ESA – Discrimination in Housing - IHREC - Irish Human Rights and Equality Commission

What is housing discrimination?

Discrimination in housing means being treated less favourably in regard to housing services than another person has been or would be treated, because you come under one or more “protected grounds” and the other person does not.

The Equal Status Acts 2000-2018 (ESA) make it illegal to discriminate on any of the following protected grounds:

Gender (male, female, transgender, non-binary)
Civil status (single, married, separated, divorced, widowed, in a civil partnership)
Family status (such as pregnant, parent or carer)
Sexual orientation (such as heterosexual, LBGTQ+)
Religion (including religious background and those who have no religious beliefs)
Age (for people aged 18 or over)
Disability (intellectual, mental or physical)
Race (colour, nationality, ethnic or national origin)
Membership of the Traveller community
Receiving rent supplement, housing assistance, or any payment under the Social Welfare Acts

What does the law mean for tenants?

Landlords (and their agents) cannot discriminate against a tenant on any of the grounds listed above when they are:

Letting a property, including choosing a tenant or inviting them to view the home
- For example, if a landlord refuses to show you around a property because you use a wheelchair, it may be discrimination on grounds of disability.
- To take another example, if a letting agent refuses to let you view a property on the landlord’s orders because you are a member of the Traveller community, both agent and landlord are discriminating against you on the grounds of membership of the Traveller community.
Ending a tenancy
- For example, choosing to evict you because you have been recently widowed may be discrimination on the ground of civil status.
Providing services such as repairs
- For example, refusing to carry out repairs on the property because you are an older person may be discrimination on the ground of age.
Dealing with people who get housing assistance payments (HAP) or other forms of social security
- For example, it is illegal to refuse you accommodation because you are receiving or applying for HAP. In a case before the Workplace Relations Commission (‘WRC’), A Tenant v A Landlord, a tenant received a notice of termination two days after they informed their landlord that they were going on rent supplement. This was found to constitute less favourable treatment.
- Similarly, it is also illegal for a landlord to make it difficult for you to get housing assistance, for example by delaying or failing to fill in their section of your HAP application form. The WRC have held that even one unanswered request by the tenant to the landlord to complete the necessary paperwork can be adequate to establish less favourable treatment on the ground of HAP.
Advertising their property
- For example, it is illegal for a landlord to put ‘no gay men’ in an advert because it discriminates on the grounds of gender and sexual orientation.

Discrimination on the basis of housing assistance affects some people more than others, such as people who may already face discrimination in their own right, such as single parents, people with a disability, and members of the Roma or Traveller communities.

Is housing discrimination ever lawful?

Landlords and agents can discriminate in certain limited circumstances.

These include:

Where the landlord lives in the property, and taking in a lodger would affect their private or family life.
- For example, a property owner could refuse to share rooms in their family home with a single mother with children If however, they were letting out part of the house as a self-contained and independently accessible flat or annexe, a refusal to let the property to a single mother with children it may be discrimination. .
Where the accommodation has to be reserved for only one gender to maintain privacy.
- For example, a women’s dormitory in a hostel.
Where the housing is for particular groups specified in the ESA.
- For example, these groups include members of a religious community or residents in a nursing home, a retirement home, a home for people with a disability, or a hostel for homeless people. However, discrimination on most other protected grounds, such as race or civil status, remains illegal.
Where a housing authority needs to arrange accommodation for specific groups of applicants based on any of six criteria:
- Family size
- Family status
- Civil status
- Disability
- Age
- Membership of the Traveller community
- For example, a council can legally reserve large houses for families, or wheelchair-accessible flats for people with disabilities.

Except for the exceptions listed here, it is illegal to treat people differently on any other protected grounds, such as gender or nationality.

How can I complain about discrimination in housing?

If you believe you have been discriminated against in regard to housing, you can complain to the Workplace Relations Commission (WRC).

Must I contact the landlord before complaining to the WRC?

Yes. Before you start a legal case under the Equal Status Acts by making a complaint to the WRC, you must write to your landlord within two months of the latest incident of discrimination. This time limit can be extended by a further 2 months in exceptional circumstances, although this happens very rarely in practice.

You should:

Use the Form ES1 on the WRC website to explain the nature of your complaint.
Inform the landlord you intend to make a complaint to the WRC if you are not satisfied with the landlord’s response.
Send the completed form to the landlord – and keep the certificate of posting or proof of registered post as evidence that you have made the complaint to them.

Failure to first notify your landlord in this way before filing a complaint may result in the WRC refusing to hear your complaint.

What if I get no satisfactory response from the landlord?

If there is no reply from the landlord within one month, or if you are not satisfied with the response you receive, you can file your complaint with the WRC. This should be done using the WRC Complaint Form. You must do this within six months of the last date of discrimination. The WRC may extend this limit for another six months if there is good reason to do so, although this will only be allowed in extremely rare circumstances. As above, a failure to lodge your complaint in time may result in the WRC refusing to hear your complaint.

What if I do not know the landlord’s address?

You can ask the letting agent or estate agent to tell you the address.
If they refuse to tell you, you can send the form to the estate agent. Ask the agent to send it on to the landlord without delay. Bearing in mind the two-month time limit for notification, make sure you send the form to the agent in plenty of time so they that they have time to send it on to the landlord.
The WRC will need proof that you have sent the form to the landlord. They may accept proof that you have posted it to the agent to send on. However, the position is not clear where the agent does not forward it to the landlord.

How will the WRC deal with my complaint?

Before proceeding to a hearing (known as adjudication), you may decide to opt for mediation to resolve your complaint. You can choose mediation first and then adjudication – you cannot do it the other way around.

The WRC and mediation

Mediation is where you and your landlord try to settle your dispute with the help of a neutral mediator. Mediation is confidential. You, your landlord and the mediator are the only people to hear the arguments and nothing is disclosed to anyone else.

The mediator does not take sides. They will let you each state your point of view and will then look for points of agreement. If you can settle your differences, you sign an agreement. If you cannot, you can choose to go on to a WRC hearing.

Example: A tenant who is disabled chooses mediation

A landlord wants to evict a tenant because the tenant’s mobility is getting worse. So the tenant complains of discrimination on the ground of disability. The tenant chooses mediation because it is a confidential way to settle a complaint – and they do not want other people to know about their disability.

The WRC and adjudication

Adjudication involves a hearing chaired by an adjudication officer from the WRC. The adjudication officer investigates the facts of the case. They consider written submissions, hear what you and your landlord have to say, listen to witnesses and decide whether there has been discrimination.

For the hearing, you may choose either to speak on your own behalf or to hire a lawyer. Hearings of the WRC usually take place at their offices in Lansdowne House, Lansdowne Road, Ballsbridge, Dublin 4, but they can also take place around the country for people who live outside of Dublin. They can also take place remotely online.

What submissions should I make to the WRC?

Before a hearing takes place, you should put your arguments in writing as a submission and send it to the WRC.

A submission includes:

What happened i.e. the facts of your case; and
Why you think this incident broke the law on discrimination

When writing your submission, you may find it helpful to look at similar cases that have already been decided. You can see them on the WRC’s Decisions Database.

You can also refer to previous successful cases in your submission to demonstrate that their landlord’s conduct was discriminatory.

What other evidence should I send for my submission?

Include any written evidence related to your case.
For example:
- Your tenancy agreement
- Emails and text messages between you and your landlord (or letting agent)
As soon as possible after an incident of discrimination, write down what happened. Add the date and time you made the note.
Make a note of the names and contact details of anyone who witnessed the incident, if they agree to participate. They may be able to give evidence at the hearing.

If you have difficulty in putting together your submissions, you should ask for legal advice.

When must I send in my submission?

You must send your submission to the WRC at least 15 working days before the date of your hearing, and send a copy to your landlord. Your landlord should do the same with their submission, and send a copy to you. If they do not do this, you can ask to postpone the hearing to a later date to make sure there is time for you and the adjudication officer to consider all the arguments.

Evidence

You must be able to show some evidence of discrimination, in other words a prima facie or at first sight case of discrimination. It is then up to the landlord to show that either they did not discriminate against you or that they had a good reason for doing so.

Example: Illegal tenancy agreement discriminates against single parent families

If a rule in a tenancy agreement states that a flat is not available to single parent families, this is prima facie discrimination on the ground of family status. The landlord has to explain why single parents are unwelcome. If they cannot justify their policy, the adjudication officer will make a finding of discrimination.

What happens after the hearing?

When the adjudication officer has made their decision, they will send it in writing to you and your landlord. They may also publish it on the WRC website. The decision can be appealed within a limited time. The decision becomes final if not appealed.

A landlord who is ordered to stop discriminating will have 56 days to comply. If they continue discriminating, you can apply to the District Court to have the order enforced.

Will my name be made public?

The WRC usually publishes the names of those involved in cases of discrimination. You can ask them not to name you if you have a good reason to stay anonymous – for example, if you are seeking asylum or if the case involved sexual harassment.

There is no charge for making a complaint to the WRC.
If you hire a lawyer to represent you, you must pay their fee. The adjudication officer cannot order either you or your landlord to pay the other’s legal costs.
Legal aid is not currently available for claims under the ESA.

What could the outcome of my case be?

If a WRC adjudication officer finds that a landlord has broken the law on discrimination, they can order the landlord to:

Pay you compensation of up to €15,000 and/or
Take actions to put things right

For example, they could order your landlord to complete the paperwork for your HAP application, or to install handrails if you are disabled.

The landlord has 56 days to comply with a WRC order. If they do not comply, you can ask the District Court to enforce the order.

It can be difficult to enforce the order if the landlord does not attend the hearing and has not given their address.

What is discriminatory advertising in housing?

The law prohibits a landlord or their agent from publishing an advert which shows they intend to discriminate. For example:

‘Rent allowance/housing assistance payments not accepted’
‘Singles only’
‘Over 25s’
‘Men only’
‘Traditional couples only’

Example: Daft.ie forced to stop adverts discriminating against rent allowance tenants

In 2019, IHREC successfully brought a complaint to the WRC against the property website Daft.ie, arguing that adverts on the website discriminated on ground of housing assistance by containing phrases such as ‘rent allowance not accepted.’ The WRC ordered that Daft.ie stop allowing discriminatory adverts on its website, and that a filter should be developed to identify keywords that could discriminate.

How can I complain about discriminatory adverts?

Please send details to us at YourRights@ihrec.ie. IHREC is the only organisation in Ireland that can refer complaints of discriminatory advertising to the WRC. Once you have reported the advert, you will have no further involvement in the case.