Equal Status Acts, 2000 to 2008
Equality Officer Decision DEC-S2010-020
Gerard Crowley
-v-
Department of Social & Family Affairs
(represented by Mr. Joe Jeffers B.L.
on the instructions of the Chief State Solicitor)
Keywords
Equal Status Acts, 2000-2008 - Section 3(1)(a) - Direct discrimination, Section 3(1)(a) - Marital Status Ground, Section 3(2)(b) - Family Status Ground, Section 3(2)(c) - Disability Ground, Section 3(2)(g) - 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 11th February, 2008 under the Equal Status Acts, 2000 to 2004. On 20th October, 2009, 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 23rd March, 2010.
1. Dispute
1.1 This dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the Marital Status, Family Status and Disability grounds in terms of sections 3(1)(a), 3(2)(b), 3(2)(c) and 3(2)(g) of the Equal Status Acts, 2000 to 2008 on the basis of the respondent's refusal to grant his application for admission to the Back to Education Allowance Scheme (BTEA) during the academic year 2007/08.
2. Summary of the Complainant's Case
2.1 The Back to Education Allowance (hereinafter referred to as "the BTEA") is a non-statutory scheme administered by the Department of Social & Family Affairs which has the primary objective of removing the barriers to participation in third level education faced by people in receipt of long term social welfare payments (such as the unemployed, lone parents and people with disabilities) thereby, providing an incentive for them to improve their employment prospects. The complainant returned to full-time education in 2003 and he was in receipt of the BTEA while pursuing an undergraduate Bachelor of Arts degree during the academic years 2003/04, 2004/05, 2005/06 and 2006/07. The complainant qualified for the BTEA as he was in receipt of an eligible social welfare payment (i.e. Jobseeker's Allowance) prior to commencing his undergraduate degree course in 2003.
2.2 In September, 2007, the complainant made a further application for admission to the BTEA scheme in order to pursue a Masters Degree in English (American Literature and Film). However, his application for payment of the BTEA during the academic year 2007/08 was refused by the respondent on the basis that the his chosen post-graduate course was not covered under the regulations pertaining to the scheme. The complainant appealed the respondent's refusal to grant him admission to the BTEA scheme for the academic year 2007/08 and he was informed that the BTEA scheme is only available to applicants in pursuit of undergraduate qualifications to primary degree level. He was informed that the scheme was not available to applicants who wished to pursue a post-graduate course with the only exceptions being in the case of applicants who wished to pursue a postgraduate course leading to a Higher Diploma (H.Dip) qualification in any discipline or a Post Graduate Diploma in Education (Primary and Secondary).
2.3 The complainant claims that following this refusal it came to his attention that persons in receipt of both the Lone Parents Allowance and Disability Benefit (i.e. persons of a different marital and family status and persons with a disability) continued to receive the BTEA payment irrespective of their chosen area of study and that these persons are exempt from the aforementioned exclusions. He claims that he was aware of a certain individual who was in receipt of Disability Benefit and who was pursuing a post-graduate course in Languages and Political studies (which is not one of the two recognised exceptions for qualification for the payment) continued to receive the BTEA for the duration of his/her studies. The complainant claims that persons who are in receipt of Lone Parents Allowance and Disability Allowance (i.e. those of a different marital status, family status and persons with a disability) are being treated more favourably than him as they are not restricted to the same qualification criteria for admission to the BTEA scheme in terms of the application of the post-graduate course restriction. The complainant therefore submits that the respondent's decision to refuse him admission to the BTEA scheme for the academic year 2007/08 in circumstances where persons who are in receipt of Lone-Parents Allowance and Disability Benefit are not refused admission to the scheme amounts to discrimination against him on the marital status, family status and disability grounds.
3. Summary of the Respondent's Case
3.1 The respondent stated that the Back to Education Allowance (BTEA) is a non-statutory scheme which was established in 1993 for unemployed people, lone parents and people with disabilities who were getting certain payments from the Department of Social and Family Affairs such as Jobseeker's allowance, One-Parent Family Payment, Disability Allowance and Invalidity Pension. The allowance is available to those wishing to undertake an approved second or third-level course of education and eligible applicants may participate in full-time education and continue to receive their existing social welfare payments. The primary objective of the scheme is to remove the barriers to participation in third level education faced by people in receipt of long terms social welfare payments thereby providing an incentive to improve employment prospects through education.
3.2 The respondent stated that following a review of the scheme in 2002, the government decided that from 2003 the BTEA scheme should only be available to applicants pursuing undergraduate qualifications to primary degree level. Therefore, the scheme is not available to applicants wishing to pursue post-graduate qualifications, such as a Master's Degree, with the only exceptions to this rule being for applicants who wish to take a post-graduate course of study that leads to a Higher Diploma (H.Dip) qualification or a Graduate Diploma in Education (Primary or Secondary).
3.3 The respondent confirmed that the complainant was in receipt of the BTEA for the academic years 2003/04, 2004/05, 2005/06 and 2006/07 while he pursued an undergraduate degree (Bachelor of Arts degree). In September, 2007, the complainant made a further application for a BTEA in order to pursue a Masters Degree in English (American Literature and Film). However, this application was refused as the proposed Master's Degree which he intended to pursue was not recognised for the purposes of the BTEA (Third Level Option) scheme. The respondent stated that following an appeal by the complainant, his application was reviewed by a Higher Official within the Department of Social & Family Affairs, who upheld the initial decision to refuse him admission to the BTEA scheme for the academic year 2007/08 on the basis that the proposed course, being a Master's Degree, did not fall within the ambit of the scheme.
3.4 The respondent stated that the complainant is incorrect in his assertion that applicants in receipt of Disability Benefit and/or Lone-Parents Allowance (i.e. persons of a different family and marital status and persons with a disability) are treated more favourably than persons such as the complainant who are in receipt of Jobseeker's Allowance in terms of qualification for the BTEA scheme. The respondent stated that the post-graduate disqualification rule applies equally and in a non-discriminatory manner to all applicants for admission to the BTEA scheme regardless of the type of social welfare benefit in respect of which he/she is in receipt. The respondent submitted that the complainant's application was refused solely due to the fact that, as the holder of an undergraduate degree, his nominated course was not an approved course for the purposes of the BTEA scheme. It submitted that this decision was in no way attributable to his family status, marital status or the fact that he does not have a disability. The respondent therefore denies that the complainant has been subjected to discrimination on the marital status, family status or disability grounds in terms of its decision to refuse him admission to the BTEA scheme during the academic year 2007/08.
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 38(A) 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 the present case, the complainant claims that he has been subjected to discrimination on the marital status, family status and disability grounds on the basis of the respondent's decision to refuse him admission to the BTEA scheme for the academic year 2007/2008. He has claimed that a person such as himself, who is in receipt of Jobseeker's Allowance, is treated less favourably than the recipients of Disability Benefit and/or Lone-Parents Allowance (i.e. persons of a different marital and family status and persons with a disability) in relation to the operation of the BTEA scheme. In considering this issue, I have taken note of the criteria which a person must satisfy in order to qualify for admission to the BTEA scheme and it is clear that the third-level option within the scheme (i.e. the option at issue in the present case) is only available to the recipients of certain social welfare payments such as Jobseeker's Allowance, One-Parent Family Payment and Disability/Invalidity Allowance and who are pursuing undergraduate qualifications to primary degree level. It is also clear that admission to the BTEA scheme is not available to applicants wishing to pursue a post-graduate qualification with the only exceptions to this rule being for applicants who wish to take a post-graduate course of study that leads to a Higher Diploma (H.Dip) qualification or a Graduate Diploma in Education (Primary or Secondary).
4.3 It was not in dispute between the parties that the complainant was granted admission by the respondent to the BTEA scheme for the academic years 2003/04, 2004/05, 2005/06 and 2006/07 whilst he was pursuing an undergraduate degree programme of study (i.e. a Bachelor of Arts degree). It was accepted that the complainant satisfied the qualifying requirements for admission to the BTEA scheme during this period, namely that he was in receipt of a qualifying social welfare payment i.e. Jobseeker's Allowance and that he was pursuing an approved third-level course of education. It was also accepted by both parties that the complainant's application for admission to the BTEA scheme for the academic year 2007/08 was refused by the respondent on the basis that his nominated course of study i.e. a Masters in English (American Literature and Film) was not an approved course for the purposes of the scheme. The complainant claims that this decision was discriminatory within the meaning of the Equal Status Acts and he has contended that persons such as himself, who are in receipt of Jobseeker's Allowance, are treated less favourably than the recipients of Disability Benefit and/or Lone-Parents Allowance (i.e. persons of a different marital and family status and persons with a disability) in relation to the operation of the BTEA scheme.
4.4 The complainant, in support of the alleged discrimination on the disability ground, gave evidence that he was aware of an individual who was in receipt of Disability Benefit and was granted admission to the BTEA scheme in order to pursue a post-graduate course other than one of the two post-graduate courses which are exempted within the terms of the scheme (i.e. a Higher Diploma (H.Dip) qualification or a Graduate Diploma in Education). He also submitted a letter in evidence which he claims was sent to this person from the Department of Social & Family Affairs sanctioning his/her admission to the BTEA scheme for the academic year 2007/08. The respondent denied the allegations of discrimination and gave evidence that the post-graduate disqualification rule applies equally and in a non-discriminatory manner to all applicants for admission to the BTEA scheme regardless of their marital or family status or whether or not the applicant has a disability.
4.5 In considering the evidence adduced in relation to this issue, I note that the complainant did not provide any information regarding the name of the aforementioned comparator (i.e. the person with a disability) whom he has put forward in support of the alleged discrimination in the present case. Neither did this person attend the hearing to give evidence regarding the specific circumstances of his/her admission to the BTEA scheme. I am of the view that the aforementioned letter is of no evidential value in relation to this matter as it does not make any reference to the type of educational course which the person was pursuing under the BTEA scheme at that juncture. In the circumstances, I find that the evidence adduced by the complainant in relation to the comparator which he has put forward in support of the contention that he has been subjected to less favourable treatment in terms of the post-graduate disqualification rule within the BTEA scheme amounts to no more than uncorroborated hearsay evidence.
4.6 The complainant did not adduce any substantive evidence to support his claim that persons such as himself who are in receipt of Jobseeker's Allowance are treated less favourably than the recipients of Lone-Parents Allowance (i.e. persons of a different family status and marital status) in relation to the operation of the BTEA scheme.
4.7 Having regard to the totality of the evidence adduced, I accept the respondent's evidence that the post-graduate disqualification within the BTEA scheme is uniformly applied to all applicants for admission to the scheme regardless of the type of qualifying social welfare benefit in respect of which the applicant is in receipt. I have not been presented with any evidence from which I could reasonably conclude that a person such as the complainant who was in receipt of Jobseeker's Allowance was treated any less favourably than the recipients of Lone-Parents Allowance and/or Disability Benefit (i.e. persons of a different marital and family status and persons with a disability) in terms of the operation of the BTEA scheme. I am satisfied that the reason the complainant's application for admission to the BTEA scheme was refused for the academic year 2007/08 was due to the fact that his nominated course of study was not an approved course for the purposes of the scheme. Furthermore, I am satisfied that this decision was not in any way determined by virtue of factors concerning his marital status, family status or the fact that he does not have a disability. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the marital status, family status or disability grounds within the meaning of the Equal Status Acts.
Final Comments
4.8 The complainant has alleged that the discrimination in the present case constitutes direct discrimination against him on a number of grounds including the disability ground i.e. he has claimed that persons with a disability are treated more favourably than persons without a disability in terms of the manner in which admission to the BTEA scheme is determined by the respondent. In this regard, I have taken cognisance of section 14(1)(b) of the Equal Status Acts which makes provision for the taking of positive action measures which are intended in good faith to promote equal opportunity for people who are disadvantaged or who have special needs (including persons with a disability) and I note that such action does not constitute discrimination. However, as I have already found that the post-graduate disqualification within the BTEA scheme is uniformly applied to all applicants for admission to the scheme regardless of whether or not the applicant has a disability (i.e. is claiming Disability Benefit), I am therefore not required to consider the exemption that is provided for in section 14(1)(b) in the context of the present case.
5. Decision
5.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, 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 Marital Status, Family Status and Disability grounds in terms of sections 3(1), 3(2)(b), 3(2)(c) and 3(2)(g) of those Acts. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
7th April, 2010