The Equality Tribunal
3 Clonmel Street
Dublin 2
Phone: 353-1-4774100
Fax: 353-1-4774150
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Equal Status Acts 2000-2008
Equality Officer Decision
DEC-S2009- 007
Mrs. K (on behalf of her daughter X)
-v-
The Health Service Executive South
(formerly The Southern Health Board)
(represented by Mr. Diarmuid Cunningham,
Comyn, Kelleher, Tobin Solicitors)
File Ref: ES/2004/0110
Date of Issue: 30th January, 2009
Keywords
Equal Status Act, 2000 - Section 2(1) - Direct discrimination, Section 3(1)(b) – Marital status ground, Section 3(1)(c) – Family status ground, Section 3(1)(a) - Disability Ground, Section 3(2)(g) – Victimisation Ground, Section 3(2)(j) - Reasonable accommodation, Section 4 - Section 5(1), disposal of goods and services
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of Equality Investigations on 1st April, 2004 under the Equal Status Act, 2000. On 11th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Act, 2000, the Director has 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, 2000-2008, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to a preliminary hearing on 9th January, 2009.
1. Dispute
1.1 This dispute concerns a complaint by Mrs. K that her daughter, X, was discriminated against by the respondent on the disability ground in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status Act, 2000 and contrary to Sections 4 and 5(1) of that Act. The complainant also claims that she has been discriminated against by the respondent on the marital status and family status grounds in terms of Sections of Section 3(1)(a), 3(2)(b) and 3(2)(c) of the Equal Status Act, 2000 and contrary to Section 5(1) of that Act. The complainant also claims that she was discriminated against by the respondent on the victimisation ground in terms of Section 3(2)(j) of the Act.
2. Preliminary Issue
2.1 Following the assignment of this case, I wrote to the complainant on 10 June, 2008 and requested her to furnish a written submission describing how it is alleged that the discrimination and victimization alleged in the complaint referral form took place within the meaning of the Equal Status Acts, 2000 to 2008. The complainant furnished a response on 14 June, 2008 and outlined details of a number of incidents dating back to 10 April, 1997 (i.e. that date upon which her daughter, X, was born) in respect of which it was alleged that her daughter, herself and her family had been subjected to discrimination by the respondent. However, having considered this response in conjunction with the information contained on the complaint notification and referral forms, it was still not clear to me, as the investigating Equality Officer, regarding the precise nature of the alleged incidents and whether these matters came within the scope of the Equal Status Acts. Therefore, I decided to hold a preliminary hearing in order to establish the precise nature of the complaint in order to determine if the matters complained of came within the scope of the Equal Status Act, 2000.
3. Summary of the Complainant’s Case
3.1 The complainant’s daughter, X, was born on 10 April, 1997 with a diagnosis of spina bifida and hydrocephalus and she also suffers from asthma. The complainant has made a number of allegations regarding the nature of the care that was provided by the paediatrician that attended her upon the birth of her daughter. The complainant has also claimed that she has experienced persistent difficulties since 1997 in accessing services for her daughter that are provided by or on behalf of the respondent. The complainant claims that the respondent has treated her family in a very poor manner because of the fact that they are unemployed and are the recipients of social welfare benefits. The complainant provided details of the following incidents in which it is claimed that both her daughter and her family have been subjected to discrimination by the respondent, namely:
· The complainant initially requested the respondent to provide a wheelchair for her daughter in or around December, 2000; however the complainant claims that she had to endure an unacceptable delay in being provided with the wheelchair. The respondent initially procured the wrong wheelchair and when a suitable wheelchair was eventually procured the respondent refused to release it to the complainant until her daughter was measured in it. The complainant stated that it was only upon the intervention of the Spina Bifida Association that the wheelchair was eventually released to her in August, 2001.
· The complainant claims that she requested a bath seat for her daughter from the respondent but it failed to provide this item of equipment. The complainant was unable to identify specific dates regarding when the request for the bath seat was notified to the respondent although she confirmed that the respondent provided her daughter with a shower chair in order to appease her in relation to this matter.
· The complainant requested the respondent to provide a ceiling hoist in 2001 and she stated that the respondent has subsequently failed to provide this item of equipment; however the respondent provided a portable hoist a number of years later following the intervention of her doctor and public health nurse.
· The complainant purchased a car in September, 2000 and requested the respondent to arrange for a car seat adaptation for the purpose of accommodating her daughter to be carried out on the car shortly after it had been acquired. She claims that the tradesman contracted by the respondent to carry out such work refused to do the job and she also claimed that he failed to provide an explanation for the refusal to carry out the work. The complainant claims that the respondent was responsible for the refusal of the tradesman to carry out the work and she stated that the car adaptation was eventually carried out by a different person some one and a half years after the initial request (circa. March, 2002). The complainant stated that the respondent ultimately covered the cost of this car adaptation.
· The complainant claims that she has experienced ongoing difficulties in relation to the home help service that has been provided by the respondent in order to assist with the care of her daughter. The respondent initially provided home help to the complainant in 2000 and the complainant claims that the difficulties she experienced relate to the quality of work that has been carried out by the individuals that the respondent has assigned to provide the home help and the lack of continuity in the provision of home help.
3. Summary of the Respondent’s Case
3.1 The respondent denies that it has discriminated against either the complainant or her daughter on any of the grounds as alleged by the complainant. The respondent submitted that the allegations made by the complainant do not constitute less favourable treatment in relation to either her daughter or herself on the discriminatory grounds claimed, and it therefore submitted that the matters complained of do not come within the meaning and scope of the Equal Status Acts. The respondent further submitted that the complainant has been unable to provide specific information regarding the dates of the alleged incidents of discrimination and it submitted that the complainant has therefore failed to comply with the provisions of Section 21 of the Equal Status Acts in terms of the notification requirements in relation to the alleged incidents of discrimination. The respondent has also submitted that the delay in the investigation of this complaint has been seriously prejudicial to it, and consequently has had an adverse impact on the respondent’s capacity to respond to and defend any allegations of unlawful conduct that have been made by the complainant.
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.
4.2 In considering this issue, I note that the complainant has provided details regarding a number of incidents dating back to 10 April, 1997 i.e. that date on which her daughter was born, in respect of which it is alleged that both herself and her daughter have been subjected to discriminatory treatment by the respondent. The first incident in respect of which the complainant has alleged that she was subjected to unlawful treatment by the respondent relates to the care that she received in hospital from the paediatrician that attended her on the birth of her daughter. I note that the allegations of unlawful conduct in relation to this incident occurred on 10 April, 1997 and during the course of the complainant’s subsequent stay at the hospital following the birth of her daughter. It is clear that this incident occurred prior to the date that the Equal Status Act, 2000 came into operation i.e. 25 October, 2000 and I am satisfied that the matters complained of in relation to this incident constitute a “once-off” act which occurred prior to the date on which the Equal Status Act, 2000 became effective. I therefore find that this alleged incident of unlawful conduct is outside of the scope of these Acts and accordingly, I do not have jurisdiction to investigate this incident.
4.3 The complainant has also provided details of a number of other incidents dating back to the year 2000 in respect of which it is claimed that both she and her daughter have been subjected to discriminatory treatment by the respondent. The complainant has been unable to provide specific information, either by way of correspondence or at the hearing, regarding the dates on which these incidents are alleged to have occurred; however I note that she notified the respondent of these allegations on 24 February, 2004 in accordance with the provisions of Section 21 of the Equal Status Acts. The complainant has based her claim on a number of the discriminatory grounds in the Equal Status Acts, namely, the marital status, family status, disability and victimisation grounds. Having regard to the evidence adduced, I am satisfied that the matters complained of relate to a number of separate and unrelated incidents that occurred over a period of time (i.e. from the year 2000 until notification was sent to the respondent on 24 February, 2004) during which the complainant had occasion to seek assistance from the respondent in relation to the provision of equipment and support services which were sought in order to assist with the ongoing care of her daughter. The complainant clearly feels aggrieved that her requests for assistance were not dealt with by the respondent as expediently or in the manner that she would have desired. I accept that there may have been delays in terms of the length of time that it took the respondent to provide certain services or to procure certain items of equipment for the complainant; however, I am satisfied that any such delays were due to financial constraints or inadequate staffing resources within the respondent organisation and that it does not amount to less favourable treatment of the complainant within the meaning of the Equal Status Acts on any of the discriminatory grounds claimed.
4.4 Under section 3(1) of the Acts, discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds. I have not been presented with any evidence in the present case from which I could conclude that either the complainant or her daughter have been subjected to an ongoing policy of less favourable treatment by the respondent on any of the discriminatory grounds claimed. In the circumstances, I find that the alleged incidents of improper conduct to which the complainant has referred do not constitute prohibited conduct within the meaning of the Equal Status Acts.
5. Decision
5.1 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 the complainant has failed to establish that the alleged incidents of discrimination constitute prohibited conduct on the marital status, family status, disability and victimisation grounds in terms of Sections 3(1), 3(2)(b), 3(2)(c), 3(2)(g), 3(2)(j) and 4(1) of the Equal Status Act, 2000. Accordingly, I find that I do have the jurisdiction to proceed any further with the investigation of this case under the Equal Status Act, 2000.
Enda Murphy
Equality Officer
30th January, 2009