Tenant questions contrast at RTB hearing between his treatment, and his landlord’s

Ahead of a hearing before the Residential Tenancies Board (RTB), tenant Peter Byrne realised he had a clash.

His virtual tribunal hearing had been set for 7 December 2021. But that was just a day after Byrne, who is disabled, was scheduled for an MRI with contrast dye.

So, Byrne asked for an adjournment, an email shows.

His GP had told him that he might feel unwell for a few days after the procedure because of the dye, says Byrne. Since he was representing himself at the RTB, he wanted to adjourn the case until he was on better form, he said.

He sent the RTB a doctor’s letter, outlining his medical issues. “I’ve been through a nightmare,” said Byrne, about his health problems.

Byrne is still smarting about what happened then.

The RTB’s tribunal panel refused the adjournment – but then on the day, allowed it, when representatives from his landlord, North & East Housing Association, said they just hadn’t had time to review the case.

The RTB didn’t respond to queries about consistency of decision-making around when adjournments are granted.

What are the rules?

Byrne had initiated the case that was to be heard, arguing that the landlord wasn’t properly maintaining his home.

The doctor’s letter that he gave to the RTB, when he sought the adjournment, listed that he suffered with prostate cancer, and heart palpitations and had had multiple spinal surgeries in 2019 – and that he was due to have an MRI on 6 December.

The RTB’s response by email said that the tribunal panel had decided against granting the adjournment: “While we have the utmost sympathy for this gentleman’s medical condition we are not acceding to the request for an adjournment.”

“The hospital appointment is for the previous day and is almost certainly on an outpatient basis,” it said.

The tribunal went ahead on 7 December. At first, nobody from the housing charity was there. Staff later joined the call and asked for an adjournment which was granted, shows a copy of the tribunal transcript.

RTB procedures say adjournments should only be granted on the day in “very exceptional circumstances”.

“It is not the policy of the Tribunal to cancel or postpone hearings and as such, a minimum of 24 hours’ notice is normally required in the event of any such exceptional circumstances and documentation substantiating the circumstance will be required in order to consider any postponement,” says the procedures.

Byrne says that the housing charity didn’t outline exceptional circumstances. “They disregarded their own rules and procedures. It’s off-the-wall.”

The hearing transcript also doesn’t explain what, if any, exceptional circumstances occurred.

A spokesperson for the RTB said that: “A mediator, adjudicator or tenancy tribunal may also adjourn a hearing to another date specified by it, if it considers it necessary to do so in the interests of justice and fair procedures.”

Byrne says he has filed a case for discrimination with the Workplace Relations Commission.

At the tribunal

On 7 December, the RTB tribunal was convened virtually, according to the transcript.

It was first adjourned until 11am to give the landlord time to appear. “We just need to allow people a little bit of time in case there are technical difficulties or otherwise,” said the RTB chairperson.

But no representatives joined. So, at 11am the hearing began.

As it kicked off, the chair said the RTB had made contact with the landlord and they had said they were unaware the hearing was on, due to staff changes. The case would proceed with no-one from the landlord’s side on the call, the chair said.

The board heard and interrogated Byrne’s evidence. Byrne says the tribunal was about to conclude when the landlord’s representative did log onto the call.

This is page 28 on the 31-page transcript.

“I guess I’m just jumping on at this late stage to say that we are requesting an adjournment just because we haven’t had time to review the documents and the case details,” said a representative of North & East Housing Association.

The chair said that the RTB had informed him that all the documents had been sent to the landlord before the tribunal.

He said he knew that Byrne had requested an adjournment, which was refused. The chair asked Byrne if he objected to the landlord’s request for an adjournment.

Byrne said that he did object. The adjudicators deliberated in private and decided to grant the adjournment.

It was the fairest thing to run it all again on another date, the chairperson said.

“In the circumstances where Mr Byrne has already outlined his case, or the majority of his case and [the representative for North & East Housing Association] has an opportunity on behalf of the landlord to hear that case, we have decided to agree to an adjournment request and the full hearing, have the matter re-heard in full from the beginning,” said the chair.

Said Byrne: “I’d like it noted that I strongly object to the action being taken by the RTB.”

The chair said he noted that objection but that the adjudicators were independent of the RTB.

One of the adjudicators said: “If you just be aware that in the interest of fairness of procedures, the landlords although reasons not caused by anyone but themselves, they’ve only come online now, so they can’t be made aware of the evidence that you have given, because we would have to begin again at the beginning.”

North & East Housing Association hasn’t responded to queries sent on Monday.

Fair procedures

Byrne says the decision-making was unfair.

After all, he was refused an adjournment requested in advance on medical grounds, with supporting documents. While the landlord was granted an adjournment on the day, without giving evidence of exceptional circumstances.

“North and East Housing Association have had ample notice of this hearing,” said Byrne at the tribunal.

“Mr Byrne, we have made our decision,” said the chairperson. “I think it’s proper to do to get a proper fair hearing.”

The tribunal was re-run again on 6 March 2023 and Byrne lost the case.

But, he says, it left him wondering if RTB adjudicators have the legal training to make decisions that can have a major impact on people’s lives “They are delivering life-changing decisions,” says Byrne.

RTB tribunal decisions can only be appealed to the High Court, which is very costly, he says, and most tenants couldn’t afford to take a case.

The RTB spokesperson said that adjudicators are not employees of the RTB but “the Board is required to form a panel of adjudicators as office holders to act as independent decision makers”.

The Public Appointments Service runs an open selection process for these roles, for the RTB.

Legal training is not a mandatory requirement. Candidates can have five years “rental sector experience or decision-making role within a regulatory or dispute/resolution forum”, says the RTB spokesperson.

Or they can have a level 8 qualification or equivalent and two years experience in th rental sector, regulatory or dispute resolution or as a qualified solicitor or barrister, they said.

They are tested on their knowledge of the Residential Tenancies Act 2004 during the recruitment process, says the spokesperson and are paid a flat fee of €616 per day for three hearings or three mediations.