HAP Discrimination: Information and Case Study
In October 2022, Crosscare and Community Law & Mediation (CLM) had a successful outcome in relation to a discrimination case between a tenant and her landlord. The landlord claimed that his tenant’s flat was in such poor condition and needed repairs carried out, that he could not sign a Housing Assistance Payment (HAP) form. The adjudication officer in the case found that the landlord had discriminated against his tenant under the housing assistance ground of the Equal Status Act.
Discrimination on the housing assistance ground is an alarming practice that can have long terms impacts on a person’s life, including poverty and mental health problems.
At CLM we want to ensure that you know your rights when it comes to accessing HAP and what to do if you are discriminated against when trying to access it.
|Social Housing||Social housing is housing provided by a local authority or an approved housing body to people who are assessed as being eligible and in need of social housing support. .|
|Housing Assistance Payment (HAP)||A form of social housing support.|
|Rent Supplement Scheme||A means-tested payment for certain people living in private rented accommodation who cannot provide for the cost of their accommodation from their own resources.|
|Workplace Relations Commission (WRC)||A public body which hears all industrial relations disputes, disputes about employment laws and disputes about equality issues. The overall objective of the WRC is to deliver a world-class workplace relations service and employment rights framework for employers and employees.|
|Rental Tenancies Board (RTB)||A public body set up to support and develop a well-functioning rental housing sector. It also hears disputes that arise between landlords, tenants and third parties.|
|Discrimination||The unjust or prejudicial treatment of different categories of people, for example on the grounds of race, age, sex, disability, housing assistance etc|
|Adjudication||The investigation procedure in the WRC through which an individual, known as the Adjudication Officer, reviews evidence and arguments, including legal reasoning set forth by opposing parties , to come to a decision which determines rights and obligations between the parties involved.|
What is the Housing Assistance Payment (HAP)?
HAP is a relatively new form of social housing support provided by all local authorities. Anyone with long term housing needs can qualify for HAP.
Under HAP, local authorities will make a monthly payment to a landlord, subject to terms and conditions including rent limits, on a HAP tenant’s behalf. In return, the HAP tenant pays a weekly contribution towards the rent to the local authority. This ‘rent contribution’ is based on the household income.
Do I qualify for the HAP?
Your local authority can determine your eligibility for HAP. Below are the people who can apply for the HAP:
- Any household that qualifies for social housing support, and is not currently housed by their local authority, can apply for HAP.
- Current Rent Supplement recipients who qualify for social housing support will be transferred from Rent Supplement to HAP on a phased basis.
Can my landlord refuse to accept HAP?
Under the Equal Status Acts, it is against the law for your landlord/letting agent to refuse to accept HAP.
You cannot be discriminated against when renting because you are getting Rent Supplement, HAP or any other social welfare payment. This is known as discrimination on the “housing assistance” ground. Discrimination on the “housing assistance” ground may arise if your landlord/letting agent refuses to accept Rent Supplement or HAP, or refuses to complete the necessary forms to enable you to receive Rent Supplement or HAP.
However, in 2021, Threshold reported that discrimination by landlords over HAP had doubled since the first half of 2020.
Case Study: What to do if you are discriminated against while applying for HAP
Our client who will be unnamed due to her refugee status, made a recent complaint with the help of Community Law & Mediation to the WRC as she felt that she had been discriminated by her landlord under the “housing assistance ground” of the Equal Status Acts while applying for HAP. Her landlord refused to sign her HAP form which would have allowed her to transition from the rent supplement payment to HAP.
The tenant wanted to transition from one payment to the other, as she was unable to work above 30 hours on the rent supplement scheme, whereas she could work more hours on the HAP payment. She was eligible for the payment, however, her landlord still refused to sign her HAP form. Our client reached out to Crosscare for assistance and, with the help of CLM, she brought her complaint to the WRC.
In 2018, our client received a letter from the Department of Social Protection which recommended that she could increase her working hours by switching from the rent supplement scheme to HAP. With this opportunity, she began requesting that her landlord sign the forms to allow her to transition from one payment to the other.
Each week when her landlord collected rent, she requested that he sign her HAP form – to which he refused, using excuses such as the flat would need repairs before she could apply for the payment. Her neighbours were served eviction notices so that repairs could be carried out on their flats, but she never received a notice for repairs in her flat. She described her flat as “black with damp” and only minor repairs have been made.
In 2019, she asked her landlord to sign the HAP form again, but her landlord sent her a letter notifying her of a rent increase from €480 to €700 from October 2019, stating that HAP would be “acceptable” from that point onwards. When she sought an increase in rent supplement, the Department of Social Protection refused stating that the actions her landlord were taking were “unlawful” because of the rental cap. Again, her landlord told her that he could not sign the HAP form because of the repairs that needed to be carried out in the flat.
It is evident that between 2018 and 2020, our client had asked her landlord multiple times to sign her HAP form. Each time her landlord refused using excuses, such as, he had lost the form and that the repairs had still not been carried out.
The impact of this prolonged conflict with her landlord resulted in the tenant seeking advice on what she could do in her situation and what her rights as a tenant are.
How to bring a case to the Workplace Relations Commission (WRC)?
If you are bringing a claim under the Equal Status Acts, you will need to first complete and send a Form ES1 to your landlord. This should be sent by registered post within 2 months of the date of the alleged act of discrimination.
Thereafter, you need to fill out the WRC’s online form to submit the claim to the WRC. You must make your complaint to the WRC within 6 months of the date of the alleged breach of the Act. In certain limited circumstances this can be extended by a further 6 months if there is reasonable cause for the delay.
In 2020, Crosscare assisted our client by writing to her landlord giving him 10 days to sign the form, however, the landlord told Crosscare he ‘threw it away’.
Crosscare assisted her with completing an ES1 form, which asked the landlord for an explanation as to why he is refusing HAP. On two occasions the landlord returned the form, marking it with ‘returned not delivered’. Our client attempted to give her landlord this form in person, to which he responded that we would not accept it.
This left our client with little options other than making a complaint to the WRC with the assistance of Crosscare and Community Law & Mediation.
In 2021, our client’s tenancy came to an end following a complaint to the Residential Tenancies Board (RTB). As a result, in the process of making her WRC complaint, with setbacks from the COVID-19 pandemic, our client had lost both financial and housing security.
The WRC found in favour of our client and awarded her €10,000 in compensation. The WRC acknowledged that the case was on the “more serious end of the scale” and “As a direct consequence of the Respondent’s refusal to complete/sign the HAP Form, [our client] was effectively stuck in a poverty trap in sub-standard accommodation”.
By definition, recipients of the HAP are more vulnerable than other members of society. Due to the real and tangible impacts this had on the our client’s life, the WRC Adjudication Officer felt that the award of €10,000 was fair.
The maximum award that can be given is €15,000, however the WRC Adjudication Officer took into consideration that the landlord is a small landlord.
The challenges of bringing a case like this to the Workplace Relations Commission
Although our client who brought her case to the WRC had a significantly positive outcome, it can be difficult for anybody to go through such a process; from her first request for her landlord to sign her HAP form to taking a complaint to the WRC. These obstacles include bringing a claim to the WRC within a very tight timeline, navigating the WRC adjudication process and presenting legal arguments to the WRC.
Our client repeatedly explained the impact of this discriminatory treatment on her life. The Adjudication Officer recognised that she had suffered financial loss, distress, inconvenience and upset As well as this, she is currently living in emergency accommodation where she has explained the impact this has on her mental health.
Statement from Community Law & Mediation:
“Community Law & Mediation welcome this decision from the Workplace Relations Commission and extend our thanks to James Kane BL and Crosscare for their work in achieving this outcome.
This case highlights the devastating and long-terms impacts that discrimination on housing assistance grounds can have on people, including undermining a person’s dignity, their employment opportunities and their ability to fully participate in society. Trends from our free legal advice clinics indicate that discrimination against people in receipt of HAP is systemic, which is preventing people from accessing and maintaining rented homes.
This case also highlights the barriers to justice and the ineffectiveness of the remedy that is available people who have been discriminated against on housing assistance grounds. People who are trying to secure or maintain a rented home face the risk of being made homelessness, and may not be in a position to bring a claim to the WRC for discrimination, particularly without the legal assistance. Furthermore, the redress available (i.e. financial compensation) may not ultimately assist a person in securing or maintaining a home, given the current rental market
In light of the Government’s ongoing review of the Civil Legal Aid Scheme and the equality laws, we are calling for the Civil Legal Aid Scheme to be extended to cover claims of discrimination in the WRC, and for the equality laws to be reformed to provide for interlocutory relief.”
- Mary Heavey, Community Law & Mediation
Statement from Crosscare:
“Crosscare strongly welcomes this decision from the Workplace Relations Commission, which recognises the discrimination against our client by the landlord, which resulted in severe hardship and loss of income.
We want to thank our Community Law and Mediation colleagues for their exceptional work on this case.
The ruling from the WRC confirms the severe breaches of our client’s basic rights and entitlements – to have a decent home and access support to prevent homelessness, sustain her employment and aid her family’s journey out of poverty.
This case highlights the ongoing need for advocacy and support for vulnerable households living through a housing crisis that has created huge inequalities and imbalances, with tenants feeling powerless and afraid of losing their homes.
We spend much time and resources on similar cases where clients are often reluctant to address matters with their landlords. They need much support in negotiating that relationship and navigating an often-complex housing system.
Crosscare Information and Advocacy has a core focus on homelessness prevention and keeping people in sustainable homes. The outcome in this instance demonstrates the impact this service can have regarding housing standards, enabling tenants and encouraging landlords to meet their obligations. In the current challenging times, it is critical that funding for homeless prevention services is a priority.”
- Noel Neenan, Crosscare
How can Community Law & Mediation help me if I am being discriminated against during the HAP process?
Our free legal advice clinics run on a monthly basis and are open to everyone. We provide free legal advice in Ireland in the areas of employment, social welfare, housing, family, child law and environmental justice. General queries are also welcome. So if you are having problems accessing your social welfare entitlements, if you are experiencing problems in the workplace, or if you are afraid of losing your home, we are here to help.
As well as our free legal advice clinics, we provide a free legal advocacy service for individuals who need help accessing their legal rights and entitlements. Additionally, we offer representation including court and tribunal representation in areas of law not catered for by the Civil Legal Aid Scheme.
To avail of our legal services, contact us via our phoneline on 01 847 7804 (Dublin) or 061 536 100 (Limerick) or email firstname.lastname@example.org. We offer phone and in-person appointments.
If you feel that you are being discriminated against, please see our legal and mediation services HERE.