DEC-S2009-011

Equal Status Acts 2000-2008

Equality Officer Decision

A Complainant

V. Health Service Executive (South)

(Represented by Mr. Diarmuid Cunningham of Comyn Kelleher and Tobin Solicitors)

Case reference ES/2006/0168

Issued 5 February 2009

Keywords

Equal Status Acts 2000 to 2008 – Discrimination, section 3(1)(a) – Disability ground, section 3(2)(d) – discrimination on ground of disability, reasonable accommodation, section 4(1) - Disposal of goods and provision of services, section 5(1) – Vicarious liability, section 42(2)

1. Delegation under the Equal Status Acts 2000 to 2008

1.1. A mother referred a claim on behalf of her daughter, the complainant, to the Director of the Equality Tribunal under the Equal Status Acts on 29 December 2006. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, 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 Acts. An investigation in accordance with section 25(1) of the Acts commenced on 8 August 2008. An oral hearing, as part of the investigation, was held in Cork on 11 December 2008.

2. Dispute

2.1. The dispute concerns a complaint of unlawful discrimination on the disability ground in relation to the complainant’s access to a mobility allowance payment administered by the Health Service Executive. The complainant’s mother maintains that the Health Service Executive (“the respondent”) treated her daughter contrary to sections 3(1), 4(1) and 5(1) of the Acts on the ground of her disability on 9 November 2006 when her appeal into her daughter’s application for a mobility allowance was refused. The respondent was notified on 20 December 2006.

3. Case for the complainant

3.1. The complainant has an intellectual disability (Down syndrome) that her mother stated makes her very vulnerable. She is, according to her mother, unable to travel independently. It was submitted that the complainant might be able to take some simple journeys using public transport provided that she could be trained to do so. However, as there are no bus services in the area, this is a moot point.

3.2. The complainant lives in a rural area where she has no access to public transport. This, it was submitted, means that the free travel pass that she has is meaningless. The complainant’s parent submitted that she felt that there is a hierarchy of disabilities and that she felt that it would appear that Down syndrome is at the bottom.

3.3. The complainant’s parent submitted that it was unfair that her daughter could not avail of this grant just because she was able to use her limbs. It was submitted that it is her intellectual ability that restricts her mobility. The complainant’s parent had no complaints about the manner in which the medical assessment had been carried out. She also had no suggestions on how such an assessment process could have been more accessible to her daughter.

4. Case for the respondent

4.1. The respondent submitted that the complainant made an application for mobility allowance on 17 January 2006. She was assessed on 21 July 2006 by a Medical Officer. It was found that the complainant did not conform to the medical criteria laid down. This decision was confirmed by a Senior Medical Officer on 26 July 2006. This decision was appealed and the complainant was reassessed by a different area Medical Officer and again deemed not eligible based on the medical criteria for mobility allowance. This decision was also confirmed by a different Senior Medical Officer.

4.2. A mobility allowance is payable by the Health Service Executive, subject to a means test, to persons with a severe disability. Applicants must be 16 years or older and under 66 years. The allowance provides financial support to eligible persons who are unable to walk or use public transport and is intended to enable them to benefit from a change in surroundings – for example, by financing the occasional taxi journey. Any person applying for the mobility allowance will be assessed according to strict medical criteria set out in the Department of Health Circular 15/79.

4.3. The medical criteria for a person to be eligible for receipt of mobility allowance are as follows:

Is the applicant unable to walk, even with the use of artificial limbs or other suitable aids? (Interpret “unable” as the effective physical incapacity to walk)
Is the applicant in such a condition of health that the exertion required to walk would be dangerous?
(Where the answer to “A” or “B” is “Yes) Is the incapacity permanent?
(Where the answer to “C” is “No”). Is the capacity likely to persist at least one year?
Is the applicant forbidden for medical reasons from being moved?
Is the applicant in a condition to benefit from a change in his surroundings?

The complainant was refused because she did not conform to the medical criteria laid out under criteria A, B and E.

4.4. The respondent referred to Equality Tribunal decision DEC-S2007-076 as a case for consideration. It was submitted that the respondent had acted entirely in accordance with the rules set out in the Department of Health Circular 15/79 and that they are bound by the criteria set out in it. The respondent denies any failure to provide special assistance or facilities to the complainant.

5. Conclusion of the Equality Officer

5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that they suffered discriminatory treatment. It is only where such a prima facie case has been established that this onus shifts to the respondent to rebut the inference of discrimination raised.

5.2. In making this decision I have taken cognisance of both oral and written submissions made by the parties. It is agreed that the complainant is covered by the disability ground as defined in section 2(1) of the Acts. It is not for this Tribunal to consider issues pertaining to differences of treatment that may arise from rural/urban issues.

5.3. As the mobility allowance is governed by a Department of Health Circular No.15/79, and there is no primary legislation governing its specific application, I find that defences set out in section 14 of the Acts are not applicable. While I am satisfied that the Circular is set out by the Department of Health, I find that the Health Service Executive is a correct respondent in accordance with section 42(2).

5.4. Having heard the evidence I am satisfied that the respondent acted entirely in accordance with the rules set out by the Department of Health circular No. 15/79 in relation to this complaint. There is no evidence to support any failure by the respondent to offer special assistance or facilities to the complainant in accordance with section 4(1) in relation to the way in which the assessment process for the allowance was completed. I also note that the complainant’s parent was perfectly happy with the manner the assessment had been carried out and that the complaint is really in relation to the fact that the current assessment criteria is not inclusive of intellectual disability.

5.5. The respondent’s representative referred to DEC-S2007-076 at the hearing. This decision refers to a complaint taken by a person with a physical disability whoalleged that her condition was sufficiently severe to warrant her qualification for the mobility allowance and that the respondent failed to take sufficient account of the severity and impact of her disability in its evaluation of her application. I wish to distinguish this decision from DEC-S2007-076 on the following grounds:

1. The above decision concerns a person with a physical disability, who was assessed in accordance with the criteria set out in Circular 15/79.

2. The complainant in the above decision had been offered special assistance and/or facilities within the meaning of section 4(1) by the respondent which she had rejected.

3. The focus of this decision is concerned with whether the criteria in the Circular established in 1979 is broad enough in its approach to disability as defined in section 2(1) of the Acts. This approach must be broad enough to ensure non-discrimination between a person with a disability and another who has a different disability in accordance with the Acts.

5.6. I note that the aim of the mobility allowance is “for severely handicapped persons ….who would benefit from occasional trips away from home”. Paragraphs 5 and 6 of Circular 15/79 state:

5. “The essential medical criterion for the grant of the allowance is that the applicant is unable to walk, even with the use of artificial limbs or other suitable aids, or is in such condition of health that the exertion required to walk would be dangerous (emphasis in the original text). It is essential that this criterion should be interpreted strictly. This inability to walk has to be likely to persist for at least one year and the applicant must not be forbidden for medical reasons from being moved.”

6. It will be a matter for the Director of Community Care and Medical Officer of Health to decide whether the medical criteria are satisfied in any case.

5.7. Discrimination under the Acts is defined in section 3(1) as “where a person is treated less favourably than another person is, has been or would be treated in a comparative situation”. This comparator type of approach under the disability ground is defined as “that one is a person with a disability and the other either is not or is a person with a different disability (emphasis mine). In a case involving a different disability, this Tribunal must be satisfied that any such a comparator falls within the broad definition given to disability in the Acts. Disability is defined under the Acts as -

(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,

(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.

It is clear that the above definition includes a broad range of physical, intellectual and psychological conditions.

5.8. Having considered the wording of the actual Circular 15/79 and the evidence in relation to the assessment process, I note that there is an obvious failure to assess the intellectual capacity of the applicant in relation to their mobility. I find that the current clinical assessment does not, in its current format, allow for assessment that is compatible with the broad definition of disability as set out in the Equal Status Acts. The concept of mobility in the circular is construed in such a narrow manner that it fails to recognise that in some severe cases a person’s intellectual and/or psychological health may restrict their mobility as effectively as some physical disabilities do. I find that this is a clear omission and it is obvious that the mobility allowance has not been updated to comply with the requirements set out in the Equal Status Acts (enacted in October 2000). The complainant, in order for her not to have been less favourably treated than a person with a physical disability, should have had her intellectual ability in relation to her mobility assessed. This ability should be assessed alongside the physical assessment procedures based on the clinical judgment of a medical officer.

5.9 Based on the foregoing, I strongly recommend that the Health Service Executive (in partnership with the Department of Health and Children if necessary) examine the various allowance schemes governing people with disabilities to ensure that they and the associated assessment processes comply with the requirements of the Equal Status Acts.

6. Decision

6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:

6.2. The complainant has established a prima facie case of less favourable treatment in relation to the assessment process contrary to sections 3(1) and 5(1) on the ground of her disability. In accordance with section 27(A) I order the respondent to pay the complainant €1500 as redress for the inconvenience caused.

6.3. In accordance with section 27(B) I order the respondent to reassess the complainant’s entitlement to the mobility allowance by taking also into consideration her intellectual condition.

_________________

Tara Coogan

Equality Officer

5 February 2009