DEC-S2008-097 - Full Case Report

Equal Status Acts, 2000 to 2008

Equality Officer Decision

DEC-S2008-097

Ann O’Donoghue

-v-

NorthTipperary CountyCouncil

 File Ref: ES/2005/0309

Date of Issue: 11^th November, 2008

Delegation under the Equal Status Acts, 2000 to 2008

This complaint was referred to the Director of the Equality Tribunal on 20^th September, 2005 under the Equal Status Acts, 2000 to 2004.  On 11^th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, 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 Acts, 2000 to 2008 on which date my investigation commenced.  As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 16^th October, 2008.

1.         Dispute

1.1             This dispute concerns a claim by the complainant, Ms. Ann O’Donoghue that she was discriminated against by the respondent on the grounds of her membership of the Traveller community and by association on the disability ground in terms of Sections 3(1)(a), 3(1)(b), 3(2)(g) and 3(2)(i) of the Equal Status Acts, 2000 to 2004 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008. 

2.            Summary of the Complainant’s Case

2.1             The complainant claims that the respondent has discriminated against her on the grounds of her membership of the Traveller community and on the disability ground on the basis of its refusal to grant her planning permission to build a house.  The complainant’s son has cerebral palsy and is fully wheelchair bound and she submitted an application for planning permission to the respondent on 4^th November, 2004 in order to build a two story house which was designed for the purpose of catering for his requirements as a person with a disability.  The complainant stated that a number of local residents submitted an objection to the planned development on 29^th November, 2004 on the grounds that the proposed entrance was too near a dangerous bend.  However, the complainant claims that this objection was motivated on the basis of her Traveller identity as her husband had been seen on the site by one of the named objectors with his horses and a number of friends only a number of days prior to the objection being made.  Subsequent to the submission of this objection, one of the respondent’s planners came out to inspect the site.  The complainant telephoned the respondent a few days before a decision was due on the application in order to ascertain if a decision had been made at which point she was informed that the site notice was too low. 

2.2             The complainant subsequently wrote to the respondent on 6^th January, 2005 applying for an extension of three months to further consider her application for planning.  Following the difficulties posed by the site notice being too low, both the complainant and her husband, sought to arrange a meeting with the respondent’s Senior Planner in order to discuss this issue and the requirements of her son as a person with a disability in terms of the planning application, however their requests for a meeting were not facilitated.  The complainant received a letter from the respondent on 4^th April, 2005 refusing her application for planning permission.  The complainant submitted that the three reasons which were outlined in the notification of refusal were not valid and she claims that the respondent granted planning permission around that time for a two story house on a site that was in close proximity to her proposed development.  The complainant claims that the reason her planning application was refused was because of her membership of the Traveller community.  The complainant also claims that she was discriminated against by association on the disability ground on the basis that the respondent failed to provide special measures or facilities in order to accommodate the needs of her son as a person with a disability when it refused to grant the application for planning permission for the house which was designed to cater for his needs.

3.            Summary of the Respondent’s Case    

3.1             The respondent denies that it has discriminated against the complainant on the grounds of her membership of the Traveller community or on the disability ground in terms of the manner in which her application for planning permission was processed.  The complainant’s application for planning permission was received on 4^th November, 2004 and the respondent submitted that it was processed in compliance with the Planning and Development Acts, 2000 to 2002 (and relevant Regulations) and also in accordance with the normal procedures and practices that were in place at that time.  The respondent claims that the decision to refuse the application was based on the policies as contained in the County Development Plan 1998 (i.e. the Plan applicable at the date of receipt of the complainant’s application) and national guidelines as issued by the Department of the Environment, Heritage and Local Government. 

3.2             The respondent accepts that an objection to the applicant’s planning application was submitted by a number of local residents; however it submitted that this objection did not make any reference to the complainant’s membership of the Traveller community and that the respondent was obliged to accept the objection as it was a valid objection which was made in accordance with the relevant planning regulations.  The respondent submitted that the Planner dealing with the application refused to meet local residents who made this objection during the processing of the file in order to avoid being prejudiced in their favour and they were advised that all submissions had to be made in writing in the interests of openness and transparency.  The respondent stated that it does not have any record of either the complainant or her husband seeking to meet with the Senior Planner in order to discuss the planning application, however, it claims that there is no obligation on any Planner to meet applicants during the processing of an application.  The respondent claims that the decision to refuse the complainant’s application for planning permission was made on 4^th April, 2005 and it submitted that the three reasons which were outlined in the refusal were based on the policies contained in the County Development Plan 1998 and in accordance with national Guidelines. 

3.3             The respondent submitted that it had absolutely no difficulties or issues with the internal design of the house which was drafted to meet the requirements of the complainant’s son as a person with a disability.  The respondent stated that the reason to refuse planning permission was not in any way attributable to the features of the house which were incorporated to accommodate his requirements as a person with a disability and it therefore denied the refusal of the application was in any way discriminatory on the basis of the complainant’s son’s disability.  The respondent stated that the complainant did not avail of her right to appeal to the decision to refuse planning permission to An Bord Pleanala despite being advised of this course of action if she was unhappy with the decision of the Planning Authority.   

4.            Conclusions of the Equality Officer

4.1             The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant.  Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination.  It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her.  It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.  In making my decision in this matter, I have taken into account all of the evidence both, written and oral, made to me by the parties to the case.  I will now proceed to examine the complaint on each the grounds claimed.  

Traveller community ground

4.2             I am satisfied that the complainant is a member of the Traveller community and that the specific treatment complained of actually occurred i.e. that the complainant’s application for planning permission was refused by the respondent.  In order to establish a prima facie case of discrimination on the Traveller community ground the complainant must show that the reason this application was refused was because she was a member of the Traveller community and not because of any other reason.  I note that the complainant disputes the validity of the reasons that were outlined in the respondent’s notification to refuse planning permission and she claims that the reason her application was refused was because of her membership of the Traveller community.  I also note that the complainant, in support of this contention, has made reference to an objection by a number of local residents against her planning application, which she alleges was motivated on the basis of her Traveller identity.  The complainant claims that this objection was taken into consideration by the respondent and was a factor in its decision to refuse the application for planning permission. 

4.3             In considering this issue, I am satisfied that the complainant’s application for planning permission was processed by the respondent in accordance with its normal practice and procedures and in compliance with its obligations under the Planning and Development Acts, 2000 to 2002 (and relevant Regulations).  I accept that an objection to the application for planning was submitted by a number of local residents, however it is clear that this objection related to concerns regarding the proposed entrance to the planned development and that it was not grounded on the basis of the complainant’s status as a member of the Traveller community.  Furthermore, I am satisfied that this was a valid objection under the applicable Planning and Development Regulations and that the respondent was therefore obliged to deem it admissible as part of the overall planning process.  Having regard to the totality of the evidence, I am satisfied that the complainant has not adduced any evidence to show that the decision by the respondent to refuse her application for planning permission was in any way attributable to her membership of the Traveller Community.  In the circumstances, I therefore, find that the complainant has not established that she was treated less favourably than a non-Traveller would have been treated in a similar situation in terms of the manner in which her application for planning permission was processed by the respondent.  Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the Traveller community ground.

Disability ground  

4.4             The complainant’s son has a disability and is wheelchair bound and the complainant submitted that the two story house which was the subject of the application for planning permission was designed for the purpose of catering for his needs as a person with a disability.  The complainant claims that the respondent has discriminated against her on the disability ground on the basis that it has failed to take her son’s disability into consideration and has thereby failed to provide reasonable accommodation in respect of his needs when it refused to grant the application for planning permission.  In considering this issue, I accept that the complainant’s son is a person with a disability and that the plans for the house were designed to cater for his needs as a person with a disability.  However, I have also noted the respondent’s uncontested evidence that it had no issue with the internal design of the house which was drafted to meet the needs of her son and that the decision to refuse planning permission was not attributable to the features of the house that were incorporated into the plans in order to accommodate his needs as a person with a disability.  I have also taken into consideration the respondent’s evidence that it was not obliged under the applicable Planning and Development legislation to take into consideration an applicant’s disability as a factor when assessing a planning application.  Having regard to the evidence adduced, I am satisfied that the complainant was not treated any less favourably by the respondent in terms of the manner in which her application for planning permission was processed on the basis of her association with her son as a person with a disability.  

4.5             I also note that the complainant has alleged that the respondent failed to provide reasonable accommodation in respect of her son’s requirements as a person with a disability.  In the case of disability in considering whether discrimination occurred, consideration must be made to the issue of the provision of reasonable accommodation to a disabled person in accordance with the provisions of Section 4 of the Equal Status Acts.  In the present case, I am satisfied that the reasons for the refusal to grant the complainant’s application for planning permission were not in any way attributable to her son’s disability or the features that had been incorporated into the design of the house to cater for his needs as a person with a disability.  I therefore find that the respondent did not fail in its obligations in accordance with the provisions of Section 4 of the Equal Status Acts.    

5.     Decision

5.1             On the basis of the foregoing, I find that a prima facie case of discrimination has not been established by the complainant on the Traveller community and disability grounds in terms of sections 3(1), 3(2)(g), 3(2)(i) and 4(1) of the Equal Status Acts, 2000 to 2008.  Accordingly, I find in favour of the respondent in the matter.

Enda Murphy

Equality Officer

11^th November, 2008