Equal Status Acts 2000 to 2004
Decision No. DEC-S2007-058
Declan McCall v Area Development Management Ltd.
Introduction
1. The complainant referred a case under the Equal Status Act 2000 to the Director of Equality Investigations on 11 March, 2004. In accordance with the due delegation to me by the Director of her powers under the Equal Status Acts 2000 to 2004, I investigated the case. I received written material from both parties including a detailed submission and a list of authorities relied upon from the respondent's legal representatives. A hearing took place on 8 November 2006.
Subject matter of the case
2. The complainant alleges that the respondent discriminated against him on the grounds of age and disability. (In the statutory notification sent by him to the respondent, he also alleges victimisation but this is not included in his complaint form.) This arose from the application form for the Taxi Hardship Payments Scheme ("the Scheme") which the respondent sent to the complainant. The purpose of this Scheme was to alleviate the hardship experienced by some taxi drivers resulting from the liberalisation of the taxi industry. Payments under the Scheme were available to six categories of person as recommended in the Report of the Taxi Hardship Panel which was submitted to the Minister for Transport in September 2002. Two of these categories related to persons over the age of 50 and a third to persons with a disability.
Matters for consideration and conclusions
Discrimination on the age ground
3. One of the complaints at issue here is of discrimination on the ground of age in that payments were made to taxi drivers over the age of 50 on 31 December 2002 which were not available to those under that age. At the hearing, the complainant disclosed that he was born on 1 April 1952. He was, therefore, within the age category which would benefit from the Scheme and cannot claim that he was discriminated against on the age ground. This is separate from the issue of whether or not the different treatment of persons on the age ground under the Scheme was unlawful under the Equal Status Act. The point is that section 21 of the Act provides that a person who claims that prohibited conduct has been directed against him or her may seek redress by referring the case to the Director i.e. the person themselves must be the subject of the alleged discrimination and, otherwise, they have no standing to take proceedings under the Act. According to the respondent's submission and evidence given on their behalf at the hearing, there was flexibility in regard to the age limit if the person was at least 49 but this criterion was not publicised. The complainant argued at the hearing that, had he known this, he would have pursued his application. However, this does not give him a claim of discrimination on the age ground as he was within the age group which was eligible for payment from the Scheme.
Jurisdiction of the Tribunal and related matters
4. The respondent made a submission to the effect that the Scheme and actions taken pursuant to it were outside the scope of the Equal Status Act and that the Tribunal had no jurisdiction to investigate the complaint. I must first consider this because, if valid, I cannot further investigate this claim.
5. The respondent states that the Scheme was introduced on foot of a Government decision and that the executive exercising its inherent power in the allocation of public funds to meet a case of hardship being suffered by a class of citizens is not amenable to action under the Equal Status Act. If the Tribunal had any such jurisdiction, it would have been clearly identified in the Act. The power of the executive is a constitutional one and the courts do not interfere with it save in circumstances of patent unconstitutionality. The respondent's legal representative cited the case of Boland v An Taoiseach [1974] IR 338.
6. As I understand it, the respondent's submission in this respect relates solely to the Government acting as such and not to individual Ministers. Indeed, it seems clear that the Act is intended to cover the actions of Ministers and this is supported by the fact that section 4(5) provides that the relevant provision is without prejudice to certain functions of the Minister for Education and Science while sections 7(5) and 14(1)(aa) (in both cases inserted by the Equality Act 2004) exempt certain activities of Ministers.
7. Related to the point about the executive authority is a further argument advanced by the respondent that the prohibition on discrimination in the provision of services applies to persons and not to the Government. Section 2 of the Act provides that "person" includes "an organisation, public body or other entity". The respondent states that such words are wholly inapt to include the Government exercising its executive role under the Constitution.
8. Dealing with the latter point first, it appears to me that the definition of "person" referred to above is deliberately broad and does encompass the Government.
9. For the reasons set out in the following paragraphs, I also disagree with the respondent's submission that the act of the Government in deciding on the terms of this Scheme is outside the scope of the Equal Status Act.
10. In the Boland case, the High Court and the Supreme Court, on appeal, refused to interfere with the actions of the Government in subscribing to the Sunningdale communiqué. At issue was a clause of the communiqué concerning the status of Northern Ireland in which the Irish and UK Governments set out their respective positions side by side. The Chief Justice, in his judgment, stated that the Courts have no power to supervise or interfere with the exercise by the Government of its executive functions unless there was a clear disregard by the Government of the powers and duties conferred on it by the Constitution. He emphasised, however, that the clause in question did not reflect an agreement by the Government with the UK Government but rather its own policy on the de facto position of Northern Ireland. I do not think that this judgment or the judgments of the other members of the Supreme Court in the case are authority for the proposition that the Government, in exercising their executive functions, are effectively above the law.
11. In this context, the remarks of Costello J in The State (Sheehan) v The Government of Ireland [1987] IR 550 are relevant. He was granting an application for an order of mandamus requiring the Government to make an order commencing section 60 of the Civil Liability Act 1961. Referring to the Boland case, he said it
... had nothing to do with the performance of statutory duties. The Government carries out many different functions, some conferred on it by statute, some not. Ministers are not above the law, neither are Ministers acting collectively as a Government. And if a statute imposes a duty on the Government it cannot claim immunity from the court's jurisdiction on the ground that in performing the duty it is carrying out an "executive function".
He granted the order of mandamus on the basis that the Government were required to commence section 60 within a reasonable time after the date specified by the commencement provision. This was overturned on appeal to the Supreme Court on the ground that the commencement provision had been wrongly construed by the trial judge and that its proper meaning was that the Government's discretion in commencing section 60 was not limited as to time or otherwise. However, it is notable that counsel for the respondent, in opening the appeal in the Supreme Court, said that he would not be proceeding with certain grounds of appeal including the contention that the granting of the relief sought constituted an interference with the executive function.
12. The facts here resemble those in Sheehan in that they can be said to concern a statutory duty, in this case not to discriminate, and the dicta of Costello J are relevant because they show that the Government are subject to statute law as well as to the Constitution.
13. The Constitution does not state precisely what the extent of executive power is. In Kelly: The Irish Constitution, 4th edition at para. 5.1.22, it is suggested that there is a distinction between the executive power of the State, which is exercisable by or on the authority of the Government, and executive power in the State, which is not necessarily so exercisable but capable of being exercised also by other bodies or persons authorised by law. Can it be said that the putting in place of this Scheme is an exercise of the executive power which is exclusive to the Government? A similar ex-gratia scheme was the pre-1995 Civil Legal Aid Scheme in that its function was also to provide assistance of a particular type to people who were judged according to the scheme to need it. If this was exclusively a function of the Government, it would not be open to intervention by the legislature or the courts (unless presumably in the circumstances described by the Chief Justice in the Boland case). Yet this is what subsequently happened when the non-statutory scheme was replaced by statutory regulation under the Civil Legal Aid Act 1995.
14. The view, put forward by the respondent, that a jurisdiction for the Tribunal over actions of the Government would have to be identified clearly in the Equal Status Act also appears to be mistaken. In fact, I believe that the opposite may be the case and that any non-application of or exemption from the prohibitions in the Act would have to be provided for. In the case of Howard v Commissioners of Public Works in Ireland [1993] ILRM, where the issue was whether an arm of the executive was bound by the Planning Acts, Denham J said in the Supreme Court
The concept of equality, allied to the doctrine of the separation of powers, and to the absence of any specific provision in the Constitution to give the executive a special position in relation to the legislature, convinces me that the executive has no special position. Thus, in legislating in accordance with the Constitution, the Oireachtas legislates for all, and that includes the executive.
15. The respondent makes a further point in connection with the proposition that the Tribunal does not have jurisdiction in this matter, namely, that Area Development Management Ltd. ("ADM") cannot be held liable under the Act as it was doing no more than administering a scheme in accordance with criteria established by the Executive. If it acted in any way other than that mandated by the Scheme, it would be acting unlawfully. ADM was not capable of being held to have acted unlawfully by following a scheme which it was required to implement.
16. Having held that the fact that a scheme is introduced pursuant to a Government decision does not mean it is outside the scope of the Act, I do not accept that the body charged with implementing such a scheme cannot be held to be in breach of the Act. At the hearing, counsel for the respondent referred to them as delegates or administrators of a Government scheme. As such, I believe that they were agents of the Government (or perhaps of the Minister for Transport who is the member of the Government with primary responsibility in the matter) in implementing the Scheme. The complainant has identified ADM as the respondent and, accordingly, it is their actions which must be investigated. Section 42(2) of the Act provides that anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person, shall in any proceedings brought under the Act be treated as done also by that other person. This means that one can proceed against the agent, the principal or both in such a situation and, in the present case, the complainant has chosen to proceed against ADM alone.
Alleged failure of complainant to engage with the application process
17. The respondent argued that, regardless of any question of age or disability, the complainant failed to engage with the process being administered by ADM in that he failed to furnish all the information sought in the application form (i.e. his age, proper proof of income, the category under which he was applying and full taxi licence details) and, consequently, his complaint should be dismissed without further inquiry.
18. The complainant lodged his complaint with the Tribunal on 11 March 2004 at which stage his application under the Scheme was ongoing. In fact, his file was not closed until November 2004 after numerous requests by the respondent for information of the kind referred to above had not been complied with. However, the complaint, as such, is not about his eventual rejection under the Scheme as that came later but rather that the application form for the Scheme discriminated against him on the ground of age and disability. This was because persons over the age of 50 and with a disability could get assistance from the Scheme and others could not (unless they came within one of the remaining categories covered by the Scheme). I have already stated at paragraph 3 above why the claim on the age ground must fail. As regards disability, there is an additional aspect to the complaint which is set out in a letter of 13 May 2004 from the complainant to the Tribunal. This is the fact that persons with a disability taxi (of which the complainant is not one) were eligible for a payment from the Scheme. This is said by the complainant to be discrimination on the ground of disability.
19. So, the complainant's failure to meet the requirements of the respondent in regard to the furnishing of information (some of which, incidentally, did not relate in any way to the discriminatory grounds under the Act) does not mean that his complaint can be rejected for that reason alone. Instead I must consider if the application form and guidelines sent to the complainant can be the basis for a complaint that could succeed under the Act.
20. I am of the view that, where an application form under a scheme or other material furnished by the administrators of a scheme makes a distinction on a discriminatory ground, a person who is excluded from the scheme by this but who would otherwise be eligible can complain under the Act without having to go through the application process and being rejected. Such a person is entitled to take the other party at their word, as expressed in the material furnished by them, that they do not qualify for the scheme in question and it would be utterly artificial to require them to press ahead with an application as a precondition for a complaint of discrimination. In this regard I would refer to a recent decision of the Tribunal under the Employment Equality Acts, DEC E2007 - 020, Ruddy v SDS (An Post), which concerned different treatment on the ground of age and in which the respondent submitted that, since the complainant did not formally apply for the scheme, he did not have a locus standi. The equality officer rejected this and said he was satisfied that, had the complainant submitted an application, it would have been rejected by the respondent on the basis of age. In the circumstances he considered it unreasonable to expect the complainant to have made a formal application for the scheme to maintain a locus standi.
Discrimination on the disability ground
21. I must now consider whether the difference in treatment on the disability ground under the Scheme constituted a breach of the Act.
22. Insofar as the complainant claims that the inclusion of wheelchair-accessible taxi licence holders as a category of beneficiaries under the Scheme constitutes discrimination on the ground of disability, I am satisfied that this is not so because such persons might or might not have a disability themselves. So, the discriminatory ground of disability, which is stated to be "that one is a person with a disability and the other either is not or is a person with a different disability" (section 3(2)(g)), does not apply.
23. The remaining element of the complainant's claim is the contention that the fact that persons with a disability could get assistance under the Scheme and others, including himself, could not constitutes discrimination under the Act. The respondent argues that the disability ground only protects people with a disability and does not refer to the situation in which an able-bodied person is treated less favourably than a person with a disability. In support of this, the respondent refers to the prima facie test which has traditionally been used by equality officers in equal status cases and which has three elements the first of which is whether the complainant is covered by the discriminatory ground. I do not accept the respondent's argument or that the aforementioned prima facie test supports it.
24. Firstly, section 3(2), which sets out the discriminatory grounds, either uses the formulation "the one ..... and the other" or refers to two persons being of different sexual orientation, religious belief etc. This does not support the view that the discriminatory grounds operate only in one direction. If the respondent is correct, are males without the protection afforded by the Act to females or Irish nationals less favoured than foreign nationals, to take just two examples? In fact, men have been successful in a number of claims under the equality legislation. The Long Title of the Act describes it as an Act to promote equality and prohibit types of discrimination, harassment and related behaviour. If the interpretation contended for by the respondent is correct, the other paragraphs of section 3(2) must be interpreted consistently with the respondent's interpretation of the disability ground and inequality, rather than equality, would be at the core of the Act. If the Oireachtas intended that a person with a disability could claim if they were discriminated against, but that an able bodied person would not have a claim where the disabled received better treatment, the Act would have stated this and would not have used the wording contained in section 3(2).
25. I am further reinforced in this conclusion by the fact that a number of exemptions in the Act make sense only if the disability ground operates both ways. I would refer in particular to sections 6(5), and 16(1). Each of these provisions allows more favourable treatment of persons with a disability and would not be necessary if the respondent's interpretation is correct.
26. The respondent contended that, even if their submission on the meaning of the disability ground was wrong, a number of exemptions in the Act would apply to the different treatment which the complainant faced. Insofar as the claim on the disability ground is concerned, these provisions are sections 5(2)(h) and (l) and 14, paragraph (b)(ii). At the hearing, counsel for the respondent described the Scheme as being four square within the latter provision and I will consider it first.
27. Paragraph (b)(ii) of section 14 provides that nothing in the Act shall be construed as prohibiting preferential treatment or the taking of positive measures which are bona fide intended to cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs.
28. The justification for the preferential treatment of disabled persons under the Scheme is contained in the Report of the Taxi Hardship Panel. This states that taxi licencees who were invalided and incapable of driving for a living could, prior to November 2000, derive their primary income from renting their taxi licence. This was no longer possible because, since the liberalisation of the industry, anyone could get a taxi licence subject to meeting qualitative regulatory requirements. Consequently the income of these persons was now derived from Social Welfare Disability Allowance. The Panel were of the view that such persons were experiencing extreme personal financial hardship and recommended that, subject to certain conditions, they be given a payment of €13,000. This recommendation was substantially implemented in the Scheme.
29. The test contained in section 14, paragraph (b)(ii), requires that there be a bona fide intention to cater for the special needs of a category of persons who, because of their circumstances, may require assistance not required by persons who do not have those special needs. This test does not require me to decide whether the provisions for persons with a disability in the Scheme were reasonable or appropriate or excessively favourable as compared with the treatment of persons outside that category, merely that there was a bona fide intention to cater for the special needs of a category of persons who may require this assistance. I am satisfied that, in including the disability category in the Scheme, there was a bona fide intention to help disabled persons whose incomes were reduced when their taxi licences lost value following liberalisation and that this is not prohibited by the Equal Status Act.
30. In these circumstances, it is unnecessary for me to consider the other possible exemptions advanced by the respondent.
Other issues
31. The respondent made other arguments as to why this complaint should be dismissed. These were that: the Scheme did not involve the provision of a "service"; and any service inherent in the Scheme was not available to "the public generally" or a "section of the public". They also made a submission as to the appropriate test in establishing a prima facie case. In the light of paragraph 29 above, it is not necessary to consider these issues.
Decision
32. For the reason given at paragraph 29, my decision is in favour of the respondent.
John Hurley
Equality Officer
2 July, 2007