2020 and, in accordance with Section 25 of the Equal Status Act, 2000, it was referred to me by the Director General. Due to the closure of the WRC because of the COVID 19 pandemic, a hearing was delayed until October 9th 2020. I conducted a hearing on that date and made enquires and gave the parties an opportunity to be heard and to present evidence relevant to the complaint. Mr Ebaid was represented by Mr Francesco de Martino, a housing advisor from Threshold. Ms Byrne was accompanied by her husband and she was represented by Ms Aisling Mulligan BL, instructed by Claudine Hanratty and Company, Solicitors.

Background:

In August 2010, Mr Ebaid and his wife became tenants in a two bedroom property owned by Ms Byrne. The rent at the time was €700 per month.

Mr Ebaid is a chef and in November 2018, when his wife began to suffer from deafness, he had to reduce his hours of work so that he could help to take care of their daughter. Mr Ebaid and his family were approved for the housing assistance payment (HAP) from Dublin City Council and Ms Byrne agreed to accept HAP. In January 2019, the rent was increased from €700 to €800 per month and Mr Ebaid completed the HAP application forms. Ms Byrne did not sign the landlord’s section of the form.

Ms Byrne decided to sell the property and in January 2019, she issued notice to Mr Ebaid to vacate the apartment. As she did not complete a statutory declaration in accordance with Section 34 of the Residential Tenancies Act 2004, this notice was invalid.

A valid notice of termination was issued on December 17th 2019 and Mr Ebaid and his family were required to leave the apartment on July 30th 2020. Mr Ebaid again asked Ms Byrne to agree to his application for HAP, but Ms Byrne said that she received advice that she should not sign the HAP form.

On February 3rd 2020, Mr Ebaid sent an ES1 form to Ms Byrne, claiming that he was discriminated against on the HAP ground. Ms Byrne replied on February 25th and said she was afraid that, if she agreed to the HAP application, she would be “locked in” to a two year tenancy agreement with Mr Ebaid, which would prevent her from being able to sell the apartment.

On March 26th 2020, Ms Byrne wrote to Dublin City Council to inform the HAP section that she wished to support Mr Ebaid’s HAP application regarding the apartment, even though he was due to vacate on July 30th 2020. In the meantime, on April 2nd, Mr Ebaid submitted this complaint to the WRC.

HAP payments commenced for the rent on Mr Ebaid’s apartment in April 2020. He and his family moved out of the apartment on September 15th 2020 and have been fortunate to find another suitable apartment in the same area.

Summary of Complainant’s Case:

On Mr Ebaid’s behalf, Mr de Martino said that the advice that Ms Byrne claims that she received regarding HAP and a tenancy agreement was wrong. The existence of a HAP agreement is not without prejudice to the rights of a landlord as set out in the Residential Tenancies Act 2004 and the fact of a HAP agreement being in place does not prevent a landlord from evicting a tenant. When he was issued with notice to vacate the apartment in December 2019, Mr Ebaid was entitled to remain for a further eight months. He could have benefited from rent assistance during that time. When she would not agree to HAP, Mr Ebaid asked Ms Byrne to reduce the rent, but she refused.

Mr Ebaid claims that he was discriminated against because Ms Byrne did not cooperate with his application for HAP when he was approved for the payment in December 2018. From then, until April 2020, when Ms Byrne began receiving rent in the form of the HAP, this support was denied to him.

Summary of Respondent’s Case:

In her response on the ES2 form sent to Mr Ebaid on February 25th 2020, Ms Byrne said that in December 2018, she wasn’t confident about signing the HAP form and she contacted a solicitor from the Free Legal Aid Centre (FLAC). She said that she was advised “against participating” in the HAP scheme. When, in January 2019, she decided to sell her apartment, Ms Byrne was concerned that she would be locked in to a two-year contract to lease her apartment to Mr Ebaid. Ms Byrne said that she did not anticipate that Mr Ebaid would not be able to pay the rent of €800 per month, which she said, was €700 per month from August 2010 until January 2019.

Summarising her reasons for not agreeing to Mr Ebaid’s HAP application, Ms Byrne wrote:

My reason for not agreeing to HAP is because (1) I don’t know enough about the agreement criteria. The last paragraph of my declaration in the HAP form requests me to seek legal advice. I didn’t fully understand my obligations and the FLAC solicitor advised me not to agree. (2) For health reasons I will cease to be a landlady, therefore I will have no tenants, HAP or otherwise. I’m sorry that Mr Ebaid considers this discriminatory against him.”

At the hearing of this complaint, Ms Byrne provided evidence of treatment she has been undergoing since 2014 for a serious illness. In July 2020, because of her illness, she said that she reduced her working hours from 39 hours to 29.6 hours per week and she provided evidence of this from her employer. She said that she has to reduce stress in her life and this is the reason that she decided to sell the apartment.

In response to a question from me, Ms Byrne said that she can’t explain why it took her so long to agree to the HAP application. She said that, in the beginning, when she was asked about it, she was afraid to sign the form. She said that her illness has affected her cognitive abilities and she has problems with her memory. She said that, to function correctly, she needs a structure...

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