Mr Leo Jones, Complainant V Dun Laoghaire Rathdown County Council
Delegation under Equal Status Act, 2000
The complainant referred a claim to the Director of Equality Investigations on 4 October, 2001 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 then delegated the case to Marian Duffy, 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.
1. Dispute
1.1 The dispute concerns a claim by Mr. Leo Jones that he was discriminated against by Dun Laoghaire Rathdown County Council on the disability ground. The complainant alleges that the respondent discriminated against him, in terms of Sections 3(1)(a), and 3(2)(g) of the Equal Status Act, 2000, contrary to Section 4(1) and Section 6(1) of that Act.
2 Background
2.1 The complainant has a physical disability. His case is that he is on the Dun Laoghaire Rathdown County Council housing list and that the respondent has not provided him with special facilities to allow him to move up the housing list, or alternatively that the Council does not have a special housing list for people with disabilities, similar to the special list which exists for elderly people. The respondent denies discriminatory treatment and states that the complainant has been provided with special facilities regarding his placing on the housing list. The respondent Council has awarded extra points to the complainant because of his disability which has moved him above other applicants who do not have a disability.
3 Summary of the Complainant's Case
3.1 The complainant is a carpenter by trade and as a result of an accident he lost the use of his right hand. On 18 October 1995 he applied to the housing section of Dun Laoghaire Rathdown County Council for a one bedroom unit. He was put on the one bedroom housing list. The complainant said that he did not move up the list very quickly and initially he dropped down the list by at least 100 places when other applicants were accepted on to the housing list and, were awarded a greater number of points than he was awarded. An applicants place on the housing list is determined by the date of application plus points awarded under various headings, such as overcrowding or points awarded for medical conditions. The complainant accepts that since he was allocated extra points for the number of years he has been on the housing list his place has improved somewhat. He submitted that the Council has separate lists and types of housing for different categories or groups of people, for example senior citizens and family size, but it does not have any separate category for people with disabilities. The complainant submitted that he believes that he is being treated less favourably than senior citizens in that senior citizens are also entitled to one bed-room housing and the Council has a separate list for that group. He also submits that the Council should have awarded him points under other headings such as overcrowding and rent paying capacity. He submits that if he did not live with his parents he would have been allocated extra points for paying rent and his place on the list would have improved considerably.
3.2 The complainant also submits that apart from medical points he has been awarded for his disability, the Council has no positive action initiative for people with disabilities. Unlike other medical conditions which may improve, his condition will not improve and this should be taken into account when awarding points. He submits that the medical points have remained static and should be increased on a yearly basis. For these reasons he submits he has been discriminated against by the Council on the disability ground in the allocation of housing.
4 Summary of the Respondent's Case
4.1 The Council denies that it operates a discriminatory policy in relation to the housing requirements of the disabled. Mr. Brian Riddick, Administrative Officer in the housing division submitted that the complainant made an application for housing accommodation on 18 October 1995. His housing needs were assessed in accordance with the Council's Scheme of Letting Priorities in operation at the time. The Council has power under section 11 of the Housing Act 1988 to draw up a scheme determining the order of priority to be accorded to applicants for housing. The scheme is approved by the elected members of the Council and agreed by the Minister for Environment. The scheme awards points to the housing applicants under the various headings such as the condition of the current accommodation, overcrowding, medical condition, length of time on the list etc. The total number of points plus the date of the application determines the applicants place on the housing list. The environmental health officer assessed the complainant's application and he was awarded 5 points in accordance with the Scheme and placed on the one bedroom-housing list for three different housing areas.
4.2 The Scheme provides that a person with a disability may be awarded up to 10 points under the medical heading. The Chief Medical Officer initially did not award any points on the medical ground after examining the medical evidence submitted by the complainant. The complainant's position on the list was reviewed twice yearly and in 5 December 1996 he was awarded 3 points on the medical ground and in August 1999 it was increased to 4 points bringing the total number of points applicable to the complainant for housing purposes to twelve. When the Council endorsed a new scheme the current Scheme of Letting Priorities came into effect in July 2001. The complainants place on the waiting list improved considerably because the number of points allocated to him for the number of years on the housing list increased from one per year to ten per year. The complainant has not been awarded any points under the overcrowding heading or rent paying capacity as the Council deemed he did not qualify for extra points under these headings.
4.3 Mr. Riddick submitted that the complainant has not been discriminated against on the disability ground. The complainant's place on the housing list may fluctuate from time to time depending on the needs of other applicants for housing. The list is reviewed twice yearly. Due to changed circumstances, other applicants may become entitled to additional points under the Council's Letting Scheme which may entitle them to a higher priority on the list. Examples of such circumstances were given as overcrowding, rent paying capacity, statutorily unfit dwelling. Mr. Riddick stated that it is unlikely that a person entering the housing list now will enter above the complainant as the complainant's points increase yearly. Mr. Riddick pointed out that the Council's Scheme of Letting Priorities makes provision for the consideration of the particular needs of disabled housing applicants by awarding up to ten "medical points", where appropriate and in this way disabled persons on the housing list can have priority awarded to them over and above other housing applicants.
4.4 The Council has two one-bedroom lists one for elderly housing applicants and the other caters for non-elderly housing applicants whose housing need is assessed as one bedroom accommodation. The Council does not operate a separate housing list for disabled people. When a disabled person is near the top of the list the Council consults with the person and adapts the accommodation to be allocated to his/her specific requirements. In relation to the complainant's contention that the Council discriminates against disabled people, as it does not have a separate list, like the list it operates for the elderly, Mr. Riddick stated that the needs of the elderly are special, and most of the units for the elderly that the Council administers are in sheltered, or semi sheltered clusters of one bedroom units. It would not be appropriate to put younger people with different social requirements into these areas. The Council finds it more appropriate to adapt their existing housing stock, or to adapt the house as it is being built to meet the specific needs of disabled tenants. It is to that end that the Council contacts the prospective disabled tenant as he or she reaches a certain point on the housing list with a view to adapting the house to the individual needs.
5. Conclusions of the Equality Officer
5.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a), 3(2)(g) and 4(1) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: "On any of the grounds specified... (in this case the disability ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: As between any two persons, the discriminatory grounds ... are ... that one is a person with a disability and the other either is not or is a person with a different disability (the disability ground)." Section 6(1) provides that: A person shall not discriminate in-
(c)" providing accommodation or any services or amenities related to the accommodation or ceasing to provide accommodation or any such services or amenities". A person making an allegation of discrimination under the Equal Status Act, 2000 must first demonstrate that a prima facie case of discrimination exists. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
5.2 I have identified the key issues for decision as follows:
(i) Is the complainant covered by the discriminatory ground? (in this case has the complainant a disability?)
(ii) is there evidence that he has been subject to a specific treatment by the respondent?
(iii) is there evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by the discriminatory ground or someone with a different disability, would have received in similar circumstances?
(iv) did the respondent's actions amount to a refusal or failure to provide reasonable accommodation, in accordance with section 4 of the Equal Status Act, 2000 for the complainant's needs as a person with a disability, which made it impossible or unduly difficult for him to obtain accommodation from the Council? (iv) would providing for those needs have given rise to greater than nominal cost to the respondent? While the complainant has not got to satisfy all the issues above he needs to satisfy test (i) (that he is covered by the disability ground) plus tests (ii) and (iii), or test (iv) (that is that the respondent has failed to provide reasonable accommodation in accordance with section 4 of the Equal Status Act). I am now going to examine the tests I have identified above.
Disability
5.3 Disability is defined in Section 2(1) of the Act as:
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour". I am satisfied that the complainant has a disability and that he is covered by the Act. This satisfies test (i) above.
5.4 I have considered tests number (ii) and (iii) above together. In relation to the specific treatment, the complainant's case is that since he was accepted on the housing list in 1995, he has not been offered any accommodation, that his position on the list has not improved significantly and he has little prospect of accommodation in the near future. He submits that the Council should operate a separate housing list to meet the needs of the disabled in a similar way that it operates a list for the elderly and in not doing so the Council discriminates against the disabled. In considering this point I have taken into account Section 6(6) of the Equal Status Act, 2000 provides: "Nothing in subsection (1) shall be construed as prohibiting
(a) a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1998, or
(b) a body approved under section 6 of the Housing (Miscellaneous Provisions) Act,1992, from providing , in relation to housing accommodation , different treatment to persons based on family size, family status, marital status, disability age or membership of the Traveller community." I note that the respondent maintains a separate list of one bed accommodation for elderly people because they have special needs and requirements depending on their circumstances. The respondent also submitted that it was inappropriate to mix accommodation units between elderly and younger people because of their different social needs. I am satisfied therefore having regard to section 6(6) of the Act that the Council is exempted from the provisions of the Act and in providing special housing facilities for the elderly the respondent has not discriminated against the complainant. Furthermore there is no obligation under the Equal Status Act, 2000 for the respondent to have a separate housing list to meet the needs of the disabled as suggested by the complainant. The respondent, under Section 4 of the Equal Status Act, 2000 (discussed below) is obliged "to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". The evidence is that the Council provides medical points and in addition it has a consultation process with a disabled person prior to allocating a house in order to meet the particular needs of the person
5.5 The complainant has submitted that he should be awarded extra medical points given that he has an ongoing condition which will not improve. He has been awarded four points but submits it should be increased. The Council submitted that the Medical Officer may award up to 10 medical points on the basis of medical evidence submitted and the Council has no input into the number of points awarded. Medical points are awarded on a once off basis and if new medical evidence comes to hand it is submitted to the Chief Medical Officer who makes the decision on whether extra points should be awarded. This has happened in the complainant's case when he initially was not awarded any points and subsequently it was established on medical review that an award of initially 3 points which was later increased to 4 points was appropriate. It is a matter for the complainant to provide evidence to me to establish that the Council and in particular the Chief Medical Officer discriminates in the awarding of medical points to people with different disabilities. I am satisfied on the evidence that the complainant has not established that the Counciloperates a discriminatory method of awarding points for medical conditions.
5.6 The complainant submits that the Council discriminates against people who live in non-rented accommodation. In his case he lives with his parents and he is not awarded any points regarding this. He also submitted that he should have been awarded points under the overcrowding heading. The Council has assessed that he does not qualify for points under this heading. I find that this is not discriminatory treatment under the Equal Status Act on the disability ground. The complainant has failed to show that the treatment in this case is less favourable treatment than a person who has not got a disability or a person with a different disability.
5.7 I note that the complainant's case is that other applicants who may or may not have a disability have been allocated housing where he was not. I note that the points system operated by the respondent effectively means that people can be moved up the list quickly and allocated housing in preference to the complainant and when this happens it is because their needs are objectively greater than the complainants. The complainant has produced nothing to show that such persons were not in more need that he was at the particular time or any evidence from which I could conclude that this was not correct. The reason the complainant does not qualify under the rent heading or the overcrowding heading is not associated with his disability and is not therefore discriminatory treatment under the Act. I am satisfied therefore that the complainant has not established that the treatment he received was less favourable than someone, not covered by the discriminatory ground or someone with a different disability, would have received in similar circumstances. I find that the complainant has not satisfied tests (ii) and (iii) above and has not therefore established a prima facie case of discriminatory treatment.
5.8 Reasonable Accommodation
I am now going to examine test number (iv) identified above at paragraph 5.2. The question to be decided is whether the respondent provided reasonable accommodation for the complainant in accordance with Section 4 of the Equal Status Act, 2000 which states, inter alia: "(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service". I am now going to examine if the respondent did "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". The complainant submits that the Council should operate a positive action initiative for people with disabilities. I note that while the Council does not have a special list for people with disabilities, they do however have a system whereby a person with a disability is awarded points in accordance with the Scheme of Letting Priorities, (attached Appendix A). The effect of this scheme is that a person with a disability can get an award of up to 10 points depending on their disability and this will give them a higher place on the list than people who do not have a disability. In this case the complainant was awarded 4 points which was considered appropriate by the Councils Medical Officer. I also note that when a person with a disability is nearing the top of the list, the Council consults that person and specifically adapts the allocated accommodation to suit that person's particular disability. I note that the Council will be consulting with the complainant as he nears the top of the list in order to adapt the house to his particular needs. I am satisfied therefore that the Council, by allocating medical points to the complainant for his disability, and by their consultation process with persons on the list with a disability, the Council provides special treatment to accommodate the needs of a person with a disability.
5.9 In considering reasonable accommodation I also note that the section of the Act requires the respondent to "do all that is reasonable to accommodate the needs of a person with a disability". This means that the Act requires the Council to show that it did everything it could reasonably do to accommodate the complainant. The service the complainant wants to access (provision of accommodation) is for the present effectively inaccessible to him, given that he is over nine years on the waiting list and has not been allocated a house to date. I believe therefore, it is also necessary to consider whether a boost in priority on the waiting would be reasonable accommodation within the terms of the Act. However, having considered this point it is reasonable to conclude, on the evidence presented, that the people housed before the complainant were given a higher priority because their need for housing was, on objective and relevant criteria assessed to be, more urgent than the complainants. As stated above the complainant has presented no evidence to show the contrary. It could not be the intention of the Act to require a housing authority to show unfairness in the allocation of places. Accordingly, if reasonable accommodation required the respondent to house the complainant within a reasonable waiting period of his application, it would have to require the respondent also to house all other persons whose needs were objectively greater than the complainant's with at least the same speed or at the same time as the complainant. I am satisfied therefore that this could not be the intention of Section 4 of the Act.
5.10 For these reasons I am satisfied that the Council provides reasonable accommodation to meet the needs of a person with a disability. I find that the complainant has failed to establish that the application of the Council's Scheme of Letting is operated in a discriminatory manner. I believe the Council Scheme, is commendable regarding the treatment and facilities it provides to accommodate the needs of persons with a disability. I believe that the reason that the complainant has not so far obtained housing from the Council is a consequence of the number of applicants for housing with objectively greater needs rather than the Council's failure to provide special treatment or facilities for him.
5.11 Nominal Cost
Section 4(2) of the Equal Status Act provides: (2) "A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question". The question of nominal cost did not arise and it is not therefore necessary for me to consider this issue in detail. However, the question which would need to be addressed in considering this issue is would the cost of the provision of housing to the complainant be more than a nominal cost for the Council. While the Council did not provide any figures on this aspect of the provision of housing it seemspermissible in the absence of figures to suppose that the cost of doing so would exceedany cost that could be considered nominal. As stated above that the Council would have toboost the complainant's place on the housing list, but this would mean that providing the complainant with housing was reasonable accommodation only where all others with equal or greater needs were also housed and I am satisfied that this would bring the cost of reasonable accommodation beyond nominal.
6. Decision
6.1 I find therefore, that Dunlaoghaire Rathdown County Council did not unlawfully discriminate against Mr. Leo Jones on the disability ground in terms of Sections 3(1)(a), and 3(2)(j) and contrary to Section 4(1) and section 6(1) of the Equal Status Act, 2000 in his application for housing.
_________________
Marian Duffy
Equality Officer
5 July 2004