Edward Reilly
(Represented by Mr. Conor Power, B.L., acting
on instructions from the Equality Authority)
V
The Health Services Executive
1. Dispute
1.1 This dispute concerns claims by Edward Reilly that in May 2003, he was treated in a discriminatory manner by the respondent. The complainant referred a claim 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 then delegated the case to me, Dolores Kavanagh, an Equality Officer, for investigation, hearing and decision and for the exercise of this and other relevant functions of the Director under Part III of the Equal Status Act.
2. Summary of Complainants' Case
2.1 The complainant states that, following termination of employment, he attended at his local Health Centre on 28 April 2003 to apply for payment of Supplementary Welfare Allowance (SWA). His claim was processed and a cheque issued to him by post.
2.2 In May 2003 the complainant again attended at his local Health Centre, initially to query the amount paid to him and subsequently to query non-receipt of a cheque. On this latter occasion, when the complainant indicated where he resided i.e. in a bungalow in front of a caravan site, he was referred by the Community Welfare Officer (CWO) to a central unit in Dublin city which deals specifically with SWA payments to Travellers. It was explained to the complainant that this is Health Board policy.
2.3 The complainant explained to the CWO that he lives in a house and expressed his preference to have his claim handled locally. The Community Welfare Officer stated that he could not process the complainant's claim locally.
2.4 The complainant's claim was subsequently dealt with at the central unit in Castle Street, in the city centre. The complainant and his family regularly have to attend at the central unit for the payment of SWA payments. The condition of the central unit is poor and access is difficult for the complainant and his family, particularly given their specific circumstances (details provided).
2.5 The complainant considers that the segregation of him as a Traveller from other members of the community, which is without any factual need or basis, marks him and his family out as different and is discriminatory.
3 Prima Facie Case
3.1. I must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A (1) of the Equal Status Acts 2000 - 2004 states that
"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her it is for the respondent to prove the contrary".
4. Prima Facie Case - Complainant
4.1 The complainant is a Traveller. He sought payment of SWA at his local Health Centre. His claim was processed and initially paid by the Health Centre. He was subsequently informed that he had been dealt with, and paid SWA, by the Health Centre in error and he was referred to the central unit in Castle Street, Dublin which deals with claims from Travellers for SWA.
4.2 No other clear identifiable group of persons in the non-Traveller community are required to attend at a central unit to claim SWA and can have their claims processed and paid at local Health Centres or alternative venues.
4.3 I am satisfied that the complainant has established a prima facie case of discrimination on the Traveller ground.
5. Summary of Respondent's Case
5.1 In response to the complainant's notification the respondent stated that:-
Events as outlined by the complainant did take place
The Community Welfare Officer who processed the complainant's initial application for SWA was a locum and was not aware that the address supplied by the complainant was within a Halting Site and failed to apply current Health Board policy in relation to applications from the Travelling community.
Subsequently Health Board policy was applied to the complainant's application i.e in relation to applications from the Traveller community a centralised service is available at Castle Street, Dublin.
In 1984 a decision was taken to transfer the delivery of Community Welfare services to the Traveller community from local CWO areas to a central unit in Dublin. The decision was taken for two reasons. Firstly it was felt that a specialised team of CWO's could provide a service that was better focussed on the particular needs of Travellers. Secondly, at the time the payments function and the records were not computerised. Due to the mobility of Travellers many CWO's felt that they did not have effective control over payments being made to Travellers.
Many Travellers felt that the new centralised service discriminated against them as a result of which a number of highly publicised protests were conducted outside the Castle Street premises.
In 1994 a decision in principle was taken by the respondent that the service should revert back to local areas.
Over the following years consultations and meetings took place to consider how this could best be achieved. On foot of such meetings a decision was made to provide a localised service to Travellers who held tenancies with Local Authorities while the remaining members of the Traveller community would continue to be dealt with by the centralised unit.
In October 1999 the issue was revisited as the context had changed for a number of reasons, i.e. the SWA system was now computerised, the Eastern Health Board was in the process of being divided into three new Health Board regions and the Equal Status Bill was being drafted.
In consultation with a number of interested groups it was decided that there was no reason why the decision taken in 1994 could not be implemented in full. A Working Group was established in November 1999 to progress the matter and to deal with a number of concerns that had been raised.
The Working Group identified a number of practical and policy issues that needed to be addressed (details provided).
To date the service has not been decentralised but some progress has been made in that a pilot scheme is currently set to be introduced in two areas. Payments are made locally to Travellers who have Local Authority tenancies. However, residents on dedicated Halting Sites and housing developments for Travellers are still being dealt with centrally.
Mr. Reilly, the complainant, accessed the service at a time when Travellers on dedicated Halting Sites, on one of which Mr. Reilly resided, were being dealt with in a central unit. The initial decision to centralise was not intended to discriminate or marginalise the Traveller community. It was merely a logistical response to mobility and cultural issues affecting control of payments and effective service delivery at a time when payments were not computerised.
6 Conclusions of the Equality Officer
6.1 Having carefully considered all of the evidence presented in this case I am satisfied that the respondent has failed to rebut the inference of discrimination for the following reasons:-
Evidence presented at Hearing by the respondent indicates that;
The centralisation of payment of SWA to Travellers was based on anecdotal evidence of fraud exchanged between Community Welfare Officers (CWO's) at the time.
No in-depth research or analysis was conducted into the alleged fraud.
It took a few months to centralise the service.
The centralisation of the service was not discussed with Traveller representative bodies nor was the Traveller community consulted in the matter. The service has met with very strong opposition from the Traveller community from the outset. The respondent's position that the service has evolved to cater specifically for the needs of the Traveller community is simply not borne out by the evidence presented.
The stated logistical and practical reasons for retaining a centralised service for Travellers have not existed for many years and, in any event, were/are not exclusive to the Traveller community.
In 1999 the respondent was aware that equality legislation was being introduced and that the central provision of service to Travellers should be reviewed in light of same. While a Working Group was established in 1999 to carry out such a review no real progress has been made to date with regard to decentralising the service.
I would emphasise that the respondent's actions in establishing the central unit predated the introduction of the Equal Status Act 2000 and as such were not open to challenge under that Act at the time of establishment. However, from the date of introduction of the legislation and despite awareness on the respondent's part that the unit's existence might contravene the Equal Status Act, no real progress was made with decentralising the unit's services.
6.2 The respondent states that Travellers holding a local authority, or other, tenancy which is not Traveller dedicated, can now avail of SWA payments at local Health Centres. This approach indicates that the tenancies as described are seen by the respondent to confer a permanence on them that eliminates the problems which the respondent claims arise on foot of the mobility of Travellers who do not hold such tenancies. However, no evidence has been presented to show why this is the case. In the instant case, for example, the complainant resides in a bungalow on a halting site and neither he nor his family are mobile/nomadic. The pursuit of a nomadic lifestyle by some Travellers as against those who chose a non-nomadic lifestyle was never taken into consideration by the respondent when establishing the central unit in Castle Street. In any event, the computerisation of the payments system eliminates many of the problems which the respondent perceived to exist when the service was initially centralised.
6.3 I note the respondent's submissions with regard to the practical difficulties of decentralising the SWA service but I also note that, despite the lapse of a period of some 14 years since the initial decision was taken, in principle, to decentralise the service little progress has been made. I note further that services other than SWA payments are available to the wider Traveller community at local Health Centres and that any related practical issues have either been resolved or did not arise with regard to those other services. Furthermore, the practical and logistical difficulties which must have attached to the centralisation of the SWA service for Travellers were overcome in a matter of some few months.
6.4 The respondent referred to Travellers being dealt with at the "Homeless Persons Unit", with reference to the Castle Street unit. However, when questioned, the respondent indicated that non-Traveller homeless persons can in fact provide the address of a hostel for the purposes of payments from the unit and can have payment made to them at any post office. This contrasts starkly with the requirement that the complainant, because he is a member of the Traveller community, must attend at the central unit for SWA payment. No evidence was presented as to why Travellers, as a community, are regarded as being "homeless".
6.5 Material was submitted on behalf of the complainant in relation to the wider issue of segregation, citing in particular Brown et al v. Board of Education of Topeka et al. While this case raises a number of interesting issues in relation to general segregation and policy issues in this matter I am satisfied that the instant complaint turns on those facts which have established that the complainant was treated in a manner such that the treatment constitutes less favourable treatment than that which is afforded by the respondent to members of the non-Traveller community in the provision of a service, namely the payment of SWA. Specifically, the complainant must travel to the central unit for payment while all non-Traveller recipients of SWA can elect to have it paid locally or via a number of alternative outlets.
7 Decision
7.1 I find that the respondent has directly discriminated against the complainant on the Traveller ground contrary to Section 5 and in terms of Section 3 (1) and 3(2) (g) of the Equal Status Acts 2000-2004.
8 Redress
8.1 In accordance with Section 27(1)(a) of the Equal Status Acts 2000-2004 I hereby order the respondent to pay to the complainant the amount of €6,350 for the effects of the discrimination. In making this award I have taken into account the specific hardships imposed on the complainant by the requirement for him to attend at the central unit for payment of the SWA.
8.2 In accordance with Section 27(1)(b) of the Equal Status Acts I hereby order the respondent to make arrangements for the payment to the complainant, with immediate effect, of Supplementary Welfare Payments at his local Health Centre and any further alternative venue at which payment of the allowance is available to non-Travellers.
8.3 In accordance with Section 27(1)(b) of the Equal Status Acts 2000-2004 I further order that the respondent, with immediate effect, arrange for payment of Supplementary Welfare Allowance to Travellers at all outlets at which payment is available to non-Travellers.
_________________________
Dolores Kavanagh
Equality Officer
25 July, 2007