Equal Status Acts, 2000-2008
Equality Officer Decision DEC-S2009-04
Mr. John Hegarty (deceased)
(represented by Mrs. Olive Hegarty, Executrix of the Estate of the late Mr. Hegarty)
-v-
Area Development Management Ltd.
(represented by Mr. Paul McGarry B.L. on the instructions of the Chief State Solicitor)
Keywords
Equal Status Acts, 2000-2004 - Section 3(1)(a) - Direct discrimination, Section 3(1)(c) – Indirect discrimination, Section 3(1)(a) - Age Ground, Section 3(2)(f) – Section 3(2)(g) – Disability Ground - Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2004
This complaint was referred to the Director of the Equality Tribunal on 6th July, 2005 under the Equal Status Acts, 2000 to 2004. On 23rd July, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 to 2004, 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 2004. The hearing of the case took place on 26th November, 2008.
1. Dispute
1.1 This dispute concerns a complaint by Mr. John Hegarty (now deceased since the complaint was referred to the Tribunal) that he was discriminated against by the respondent on the Age and Disability grounds in terms of Sections 3(1)(a), 3(2)(f) and 3(2)(g) of the Equal Status Acts, 2000 to 2004 on the basis that he was refused compensation under the terms of the Taxi Hardship Payments Scheme.
2. Summary of the Complainant’s Case
2.1 The complainant, Mr. John Hegarty, was the holder of a taxi licence at the time of the liberalisation of the taxi industry on 21 November, 2000. Mr. Hegarty had undergone major heart surgery in 1999 and was therefore unable to work as a taxi driver, on a full-time basis, thereafter. The Taxi Hardship Payments Scheme was introduced by the government and was designed to compensate taxi licence holders who were suffering hardship as a result of the liberalisation of the taxi regime. The complainant, Mr. Hegarty, made an application for compensation under the Scheme on 4 April, 2004, however he was informed on 20 January, 2005 that his application for compensation was refused on the basis that his principal income was not derived from the operation of a taxi licence at the date of deregulation on 21 November, 2000 and because his income from other sources exceeded the €150 per week limit. The complainant subsequently appealed the decision to refuse his application for a payment under the Scheme but was informed on 12 May, 2005 that this appeal was unsuccessful and that his application was deemed not to be eligible for the reasons already outlined in the initial refusal.
2.2 The complainant, who was aged 70 years at the time of his application for a payment, was in receipt of earnings derived from a private contributory pension at the time of deregulation on 21 November, 2000. The complainant claims that he has been discriminated against by the respondent on the age ground on the basis that if he had been a younger man not yet in receipt of a contributory pension, he would have been eligible for payment of compensation under the terms of the Taxi Hardship Payments Scheme. The complainant also claims that as a consequence of his illness in 1999 he was unable to work in a full-time capacity as a taxi driver thereafter, but was able to rent his taxi license as a source of income prior to deregulation in November, 2000. However, as a result of deregulation the complainant was no longer able to rent his taxi licence and therefore, his potential earnings were further diminished. The complainant claims that he should have been entitled to a payment from the Taxi Hardship Payments Scheme given the extenuating circumstances that he endured following his illness and the consequent hardship that he had to endure as a result of his inability to work as a taxi driver. The complainant, Mr. John Hegarty, died on 24th March, 2006 and his wife, as the Exectutrix of his Estate, wishes to continue to pursue the complaint on his behalf.
3. Summary of the Respondent’s Case
3.1 The Taxi Hardship Payments Scheme was established for the purpose of alleviating the hardship experienced by some taxi drivers resulting from the liberalisation of the taxi industry. Payments under the Scheme were available to six categories of persons as recommended in the Report of the Taxi Hardship Panel which was submitted to the Minister for Transport in September, 2002. Two of these categories related to persons over the age of 50 and a third related to persons with a disability. The complainant made an application for a payment under the Scheme and he was advised by the respondent that his application was unsuccessful and that he was not deemed eligible to receive a payment for the following reasons:
i. The fact that his principal income was not derived from the operation of the taxi licence at the date of regulation being 21 November, 2000, and
ii. Income from other sources exceeded the €150 gross per week limit.
The complainant appealed this decision and a further assessment of his application was carried out by staff and committee members not involved in the first assessment. However, this appeal was dismissed for the reasons advanced in the original refusal of his application, namely that he did not meet the relevant criteria under the Scheme in order to qualify for a payment. The respondent totally rejects the allegation that it discriminated against the complainant on the grounds of his age or disability. The respondent submitted that the Taxi Hardship Payments Scheme sought to alleviate extreme personal financial hardship arising from the failure to make any or adequate pension provision, however, it submits the complainant had made such provision and therefore, was not suffering extreme personal hardship as identified in the qualifying criteria by the Panel. The respondent submits that the complainant was within the age category which could potentially benefit from the Scheme and the reason his application was deemed ineligible was because his income was in excess of the €150 per week cut off point. The respondent submitted that the reason the complainant’s application for a payment was refused was in no way attributable to either his age or his disability.
3.2 The respondent also raised a number of issues, both in its written submission and at the hearing of the complaint, regarding the substantive issue and the jurisdiction of the Tribunal to investigate the complaint which can be summarised as follows:
Issue of jurisdiction regarding the survival, or otherwise, of the complaint following the death of the Complainant
i. The respondent submitted that the complaint of Mr. Hegarty has not survived his death and the Tribunal has no jurisdiction to hear and consider same. It submitted that the complaint procedure under the Equal Status Acts is personal to the complainant and does not survive his/her death and this is apparent from the following factors; firstly, the object of a complaint under section 21 of the Equal Status Acts is to seek “redress”. Section 27 sets out the types of “redress” that may be ordered, being an order for compensation or an order that a person take a specified course of action. The object of the award under section 27 is to provide satisfaction to the complainant him or herself by putting an end (so far as is possible) to the effect upon the complainant of the behaviour in question; secondly, any such complaint must, barring exceptional circumstances, be made within a very short period of time, namely two months. It is submitted that the structure and wording of the Acts are predicated upon a speedy complaint about, and resolution of, a matter of immediate personal interest to the complainant. The scheme of the Acts is not to allow such matters to lie, rather the complainant is required to act upon the matter swiftly or leave it to one side; thirdly, the scheme of the Act favours mediation and once a complaint is made, mediation is the statutorily preferred course. It is submitted that this re-enforces the personal (and often emotive) nature of complaints, the statutory hope being that mediation might allow the parties to face and redress the problem as between them.
ii. The respondent submitted that the requirement of an almost immediate complaint, the emphasis on mediation and the nature and object of “redress” point to a procedure that is quite different from ordinary litigation where, subject to the constraints of section 7 of the Civil Liability Act, 1961, a deceased’s estate might pursue and/or continue causes of action. It is submitted that the exclusions of section 7(2) highlight the fact that the Oireachtas cannot have considered the complaint and redress procedures under the Equal Status Acts to be governed by the Civil Liability Act.
iii. The respondent submitted that the Equal Status Acts does not specifically make provision for the survival of a complaint upon the death of the complainant. This is in contrast to other legislation such as the Unfair Dismissals Acts, 1977 to 2001, the Pensions (Amendment) Act, 2002 and the Personal Injuries Assessment Board Act, 2003 in which the Oireachtas has made specific provision the survival of complaints upon the death of the claimant/beneficiary.
iv. The respondent referred to the Harris[1] decision by the Court of Appeal in England in which it was held that a race discrimination claim under the Race Relations Act, 1976 survived the death of the complainant. The respondent submitted that there are a significant number of material differences between the structure and terminology of English discrimination legislation and in the legislation relating to the survival of causes of action (i.e. section 1 of the Law Reform (Miscellaneous Provisions) Act, 1934) to that of the equivalent Irish legislation. It submitted that discrimination has been phrased as a statutory tort in the UK whereas the Equal Status Acts does not use the language of statutory tort, or damages; rather it refers to complaints and their redress. The respondent submitted that the non-survival of complaints under the Equal Status Acts does not give rise to the same anomalies noted in the Harris case and moreover, the UK 1934 Act and the Irish 1961 Act on the survival of causes of action adopt differing attitudes to damages for suffering.
Other issues of jurisdiction raised by the Respondent
v. The complainant has identified Area Development Management Ltd. as the respondent in these proceedings, however, it is the body that administered the Scheme and it cannot be held liable under the Acts; it is doing no more than administering a scheme in accordance with criteria established by the Executive and if it acted in any way other than that mandated by the scheme, it would be acting unlawfully. The respondent submits that ADM is not capable of being held to have acted unlawfully by following a scheme which it was required to implement.
vi. The respondent states that the Scheme was introduced on foot of a Government decision and that the executive exercising its inherent power in the allocation of public funds to meet a case of hardship being suffered by a class of citizens is not amenable to action under the Equal Status Acts. If the Tribunal had any such jurisdiction, it would have been clearly identified in the Act. The power of the executive is a constitutional one and the courts do not interfere with it save in circumstances of patent unconstitutionality.
vii.The respondent submitted that the Scheme is not a service within the meaning of the Act. A service is an ongoing facility and does not include a once-off scheme of non-obligatory financial assistance in the form of an ex-gratia payment such as this Scheme. While the definition of “service” in section 2 of the Act is non-exhaustive, it affords a useful example of the type of services and facilities that the legislature intended to be covered within the legislation. The type of decision at issue under the present Scheme conspicuously does not come within any of these examples and it is not a grant, a loan or credit financing. It is a payment made by the Government from Central Funds to a particular class of persons believed by it to be deserving, in particular circumstances, and therefore, it was never intended to come within the terms of section 2, nor the Equal Status Acts.
viii. The definition of “person” in section 2 of the Acts includes “an organisation, public body or other entity” but such words are wholly inapt to describe the Government exercising its Executive role under the Constitution. The Government as provided for in Article 28 of the Constitution is not a person. Questions or complaints regarding the disbursements made by the Government pursuant to executive powers (such as monies disbursed pursuant to the Scheme) are not matters which were intended by the Oireachtas to come within the jurisdiction of the Equal Status Acts, and if they were this would have been plainly stated. It submitted that the Government is not named as a person either directly or by implication in this definition, and the Tribunal has no jurisdiction to embark upon a review of its decisions, which is what is sought in the present case.
ix. The respondent submitted that assistance by the Scheme is not a ‘service’ for the further reason that it was not available to the public generally or a section of the public and this is necessary for it to come within the definition of ‘service’ in section 2 of the Act. The category of persons to whom assistance from the Scheme was available was closed at the time the Scheme was put in place – it consisted of persons who held taxi licences on 21 November 2000. This was a private class of people and was not a class consisting of the public or a section of the public.
x. The respondent also submitted that the complainant has not established that any alleged differences in treatment on the grounds of age and/or disability do not fall within the permitted exemptions contained within sections 5(2)(d), (h) and (l) and/or section 14(1)(b) of the Equal Status Acts.
4. Conclusions of the Equality Officer in relation to the issue of jurisdiction following the death of the complainant
4.1 I will first consider the issues of jurisdiction that have been raised by the respondent because, if I find in favour of the respondent on these issue, I am therefore precluded from considering the substantive complaint. The respondent has submitted that the present complaint has not survived the death of the complainant, Mr. Hegarty, and therefore, the Tribunal does not have jurisdiction to investigate and hear the complaint. In considering this issue, I have taken cognisance of Section 7(1) of the Civil Liability Act, 1961 which provides as follows:
“7.-(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) vested in him shall survive for the benefit of his estate”.
Section 6 of the Civil Liability Act sets out the excepted causes of action which includes actions such as defamation and breach of promise. In order to determine whether the Tribunal has jurisdiction to investigate the present complaint, I must therefore decide whether or not a complaint brought under the Equal Status Acts is governed by the aforementioned provisions of the Civil Liability Act, in circumstances where the complainant has died before the investigation has been completed.
4.2 In considering this issue, I have taken note of the Harris case (previously referred to in para. 3.2(iv)) in which the Court of Appeal in England overturned the Employment Appeal Tribunal’s ruling that a race discrimination claim taken under the Race Relations Act, 1976 does not survive the death of the Applicant. In this judgment the Court of Appeal had occasion to refer to the English equivalent of section 7 of the Civil Liability Act, 1961, namely section 1(1) of the Law Reform (Miscellaneous Provisions) Act, 1934. I accept that the aforementioned case is not a binding precedent, however, I am of the view that it is of persuasive value in terms of my decision on this issue in the present case. I have noted the comments of Mummery LJ. at paragraph 6 where he held “The fallacy of the Trust’s submission is that it fails to give full force and effect to section 1(1) of the 1934 Act, which made ‘comprehensive provision’ for the survival of causes of action ‘over the whole field’ to which the old common law maxim on the demise of the ‘actio personalis’ had applied ….. …. The point is not whether the action is ‘personal’ or whether it is assignable, but whether the person who has died had a ‘cause of action’. If he had a cause of action, the benefit of it passed to his estate. The correct question is whether the complaint by Mrs. Andrews under the 1976 Act was a ‘cause of action’ within the meaning of the 1934 Act. If it was, the benefit of it passed to her estate whether it was a ‘personal action’ or not”.
In applying the reasoning of Mummery LJ. to the facts of the present case, I am satisfied that an action or complaint of discrimination brought under the provisions of the Equal Status Acts, such as in the present case, constitutes a ‘cause of action’ on behalf of the complainant within the meaning of section 7 of the Civil Liability Act, 1961.
4.3 In considering this issue further, I also note the comments of Mummery LJ. at para. 7 of the Harris case where he held that “There is no provision in the 1976 Act precluding a complaint of the kind made by Mrs. Andrews from being a cause of action or from devolving on her estate. The NHS Trust relied on section 53(1) which restricts proceedings for breach of the 1976 Act to those provided by the Act. That subsection does not exclude or disapply the provisions of the 1934 Act. The proceedings started by Mrs. Andrews were under Part II of the Act. The death of Mrs. Andrews does not mean that they have ceased to be proceedings under the 1976 Act. Mrs. Harris, as personal representative, is entitled to continue the subsisting proceedings under that Act as a result of the vesting in the estate of the cause of action under that Act”
Having regard to the foregoing, I am satisfied that there is no provision in the Equal Status Acts that precludes a complaint of the kind made by Mr. Hegarty from being a cause of action or from devolving on his estate. Furthermore, I am satisfied that the death of Mr. Hegarty does not mean that his complaint of unlawful discrimination ceased to be proceedings under the Equal Status Acts. In the circumstances, I find that the present complaint under the Equal Status Acts has survived the death of the complainant, Mr. Hegarty, and I am satisfied that Mrs. Hegarty is entitled to continue to pursue the complaint in her capacity as the Executrix of his Estate. Accordingly, I find that the Tribunal does have jurisdiction to investigate and hear the present complaint (subject to my findings on the other issues of jurisdiction which I will deal with in the following paragraphs).
5. Conclusions of the Equality Officer in relation to the other issues of jurisdiction raised by the respondent
5.1 I will deal firstly with the arguments that are summarised at points (v.) to (ix.) at paragraph 3.2 above. The respondent has submitted in the course of its arguments that the Scheme and actions taken pursuant to it were outside of the scope of the Equal Status Acts and that the Tribunal had no jurisdiction to investigate the complaint. In considering these issues, I have taken cognisance of the decisions of the Equality Officer in the McCall and Hoey[2] cases in which these very issues were the subject of extensive consideration and deliberation. I wish to state at this juncture that I fully concur with the findings of the Equality Officer on these issues in the aforementioned cases. Having considered the arguments of both parties, I now make the following findings in relation to these issues, namely:
· I do not accept the respondent’s argument that ADM Limited as the body charged with implementing the Scheme cannot be held to be in breach of the Acts. In the circumstances, I find that ADM were acting as agents of the Government (or perhaps the Department of Transport who is the member of the Government with primary responsibility in the matter) in implementing the Scheme. In this regard, I would point to section 42(2) of the Acts which provides that anything done by a person as agent for another person shall be treated for the purposes of the Acts as done also by that other person. The complainant has identified ADM as the respondent and, accordingly it is their actions which must be investigated. I therefore find that the present complaint can proceed against ADM as the named respondent.
· I also do not accept the respondent’s argument that the act of the Government in deciding upon the terms of the Scheme is outside the scope of the Equal Status Acts. I am of the view that, if it was intended that an action which was required by a Government decision was not to be affected by the prohibition on discrimination in the Equal Status Acts, this would have been specifically provided for, most likely in section 14 of the Acts, which makes such provisions in relation to enactments, court orders, EU/EC acts and other instruments.
· The respondent has also argued that the Scheme is not a service within the meaning of the Acts. Service is defined in section 2 of the Acts as “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes …… ”. There follows an illustrative list of examples among which are facilities for grants. I am of the view that the financial assistance given under the Scheme can be described as a grant in the ordinary meaning of that word. Even if the payments from the Scheme do not constitute a grant (and so are not included in the examples listed in the definition), I am of the view that these payments are still covered by the broad definition of “service” and, in particular, they are not outside that definition just because of the once-off nature of the Scheme and the fact that it was not an ongoing undertaking in the nature of a typical service-provider. I therefore find that the Scheme in the present case constitutes a service within the meaning of the Equal Status Acts.
· The definition of “person” in section 2 of the Acts includes an organisation, public body or other entity. Whilst I accept that the term “public body” as used in various Acts is often defined to mean bodies established under statute, this depends on the subject matter and policy of the Act in question. In the Equal Status Acts, the term is undefined and so must be given its ordinary meaning. I am of the view that the definition of “person” in the Acts is deliberately broad and does encompass the Government. I am of the view that the Government is a public body or an entity of the same kind as an organisation or public body and I therefore, find that it is a person for the purposes of the Acts.
· The respondent has also argued that the Scheme is not a service for the reason that it is not available to the public generally or a section of the public. I am of the view that persons who held taxi licences on 21 November, 2000 (i.e. the date of liberalisation of the taxi industry) were a section of the public and this is not altered by the fact that this group of persons had a definite membership on that date which could not be added to subsequently. I therefore find that the Scheme was available to a section of the public in accordance with the provisions of section 2 of the Equal Status Acts.
Having regard to the foregoing, I am satisfied that the Tribunal has the jurisdiction to investigate the substantive allegations of discrimination that have been made by the complainant in the present case.
6. Conclusions of the Equality Officer in relation to the substantive issues
6.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2004 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 he/she can rely in asserting that prohibited conduct has occurred in relation to him/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, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. I will therefore proceed to examine the complaint on each of the grounds claimed.
Age Ground
6.2 In considering this issue, I note that the Taxi Hardship Payments Scheme was established on foot of a Government decision with the purpose of alleviating the hardship experienced by some taxi drivers resulting from the liberalisation of the taxi industry and that payments from the Scheme were available to six categories of persons as recommended in the Report of the Taxi Hardship Panel. I further note that two of these categories related to persons over the age of 50 years. The complainant’s application for a payment was considered under Category 2 which applied to persons aged over 65 years at 31 December, 2002 and who held a taxi licence on the date of liberalisation of the taxi industry. The eligibility criteria in order to qualify for a payment under this category also required that the applicant’s principal income be derived from the operation of a taxi licence at the date of liberalisation (i.e. 21 November, 2000) and that any income received from any other source did not exceed €150 gross per week. The complainant, who was aged 70 years at the time of his application, was in receipt of earnings derived from a private contributory pension and his application was refused on the basis that the income derived from this pension was in excess of the cut-off limit of €150 per week. The complainant has claimed that he has been discriminated against on the age ground on the basis that if he had been a younger man not yet in receipt of a contributory pension that he would have been eligible for a payment under the Scheme.
6.2 Having regard to the foregoing, I am satisfied that the complainant was within the age category of persons which could potentially benefit from the Scheme (subject to satisfactorily meeting the other qualifying criteria) and therefore, cannot claim that he was excluded from the Scheme on the grounds of his age. I am satisfied that the complainant’s application was assessed in accordance with the objective criteria provided for in the Scheme and that his application was refused because he was in receipt of income in excess of €150 which was derived from his private pension, and therefore, he did not meet the qualifying criteria in terms of his weekly income. In the circumstances, I find that the refusal of the complainant’s application for a payment from the Scheme was not in any way attributable to his age at the time of the application and therefore, he was not treated less favourably than another person would have been in a similar situation on the grounds of his age. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the age ground in the present case.
Disability Ground
6.4 The complainant has also claimed that he was discriminated against by the respondent on the grounds of his disability. It was not in dispute that the complainant had undergone major heart surgery in 1999 and was unable to work in a full-time capacity as a taxi driver thereafter as a result this condition. I am satisfied that the complainant’s condition constitutes a disability within the meaning of section 2 of the Equal Status Acts. The complainant claims that his capacity to work and earn a living as a taxi driver was substantially diminished following his illness and he claims that he should have been entitled to a payment from the Scheme as a result of this disability. In considering this issue, I note that one of the categories of persons to which the Scheme applied were persons with a disability who held a taxi licence at the time of liberalisation of the taxi industry. I also note that the eligibility criteria in order to qualify for a payment under this category also required that any income received by the applicant from any other source (i.e. other than Social Welfare Disability benefit) did not exceed €150 gross per week.
6.4 As I have already stated in para. 6.2 above, I am satisfied that the complainant’s application for a payment from the Scheme was refused because he was in receipt of income in excess of €150 which was derived from his private pension and therefore, he did not meet the qualifying criteria in terms of his weekly income. In the circumstances, I find that the refusal of the complainant’s application for a payment from the Scheme was not in any way attributable to his disability at the time of the application and therefore, he was not treated less favourably than another person would have been in a similar situation on the grounds of his disability. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in the present case.
6.5 In the circumstances, it is not necessary for me to consider the other possible exemptions advanced by the respondent in this case i.e. the exemptions provided for within sections 5(2)(d), (h) and (l) and/or section 14(1)(b) of the Equal Status Acts..
7. Decision
7.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision. On the basis of the foregoing, I find that a prima facie case of discrimination has not been established by the complainant on the age and disability grounds in terms of sections 3(1), 3(2)(f) and 3(2)(g) of the Equal Status Acts, 2000 to 2008. Accordingly, I find in favour of the respondent in the matter.
Enda Murphy
Equality Officer
21st January, 2009