Two Complainants (represented by the Free Legal Advice Centre) V The Department of Education and Science
1. Dispute
1.1 The two complainants in this case, from different non-EU countries, submitted separate complaints of discrimination against the Department of Education and Science on the nationality ground. For various reasons given at the Hearing, the complainants asked that they not be identified in the Decision. The respondents indicated that they had no difficulty with this request. The complainants maintain that they were discriminated against on the race ground in terms of sections 3(1) and 3(2)(h) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainants' Case
2.1 The complainants state that they separately applied for maintenance grants from their local Vocational Education Committees under the Department of Education and Science's Post Leaving Certificate Maintenance Grant Scheme but were refused because they did not hold EU nationality or have official refugee status. The complainants maintain that they were refused these grants because of their race.
3. Summary of Respondent's Case
3.1 The respondents totally rejected that they deliberately discriminated against the complainants and pointed to the fact that they were both deemed ineligible for a grant under a "nationality" clause which had been part of the scheme for a number of years.
4 Delegation under the Equal Status Act, 2000
4.1 These complaints were referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated these complaints to myself, Brian O'Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
5.1 Preliminary Issue
The complaint from Mr A was received in this Office on 17 September 2001 and specified 13 March 2001 as the last date of discrimination. As this exceeded the 6 month deadline stipulated in Section 21(6) of the Equal Status Act 2000, the complainant was asked to outline the "exceptional circumstances" which prevented the complainant's case from being referred within the time limit specified. In support of his case, the complainant made the following points:
- 13 March 2001 was specified as the date of discrimination because it was on that date that the Department confirmed to Mr A that the "non EU-nationals" policy was still in existence and that there were no appeal procedure in place under which he could appeal the VEC's original 1999 decision to refuse him a grant
- This date, 13 March 2001, cannot, however, be regarded as the definitive date of discrimination as the policy to refuse grants to non-EU nationals is still in place.
- The submission of the complaint to the ODEI was delayed while legal advice and further clarification from the Department was being sought.
- The complaint was ready for submission within the 6 month deadline. However, the exceptional events in America on 11 September 2001 led to heavy demands on Mr A's time, because of the nature of his work, preventing him from lodging the complaint until 17 September.
Evidence of Complainant Mr A
- Mr A has resided in Ireland since 1987. By 1999 he had achieved "long term residency" status in Ireland but was not an Irish passport holder.
- In 1999, he applied to the VEC for a maintenance grant to attend a Post Leaving Certificate (PLC) medical course
- His application was turned down as he did not fulfil Clause 4.4 of the scheme which states that "Candidates must hold EU nationality or have official refugee status or have been granted humanitarian leave to remain in the State"
- Mr A enquired as to how he could appeal the decision but was told verbally that no appeal mechanism was in place
- Mr A estimates that the grant would have been in the region of £1600 (€2000) at the time
- Mr A attended the medical course for the year as no fee was payable for the course. He did not, however, sit the exams as he had not got the £500 exam fees required.
- Mr A did not reapply for a grant in 2000 as he knew that the same criteria still applied with regard to nationality. He did, however, attend the second year of the medical course but again did not sit the final exams for financial reasons.
- Mr A did not submit a fully completed grant application for 2001/2002 nor did he attend any course
- During this period, Mr A continued to correspond with the VEC and the Department of Education in the matter and finally received a letter dated 13 March 2001 from the Department confirming that no appeal mechanism was in place.
- Mr A applied for Grant in Summer 2002 for a course in Trinity College
- In December 2002, the Department of Education informed the VEC that he was now regarded as eligible, notwithstanding the existing nationality clause, and that the grant could be paid if he satisfied all other conditions
- On satisfying the VEC that he met the other eligibility requirements, he was awarded a Grant for 2002/2003
- Mr A maintains that, as Clause 4.4 is still a part of the maintenance grant scheme, the Department is still operating a policy of discrimination against non-EU nationals.
- As the Department's policy is ongoing, Mr A contends that his complaint about the refusal of a grant in 1999 is admissible.
- Mr A is not pressing for compensation but is seeking confirmation that the Department's actions were discriminatory.
Complainant Mrs B
- Mrs B came to Ireland in 1993 to join her husband who had become an Irish national
- Mrs B herself became naturalised in 1998 and obtained her own passport in 2001
- In 1999, Mrs B applied for and was awarded a maintenance grant by the VEC to attend a child care diploma course.
- The grant was paid in monthly instalments and Mrs B received £1314 up to March/April 2000
- At that point, she was suddenly told verbally by the VEC that she had inadvertently been awarded a grant for which she did not qualify under Clause 4.4.
- No further monthly payments were issued and Mrs B was verbally asked to refund the £1314, which she was unable to do
- This caused her much hardship as she had to financially support herself in completing the diploma course. She was also very embarrassed and suffered stress over being told that she owed money to the VEC
- Prior to the commencement of the 2000/2001 academic year, Mrs B enquired as to whether she would qualify for a grant to attend an IT course and was verbally told by the VEC that she did not qualify under Clause 4.4
- In Oct 2000, Mrs B says she received written confirmation from the VEC that her application for the IT course grant "could not be processed" until such time as she could show that she met all the requirements under the scheme (a copy of this letter has not been produced). As she knew that Clause 4.4 was still in place, she says that did not pursue the matter further.
- On 24 November 2000, Mrs B finally received written confirmation from the VEC that she was not entitled to the grant she had been awarded in 1999 and asking her to refund the £1314 paid. Mrs B did not refund the money paid as she had not got the resources to do so
- In 2001, Mrs B became an Irish national in her own right. She then applied for, and was awarded, a further maintenance grant for the 2002/2003 academic year.
- Mrs B claims that she was discriminated against on the grounds of her nationality in having her grant for the 1999/2000 year withdrawn.
- Mrs B claims that this act was covered by the Equal Status Act 2000 (which came into force on 25 October 2000) in that she was not officially told in writing of the VEC's decision until 24 November 2001.
- Mrs B also maintains that, as Clause 4.4 is still a part of the maintenance grant scheme, that the Department is still operating a policy of discrimination against non-EU nationals which negates any allegation that her complaint about a grant for the 1999/2000 academic year, may be time-bound
Evidence of Respondents
- The respondents indicated that they had no strong contention as to whether or not Mr A's complaint was lodged within the 6 months stipulated in the Equal Status Act 2000.
- PLC maintenance grant schemes have been in operation since 1995. Clause 4.4, regarding nationality, has been part of the schemes all along.
- The criteria under which the Grant Scheme is operated are not set down in legislation and, therefore, do not come under Section 14 of the Equal Status Act 2000.
- In late 2001, a Special Project Team was established to carry out a fundamental review of the Student Support Schemes administered by the VECs.
- As part of this review, the Team were asked to examine Clause 4.4 regarding nationality.
- The submission of the Team's draft report to the Minister was delayed by the 2002 General Election. This report is expected to go before the new Minister for Education in 2003.
- For policy reasons, the respondents are not in a position to disclose any of the proposals contained in the report at this point.
- The respondents argue that both complaints are not admissible as they both refer to decisions made prior to the coming into force of the Equal Status Act on 25 October 2000
- In the case of Mr A, his application was rejected in 1999
- In the case of Mrs B, it was discovered, in March 2000, that she had inadvertently been awarded a grant and she was informed that she would have to refund the money already paid
- Fresh Grant Schemes are published before the beginning of each academic year
- PLC maintenance grants are awarded on an annual basis and applicants are required to submit a separate application for each academic year
- Decisions are crystallized. All applications are considered on their own particular merits prior to the commencement of an academic year.
- Decisions are not influenced by previous decisions involving the same applicant.
- There is no appeals procedure in place for applicants who have been refused grants
- Both applicants were refused grants prior to the Equal Status Act 2000 coming into operation.
- The clause under which the refusal was made was not discriminatory at that time and, therefore, the respondents have no case to answer.
- Neither applicant has been refused a grant on the nationality ground subsequent to the Equal Status Act 2000 and there is no statutory basis for retrospective payment of these grants.
- In recognition of the fact that the "nationality" clause is now under review, the Department has agreed to waive this eligibility requirement in respect of Mrs B's 1999 application and has instructed the VEC to pay her the outstanding moneys due.
- The Department has only disapplied Clause 4.4 in a total of 3 cases, pending the outcome of the Special Project Teams review
- The respondents argue that the Equality Tribunal is not empowered to award redress in respect of an incident which occurred prior to the Equal Status Act 2000 coming into force
Matters for Consideration
6.1 At the outset, I must consider the preliminary issue as to whether the submission of the complaint from Mr A exceeded the 6 month deadline stipulated in Section 21(6) of the Equal Status Act 2000. If I am satisfied that the complaint was not "out of time", I must then consider whether the actions of the respondent constituted discrimination under the Equal Status Act 2000.
6.2 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(h) of the Act specifies the race ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainants claim that they wre discriminated against on the grounds of their race contrary to Sections 3(1), 3(2)(h) and 5(1) of the Equal Status Act, 2000 in being refused grants under schemes run by the Department of Education and Science.
6.2 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
6.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100).
7 Conclusions of the Equality Officer
7.1 These complaints have raised the issue as to whether the payment of a grant is a "service" under the Equal Status Act 2000. Section 2 of the Act defines "service" as a service or facility of any nature which is available to the public generally or a section of the public and includes "facilities for banking, insurance, grants, loans, credit or financing". The question as to whether State services are covered by the Equal Status Act 2000 was considered previously in Donovan v Garda (DEC-S2001-011) where the Equality Officer stated:
"Having examined the wording of section 2(1) it is clear to me that the services which are covered by it are services which are available to the public or a section of it. A number of examples of such services are mentioned in the Act but it does not purport to be an exhaustive list. While State services are not specifically mentioned as being covered they are not specifically excluded either and I believe it is clear that certain services provided by the State are available to the public and are covered by the Act, e.g. social welfare services, health services, etc."
7.2 While the term "facility" is not specifically defined in the Equal Status Act 2000 or in the UK discrimination acts, I note that Butterworths on Discrimination Law suggests the following "a facility is usually a manner, method or opportunity for the easy or easier performance of anything. It might enable a member of the public to have easier access to a service; a cash machine facilitates the withdrawal of money from a bank. It may present a method of obtaining goods; a collection point in a department store facilitates the purchase of heavy or bulky commodities. The term should cover most instances where a person is not actually providing goods or a service himself, but is providing a means to obtain access to those goods or that service." On the basis of the above, I have formed the opinion that the provision of a maintenance grant is a "facility" covered by the provisions of the Equal Status Act. I also note that the Department of Education and Science has not disputed that the grant comes within the scope of the Act.
7.3 Preliminary Issue
On the preliminary issue of whether exceptional circumstances prevented Mr A from lodging his complaint within the specified 6 month period, I am satisfied, from the information provided in confidence at the Hearing, that exceptional circumstances did prevent Mr A from submitting his complaint in time. In this regard, I also note that the respondents indicated at the Hearing that they had no strong contention as to whether the complaint was submitted outside of the 6 months provided for under the Act. Accordingly, I find that Mr A's complaint is admissible under Section 21(6) of the Equal Status Act 2000.
7.4 Following on from the above, I must now consider the substantial complaints themselves. On the one hand, the respondents maintain that the complaints are inadmissible because they relate to decisions which were made prior to the Equal Status Act coming into force. On the other hand, the complainants maintain that discrimination should be found to have occurred because the policy which governed those decisions still remains in force and therefore the acts "continued over a period".
7.5 In deliberating on these points, I consider the following factors to be the most important and relevant:
In 1999, Mr A applied to the VEC for a maintenance grant to attend a Post Leaving Certificate (PLC) medical course
His application was turned down in October 1999 as he did not meet the "EU nationality" clause.
Mr A did not reapply for a grant in 2000 as he knew that the same criteria still applied with regard to nationality.
Mr A applied for a grant in 2001 but his application was returned seeking further details. He did not pursue his application.
Mr A applied for a further maintenance grant in Summer 2002 for a course in Trinity College
In December 2002, the Department of Education informed the VEC that he was now regarded as eligible and that the grant could be paid if he satisfied all other conditions. Mr A was awarded a grant for 2002/2003
In 1999, Mrs B applied for and was awarded a maintenance grant by the VEC to attend a child care diploma course.
The grant was paid in monthly instalments and Mrs B received £1314 up to March/April 2000
At that point, she was told verbally by the VEC that she had inadvertently been awarded a grant for which she did not qualify under Clause 4.4. Mrs B was verbally asked to refund the £1314.
In August 2000, Mrs B submitted a grant application to the VEC but this was returned as it was incomplete. Mrs B did not submit a complete application subsequently. Mrs B says that, around this time, she enquired as to whether she would qualify for a grant to attend an IT course and was verbally told by the VEC that Clause 4.4 was still in place.
On 24 November 2000, Mrs B received written confirmation from the VEC that she was not entitled to the grant she had been awarded for the 1999/2000 year and asking her to refund the £1314 paid.
In 2001, Mrs B became an Irish national in her own right. She then applied for, and was awarded, a further maintenance grant for the 2002/2003 academic year.
In 2002, the Department agreed to waive the eligibility requirement in respect of Mrs B's 1999 application and instructed the VEC to pay her the outstanding moneys due.
The respondents argue that both complaints are not admissible as they both refer to decisions made prior to the coming into force of the Equal Status Act on 25 October 2000
PLC maintenance grants are awarded on an annual basis and applicants are required to submit a fresh application for each academic year
Decisions are crystallized. The respondents say that applications are considered on their own particular merits prior to the commencement of an academic year and that decisions are not influenced by previous decisions involving the same applicant.
7.6 In considering the complainants' claim that the refusal of grants for the 1999/2000 year, constitutes discrimination on the basis that the policy regarding "non-EU nationals" is ongoing, I have had regard to a previous Equal Status decision, Green v Quinn Direct Insurance Limited (DEC-S2001-024) where the complainant entered into a motor insurance contract in July 2000 and was furnished with an insurance premium which he believed was excessive and constituted discrimination on the age ground. As the Equal Status Act 2000 did not come into force until 25 October 2000, the complainant in the Green v Quinn Direct case made the argument that the contract for motor insurance entered into in July, 2000, was for a full year and that, as he was paying by installments, the alleged discriminatory treatment was ongoing and he had a valid complaint under the Act. The respondent submitted that, as the quotation and inception of the motor insurance occurred in July, 2000, which was before the Act came into operation, it was therefore outside the scope of the Equal Status Act, 2000. The question to be decided, therefore, was, if there was a discriminatory term in the contract, did the discrimination occur when the contract was made in July, 2000 (prior to the Act coming into operation) and then stop, or did it continue for the duration of the contract?
7.6 In the Green v Quinn Direct decision, the Equality Officer concluded that
"Statutes generally do not have a retrospective effect unless there is a clear provision to the contrary and no such provision is contained in the Equal Status Act, 2000. I have considered a Supreme Court Judgement in an employment case under the Employment Equality Act, 1977, Aer Lingus Teo v. The Labour Court [1990] ELR 113 and 125., on the seniority of air hostesses, who were obliged to retire on marriage and who were subsequently re-employed, initially on short-term contracts and in 1980 under a collective agreement, were given permanent employment. Under the agreement neither their pre-marriage permanent service or their post marriage temporary service was credited to them for the purposes of seniority or pensions. The Supreme Court stated:
"This discrimination occurred when it was not illegal and occurred many years before the coming into force of the statute. ...... The compulsory retirement of the applicants was a discriminatory act relating to marital status but it was not illegal. The Act of 1977 does not have retrospective effect." While this particular case relates to employment law, and in the absence of a clear statutory provision to that effect, the Supreme Court is a clear authority that a contractual provision which is discriminatory but lawful at the date of its conclusion should not be invalidated retrospectively. "
7.7 In making her decision, the Equality Officer also took into account a decision of the English EAT under the Sex Discrimination Act, Amies v. Inner London Education Authority (1977) ICR 1975, 308. That case involved a teacher who applied for appointment as a head of the school where she taught but was unsuccessful. She argued that the school's decision to appoint a male candidate was discriminatory. The appointment was made 3 months before the Sex Discrimination Act, 1975 came into force in England. She argued that the discrimination was continuing and thus "an act extending over a period." The EAT found that a decision to appoint A rather than B was a once-off act, even if it had the continuing consequence that she was not head of the department and he was. It concluded it was not "an act extending over a period". Based on the aforementioned caselaw, the Equality Officer concluded in the Green v Quinn Direct complaint that the alleged act of discrimination was not ongoing and that it was "a once-off act" which occurred in July, 2000, before the Equal Status Act came into operation and, therefore did not fall for consideration under the Equal Status Act 2000.
7.8 The Green v Quinn Direct case is, in my opinion, very similar to the case under consideration. PLC maintenance grants are decided and awarded on an annual basis and, according to the respondents, applicants are required to submit a fresh application for each academic year. In 1999, the complainants followed the correct procedures in applying for maintenance grants and their applications were rejected because they were non-EU nationals. On the basis of the above, I am satisfied that the refusal of the complainants' grant applications in 1999 were "once-off acts" affecting only the 1999/2000 academic year and occurred prior to the Equal Status Act 2000 coming into force. With regard to subsequent years, it would appear that neither complainant submitted a fully completed application for assessment, until the submission of the applications that were eventually approved.
7.7 Accordingly, it seems that that the only formal applications that were rejected, were those submitted in 1999, prior to the Equal Status Act 2000, at a time when it was not illegal to discriminate on race grounds. In Mr A's case the refusal came in October 1999 while Mrs B was informed of her ineligibility in March 2000. I also note that the impact of these decisions ceased at the end of the 1999/2000 academic year as fresh applications were required for the 2000/2001 year. I cannot accept, therefore, that the effect of the 1999 decisions "carried-over" into the period after 25 October 2000 when the Equal Status Act 2000 came into force.
7.8 The complainants also argue that the fact that the "EU nationals" clause is still in place, is an indication that the discriminatory policy is still ongoing. In this regard, 1 fully accept the argument but find that neither complainant has been affected by it since 25 October 2000. While Mrs B initiated the process of applying for a grant for the 2000/2001 year and Mr A for the 2001/2002 year, it appears that neither submitted a fully completed application form for decision as required by the respondents. When both complainants eventually did submit fully completed application forms for the 2002/2003 years, both applications were approved and grants paid. It would appear, therefore, that no formal decision refusing a grant to either complainant was made after the Equal Status Act 2000 came into force.
7.9 I, therefore, find that the only applications that fall to be considered in the context of this complaint of discrimination are those submitted in 1999 and, as the decisions relating to those applications were made before the Act came into force on 25 October 2000 and the impact of the decisions ceased prior to 25 October 2000, I find that the decisions to refuse the applications do not fall for retrospective consideration under the Equal Status Act 2000. Accordingly, I find that the decisions cannot be regarded as "acts extending over a period of time" for the purpose of consideration under the Equal Status Act 2000.
7.10 While I have decided that the complainants' 1999 applications are not admissible on the grounds that "an ongoing policy" is still in place, I consider that a different outcome would be likely if a complaint was brought now, in relation to grant applications made after the Equal Status Act 2000 came into force, which fully complied with the required procedures and which were subsequently formally refused.
8 Decision
8.1 While there is strong evidence of an ongoing policy of discrimination in the existing maintenance grant scheme, I find that the rejection of grant applications in 1999 were
"once-off acts" which occurred prior to the Equal Status Act 2000, at a time when it was not illegal to discriminate on the race ground.
I, therefore, find that the complainants have not established a prima facie case of discrimination under the Equal Status Act 2000 and, accordingly, find in favour of the respondents in the matter.
8.2 This case does, however, raise the issue as to whether the Department of Education and Science still applies a policy of discrimination in relation to the provision of grants to non-EU nationals. Clause 4.4 of the Maintenance Grant Scheme for Students states that candidates must hold EU nationality or have official refugee status in order to qualify for a grant which, in my opinion, is clearly contrary to the Equal Status Act's prohibition of discrimination based on nationality. It would also appear that this clause is currently still in place and, rather than removing Clause 4.4 entirely, the Department has simply chosen to disapply the rule in a number of cases.
8.3 As stated earlier, in this particular case, I have found that no discrimination has occurred because the decisions concerned were made prior to the Equal Status Act 2000 coming into force. As a result, I have no jurisdiction to make any orders in these proceedings. Nevertheless, I consider that a continuing discriminatory rule still exists and, accordingly, in the interests of preventing future unlawful discrimination, I would suggest that Clause 4.4 be annulled completely rather than simply being disapplied as the need arises. I would also recommend that the Department, in designing the grant schemes in future, should take full account of the provisions of the Equal Status Act 2000.
Brian O'Byrne
Equality Officer
28 May 2003