Equal Status Acts 2000 - 2008
Equality Officer Decision
DEC-S2009-046
Anthony Ronald Preston
V
H.S.E. Western Area Ambulance Service
Date of Issue 9 July 2009
File Ref ES/2007/111
Key words
Equal Status Acts 2000 - 2007 - Direct discrimination, section 3(1)(a) - Disability ground, section 3(2)(g) - Supply of goods and services, section 5(1) - Refusal to provide transport by the H.S.E. Ambulance Service
1 Delegation under the Equal Status Acts, 2000 - 2007
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts 2000 - 2007. On 12 December 2008, in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director delegated the complaint to myself, Brian O’Byrne, 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 - 2007.
2 Dispute
This dispute concerns a complaint by Anthony Ronald Preston that he was discriminated against on the disability ground by the H.S.E. Western Area Ambulance Service when they withdrew the free hospital transport he had been receiving up until June 2007.
3 Summary of Hearing
3.1 The Hearing of this complaint was held on 29 April 2009 in Castlebar. The Hearing was attended by the complainant and two members of the H.S.E. Western Area Ambulance Service.
Mr Preston described how he has lived in Bangor Erris in Mayo for nine years but has been confined to a wheelchair following a stroke for the past 4 years. He is presently living in a wheelchair accessible house in Bangor. He currently holds a medical card.
Over the past four years he has found it particularly difficult to travel anywhere from Bangor as the local Bus Eireann buses are not wheelchair accessible. While he has not complained directly to Bus Eireann, he said that he did mention the bus problem to a local T.D. who said he would follow it up but who has not yet come back to him.
The complainant also made the point that wheelchair taxis are hard to come by locally and, when sourced, it can cost about €120 for a round trip from Bangor to Castlebar.
The respondents explained that the Ambulance Service has been using its spare capacity over the years to transport patients from their homes in County Mayo to the main hospitals for appointments. On some occasions, if ambulances were not available but funds were, taxis were engaged to transport patients. However, there is no statutory requirement on the HSE to provide taxi services.
In June 2006, Mr Preston was approved for taxi transport for the standard approval period of one year to cover appointments in Castlebar General Hospital. A letter to this effect issued on 2 June 2006 giving instructions as to how to access this service. Mr Preston availed of this taxi service for several appointments up until June 2007.
On 18 July 2007, Mr Preston had a medical appointment in Castlebar and applied for transport from the Ambulance Service. The Ambulance Service refused his application on the basis that they had been instructed to stay within their budget allocation. In order to do so, the respondents stated that a decision had been taken to restrict non-emergency ambulance transport to oncology and dialysis patients only.
Mr Preston appealed the decision but his appeal was refused by letter dated 27 September 2007 from the Chief Ambulance Officer. In the letter , it was suggested to Mr Preston that he consider approaching the Community Welfare Services for funding towards his transport costs. At the Hearing, Mr Preston said that, while he had spoken to the local CWO, he had not formally sought financial assistance from him.
The respondents explained that the Ambulance Service is primarily an Emergency Medical Response Service and that it had seriously overrun its annual budget in 2006 by providing non-emergency transport services. The Service was instructed to reduce costs significantly in the 2007 year and accordingly was forced to introduce cutbacks which included a decision to restrict the use of its non-emergency services to patients attending regular oncology and dialysis clinics. The respondents said that this decision was based purely on the medical needs of the patients involved. A patient’s ability to pay for transport was not a factor as this is a matter for the Community Welfare Officer not the Ambulance Service
4 Conclusions of the Equality Officer
4.1 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it may be presumed that prohibited conduct has occurred. On establishment of these facts, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
4.2 In the case before me, the complainant maintains that he was discriminated against by the Ambulance Service on the disability ground in not being provided with transport to a hospital appointment. Mr Preston claims that he was treated less favourably than patients with different disabilities.
For their part, the HSE accept that transport was not provided but maintain that this was due to budget cutbacks imposed on them which restricted their ability to continue to provide the same level of services as in previous years.
On considering the evidence before me, I consider that Mr Preston did receive less favourable treatment after June 2007 than he did prior to that date. However, I am satisfied that the withdrawal of transport service from him arose from cutbacks to the Ambulance Service’s budget in 2007. I am also satisfied from the evidence before me that the Service’s decision to prioritise transport for certain categories of patients was not taken lightly and that ultimately it was the medical needs of those involved that dictated to whom priority transport would be provided.
5 Decision
I find that a prima facie case has been established on the disability ground in terms of sections 3(1) and 3(2)(g) of the Equal Status Acts 2000 – 2008 and that the burden of proof has shifted to the respondents. Having deliberated on all the evidence before me, however, I am satisfied that the respondents have discharged the burden of proof by successfully rebutting the allegation of discrimination.
Accordingly, I find in favour of the respondents in the matter.
Brian O’Byrne
Equality Officer
9 July 2009