Irene Noonan
-v-
Greg Price, Appeals Officer HSE South
(formerly South Eastern Health Board)
1. Summary of the Complainant's Case
1.1 The complainant is disabled due to a combination of medical conditions and complications arising from them. For a number of years she has had osteoporosis which has resulted in compression fractures of her spine and she has also fractured other bones. She also suffers from chronic obstructive pulmonary disease (COPD). Due to the various medications she takes, she has on a number of occasions had medical crises such as temporary kidney failure and blood disorders. The presence of these conditions has significantly deteriorated her ability to get about on foot and she says that due to the discomfort and pain which results from her condition she is unable to utilise public transport. She walks with difficulty and is only able go short distances. She relies on taxis to get to and from the doctor and the various clinics she attends. She says that she would attend her doctor on a weekly basis at a minimum. She would travel by taxi on these occasions and she would also use taxis to get her to the shops where she can get about by using a shopping trolley for support.
1.2 She is a recipient of Supplementary Welfare Allowance and prior to her application for the Mobility Allowance administered by the HSE, she was able to reclaim taxi costs as part of her Supplementary Welfare Allowance. On the advice of her Community Welfare Officer (CWO) she applied for the Mobility Allowance as the refunds she was getting would be no longer available to her. This allowance is a payment to assist those who otherwise would not be able to leave their home due to mobility difficulties. Her application was refused as it was stated she did not meet the criteria to qualify. She was given an opportunity to appeal and appealed to the HSE region concerned. The outcome of her appeal was to uphold the original decision taken on her initial application for the allowance. Following that decision she made further contact with the Appeals officer for the HSE, Mr. Price, who met with her but the decision not to award her the allowance remains.
1.3 Mrs. Noonan alleges that her condition is sufficiently severe to warrant her qualification for this allowance and that the respondent is failing to take sufficient account of the severity and impact of her disability in its evaluation of her application. She considers the treatment and outcome of her appeal to be discrimination against her on the ground of disability. She also alleges that the treatment of her in relation to her appeal is victimisation.
2. Summary of the Respondent's Case
2.1 Mr. Greg Price, Appeals Officer and Ms Anne Galvin, Superintendent Community Welfare Officer attended the hearing for the HSE. The HSE is the body which administers both the Supplementary Welfare Scheme and the Mobility Allowance in the region where Mrs. Noonan lives. The respondent agrees that Mrs. Noonan has been in receipt of Supplementary Welfare Allowances including a payment which reimbursed her for taxi fares. Following a review of this practice, the CWO dealing with Mrs. Noonan informed her that the taxi fare reimbursements would cease but that she could apply for the Mobility Allowance which may be payable to persons with severe mobility difficulties. Payment of the Mobility Allowance is subject to the applicant satisfying two qualification criteria, a means test and a medical assessment on a defined scale to establish the level of mobility impairment which the applicant has. The respondent says that Mrs. Noonan's means are such that she satisfied the means test requirement. However, her medical assessment resulted in a determination that her level of mobility was not sufficiently impaired to qualify her for the allowance. The respondent said that on appeal a medical assessment by 2 or 3 other medical practitioners concurred with this finding, while acknowledging Mrs. Noonan's medical difficulties. The respondent said that the Mobility Allowance scheme was specifically aimed at those who would have no opportunity to leave the confines of their home due to the severity of the disability present, without the assistance of taxi or other specialised transport. The scheme is to assist the individual to meet the cost of occasional journeys. Examples of qualifying disabilities for the allowance in the past were oxygen dependency with severe cardiac impairment and wheelchair dependency with restrictions in arm movement. The medical criteria in the guidelines issued by the Department of Health and Children for the granting of this allowance state as follows:
"The applicant must be unable to walk, even with the use of artificial limbs or other suitable aids, or must be in such a condition of health that the exertion required to walk would be dangerous.
The applicant's inability to walk has to be likely to persist for at least one year.
The applicant's condition must be such that moving him/her has not been forbidden for medical reasons.
The applicant should be in a condition to benefit in a change from his or her surroundings.
The applicant should provide Medical Certification from his/her GP."
2.2 The respondent said that all of the proper procedures in relation to Mrs. Noonan's application had been followed and that she had not satisfied the medical criteria. Mr. Price said that while he would not have been directly involved in Mrs. Noonan's assessment he has responsibility for consumer issues and he would have become aware of Mrs. Noonan's dissatisfaction with the assessment and also her complaint following she contacting his office after her appeal was rejected.. He agreed to speak with her about her application following receipt of her notification of her complaint to the Equality Tribunal. His meeting with Mrs. Noonan lasted about 30 minutes and Ms Galvin was also present. Mr. Price said that other assistance was offered to Mrs. Noonan to help with her difficulties in mobility but she refused these. The type of assistance offered was the provision of various mobility aids, such as walking frames which would enable her to get about independently. He said that such equipment had improved a lot in recent years and could be of significant assistance to someone in Mrs. Noonan's situation. He said that Mrs. Noonan refused these aids as she indicated that she wished to maintain her dignity for as long as possible and using such aids would infringe on her sense of dignity. He believed that the HSE were providing Mrs. Noonan with access to everything they could to assist her mobility given that she did not qualify for the Mobility Allowance.
3. Conclusions of the Equality Officer
3.1 The complainant in this case has grounded her complainant on the basis of her stated disability. At the outset, the burden of proof rests with the complainant. I must, therefore, consider whether the complainant in this case, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. (1) It must be established that she is covered by the relevant discriminatory ground i.e. in this case that she has a disability. (2)It must also be established that the actions complained of actually occurred and (3) it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not disabled nor had a different disability. If the complainant succeeds in establishing a prima facie case of discrimination, the burden of proof then shifts to the respondent who must then rebut the case of the complainant if their defence is to succeed. In the case of disability further consideration may be made to the issue of the provision of reasonable accommodation to a disabled person, Section 4 of the Equal Status Act states as follows:
4. -- (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.
(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.
(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.
(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination...
3.2 The first test set out above is whether the complainant, Irene Noonan is covered by the disability ground, i.e. is she considered disabled according to the definition of disability set down by the Equal Status Act 2000-2004. In the act
"disability" means --
(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 the complainant satisfies the first of the three criteria outlined above in that the medical conditions she lives with come within the definition of disability set out in the Equal Status Act 2000-2004. Furthermore, it is not in dispute between the parties that she is disabled, but whether that disability impacts on her mobility to such an extent that she is eligible for the award of a Mobility Allowance as administered by the HSE. In relation to the second criterion, I am satisfied that Mrs. Noonan, having applied for the Mobility Allowance and having appealed the initial refusal to grant her the allowance, was refused the allowance. I accept that this is sufficient to satisfy the second criterion, i.e. that the specific action occurred.
3.3 The third criterion, i.e., whether the specific actions complained of were less favourable than the treatment that would have been given to another person in similar circumstances who either did not have a disability or had a different disability must also be considered in determining whether a prima facie case has been established.
3.4 The specific allowance applied for in Mrs. Noonan's case is only available to disabled persons, so a person without a disability in similar circumstances to Mrs. Noonan would not be able to avail of the allowance in any event. Furthermore, the allowance is specifically directed at those with disabilities that restrict their mobility so severely that they need such assistance to allow them the occasional trip out. This appears to imply that if a person with a different disability to Mrs. Noonan were to avail of the Mobility Allowance, that person would need first to have demonstrated that he/she has such special needs. What remains to be considered, therefore, in establishing whether discriminatory treatment occurred in Mrs. Noonan's case is the issue of the provision of reasonable accommodation in accordance with Section 4 of the Act.
3.5 The evidence before me is that Mrs. Noonan suffers from a significant level of disability due to her medical condition. It is clear that this disability impacts on her ability to engage in day to day activities at the fullest level. It is, however, evident that she is able to walk, although with some difficulty, particularly without the assistance of medical aids. She has chosen not to avail of such aids, where offered, for personal reasons. The evidence is also that the particular allowance applied for is to benefit those who cannot walk "even with the use of artificial limbs or other suitable aids". I conclude therefore, that in terms of this particular allowance, Mrs. Noonan did not meet the medical criteria. It would appear therefore, that Mrs. Noonan and others in her situation have in effect slipped through the net in that she can no longer receive assistance towards her taxi fares through her Supplementary Welfare payment and does not qualify for such a payment through the award of a Mobility Allowance.
3.6 Reasonable Accommodation
In this case the complainant, Mrs. Noonan made an application for a grant of the Mobility Allowance on the prescribed form and on the evidence available to me she was assessed both on the criterion of means(which she satisfied) and was subjected to a medical assessment at both at the application stage of the process and on appeal. There has been no evidence that she was unable to participate in the assessment process or that the provision of additional facilities would have aided her application and assessment for the allowance. The judgment of her medical assessors at both stages of the process was that that her condition did not meet the medical criteria for the provision of the Mobility Allowance. At each of the two stages of the process she was assessed by different medical personnel. I conclude, therefore, that the assessment was conducted in a fair and non discriminatory manner given the limited scope of the particular scheme.
3.7 On the evidence before me in terms of Mrs. Noonan's application and appeal of her application for the Mobility Allowance, I conclude also that Mrs. Noonan's disability did not restrict her in participating in the application and assessment process or, that special facilities would have been required to enable her to enter the process.
3.8 I am particularly conscious of the fact that Mrs. Noonan is significantly disabled by her medical condition, although the nature and extent of her disability did not at the time of her application and assessment, bring her within the restrictive and particularly narrow criteria set down for the award of the mobility allowance. I would make the following observation in relation to this case. I have to take account of the service and facilities available to Mrs. Noonan through the HSE Community Welfare Service. The evidence is that she has been offered mobility aids other than the mobility allowance and has not availed of these. I consider that by not availing of this potential assistance and determining its benefit, I am restricted in the scope I have to examine the overall provision of a disability service, including the mobility allowance to someone in Mrs. Noonan's position. I consider that I can only look at the complainant's specific application for the mobility allowance in a context where she had not exhausted the services and facilities that were on offer to her.
3.9 Victimisation
The complainant maintains that her treatment by Mr. Price and Ms Galvin represents victimisation towards her. I can only consider victimisation in accordance with the meaning of victimisation defined in Section 3(2) (j) the Equal Status Act 2000-2004. This sees victimisation in the context of action taken toward a person arising from the making of a complaint, their intention to make a complaint or other lawful connection with the making of a complaint under the Act. Any action taken prior to such events could not fall within this definition. In relation to the meeting with Mr. Price and Ms Galvin following the failure of her appeal, I have concluded that the meeting and what happened at it was not victimisation within the terms of the Equal Status Act 2000-2004 although it was prompted by Mrs. Noonan's notified intention to make a claim of discrimination.
4. Decision
4.1 Having considered all of the evidence in this case, particularly in relation to the extent of Mrs Noonan's disability and the extremely narrow scope of the Mobility Allowance applied for I conclude that the complainant has failed to establish a prima facie case of discrimination in accordance with the terms or the Equal Status Act 2000-2004 and accordingly her complaint must fail.
4.2 In such a case I cannot make an order for action to be taken but I am making a non-binding recommendation in the knowledge that it is open to the complainant at any time to make a new application for the Mobility Allowance. This is, that given the potentially progressive nature of Mrs. Noonan's condition, that the respondent in the interest of best practice, would provide her with every assistance in making such an application, if she chooses to do so and that her application would be dealt with in due haste. I would further recommend that the complainant avail of all of the mobility aids offered to her by the HSE to assist in an accurate assessment being made of her condition. While my recommendations herein have no legal effect I would encourage both parties to take the opportunities presented by them.
Mary O'Callaghan
Equality Officer.
15th November 2007
1 Equal Status Act 2000-2004 @ Section 2.1