Smith v Copeland

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 04 February 2020
• Neutral Citation: [2020] IEHC 42
• Docket Number: 2018 No. 289 CA
• Court: High Court
• Date: 04 February 2020

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 28 OF THE EQUAL STATUS ACT 2000 (AS AMENDED)

BETWEEN

OLUMIDE SMITH

APPELLANT

AND

MARK COPELAND

RESPONDENT

[2020] IEHC 42

Garrett Simons J.

2018 No. 289 CA

THE HIGH COURT

CIRCUIT APPEALS

Discrimination – Equal Status Act 2000 s. 28(3) – Point of law – Applicant seeking to set aside the findings of fact of the Circuit Court – Whether the applicant disclosed any error on a point of law for the purposes of s. 28(3) of the Equal Status Act 2000

Facts: The appellant, Mr Smith, made a complaint of discrimination to the Workplace Relations Commission. The complaint arose out of an email exchange between the appellant and the respondent, Mr Copeland, in respect of a proposed short-term letting of a residential property. The appellant contended that he was unlawfully discriminated against on the grounds that he proposed to rely on a housing assistance payment to pay for the proposed letting, and on the grounds of race. Both the Workplace Relations Commission and the Circuit Court dismissed this complaint on the basis that the appellant had no real intention of renting the property. The appellant sought to appeal the decision of the Circuit Court to the High Court. Under the relevant legislation, the appeal to the High Court was confined to an appeal on a point of law only. The appeal, as formulated, sought to set aside the findings of fact of the Circuit Court. Instead of issuing an originating notice of motion pursuant to Order 84C of the Rules of the Superior Courts, the appellant instead issued a notice of motion in general terms on 25 July 2018. This motion was, in effect, treated as an application for an extension of time. Thereafter, following the order of the High Court on 21 January 2019 extending time, a second notice of motion was issued dated 4 February 2019. Neither of the two notices of motion identified the point(s) of law to be relied upon.

Held by Simons J that the decision of the Circuit Court of 5 July 2018 did not disclose any error on a point of law for the purposes of s. 28(3) of the Equal Status Act 2000. In reaching this conclusion, Simons J applied the principles identified by the Supreme Court in Stokes v Christian Brothers High School Clonmel [2015] IESC 13.

Simons J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Mr Justice Garrett Simons delivered on 4 February 2020

INTRODUCTION

1 This matter comes before the High Court by way of an appeal from the Circuit Court. The procedural history will be set out in more detail under the next heading below. For introductory purposes, it is sufficient to note that the appeal arises out of a complaint of discrimination which the Appellant had made to the Workplace Relations Commission. The complaint arose out of an email exchange between the Appellant and the Respondent in respect of a proposed short-term letting of a residential property. The Appellant contends that he was unlawfully discriminated against (i) on the grounds that he proposed to rely on a housing assistance payment to pay for the proposed letting, and (ii) on the grounds of race. Both the Workplace Relations Commission and the Circuit Court have dismissed this complaint on the basis that the Appellant had no real intention of renting the property.

2 The Appellant now seeks to appeal the decision of the Circuit Court to the High Court. Under the relevant legislation, the appeal to the High Court is confined to an appeal on a point of law only. It is necessary to emphasise this from the outset of this judgment in circumstances where the appeal, as formulated, seeks to set aside the findings of fact of the Circuit Court. As explained presently, the High Court only has a very limited jurisdiction to review findings of fact on an appeal on a point of law.

PROCEDURAL HISTORY

3 The Appellant made a complaint to the Workplace Relations Commission in respect of an incident of alleged discrimination in connection with the provision of residential accommodation. The discrimination is said to have occurred on 16 February 2017 when the Respondent declined to make a short-term letting of residential premises (“ the Premises”) to the Appellant. The letting was to be for a period of six to eight weeks only, pending the completion of a sale of the Premises to a third party.

4 The principal complaint made is that the Respondent allegedly discriminated against the Appellant by reference to two prohibited grounds as follows: (i) the Appellant intended to pay the rent for the proposed short-term letting by way of a housing assistance payment, and (ii) the Appellant's race. (The Appellant is an Irish citizen, and describes his racial or ethnic origin as Yoruba).

5 The Respondent has explained that the Premises had been owned by him and his sister. The Premises had been put up for sale in December 2016, and, as of February 2017, it was anticipated that a sale of the Premises would be agreed within a short period thereafter. The Respondent decided to offer a short-term letting of the Premises for a period of between six weeks and eight weeks pending the completion of the anticipated sale. The property was advertised on the website “Daft.ie” on 14 February 2017. On 16 February 2017, there was an exchange of emails as between the Appellant and the Respondent. In brief, the Appellant indicated that he would be relying upon a housing assistance payment (“HAP”) to pay the rent. The Respondent indicated that he did not want to “get into” a social welfare scheme for a six-week lease, saying that it would be “way too much hassle”.

6 The email exchange concluded with the following three emails.

“Dear Marc

Acknowledging your frank response but Refusing to accept tenants because of rent allowance is now illegal: As of the 1st January 2016, the Equality (Miscellaneous Provisions) Act 2015 has introduced ‘housing assistance’ as a new discriminatory ground. This means that people in receipt of rent supplement, housing assistance payments or other social welfare payments can no longer be discriminated against in relation to the provision of accommodation or related services or amenities.

Please refer to the attached reference.

Any thoughts?”

7 The Respondent replied to this email as follows.

“Your tone has no ( sic) become threatening – your emails will now be blocked.”

8 The Appellant sent the following reply.

“Please what is your racial or ethnic origin? Mine is Yoruba.”

9 The Appellant's complaint was referred to a Workplace Relations Commission Adjudication Officer. An oral hearing was held on 10 August 2017. The Adjudication Officer made a written decision on the matter on 3 November 2017. The Findings and Conclusions are stated as follows.

“The complainant stated that the local authority would pay the rent and the deposit directly to the Landlord. That is factually incorrect. As is set out on the HAP website

‘If your landlord requires a deposit, you will have to pay this yourself – the local authority will not pay it for you. In some circumstances, you may be eligible to apply for assistance from the Department of Social Protection to help with paying a deposit’

The complainant also stated that he wanted to move out of his current accommodation into the respondent's apartment albeit only for a six week period. However, those in receipt of HAP are required, save in certain specific circumstances to remain in the property for a period of two years.

‘You will be expected to stay in your HAP accommodation for at least 2 years, but in some situations you may be able to apply for a new HAP payment elsewhere – for example, if you are offered a job in another town or if your family grows too large for the property. You will need to contact your local authority if you are thinking of moving’

The complainant was guarded when asked why he was moving from his current accommodation. No evidence was adduced that he had to move due to termination of his current tenancy or anything of that nature. He simply said he wanted to move for personal reasons. The complainant was living in Balbriggan at the material time. He has three children. It is simply not credible, particularly in circumstances were the HAP was not applicable, that he wanted to move out of his home and move his children out of their school, to set up a home in Cherrywood in Dublin 18 for a six week period, when he could stay in the accommodation he was renting in Balbriggan with the assistance of the HAP and with no disruption for his children.

In circumstances where this six week lease did not meet the requirements for the HAP, no evidence was adduced in relation to the complainant having the deposit available and in the absence of any credible explanation as to why he wanted to move out of his current HAP applicable accommodation in Balbriggan to the other side of the city, I find that the complainant had no real intention of renting the respondent's accommodation. It is on that basis that I find that the Complainant was not in fact availing of a service within the meaning of the Equal Status Acts and that his complaint is contrived and disingenuous. In relation to the provision of services, Section 6 (1) ‘A person shall not discriminate in— (c) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities’. In circumstances where the complainant had no intention of availing of the service, the subject matter of his complaint, he cannot rely on that provision of the Act.

No evidence was adduced in relation to the complainant's ‘race’ claim.

In relation to the complainant's harassment claim, he stated that the emailed which stated ‘Your tone has now become threatening – your emails will now be blocked’ he considered to be harassment. No further evidence was adduced in relation to the matter. It is on that basis that I find that the...