The Equality Tribunal
3 Clonmel Street
Dublin2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
E-mail: info@equalitytribunal.ie
Website: www.@equalitytribunal.ie
Equal Status Acts 2000 to 2008
Decision Number
DEC-S2009-033
A Complainant
V.
A Life Insurance Provider
(Represented by Mr. James Devin BL)
Case ref ES/2006/0057
Issued 15 May 2009
DEC-S2009-033
Keywords
Equal Status Acts 2000 to 2004 – Discrimination, section 3(1)(a) – Disability ground, section 3(2)(d) – Discrimination on the ground of disability, section 4 - Disposal of goods and provision of services, section 5(1) – relevant underwriting or commercial factors, section 5(2)(d)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. A complainant referred a claim of unlawful discrimination to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004 on 25 May 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. The case was delegated for investigation, in accordance with section 25(1) of the Acts, on 29 July 2008. A hearing, as part of the investigation, was held in Dublin on 6 November 2008. Date for final submission was 15 December 2008.
2. Dispute
2.1. The dispute concerned a complaint of unlawful discrimination by the complainant on the disability ground in relation to the granting of life insurance cover. The complainant maintained that the respondent treated her contrary to section 3(1) and 5(1) of the Acts on the ground of her disability on 5 May 2006 when her application for a life insurance policy was refused. The respondent was notified on 20 May 2006.
3. Case for the complainant
3.1. The complainant submitted that, because of her past medical history, the respondent declined her application for life insurance cover. The complainant, who had suffered reactive depression after a road traffic accident, applied for a mortgage and the required life insurance cover to go with the mortgage in late February or early March 2006. She submitted that she disclosed on her application form that she had suffered from post traumatic stress disorder and depression. She submitted that she had also included her employment status (the complainant works as a professional). She further stated that she received a letter from the respondent dated 5 May 2006 which notified her that the plan which she had applied for had not yet issued and that there were still issues pending.
3.2. The complainant submitted that she discovered in May 2006 - via her mortgage broker - that the respondent had declined her application and that consequently her mortgage application had been turned down. She submitted that there was no communication with the respondent until 15 July 2006 when, in response to an ODEI 5 form that the complainant had sent to the respondent, she received a letter from the respondent. The complainant submitted that it was only on receipt of this letter that she was informed directly by the respondent that her policy application had been turned down and that her General Practitioner had been informed in writing of the reasons for the decision to turn down her application. From this letter the complainant gleaned that the respondent declined the complainant’s application on the following grounds:
· the complainant has a history of depression for which she is still receiving treatment;
· she had taken two overdoses since 2004; and
· the respondent had noted that she has a history of binge drinking and drug misuse.
The letter stated that it “was standard practice for the life offices, in general to decline applications for Life Cover in such circumstances”.
3.3. The complainant denied in direct evidence that she took two overdoses since 2004 or that she was still receiving treatment for depression. She further submitted that she has never been diagnosed as being alcohol of drug dependent. It was submitted that the complainant was injured in a car crash in 2002 and that subsequent to this accident the complainant developed post traumatic stress disorder, anxiety and depression. It was further submitted that the complainant took two overdoses under the influence of alcohol between 2003 and 2004.
3.4. The complainant submitted that she believed that the respondent did not provide her with reasonable accommodation to ensure that she was able to meet the insurance requirements for her mortgage. The complainant submitted that in her view the respondent should have commissioned a psychiatrist’s report that might have illustrated that the complainant was in no way suicidal and that the incident in 2004 was impulsive and something that the complainant seriously regretted.
3.5. The complainant also submitted that she believed that the fact that the respondent did not contact her directly but used her broker to inform her of the policy refusal was bad communication.
3.6. A witness for the complainant also stated that when she had sought life insurance cover, the insurer had arranged a meeting with a medical professional whose assessment, she maintained, enabled her to get the mortgage cover that she required. The witness stated that she believed that the respondent should have offered the complainant with similar treatment.
4. Case for the respondent
4.1. The respondent denied any claim that it discriminated against the complainant on the ground of her disability. The respondent also refuted any claims in relation to any allegation of failure to provide the complainant with reasonable accommodation. The respondent is fully satisfied that its procedures are fully compliant with the requirements of the Equal Status Acts. The respondent further submitted that its actions are in accordance with section 5(2)(d) of the Acts.
4.2. The respondent submitted that the company’s philosophy is to grant the benefits of life insurance cover to as many customers as possible. This must, it was submitted, be done in compliance with best insurance practice and in the best interest of the policy holders by ensuring that the respondent’s claims experience is in line with pricing.
4.3. The respondent submitted that in assessing risks, the respondent relied on the information provided on the application form as well as any additional questionnaires that may be necessary. It was submitted that the respondent also seeks medical reports depending on individual applications. The respondent further submits that the provision of insurance service is covered under section 5(2)(d) which allows for difference in treatment of persons in relation to insurance policies where such difference of treatment is effected by reference to actuarial or statistical data obtained from a source on which it is reasonable to rely or on other relevant commercial or underwriting factors. The respondent submitted that, in accordance with this provision, the respondent is permitted to treat differently lives that may present a statistically increased risk of an insured event occurring.
4.4. The respondent submitted that based on the information obtained from the complainant’s application form and from her General Practitioner, they were unable to offer her this type of insurance cover because of her past medical history. The respondent submits that it referred the matter to their international reinsurers who share the risk with the respondent. It was submitted that the reinsurers supported the respondent’s decision to decline the complainant’s application. The respondent submitted that it must follow internationally accepted underwriting guidelines.
4.5. The respondent also submitted that all of its underwriting staff is fully trained and adhere to similar underwriting procedures and standards to all applications. It further submitted that the decision of the respondent to decline cover was consistent with the materials submitted to the investigation. The respondent submits that it acknowledges that the letter sent to the complainant’s General Practitioner was incorrect in that the complainant did not have “two overdoses since 2004”. The respondent acknowledges that the complainant had two overdose/self harm episodes in 2002 and 2004. This withstanding, the respondent submitted, it is clear that the underwriting assessment was based on the true facts emerging from the medical facts emerging from the medical history furnished by the complainant’s General Practitioner.
4.6. The respondent submitted that since the decriminalisation of suicide in 1993 most life insurance cover policies have a suicide exclusion clause for deaths within the first year; however, if the contract was to be assigned as part of a mortgage - such as the cover the complainant was applying for – then such an exclusion clause does not apply. The respondent submitted that the complainant’s medical history coupled with alcohol and cannabis use presented her as a greater risk of a further suicide/self harm episodes. This risk was assessed at the time of the application to be above a level for which the respondent could get reassurance.
4.7. It was further submitted that, in an underwriting context, the applicant and a person who did not have her medical history are not in a comparable situation. Underwriting concerns the assessment of risk and a person who presents a higher risk is not comparable to a person who does not.
4.8. The respondent submitted that in practice 92-95% of all applicants are accepted for life cover at standard rates, some 4-7% are offered cover subject to an additional change and the remaining 1-2% are refused cover either temporarily or permanently. The 1-2% of those who are refused cover fall into three broad categories:
(i) recent diagnosis or surgery,
(ii) investigations pending into symptoms,
(iii) excessive on-going risk. For example, where the illness is chronic in that it is well established and treatment is unlikely to improve the outlook. Ongoingdepression/anxiety with incidents of self harm in the past is considered to one such excessive on-going risk.
4.9. The respondent submitted that it is important to note that the complainant’s application was not rejected immediately on her disclosure of her medical history. The respondent submitted that it engaged to obtain further information on the complainant as the factors disclosed were relevant to its underwriting process. The respondent submitted that it commissioned a report from the complainant’s own General Practitioner. This information, which was paid for by the respondent, included details from her treating psychiatrist. The respondent acknowledges that the complainant believes that the respondent should have commissioned a report from a psychiatrist. The respondent submitted that the cost of such a report is several hundred euro and that it would be unreasonable for them to obtain such a report when the information already available to them precluded any offer of cover. It was also submitted that the complainant’s notes received from her General Practitioner had comments by a named Consultant Psychiatrists stating that the complainant has been “doing very well”. These comments were made prior to her second self harm episode.
4.10. The respondent also submitted that the complainant would be welcome to seek life insurance cover now that more time has lapsed without further episodes.
5. Conclusion 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 complainant to establish, in the first instance, facts upon which she wishes to rely in asserting that she had 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. Parties agreed that the complainant is covered by the disability ground as defined in section 2(1) of the Acts.
5.3. I note that it was submitted that in assessing the risk of a claim occurring the respondent takes into account each individual’s risk profile. A risk profile is made up of a number of factors such as the applicant’s medical history, hobbies, alcohol use and smoking, lifestyle factors, etc. It was submitted that it is accepted that this is common practice and that it is commercially reasonable for insurers to assess risk accordingly. It is clear that the above information is relevant for the type of insurance sought. Having examined the complainant’s application form it is clear that she was honest in declaring her medical history in the relevant section of the form. This declaration clearly states that she was taking anti-depressant medication. It is also clear that the medical notes submitted by her own General Practitioner contain statements from a named Consultant Psychiatrist referring to an overdose/self harm episode and to the fact that there had been hash and other drugs in her blood. I also note that it is noted on her medical notes, recorded by the attending doctor, that the complainant had stated that the episode occurred when she had been binge drinking. While I note that the complainant stated in direct evidence that she denied any drug misuse and that it had been subsequently agreed by her doctors that the blood samples were mistaken, the evidence before me is that her medical notes forwarded to the respondent certainly stated these issues. While I note that complainant is of the opinion that respondent should have known or found out whether the medical notes were accurate and that the respondent should have given the complainant a chance to clarify these matters, I do not find this to be a reasonable expectation. What is of relevance is whether it was reasonable for the respondent to rely on the information submitted to it by the complainant’s own General Practitioner and having considered all of the relevant facts of this case I am satisfied that this is a reasonable practice.
5.4. It was submitted that section 5(2)(d) of the Acts allows for differences in treatment of persons when assessing risk provided that, in this case, the insurer can show that it is reasonable to rely on the data used in the assessment and that it is reasonable to have regard to such data. I am satisfied that the insurer is not operating a blanket policy of excluding people who have had mental health difficulties including self harm and/or suicidal tendencies. I am also satisfied that the respondent has a considered approach in determining whether any individual is given cover and that this approach is applied in a transparent and concise manner. I am also satisfied that in this case the respondent is relying on data that it has reason to rely on and that the data used is of relevance when assessing risk. Having examined the evidence submitted by the respondent I find that the practice the respondent engages in is reasonable based on the information they have in relation to the complainant’s health status. I find that this is in accordance with section 5(2)(d) of the Acts.
5.5. I also note that there was some disagreement in relation whether individuals who have had para-suicide episodes are of an increased risk of repeat. I am satisfied that the studies used by the respondent are of such authority that it is reasonable to regard them.
5.6. The complainant submitted that the respondent had failed to provide her with reasonable accommodation as required by section 4(1) of the Acts. It was submitted that the respondent might have organised to meet with the complainant or to have an independent medical assessment carried out and that this would clarified any mistakes and shown the respondent that the complainant was not an excessive on-going risk. Having considered the facts of this case I find that the respondent did all that was reasonable by obtaining and paying for a report from the complainant’s General Practitioner.
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 contrary to sections 3(1) and 5(1) on the ground of his disability. This treatment has been successfully rebutted by the respondent. Therefore, the complaint fails and I find in favour of the respondent.
_________________
Tara Coogan
Equality Officer
15 May 2009