A Complainant
V
Department of Social and Family Affairs
(Represented by Sinéad McMullen BL)
Keywords
Equal Status Acts 2000 to 2004 - Discrimination, section 3(1) – Age ground, section 3(2)(f) – Certain measures and activities not prohibited, section 14(1)(a)(i) - Social Welfare Consolidation Act 2005, section 108(3) – Qualification for Old Age (contributory) Pension
1. Delegation under the Equal Status Acts 2000 to 2004
1.1. A complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, 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.
2. Dispute
2.1. The dispute concerns the Department of Social and Family Affairs (henceforth the Department) refusal to take notice of the complainant’s years spent in childcare duties for the purposes of calculating the yearly average number of PRSI contributions on the basis of the Old Age (Contributory) Pension payable to her on reaching 66 years of age. The complainant maintains that the fact that the Department’s Homemaker Scheme only applies to persons who cared for their dependants on or after 6 April 1994 creates a situation where she, on the age ground, is less favourably treated contrary to section 5(1) of the Acts. She asserts that in a case of a person in similar circumstances, including having a similar number of PRSI contributions, but of a younger age, such that the years spent in the care of her children occurred on or after 6 April 1994, those years are disregarded, increasing the calculated yearly average number of PRSI contributions, with the result that the pension payable is substantially greater than what will be paid to her.
3. Preliminary issue
3.1. While the Homemaker’s Scheme was initially introduced as a statutory instrument in 1994 (S.I. 235/94) it has since been replaced by Section 24 the Social Welfare Act 1996. The Scheme is currently governed by Section 108 of the Social Welfare Consolidation Act 2005 (and since amended by Section 8 of the Social Welfare Law and Pension Act 2006). While I fully acknowledge the position the complainant finds herself, it is clear that Section 14 (1)(a)(i) of the Equal Status Acts deems the treatment of the complainant as non-discriminatory within the meaning of the law. Section 14 (1)(a)(i) of the Equal Status Acts states:
“Nothing in this Act shall be construed as prohibiting –
a) the taking of any action that is required by or under –
(i) any enactment or order of a court.
This means that any action that is required by or under any enactment is not prohibited under the Equal Status Acts. The method of calculating the contributions for the purpose of Old Age Contributory Pension, insofar as it concerns a Homemaker, is provided for in the Social Welfare Contribution Act 2005, as amended, and so, the treatment complained of by the complainant is required by that provision.
4. Decision
4.1. The complainant has failed to establish a prima facie case of discrimination on the ground of age. Therefore, I find in favour of the respondent.
_______________
Tara Coogan
Equality Officer
19 February 2008