Patrick Dalton V Limerick County Council
Delegation under the Equal Status Act, 2000
This complaint was 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 this complaint to me Mary O'Callaghan, 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. The hearing of the case took place on 11th March 2004.
1. Dispute
1.1 This dispute concerns a claim by Mr. Patrick Dalton that he was discriminated against on the ground of age when he sought access to a refuse collection service at a reduced rate from Limerick County Council in 2002. Mr. Dalton alleges that the treatment he received was contrary to Section 3 (2) (f) of the Equal Status Act, 2000 and that in not being provided with a service which is generally available to the public he was subjected to treatment contrary to Section 5(1) of the Act.
2. Background
2.1 The complainant said that when he applied to Limerick County Council in January 2002 for a 140 litre refuse bin at a reduced rate he was informed that this service was restricted to those over 65 years of age and living alone; two person households where at least one person was 65 years or older and to those who were already on possession of a 140 litre bin.
3. Summary of the Complainant's Case
3.1 The complainant said that he was first provided with a wheelie bin by Limerick County Council in 1997. At that time he chose the 240 litre bin. He did not recall if there was a range of sizes available to him at that time. By 2002 a charge for the refuse service was being levied by the council. At that time there were two people in his household neither of whom were over 65 years of age. He said that Limerick County Council were the only provider of a domestic refuse collection service available to him. His refuse was collected once weekly.
3.2 In January 2002 the complainant said that he applied to Limerick County Council Environment Department for a smaller refuse bin (140 l) for a refuse collection rate of €150 which was €105 cheaper than the €255 he was being charged for his refuse service at that time. He said that in response to his request he was provided with an application form which stated that the provision of 140 litre bin at the €150 rate for the refuse collection was confined to 3 specific categories: those living alone and 65 years of age or older; two person households where at least one person was 65 years or older and to those who were already in possession of a 140 litre bin. As he was not included among any of these categories the complainant formed the opinion that the council was discriminating on the ground of age.
3.3 The complainant said that the reasons he applied for the 140 litre bin at the time he did were because he was attracted by the cheaper price for that service; that he didn't have a lot of refuse each week and he was aware that some of his neighbours already had 140 litre bins. He was aware that one of these neighbours was over 65 years of age and that the other was unwell.
3.4 Although he hadn't expressed a preference for a smaller refuse bin prior to January 2002, he said that a 140 litre bin would have been ample for the refuse needs of his household.
3.5 The complainant referred to a recommendation of the Ombudsman, quoted in his 2001 annual report in which the rigid enforcement of conditions attached to a waiver scheme for refuse charges was considered to be unfair to a non contributory pensioner in her eighties. This person, who although in receipt of a social welfare pension amounting to the same sum as that of the qualifying pension, was not awarded a waiver of the charge as the pension she received was not an old age pension. This according the complainant reinforced his view that the council was discriminatory in its approach to granting access to the reduced charge. He said he hadn't considered taking his complaint to the Ombudsman.
3.6 On examination the complainant said that that the reason he didn't seek a smaller bin prior to 2002 was that the charge for both types of bin was the same. He said he had never enquired if he could avail of a 140 litre bin from the council and he was not aware of any other collector providing a refuse collection service in his area at the time. He had always dealt with Limerick County Council. He said that it was definitely the lower price which encouraged him to apply for the smaller bin in 2002.
4. Summary of the Respondent's Case
4.1 The respondent said that the council commenced providing wheelie bins in 1997. There were 4 categories of bin:1100 litre for commercial waste; 330 litre for small businesses and particularly large households; 240 litre which was the standard domestic waste bin provided to most households and the 140 litre bin which was provided to people with a minimal amount of waste, to houses where access was restricted and where other circumstances warranted it.
4.2 Until 2002 the charge to a householder for the refuse collection was the same whether a 240 litre or 140 litre bin was provided. A waiver scheme was in operation up to the end of 2001 for certain categories of people who may have had difficulties in meeting the charge.
4.3 The refuse charge for each coming year is determined by the elected members of the council in October/ November each year and the council implements it. At the end of 2001 it was decided that the waiver scheme in place was incompatible with the "Polluter Pays" principle which is now the policy which applies to waste management. The scheme was to be phased out and it was decided to offer 140 litre bins at a reduced rate to the groups outlined above. The respondent said that the application of these categories widened the group of people to whom the reduced rate applied. The council was also aware due to the Ombudsman's recommendation in 2001, that the 2001 waiver scheme may have been too rigid. Existing 140 litre bin customers were allowed to avail of the reduced rate regardless of their status.
4.4 The respondent said that the at all times 140 litre bins were provided on request to those who wanted them, subject to availability, at the full rate. Those seeking a 140 litre bin for the first time in 2002 would have been liable to the €255 charge unless they were in the over 65 age groups outlined. Those already in possession of the smaller bin could have availed of the reduced charge of €150. This preferential fee was only available to the over 65s in the categories given and to existing 140 litre bin customers. At no time was any customer of the service who requested one, refused a 140 litre bin if one was available. The respondent said that they knew of no instance where a customer who wanted a 140 litre bin was refused one if he/she was prepared to pay the full fee. They stated that such requests were rare. The council said that the use of 140 litre bins had been problematic in that some of those customers using them had been overloading them due to the lack of a developed recycling infrastructure in the county at that time. There had also been instances where waste was being burned by customers which risked breaches of the Air Pollution Act.
4.5 The respondent said that due to a decision by the elected members of the council the 140 litre bin was made generally available at the reduced fee in 2003. This was against the advice of the council officials administering the scheme. This decision placed such a financial strain on the council in providing a refuse service that the council had to withdraw from directly providing a refuse service before the end of that year and move to licensed private operators to provide the refuse service. 4.6 The council said that there was no legal obligation on it to provide a refuse collection service but to ensure that as many as possible households in the council area had access to a service. Its primary function in this area was to regulate the service.
5. Conclusions of the Equality Officer
5.1 In considering this complaint I must in the first instance consider whether the complainant has established a prima facie case of discrimination. In order to establish a prima facie case of discrimination three criteria must be met. These are:
(1) that he is covered by the relevant discriminatory ground, in this case the age ground
(2) that he has been subjected to specific treatment by the respondent.
(3) that he has been treated less favourably than someone who was not covered by the age ground would have been treated in similar circumstances.
5.2 In relation to those who could have availed of a new 140 litre bin at the €150 rate, i.e. those in the over 65 age group as outlined, I am satisfied that the complainant is of a different age group. Therefore, I accept that he has satisfied the first criterion above. The complainant has said that he requested a bin at the preferential rate and was told that he or his wife had to be at least 65 years of age to qualify. I am prepared to accept that this satisfies the specific treatment criterion.
5.3 In order to address the complaint before me here and whether the complainant has satisfied the third of the criteria above, it is necessary to consider the domestic refuse service applied for by the complainant on a number of levels.
5.4 Firstly I must consider if the complainant was provided with a domestic refuse service of a level similar to the service provided to the other customers of the council. I am satisfied that that in being provided with a weekly refuse collection by the council the council did not discriminate against the complainant.
5.5 Secondly I must look at the charge being levied by the council for this service. It appears that the standard charge levied for the domestic refuse collection service provided by the council was €255 in 2002, however a preferential rate of €150 was offered to those in the over 65 year categories outlined and to existing holders of 140 litre bins. With regard to the first group (over sixty fives), Section 16 (1) of the Equal Status Act 2000 states as follows:
Imposing or maintaining a reasonable preferential fee charge or rate in respect of anything offered or provided to or in respect of persons together with their children, married couples, persons in a specific age group or persons with a disability does not constitute - (a) discrimination for the purposes of section 5 or 6.....
5.6 I am satisfied that in providing a service for €150 to this group of customers the council was acting in accordance with the Act and was not discriminating against other customers.
5.7 In relation to the application of the preferential rate to existing 140 litre bin holders section 16 (1) of the act does not apply as there has been no evidence of any reason for charging this rate other than the fact that they already had a smaller than the standard bin. However, I am satisfied that if the complainant had applied for and received a 140 litre bin at any time prior to the January 2002 he too could have availed of the preferential rate in January 2002 regardless of his status.
5.8 The only other circumstance where an examination of whether there was a difference in treatment under the Equal Status Act is necessary is in relation to access a 140 litre bin at the preferential rate in 2002 to those outside the over 65's groups described. The evidence from both parties is that those already in possession of a 140litre bin could avail of the preferential rate in 2002 while those availing of the bin for the first time were not able to do so and were obliged to pay the full rate. I have considered whether this difference could constitute discriminatory treatment under the act particularly in relation to age as claimed by the complainant. It is not disputed that those wishing to avail of the smaller bin could do so subject to availability at any time prior to and during 2002 regardless of their status. Any difference in treatment that existed relates to the different fee charged. There has been no evidence that this difference is related to age or to any of the discriminatory grounds covered by the Equal Status Act. The evidence has been that there was a randomness or arbitrariness in the decision to accord the preferential rate to existing bin holders and that status was never a factor in the decision to differ between these two groups. While it is acknowledged that the two groups were treated differently, this difference in treatment does not constitute discrimination under the Equal Status Act, 2000 as the difference in treatment was not related to the status of the individuals concerned but merely to when they availed of the 140 litre bin for the first time. I conclude that any person of any status seeking a 140 litre bin in 2002 from the respondent council apart from those in the specific older age group who were legitimately offered a preferential rate would have been treated similarly by the council in 2002. The third of the criteria that must be met in order to establish a prima facie case has not been satisfied and therefore the complainant has failed to establish a prima facie case of discrimination under the Act.
6. Decision
6.1 I find that Limerick County Council did not discriminate contrary to the Equal Status Act 2000 in its provision of a refuse service to the complainant Patrick Dalton in 2002 and that the complaint is not upheld.
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Mary O'Callaghan
Equality Officer
29th April 2004