The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Equal Status Acts 2000-2008
Equality Officer Decision
DEC-S2009-012
Quigley
(with Ms. Jennifer Marsden, Advocate, Ár nglór)
v.
Health Service Executive
Case reference ES/2006/0125
Issued 9 February 2009
Keywords
Equal Status Acts 2000 to 2008 – Discrimination, section 3(1)(a) – Disability ground, section 3(2)(d) – 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. Ms. Geraldine Murphy referred a claim on behalf of her nephew, Mr. Gary Quigley to the Director of the Equality Tribunal under the Equal Status Acts on 3 October 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 29 July 2008. An oral hearing was scheduled for 13 November 2008. The Director granted a brief adjournment to one of the parties and the hearing was held on 15 January 2009.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the disability ground in relation to his access to a Mobility Allowance payment administered by the Health Service Executive. Mr. Quigley (“the complainant”) maintains that the Health Service Executive (“the respondent”) treated him contrary to section 3(1) and 5(1) of the Acts on the ground of his disability on 12 July 2006 when his application for mobility allowance was refused. The respondent was notified on 2 August 2006.
3. Case for the Complainant
3.1. The complainant, who is affected with schizophrenia, has been living with his aunt and primary carer, Ms. Murphy, since his release from a long-stay facility. Ms. Murphy also cares for her 86 year old mother. The complainant, who also suffers from agoraphobia and depression, is unable to use public transport and relies on two taxi- drivers that he is personally familiar with to get him to his out-patient services. The reason why the complainant is dependant on these two taxi drivers, Ms. Murphy stated, is due to his behavioural patterns and use of language which often frightens people who do not know him.
3.2. The complainant has lived with Ms. Murphy since 2005. Prior to this, he had been hospitalised for over two years. Initially, after his release from hospital, the complainant was unable to travel independently in a taxi and his aunt had to accompany him everywhere. Ms. Murphy submitted that his was due to the fact that the complainant had been traumatised by his stay in hospital to such an extent that he was not eating, having nightmares and was hiding in layers of clothing, not showing his face.
3.3. The complainant’s carer became aware of a mobility allowance in 2006 and sought to have the complainant assessed. She stated that she understood that this allowance is a payment to assist those who otherwise would not be able to leave their home due to mobility difficulties. The complainant was assessed by a medical professional and the application was refused as it was stated that he did not meet the criteria to qualify. The complainant was given an opportunity to appeal and did so. The outcome of the appeal was to uphold the original decision taken. The decision not to award the complainant the allowance remains.
3.4. It was submitted that the complainant’s condition has improved since his departure from the long-stay facility. He is now able to travel with known taxi drivers without his carer, Ms. Murphy. His medication has been decreased, he no longer has nightmares and he is no longer hiding behind layers of clothing. He has become more sociable and is able to accompany his aunt when she goes shopping.
3.5. The complainant submitted, through his advocate Ms. Marsden, that he believes that as a person with a mental health disability severe enough to prevent him from using public transport he should have an equal right in law to a service which is there to aid mobility and inclusion. It was further submitted that the current mobility allowance is outdated as it fails to acknowledge mental illness as a disability, and harks back to a time when the needs of people with mental health were overlooked and misunderstood. It was stated that since the inception of the mobility allowance access to public transport has greatly improved for many people with physical disabilities, increasing the disparity between the treatment of people with one kind of disability and those with another.
3.6. Ms. Marsden submitted to the hearing that she believes that should the complainant’s application be given equal consideration with that of a person of a physical mobility, his application would probably be successful. It was submitted that the complainant can satisfy the other criteria set out in the circular and there is evidence to support the argument that the complainant has benefited from the use of taxis.
3.7. The complainant’s advocate, Ms. Marsden, submitted that the mobility allowance should be amended in line with equality legislation to embrace a more equal society. She submitted that the current service offered by the respondent is discriminatory.
4. Case for the respondent
4.1. The mobility allowance is a means tested monthly payment payable by the Health Service Executive in Ireland to people aged between 16 to 66 who have a disability and are unable to walk or use public transport and who would benefit from a change of surroundings. Eligible persons must live at home or in a long-stay facility. The scheme was introduced in 1979 by a Department of Health Circular 15/79. The Scheme is payable under section 61 (home help service) of the Health Act 1970.
4.2. There is no specific legislation in Ireland providing for the mobility allowance.The respondent stated 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.”
4.3. The respondent stated that all of the proper procedures in relation to the complainant’s application had been followed and that the reason why he was not granted the allowance was because he had not satisfied the medical criteria set out by the assessment form. The assessment is only concerned with the applicant’s ability to use their limbs and does not allow for any discretion from the assessor. The respondent admitted that the language used in the Circular is outdated and of its time.
5. Conclusions 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.
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.
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.
5.5. The question that remains to be addressed from an Equal Status point of view is whether the policy itself is inclusive of disability within the meaning of the said Acts? The aim of the 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 original). 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.
5.6. 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,
(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.
It is clear that the above definition includes a broad range of physical, intellectual and psychological conditions.
5.7. Having considered the wording of the actual Circular and the evidence in relation to the assessment process, I note that there is an obvious failure to assess the intellectual and/or psychological 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 him not to have been less favourably treated than a person with a physical disability, should have had his psychological ability in relation to his mobility assessed. This ability should be assessed alongside the physical assessment procedures based on the clinical judgment of a medical officer.
5.8 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 his 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 into consideration the broad definition of disability in accordance with the Equal Status Acts.
_________________
Tara Coogan
Equality Officer
9 February 2009