James McClean (represented by the Equality Authority) V The Revenue Commissioners
1. Dispute
This dispute concerns a complaint by James McClean that he was discriminated against,
contrary to the Equal Status Act 2000, by the Revenue Commissioners. The complainant
maintains that he was discriminated against on the Disability ground in terms of sections
3(1)(a), 3(2)(g) and 4(1) 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 Complainant's Case
2.1 The complainant, a disabled driver, states that he submitted a claim for a refund of
certain vehicle taxes and duties, under the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994, to the Revenue Commissioners but that his application was rejected. The complainant claims that this refusal constituted discrimination by the Revenue Commissioners on the disability ground, contrary to the provisions of the Equal Status Act 2000.
3. Summary of Respondent's Case
3.1 The Revenue Commissioners contend that they are not the correct respondents in the
matter as they only administer the scheme on behalf of the Minister for Finance who made
the Regulations under the Finance Act. The Revenue Commissioners also argue that the
complainant's complaint is not admissible under the Equal Status Act 2000 as the
Regulations in question are exempted under Section 14 of the Act.
4 Delegation under the Equal Status Act, 2000
4.1 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 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 Matters for Consideration
5.1 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)(g) of the Act specifies the disability ground as one of the grounds covered by the Act. Section 4(1) states that
discrimination includes a refusal or failure by a service provider to do all that is reasonable to accommodate the needs of a person with a disability. 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 complainant claims that he was discriminated against on the grounds of disability, contrary to Sections 3(1), 3(2)(g), 4(1) and 5(1) of the Equal Status Act, 2000, by the Revenue Commissioners. The complainant, a disabled driver, states that he submitted a claim for a refund of certain vehicle taxes and duties, under the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994, to the Revenue Commissioners but that his application was rejected. The complainant claims that this refusal constituted discrimination by the Revenue Commissioners on the disability ground, contrary to the provisions of the Equal Status Act 2000.
5.2 For their part, the Revenue Commissioners firstly contend that they are not the correct
respondents in the matter as they only administer the scheme on behalf of the Minister for
Finance, and must do so in strict accordance with the conditions specified in the Regulations. Secondly, they argue that, regardless of who the correct respondent is, that the complainant's complaint is not admissible under the Equal Status Act 2000 as the Regulations are an "enactment" and are, therefore, exempted under Section 14 of the Act.
5.3 At the Hearing of this complaint on 10 December 2003, it was agreed that it would
not be appropriate to hold a full Hearing of the complaint until such time as a finding had
been made that the Revenue Commissioners were the correct respondents in the matter and that the complaint was admissible under the Equal Status Act 2000.
6 Conclusions of the Equality Officer
6.1 In relation to the question as to the identity of the correct respondent, I have noted the
following:
- The complainant claims that the 1994 Regulations are discriminatory in that they provide for less favourable treatment of people with different disabilities and that they also fail to make reasonable accommodation for those with severe and permanent disability.
- The complainant maintains that the Revenue Commissioners are the correct respondents in the matter as it is clear from the Finance Act 1989, the 1994 Regulations and from correspondence with the Revenue Commissioners themselves that they are the body responsible for administering the scheme and for granting tax concessions.
- The respondents, on the other hand, claim that the Revenue Commissioners are not the correct respondents and point to the fact that the function of the Revenue in this regard is confined to the administration of the relief within the terms of the relevant Primary and Secondary legislation.
- The respondents also argue that the Revenue Commissioners cannot be deemed to be a "provider of a service" within the meaning of the Equal Status Act 2000 as it is a fundamental requirement for the granting of the tax relief that an applicant must first
produce the necessary medical documentation, as required under the Regulations, before the Revenue Commissioners can consider their application. They, therefore, suggest that the correct respondent is either the body that refused to issue the necessary medical certificate, the North Western Health Board, or the Minister for Finance who was responsible for introducing the Regulations containing the alleged discriminatory criteria. - Section 92 of the Finance Act 1989 provides that the Minister for Finance may make
regulations which provide for tax concessions for disabled drivers and these regulations "shall provide for the criteria for eligibility for the remission of the taxes including the medical criteria in relation to disabilities as may be considered necessary". - On 1 December 1994, the Minister for Finance signed into effect the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994 which set out the medical criteria, certification procedures and other matters necessary for the purposes of giving effect to Section 92 of the Finance Act 1989.
- The Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994 provided for the granting of various tax concessions to disabled drivers. In the
Regulations a "disabled driver" is defined as a severely and permanently disabled person who possesses a Primary Medical Certificate from the Director of Community Care and Medical Officer of Health or a Board Medical Certificate from the Disabled Drivers Medical Board of Appeal. - The Regulations also provide that only a person who satisfies the Revenue
Commissioners that they are a "disabled driver", as defined in the Regulations, shall be entitled to a repayment of tax by the Revenue Commissioners.
6.2 Having given consideration to the above points on the question of the identity of the
correct respondent in this case, it seems clear that a claim for repayment of taxes can only be considered by the Revenue Commissioners where the applicant has shown that they hold either a Primary Medical Certificate or a Board Medical Certificate issued by an agency of the local Health Board. It is also clear that the Revenue Commissioners have no function themselves with regard to the issue of these Certificates.
I have also concluded, from my examination of the Finance Act, 1989 and the Disabled
Drivers and Disabled Passengers (Tax Concessions) Regulations 1994, that the Revenue
Commissioners do not have the power under the regulations to waive the requirement to hold a Certificate in individual cases and that any change in this position could only be effected by the Minister for Finance changing the Regulations. On the basis of the above, I consider that the Revenue Commissioners are not the correct respondents in the case. Accordingly, I find that the complainant has not established a prima facie case of Discrimination against the Revenue Commissioners under the provisions of the
Equal Status Act 2000.
6.3 While the Equality Tribunal has no power in legislation to join parties in a complaint,
I note that, in some situations in the past, where a citizen has issued proceedings against an emanation of the State, and got the exact entity wrong, that the correct State respondent has often volunteered to replace the one named by mistake. In this particular case, it is clear that the Minister for Finance has responsibility for the Revenue Commissioners and, therefore, it could be argued that notification of the complaint
to the Revenue Commissioners could be viewed as also putting the Minister on notice of the proceedings. In this regard, I am cognisant of the fact that, within one month of the complaint notification being sent by the complainant, the Revenue Commissioners informed the complainant's representative, the Equality Authority, that they believed the Minister for Finance was the correct respondent. The Equality Authority, therefore, had the opportunity, at the time, to notify a separate complaint to the Minister for Finance within the statutory 2 months provided for under the Equal Status Act 2000. As the Equality Authority did not avail of that opportunity, I am not prepared to countenance, at this stage, any suggestion that the Minister for Finance should now be belatedly joined in the proceedings.
6.4 Both parties in this case also made argument on the question as to whether the
Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994 come
within the meaning of the term "enactment" under Section 14 of the Equal Status Act 2000.
While I have already rejected the complaint of discrimination on the basis that the wrong
respondent was identified, I believe that it is useful to set out the arguments made by the
parties as to whether ministerial regulations and statutory instruments are covered by the term "enactment" contained in the Equal Status Act 2000, particularly as the term itself is not specifically defined in the Act.
6.5 Section 14 of the Equal Status Act 2000 provides that
"Nothing in the Act shall be construed as prohibiting -
(a) the taking of any action that is required by or under -
(i) any enactment or order of court,
(ii) any act done or measure adopted by the European Union, by the European Communities or Institutions thereof or by bodies competent under the Treaties establishing the European Communities, or
(iii) any convention or other instrument imposing an international obligation on the
State
- The complainant argues that the term "enactment" in Section 14 does not includeregulations and has made reference to Bennion's Statutory Interpretation, 2nd
Edition, 1992 where the author analyses the term "enactment" and its various meanings and expresses the view that "this variation of meaning calls for care in construing a passage of an Act or other instrument in which the term is used". In his book, Bennion refers to a case under the Road Traffic Act 1960, Rathbone v Bundock 1962 2 O.B. 260, where it was held that the word "enactment" as used in the Road Traffic Act 1960 was not wide enough to include a statutory regulation. - The complainant in this case submits that the decision in Rathbone supports the
contention that Section 14 of the Equal Status Act 2000 does not impact upon or
exclude or dilute Mr McClean's complaint. - The complainant also refers to the fact that there is no definition of "enactment" in the
Interpretation Act 1937. - The complainant claims that the existence of a statutory right or duty in a particular case depends on a question of law, namely whether an operative statute, which confers such a right or imposes such a duty, has effect as law in the particular circumstances. The complainant maintains that he has a right under the Equal Status Act 2000 not to be discriminated against by virtue of his disability and that this right cannot be diluted or diminished by regulations - which are not merely subordinate legislation - but were also made under an entirely different code (the Finance Act).
- Also, the complainant argues that there is no inference in the Equal Status Act 2000 that "enactment", as therein defined, includes statutory instrument and the complainant suggests that Section 14 should be interpreted in a purposive manner in order that exemptions in the Act are construed in as narrow a manner as possible.
- The respondents claim that the legislators must have intended that regulations were
covered by the term "enactment" in the Equal Status Act 2000. Otherwise, they argue, the term "statute" would have appeared in the Act instead of "enactment". - The respondents claim that the term "enactment" is now generally accepted in the legal profession as a far-ranging provision which includes regulations. In support of this, a number of definitions of "enactment" from a variety of legal sources were produced at the Hearing supporting the view that the term "enactment" may be used to describe any Act, and any rules and regulations made under that Act.
- The respondents also made reference to cases from New Zealand and the UK where, for example in the case Allsop v North Tyneside Metropolitan Borough Council, it was held that "the word "enactment" is apt to cover Regulations made by Statutory Instrument"
- Reference was also made by the respondents to the draft text of the Interpretation Bill
2000, which is scheduled to come into force in 2004, in which the term "enactment" is defined as follows: "enactment" means an Act or a statutory instrument or any portion of an Act or statutory instrument"
6.6 Having considered the arguments of both sides on this point, I have the following
comments to make, which should be treated merely as obiter dicta, given that I have already made a decision in this case.
6.7 Interpretation of Anti-Discrimination Laws
I consider that anti-discrimination laws should be interpreted purposely and that, in dealing
with an anti-discrimination statute such as the Equal Status Act 2000, where the wording is
ambiguous, we should always start from the assumption that it is trying to prevent discrimination on the protected grounds, unless there is a very clear indication to the contrary. This would suggest to me that exceptions in the Act, such as Section 14, should be narrowly construed, where there appears to be ambiguity. In this regard, I have noted the two Irish authorities cited by the Equality Authority as establishing the principle that reforming social legislation should be interpreted in a purposive way, where there is an ambiguity. I am also cognisant of the fact that the use of a purposive approach was also approved by the High Court (Keane J.), in regard to gender equality law, in Murphy & others V Bord Telecom Eireann (1989 ILRM 53) While UK authorities only have persuasive value, I note that authority for adopting a broad and purposive interpretation in discrimination cases can also be derived from Jones v Tower Boot Co Ltd [1997] IRLR 168 Court of Appeal and J Goodwin v The Patent Office [1999] IRLR 4 (EAT).
6.8 The Meaning of the term "Enactment"
A straightforward definition of the term "enactment" suggests something that has been
enacted, i.e. something which has been made law through being laid before the Oireachtas and passed by it. Every Act starts "Be it enacted by the Oireachtas". Regulations, however, do not state that they have been "enacted". However, it is perfectly possible for a word to acquire a particular technical meaning, which is not its plain ordinary meaning. In this regard, the respondents have produced a number of definitions of the term "enactment" from a variety of UK and other sources which I consider persuasive. Of interest, though, is the fact that no Irish authority has been produced, which I consider is significant, considering that we are trying to establish what the Oireachtas meant when it passed the Equal Status Act 2000. In interpreting the definition of "enactment", I also consider that the UK context has to be distinguished from the Irish context since, as appears from the sources cited by the respondents, there is a specific provision in the UK Interpretation Act 1978 providing that "enactment" is defined as including secondary legislation. There is no such statutory provision in Irish law, however, and the context of the Equal Status Act 2000 contains nothing to suggest that "enactment" in Section 14 was intended to have this broader meaning. In this regard, I welcome the fact that an Interpretation Bill, which contains a clear definition of "enactment" is currently before the Oireachtas and I hope that the enactment of this legislation, whatever definition it contains, will help to resolve current conflicts of interpretation over the term "enactment".
In the interim, I would suggest that it is appropriate to apply a purposive approach to the
interpretation of the term "enactment" in the Equal Status Act 2000, considering that it is
remedial legislation designed to combat anti-discrimination practices.
7 Decision
7.1 I find that the Revenue Commissioners are not the correct respondents in this case.
Accordingly, I find that the complainant has not established a prima facie case of
discrimination against the Revenue Commissioners under the provisions of the Equal Status Act 2000.
Brian O'Byrne
Equality Officer
5 February 2004