The Equality Tribunal
Equal Status Acts 2000 - 2008
Decision DEC-S2010-4
Parties
Mr Patrick Murray
and
Irish Life and Permanent TSB
(represented by David Keane SC)
File ref ES/2009/075
Date of Issue: 18 January 2010
Key words
Equal Status Acts 2000-2008 - Section 3(1) - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(2)(g) –- Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000 - 2008
On 7 October 2009 in accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director has delegated the complaint to myself, Elaine Cassidy 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 assignment of the complaint was expedited due to the complainant's personal circumstances. A hearing was held on 20 November 2009 and a stenographer's report of the hearing was provided by the respondent to the Equality Officer and the complainant on 5 January 2010.
Summary of claim/dispute
This dispute concerns a complaint by Mr Murray that he was discriminated against by Permanent TSB in being refused a motor loan on 2 April 2009 because of his disability.
The claim was notified to respondent on 2 April 2009 and it was referred to the Director of the Equality Tribunal under the Equal Status Acts 2000 - 2008 on 29 June 2009.
1.0 Summary of Complainant’s Case
1.1 Mr Murray is suffering from terminal cancer and is receiving treatment for his illness primarily at University Hospital Galway. As Mr Murray lives in Sligo, this requires him to travel back and forth to Galway on a regular basis to receive treatment. In order to facilitate this, Mr Murray applied to the HSE for a Motorised Transport Grant of 75% of the cost, up to a value of 5020 Euros. On 2 March 2009, Mr Murray's application was provisionally approved, subject to the submission of the following documents (and they being in order): driver's licence, car invoice marked "paid", Vehicle Registration Certificate, and Insurance Certificate. This meant that he was required to purchase the car, before he could receive the grant. In order to purchase the car, he intended to put approx 1500 of his own funds towards the car and use the HSE grant for the rest of the cost.
1.2 On 13 March 2009, Mr Murray applied to the Permanent TSB for finance of 5000 Euros which would enable him to purchase the car. To support his application Mr Murray presented, inter alia, the following information to the bank:
· his provisional written approval from the HSE for a grant of up to 5020 Euros
· advice that the average waiting period for the HSE to pay out the grant was 2-3 weeks from presentation of the documentation
· the name and contact number of the HSE finance official who could confirm the above
· his claim to be a debt-free, exemplary customer for over six years
· evidence of his disabled status
In his submissions and during the hearing Mr Murray provided details of his family's weekly budget in order to show the respondent that they could have afforded the loan.
Between 13 March 2009 and 2 April 2009, there was verbal and written correspondence between Mr Murray and PTSB regarding the loan. He initially spoke with the assistant branch manager by phone and was sent a quotation to show the cost of the proposed loan. The loan value on this letter were incorrect and caused Mr Murray some confusion. Mr Murray then attended the branch in person on March 25th to complete the relevant forms.
1.3 The final outcome of the application was a letter from the respondents dated 2 April 2009 refusing the loan application. No further details were provided. Mr Murray submits that the reason for the refusal of the application was due to his disabled status.
As a result of the respondent's refusal to provide a loan, Mr Murray had to raise the money by private means. He had less funds, so he had to buy an older car than he had intended, and it also meant that he could not avail of the full grant offered by the HSE.
Additionally in his submission and during the hearing Mr Murray provided details of the discomfort and distress which were caused to him during the time he was without a car. On 11 occasions, he was obliged to travel by bus to and from Galway which took him over eight hours each time. The combination of the travel and the cancer treatment were exhausting for him.
Finally Mr Murray submitted that the waiting period between his initial application and his final refusal caused him a great deal of distress and anxiety.
2.0 Summary of Respondent’s Case
2.1 In summary, the respondent submitted that Mr Murray's application fell outside their permitted lending criteria, which apply irrespective of the status of the applicant under the Equal Status Acts.
2.2 Regarding the events leading up to the refusal, the respondents submitted that during their initial discussion with Mr Murray by phone, the first option they discussed was traditional car finance in the form of hire purchase. However they quickly ruled that out, as they believed that it would be too expensive for his situation (He would have been obliged to pay the full interest for the entire term, even if he only took the loan for a few weeks.) Therefore they recommended that the complainant make an application for an ordinary term loan and they sent him a follow-up quotation to show the cost of such a loan. The complainant then visited the branch and completed the applications as requested. The branch manager did not remember the specific loan application, but stated that the normal process for all applications is that he reviews them on a almost daily basis together with a small committee of three or four others. The bank were unable to provide any notes from the review meeting where Mr Murray's application would have been discussed.
2.3 The basis for the review meeting is the PTSB Credit Policy for Consumer Current Account and Term Loan Facilities (hereafter the "lending policy"). Following this committee review, the application is either accepted, rejected or referred to the next level. The respondent submitted to the Tribunal a copy of this lending policy, the details of which remain confidential for commercial reasons. However in general summary it stipulates that special requirements must be applied where the loan applicant is a tenant. (This is because the bank assess tenants as higher risk than home-owners). It says that tenants must have an income above a specified threshold and they must be in continuous employment for a specified number of years. In the current case, the bank submitted that the complaint (who is a tenant) had an income below the level indicated and had not been in continuous employment for the requisite time. Therefore he fell outside the lending criteria which was authorised at branch manager level. During the hearing I asked the Branch Manager whether he was permitted any discretion in applying these guidelines. He explained that his only discretion is to decide whether the application should be passed to the next level, which is a centralised corporate lending unit. In order to pass the application to the next level, the Branch Manager submitted that he would have to have at least three or four strong reasons in favour of the applicant, before he would even consider sending it to the next level. He also submitted that the central lending unit could still refuse, even in cases where he personally believed the application was strong.
In the case of Mr Murray, the Branch Manager submitted that there was simply no way he would have passed his application up to the next level. Based on the completed application forms, which showed that he was outside their normal lending criteria, he could see no strong reason to process it any further. He gave examples of reasons which might be used to strengthen an application - a personal guarantor, or some piece of financial security. When asked about the HSE provisional grant approval, the branch manager was adamant that this document was not sufficiently secure for the bank. He pointed to the fact that the payout of the grant was subject to the production of documents over which the bank had no control. He said that the current lending environment was extremely risk averse and that they would not accept a provisional grant approval, notwithstanding the fact that it came from a State organisation. Therefore the result of the term loan application was a letter of refusal on April 2nd 2009.
2.4 The Branch Manager additionally confirmed during the hearing that Mr Murray would also not have qualified for hire purchase, even he had had chosen this option.
3.0 Conclusions of the Equality Officer
3.1 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- 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 he/she can rely in asserting that prohibited conduct has occurred in relation to him/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.
3.2 The complainant is suffering from a terminal illness and his disability status was not contested by the respondent. The basic facts surrounding the application and refusal are not in dispute. Therefore the disputed issue is whether the refusal of the loan by PTSB was connected with Mr Murray's disability. In making his loan application, Mr Murray did make it very clear that he was a person with a disability. He also provided a document from the HSE, which he believed would provide sufficient security for the bank. Despite considerable communication between the parties, the final answer which the complainant received was a flat refusal without giving reasons. Therefore in my opinion, the complainant has established a prima facie case. The onus therefore shifts to the respondent to rebut the inference of discrimination raised.
3.3 The respondent defends the claim on the basis that the loan application was reviewed strictly within the terms of their lending policy and without any reference to the claimant's disability. It is very clear from the bank's lending policy that the complainant fell outside the standard criteria for granting any form of loan.
3.4 The next issue which arises is whether the application ought to have been referred to the next level within the bank. During the hearing, the issue of the provisional HSE grant was discussed at length and the branch manager was credible in his explanation that the conditions precedent, as set out by the HSE, created too much risk for him. He was also questioned about why he did not accede to the complainant's request to call the HSE for a reference. The bank manager credibly outlined his position with respect to the referee request and explained that in his opinion, any discussion with the HSE finance manager would not have altered those risks as set out. Finally the branch manager's reasons for not using his discretion to refer the application to the next level were routine and straightforward. Therefore I accept that the bank applied their lending policy without reference to Mr Murray's disability.
3.5 The issue of indirect discrimination was not raised by the complaint who was unrepresented. The respondent, for completeness, contended that their policy does not indirectly discriminate and there is no lending condition which applies disproportionately to disabled people. They stated that there is no evidence that disabled people are more or less likely to be tenants, to be in receipt of an income below the threshold or to be in continuous employment for less than three years. In the absence of any data, I cannot comment further on the issue of indirect discrimination.
3.6 I have taken into account all the evidence, written and oral, before me. Accordingly, I am satisfied tthat Permanent TSB did not discriminate against the complainants on the disability ground contrary to the provisions of the Equal Status Acts 2000 - 2008.
3.7 As a final note, Mr Murray stated on a number of occasions that the bank ought to have considered the "special circumstances" arising from his extremely severe illness, and shown some "humanity and integrity" in their decision-making. While I find their decision-making process to have been reasonable and non-discriminatory, I do consider that their treatment of the complainant was somewhat offhand; They initially gave Mr Murray the wrong quote, they did not give their response to his application until he followed up and they did not give any reasons for refusal or provide a personal contact. All of this distressed the complainant further. These were all customer-facing opportunities where Mr Murray's vulnerability might have been taken into account and the issue resolved amicably, without violating the bank's lending rules.
4.0 Decision
4.1 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 established a prima facie case of discrimination on the disability ground in terms of Sections 3(1) and 3(2)(g) of the Equal Status Acts. However I find that respondents have successfully rebutted the allegation of discrimination. Accordingly, I find in favour of the respondents in the matter.
Elaine Cassidy
Equality Officer
Date: 18 January 2010