THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC–S2009-039
PARTIES
Mrs. X (on behalf of her daughter, Ms. Y)
and
The Minister for Social & Family Affairs
(Represented by Mr. Jeremy Maher S.C. on
the instructions of the Chief State Solicitor)
File Reference: ES/2007/0021
Date of Issue: 10th June, 2009
Equal Status Act 2000-2008
Equality Officer Decision
DEC-S2009-039
Mrs. X (on behalf of her daughter, Ms. Y)
-v-
The Minister for Social & Family Affairs
(Represented by Mr. Jeremy Maher S.C. on
the instructions of the Chief State Solicitor)
Keywords
Equal Status Acts 2000-2008 - Direct discrimination, Section 3(1)(a) – Disability Ground, Section 3(2)(g) - Reasonable Accommodation, Section 4(1) - Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 19th February, 2007 under the Equal Status Acts, 2000 to 2004. On 17th October, 2008, in accordance with her powers under Section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, 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 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 28th May, 2009.
1. Dispute
1.1 The complainant, Mrs. X., claims that her daughter, Ms. Y was discriminated against by the respondent on the grounds of her disabilityin terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Acts in terms of the respondent’s refusal to grant her application for Disability Allowance, a Free Travel Pass and Free Travel Companion Pass.
2. Background to the Complaint
2.1 Section 20 of the Equal Status Acts states that, where a complainant, as defined under Section 21(1) of the Acts, is “unable, by reason of an intellectual or psychological disability, to pursue effectively a claim for redress under this Part” then “his or her parent, guardian or other person acting in place of a parent” is the complainant. In the present case, Ms. Y has an intellectual disability which renders her unable to pursue a claim for redress, as described in Section 20 of the Acts. Therefore, in accordance with that Section, her mother, Mrs. X, is the complainant in this matter and will be referred to as such hereafter.
2.2 Ms. Y is a 21 year old woman with Down Syndrome resulting in a moderate intellectual disability, a visual and hearing impairment and a congenital heart lesion. She first applied for Disability Allowance in April, 2003 and was awarded payment from 17 September, 2003 (her 16th birthday). However, her financial circumstances had changed in the interim period and her application was reviewed which resulted in her Disability Allowance being disallowed as her means exceeded the statutory limit for entitlement to this payment. As a result, Ms. Y was never paid Disability Allowance. Persons who are awarded Disability Allowance have an automatic entitlement to a Free Travel Pass and Ms. Y’s initial award of Disability Allowance resulted in her being issued with a Free Travel Pass and Free Travel Companion Pass on 2 December, 2003. However, the Free Travel Pass was issued in error and as Ms. Y was not in receipt of Disability Allowance she did not have an entitlement to a Free Travel Pass/Companion Pass. This Free Travel Pass and Companion Pass expired in December, 2004 and when Ms. Y applied for its renewal she was informed by the respondent that the application was refused on the basis that she was not in receipt of Disability Allowance.
2.3 On 4 August, 2006, Ms. Y made a second application for Disability Allowance and the Deciding Officer refused her claim as her means continued to exceed the statutory limit for entitlement. The complainant, Mrs. X appealed the refusal to the Social Welfare Appeals Office on 14 October, 2006 and she stated that she was anxious that her daughter, Ms. Y, be reconsidered for a Free Travel Pass and Free Travel Companion Pass; however, as Ms. Y did not qualify for Disability Allowance, she also was not eligible for a Free Travel Pass or a Companion Pass. This appeal was disallowed on 4 December, 2006 on the basis that the Deciding Officer’s decision in the case was correct and that Ms. Y’s means were assessed correctly as being in excess of the statutory limit. This letter also noted the complainant’s concerns about the Free Travel Pass and Companion Pass and it stated that the Free Travel Pass Scheme was a non-statutory scheme and that there was no statutory right to an appeal against a decision in relation to that scheme; however it was pointed out that a person who was dissatisfied with a decision in relation to his/her application for Free Travel was entitled to a review by another senior official of the Department.
3. Summary of the Complainant’s Case
3.1 The complainant, Mrs. X, claims that the respondent has discriminated against her daughter, Ms. Y on the grounds of her disability on the basis of its decision to refuse her application for Disability Allowance, a Free Travel Pass and Free Travel Companion Pass. The complainant claims that Ms. Y qualifies for Disability Allowance on medical grounds as a result of her disability; however she accepts that Ms. Y did not meet the qualifying criteria for this benefit on the basis that her means exceeded the statutory limit as provided for in the legislation. The complainant also claims that another young woman of similar age to Ms. Y is capable of independent travel, however, as a result of her disability, Ms. Y cannot travel alone and in addition to paying her own fare, she is required to pay for a companion to travel with her on public transport and in effect she is compelled to pay double what a person without a disability would pay in similar circumstances. Accordingly, the complainant submitted that the respondent’s decision to refuse her daughter’s application for a Free Travel Pass and Free Travel Companion Pass amounts to discrimination against Ms. Y on the grounds of her disability.
4. Summary of the Respondent’s Case
4.1 The respondent denies that it has discriminated against the complainant on the grounds of her disability in terms of its decision to refuse her application for Disability Allowance and a Free Travel Pass/Free Travel Companion Pass. The respondent submitted that the primary legislation relating to Disability Allowance is contained in the Social Welfare Consolidation Act, 2005 and this legislation sets out the criteria for eligibility, one of which is that a person must satisfy a means test. The respondent stated that the complainant’s application for Disability Allowance was refused on the basis that her means exceeded the statutory limit for entitlement to this benefit. The respondent also submitted that the Free Travel Scheme was introduced by Ministerial Announcement and it provides for free travel for eligible persons on qualifying public transport services. Persons in receipt of certain social welfare benefits (including Disability Allowance, Invalidity Pension and Carer’s Allowance) are automatically eligible for the scheme; however, medical evidence of itself does not entitle anyone to free travel and it is the fact of being in receipt of a qualifying benefit rather than the fact of having a disability that gives rise to the entitlement. If a person qualifies for a Free Travel Pass under the Free Travel Scheme then he/she may also be eligible for a Companion Pass subject to a medical assessment. The respondent submitted that the complainant has not been subjected to less favourable treatment on the grounds of her disability and the reason that she was ineligible for a Free Travel Pass/Companion Pass was as a direct consequence of her failure to satisfy the means test for Disability Allowance. It was submitted that a person with exactly the same disability but with means lower than the eligibility limits for Disability Allowance would qualify for Disability Allowance and, therefore, be entitled to avail of the free travel scheme. It was submitted therefore that there was no less favourable treatment of the complainant on the grounds of her disability. The respondent also submitted that the complainant has not established that any alleged differences in treatment on the grounds of disability do not fall within the permitted exemptions contained within section 14(1)(b) of the Equal Status Acts.
4.2 The respondent also raised the following issues regarding the jurisdiction of the Tribunal to investigate the complaint, which can be summarised as follows:
· The respondent submitted that when determining the issue of access to Disability Allowance and to the Free Travel Scheme it is not engaged in the disposal of goods or in the provision of a service. The respondent submitted that the payment of Disability Allowance and the Free Travel Scheme are a means of State funding which are provided to those who meet certain criteria and therefore, they do not constitute services within the meaning of section 2 of the Equal Status Acts.
· The respondent stated that it does not provide the public transportation services which can be availed of by the holder of a Free Travel Pass/Companion Pass and it therefore submitted that it is not the “provider of a service” within the meaning of section 4(6) of the Equal Status Acts on the basis.
5. Conclusions of the Equality Officer in relation to the Issues of jurisdiction
5.1 The respondent has argued that when determining the issue of access to Disability Allowance or to the Free Travel Scheme it is not engaged in the provision of a service within the meaning of the Equal Status Acts. I note that “service” is defined in section 2 of the Equal Status 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 and transport or travel. I am of the view that the financial assistance given under the Disability Allowance benefit can be described as a grant in the ordinary meaning of that word which is available to a section of the public. I am also of the view that the Free Travel Scheme constitutes a facility that is made available to a section of the public by the respondent which enables the recipients to access public transportation services free of charge. I therefore find that both the payment of Disability Allowance and the Free Travel Scheme constitute a service within the meaning of section 2 of the Equal Status Acts.
5.2 The respondent has also argued that it does not provide the public transportation services which can be availed of by the holder of a Free Travel Pass/Companion Pass and it was therefore submitted that it is not the “provider of a service” within the meaning of section 4(6) of the Equal Status Acts. In considering this issue, I accept that the respondent does not provide the public transportation services to the holder of a Free Travel Pass, however, the present complaint does not relate to the actual transportation services or to the providers thereof. This complaint relates specifically to an application to avail of the Free Travel Scheme which is a scheme that is administered and operated by the Department of Social & Family Affairs (on behalf of the respondent). As stated above in para. 5.1, I have already found that the Free Travel Scheme does constitute a service within the meaning of the Equal Status Acts and I am satisfied that the respondent in the present case is the provider of this service within the meaning of section 4(6) of the Acts. Accordingly, I find that that I have the jurisdiction to investigate the present complaint.
6. Conclusions of the Equality Officer in relation to the substantive issue
6.1 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 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. 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.
Discriminatory Treatment
6.2 In the present case, the complainant has Down Syndrome and I am therefore satisfied that she is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts. The complainant has claimed that she was discriminated against by the respondent on the grounds of her disability as a result of the respondent’s decision to refuse her application for Disability Allowance and a Free Travel Pass/Companion Pass. The respondent denies that it discriminated against the complainant on the grounds of her disability and it claims that the reason her application for a Free Travel Pass/Companion Pass was refused was because of her failure to satisfy the statutory means test for Disability Allowance. The respondent submitted that a person with exactly the same disability but with means lower than the eligibility limits for Disability Allowance would qualify for Disability Allowance and, therefore, be entitled to avail of the free travel scheme. Therefore the question that I must decide in the present case is whether or not the complainant was subjected to less favourable treatment on the grounds of her disability within the meaning of the Equal Status Acts in terms of the respondent’s decision to refuse her application for Disability Allowance and a Free Travel Pass/Companion Pass.
6.3 In considering this issue, I note that the facts in this case (as outlined in paragraph 2.1 and 2.2 above) were not in dispute between the parties. I note that Disability Allowance is a means tested payment for people with a specified disability whose income falls below certain limits and who are aged between 16 and 66 years. The primary legislation relating to Disability Allowance is contained in Chapter 10 (Part 3) of the Social Welfare Consolidation Act, 2005 (as amended). Having regard to the evidence adduced in the present case, I am satisfied that the complainant’s application for Disability Allowance in August, 2006 was refused on the basis that she did not satisfy the statutory requirements in order to qualify for this payment, namely that her means exceeded the eligibility limits as provided for in the legislation. Section 14(1)(a)(i) of the Equal Status Acts provides that the taking of any action that is required by an enactment does not constitute discrimination. Accordingly, I find that the refusal of the complainant’s application for Disability Allowance was required by an enactment and that this does not constitute discrimination within the meaning of the Equal Status Acts.
6.4 The complainant has also claimed that she has been subjected to discrimination on the grounds of her disability on the basis of the respondent’s decision to refuse her application for a Free Travel Pass/Free Travel Companion Pass. In considering this issue, I note that the Free Travel Scheme is a non-statutory scheme having been introduced and extended by Ministerial Announcement. This Scheme is operated by the Department of Social & Family Affairs and it allows people who are aged 66 years and over who are permanently residing in the State to travel free of charge on public transport. The Free Travel Scheme is also available to incapacitated people under the age of 66 years who are the recipients of specific social welfare payments such as Invalidity Pension, Disability Allowance, Carer’s Allowance and Blind Persons Pension. If a person qualifies for a Free Travel Pass under this Scheme he/she may also be eligible for a Free Travel Companion Pass subject to a medical assessment and the Free Travel Companion Pass will allow any one person to travel for free with the holder of the Free Travel Pass. I am of the view that the Free Travel Scheme is a positive action measure which is designed to alleviate the costs of public transportation to old age pensioners’ and persons with disabilities by allowing them to travel free of charge on public transport. I am satisfied that provision is made for the taking of such positive measures within section 14(1)(b) of the Equal Status Acts and that such action does not constitute discrimination.
6.5 Having regard to the evidence adduced in the present case, I find that the refusal of the complainant’s application for a Free Travel Pass/Companion Pass was not in any way attributable to her disability but rather was as a result of the fact that she did not qualify for one of the social welfare benefits, namely Disability Allowance that would have given her an automatic entitlement to a Free Travel Pass/Companion Pass. I therefore find that the complainant was not treated less favourably than another person, either without a disability or with a different disability would have been treated in a similar situation. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in the present case in terms of the respondent’s refusal to grant her application for Disability Allowance and a Free Travel Pass/Companion Pass.
7. Reasonable Accommodation
7.1 In the case of disability in considering whether discrimination occurred, consideration must be also made to the issue of the provision of reasonable accommodation to a disabled person within the meaning of Section 4 of the Equal Status Acts. In considering this issue, I am of the view that the provision of special treatment or facilities in the context of Section 4 of the Act, in the present case, would have placed an obligation on the respondent to give due consideration to the complainant’s disability as part of the overall assessment that was carried out on her applications for Disability Allowance and a Free Travel Pass/Companion Pass. Having regard to the totality of the evidence adduced, I am satisfied that there is no evidence to support any failure by the respondent to offer special assistance or facilities to the complainant in terms of the manner in which the application and assessment process for the aforementioned benefits was completed. I therefore find that the respondent did not fail in its obligation under Section 4 of the Equal Status Acts to do all that was reasonable to accommodate the needs of the complainant as a person with a disability, in the circumstances of the present case, by providing special measures or facilities.
8. Decision
8.1 In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1), 3(2)(g) and 4(1) of the Equal Status Acts.
Enda Murphy
Equality Officer
10th June, 2009