THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 - 2008
Decision DEC-S2010-016
PARTIES
Mr. John & Mrs. Roseanne O'Brien (and on behalf of their four children)
(represented by Mr. Garrett O'Neill, Solicitor,
The Equality Authority)
and
The Health Service Executive South
File Reference: ES/2007/0162
Date of Issue: 8th March, 2010
Keywords
Equal Status Acts, 2000-2008 - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(2)(g) - Race Ground, Section 3(2)(h) - Traveller community Ground, Section 3(2)(i) - Reasonable Accommodation, Section 4(1) - Harassment, Section 11
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 4th December, 2007 under the Equal Status Acts, 2000 to 2004. On 11th December, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, 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, 2000-2004 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 19th February, 2010.
1. Dispute
1.1 The complainants, Mr. John and Mrs. Roseanne O'Brien, claim that both they and their four children were discriminated against by the respondent on the grounds of their race and membership of the Traveller community in terms of sections 3(1), 3(2)(h) and 3(2)(i) in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Acts. The complainants claim that they were subjected to harassment by the respondent within the meaning of section 11 of the Equal Status Acts. The complainants also claim that the respondent discriminated against two of their children on the grounds of their disability in terms of sections 3(1) and 3(2)(g) and contrary to section 4 of the Equal Status Acts by failing to provide them with reasonable accommodation.
2. Summary of the Complainants' Case
2.1 The complainants, Mr. John and Mrs. Roseanne O'Brien and their four children, are members of the Traveller community and two of the complainants' sons have being diagnosed with autism. The complainants returned to Ireland in May, 2007 after having resided in England for a number of years and they presented themselves to the respondent as homeless on 11 May, 2007. The complainants were interviewed on this date at the Homeless Information Centre in Tralee, Co. Kerry by Mr. A, Traveller Liaison Officer (acting on behalf of Kerry County Council) and Ms. B, Community Welfare Officer (acting on behalf of the Health Service Executive South). The complainants informed the respondent that they were moving back to Ireland because the area in which they had resided in England was too violent within which to raise their children. The complainants were placed in emergency accommodation in a hostel in Listowel pending further investigation of their case by the respondent. The complainants claimed that this accommodation was totally unsuitable for a family with young children (and especially for children with disabilities).
2.2 The complainants met with Ms. B, Community Welfare Officer, on a number of different occasions at the Homeless Information Centre in relation to their application for Supplementary Welfare Allowance entitlements in respect of rent and other social welfare benefits. They claimed that Ms. B was very unhelpful and they felt that they were constantly being given the "run around" by her in terms of the manner in which she dealt with their application for the aforementioned benefits. The complainants stated that they held the tenancy of a property in England at that juncture, however they claimed that they had informed the appropriate housing authorities in England that they were surrendering the tenancy of their property in that jurisdiction. Mr. O'Brien claims that he was informed by Ms. B that if he was able to acquire private rented accommodation the respondent would pay a deposit and rent allowance for this property subject to clarification from the authorities in England that they had surrendered the tenancy of their property in that jurisdiction. The complainants stated that they succeeded in acquiring private rented accommodation in the Tralee area and that they borrowed the deposit to secure this property from a relative on the condition that they would repay this money when the respondent granted their application for a deposit and rent allowance. The complainants stated that when Kerry County Council subsequently refused to provide them with a declaration of homelessness, that Ms. B also refused to grant their application for payment of rent allowance and deposit. As a result the complainants were forced to vacate this rented private accommodation as they were unable to pay the rent. Having left their private rented accommodation, Mrs. Roseanne O'Brien and her four children, were forced to seek shelter at the local Women's Refuge.
2.3 The complainants submitted that both the respondent and Kerry County Council were fully aware that they had commenced the process of surrendering the tenancy of their property in England and that this tenancy would formally cease in mid-June, 2007. However, notwithstanding this fact the complainants stated that Ms. B persisted with the claim that they were not homeless and therefore refused to put any measures in place to accommodate them or to pay a rent allowance until their tenancy of the property in England had been formally surrendered. The complainants claimed that the only assistance the respondent was prepared to provide was the offer to provide financial assistance with the costs of travel back to England. Mr. O'Brien accepts that he became verbally abusive towards Ms. B during the course of a meeting at the Homeless Information Centre on 4th July, 2007. However, he claims that his behaviour on this occasion was directly attributable to the frustration he had experienced in terms of his dealings with Ms. B in relation to his applications for the payments under the Supplementary Welfare Allowance scheme.
2.4 The complainants submitted that the respondent appears to have no policy on homelessness other than to leave the decision on whether a person or family qualifies as homeless or not to the local authority (i.e. Kerry County Council). The complainants submitted that in the present case because Kerry County Council refused to class them as homeless the respondent did also. The complainants claimed that they were subjected to discrimination on the grounds of their membership of the Traveller community in terms of the manner in which Ms. B, Community Welfare Officer dealt with their application for the payment of supplementary welfare allowance for rent and other social welfare benefits. The complainants also claimed that the manner in which they were treated by Ms. B in relation to their application for supplementary welfare allowance for rent and other benefits amounts to harassment within the meaning of section 11 of the Acts.
2.5 The complainants also submitted that the respondent failed to have any regard to the special needs of their two autistic children and that it failed to provide them with reasonable accommodation in accordance with its obligations under section 4 of the Equal Status Acts.
3. Summary of the Respondent's Case
3.1 The respondent stated that the Supplementary Welfare Allowance Scheme is a Department of Social and Family Affairs scheme which is administered by Community Welfare Officers who are employed by the Health Service Executive on behalf of the Department. Supplementary Welfare Allowance provides a basic weekly allowance to eligible people who have little or no income and the types of payments made under this scheme include weekly supplementary allowance, rent supplement, mortgage interest supplement and an exceptional needs payment for items such as food and clothing. The respondent submitted that the Community Welfare Officer employed at the Homeless Information Centre in Tralee (i.e. Ms. B in the present case) cannot proceed with an application for the payment of a rent allowance under the Supplementary Welfare Allowance Scheme (except in exceptional circumstances) until the local authority has determined that an applicant is in fact homeless. The respondent submitted that in the administration of the Supplementary Welfare Allowance Scheme at the Homeless Information Centre, as in the administration of the Scheme any where else, there are established procedures and guidelines to be followed and it is incumbent on any Community Welfare Officer to carry out an investigation to determine entitlement to this service.
3.2 The respondent confirmed that the complainants, Mr. John and Mrs. Roseanne O'Brien, presented as homeless to the Homeless Information Centre in Tralee on 11th May, 2007 and were accommodated in a hostel in Listowel pending further investigation into the claim that they were homeless. Ms. B, Community Welfare Officer, stated that the complainants were issued with a once off Exceptional Needs Payment of €350.00 on 14th May, 2007 on the basis of their claim that they had no money for food. During the course of her investigations of the complainants' case, Ms. B received information from the relevant authorities that the complainants were at that juncture in receipt of social welfare benefits and child benefits in England. When she received confirmation that the payment of these benefits had been terminated by the authorities in England, Ms. B authorised the payment of a basic supplementary welfare allowance to Mr. O'Brien in the amount of €397.10 (which was paid on a weekly basis until his Unemployment Assistance was approved). The respondent also received information from the relevant housing authorities in England that the complainants held the tenancy of a property in that jurisdiction and also that they had been granted a transfer to another property on foot of their request for a larger house. The information obtained by the respondent from the housing authorities in England confirmed that the complainants could in fact have resided at either of these properties at that juncture. The respondent stated that it was not provided with any information or evidence (from either the relevant housing authority or the police in England) to substantiate the complainants' contention that they could not return to their house in England on the basis that they were fleeing a violent situation in that jurisdiction.
3.3 The respondent accepts that it received confirmation from the housing authorities in England on 28th May, 2007 that the complainants had commenced the process of surrendering the tenancy of their house in England. However, it stated that there was still a further period of 4 weeks before the tenancy lapsed and therefore the local authority i.e. Kerry County Council could not declare the complainants homeless during this period. The respondent stated that Kerry County Council refused to provide the complainants with a declaration of homelessness and therefore, Ms. B, Community Welfare Officer could not authorise the payment of a rent allowance to the complainants (and Mr. John O'Brien was informed of this decision on 28th May, 2007) by Ms. B at the Homeless Information Centre). The respondent stated that as there was no impediment to the complainants returning to their rented property in England they could not be deemed homeless and as a result were advised that they could no longer be accommodated by the Homeless Information Centre.
3.4 Ms. B also stated that she has a discretion, in exceptional circumstances, to authorise the payment of a rent allowance to an applicant in the absence of a declaration of homelessness from the local authority. However, she stated that she did not consider the complainants situation constituted exceptional circumstances especially in light of the fact that her investigations had confirmed that they had access to accommodation in England. The complainants were requested by Kerry County Council to vacate the hostel in which they had been temporarily accommodated on the basis that the investigation into their case had confirmed that they were not homeless. The respondent stated that it offered financial assistance to the complainants to facilitate their return to England as was the normal practice in a case where a person or family's claim of homelessness is not upheld.
3.5 Ms. B stated that she had no further contact with the complainants until 15th June, 2007 when Mr. John O'Brien attended the Homeless Information Centre to make a further application for the payment of a deposit and rent allowance in relation to private rented accommodation which he had acquired in Tralee. Ms. B stated that she informed Mr. O'Brien on this occasion that she could not authorise the payment of these benefits on the basis that the local authority had not declared them homeless. Ms. B denies that she had previously informed Mr. John O'Brien that she would authorise the payment of rent allowance and a deposit if he was able to acquire private rented accommodation. She stated that as the Community Welfare Officer in the Homeless Information Centre she could not authorise the payment of a deposit or a rent allowance unless the complainants have been deemed homeless by the local authority. Ms. B stated that she subsequently received confirmation from the Community Welfare Officer who had responsibility for the area in which Mr. John O'Brien had acquired this private rented accommodation to confirm that he had already been afforded a rent allowance for this property (on foot of a declaration from Tralee Town Council that he had a short-term housing need). Ms. B stated that she also received information to confirm that Mr. John O'Brien was evicted from this property for anti-social behaviour and failure to pay the rent.
3.6 Ms. B stated that Mr. John O'Brien presented at the Homeless Information Centre again on 4th July, 2007 and during the course of their discussions he became verbally abusive and aggressive towards her. The respondent stated that Mr. John O'Brien was barred from the Homeless Information Centre as a result of his behaviour on this occasion and he was instructed that any further dealings that he might wish to conduct with the Centre should only be carried out by way of telephone. Ms. B stated that she had no further interaction with Mr. John O'Brien following this incident. However, she stated that she had a number of further contacts with his wife, Mrs. Roseanne O'Brien whilst she was staying at the Women's Refuge, in her capacity as a Community Welfare Officer, and she confirmed that she subsequently authorised the payment of Supplementary Welfare Allowances to Mrs. Roseanne O'Brien and her children as a result of these contacts.
3.7 The respondent denied that the complainants had been subjected to harassment within the meaning of section 11 of the Equal Status Acts in terms of the manner in which Ms. B had interacted with them in relation to their applications for payments under the Supplementary Welfare Allowance scheme. Ms. B stated that the complainants were neither treated in a rude nor disrespectful manner and they were afforded the same respect and consideration given to any other person presenting at the Homeless Information Centre. The respondent also denies that it failed to provide reasonable accommodation to the complainant's children within the meaning of section 4 of the Equal Status Acts. The respondent accepts that it was aware that two of the complainants children had a disability; however, it stated that the Community Welfare Officer did not have any jurisdiction in relation to the administration of disability allowances.
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 Complainants. Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. 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.
Scope of the investigation in the present case
4.2 For clarification purposes, I wish to note that the Homeless Information Centre in Tralee is operated under the control of two separate entities, namely the respondent to the present proceedings i.e. the Health Service Executive South and Kerry County Council. I therefore wish to clarify at this stage of my deliberations that I do not have any jurisdiction in the present case to investigate the allegations of discrimination that have been made by the complainants against Mr. A, Traveller Liaison Officer, in terms of the manner in which he dealt with their application for a declaration of homelessness. The allegations which have been made against Mr. A are outside of the scope of the present investigation on the basis that he was employed by and entity (i.e. Kerry County Council) which has not been named as a respondent to these proceedings. Therefore, the scope of my investigation in the present case is confined exclusively to the allegations of discrimination against Ms. B, Community Welfare Officer and the Health Service Executive in terms of the manner in which it dealt with their application for payments under the Supplementary Welfare Scheme.
4.3 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. At the outset of the hearing of these complaints, the complainants' representative withdrew the complaint of discrimination on the race ground. I will now proceed to examine the complaints on each of the other two grounds claimed i.e. the Membership of the Traveller community and Disability grounds.
Traveller community ground
4.4 It was not in dispute between the parties that the complainants, Mr. John and Mrs. Roseanne O'Brien and their four children are members of the Traveller community. The complainants have claimed that Ms. B, Community Welfare Officer, has subjected them to discrimination on the grounds of their membership of the Traveller community in terms of the manner in which she dealt with their applications for payments under the Supplementary Welfare Scheme following their return to Ireland in May, 2007. They have claimed that Ms. B refused to grant their applications for rent allowance during the period from 11th to 28th May, 2007 and again on 15th June, 2007 because of their Traveller status. The respondent has denied that the complainants were subjected to discrimination on the grounds of their membership of the Traveller community in terms of the manner in which they were dealt with by Ms. B. The respondent has submitted that their applications for payments under the Supplementary Welfare Scheme were dealt with and processed by Ms. B in accordance with it's normal procedures and that the decision not to grant their applications for a rent allowance under this Scheme was in no way attributable to their Traveller status.
4.5 In considering this issue, I note that the Supplementary Welfare Allowance Scheme is a Department of Social and Family Affairs scheme which is administered by Community Welfare Officers who are employed by the Health Service Executive on behalf of the Department. The legislative provisions which govern the payment of allowances under this scheme are contained within the Social Welfare Consolidation Act, 2005 and the Social Welfare (Consolidated Supplementary Welfare Allowance) Regulations 1995 to 2005). This legislation sets out the different types of payments that are covered under the Supplementary Welfare Allowance Scheme which includes weekly supplementary welfare allowance, rent supplement and exceptional needs payments for items such as clothing and food. The specific allegations of discrimination in the present case centres around the refusal by Ms. B, Community Welfare Officer, to authorise the payment of rent allowances to the complainants under the Supplementary Welfare Scheme. It is clear from the provisions of the aforementioned legislation (which was effective at the time of the alleged discrimination) that Ms. B, in her capacity as a Community Welfare Officer at the Homeless Information Centre, could only authorise the payment of a rent allowance to the complainants under the above Scheme in either of the following two sets of circumstances; firstly, if they had been declared homeless by the local housing authority or secondly, payment could have been authorised in the absence of a declaration of homelessness in circumstances where she considered that there was an exceptional need on the part of the complainants.
4.6 It is clear from the aforementioned legislative provisions that the responsibility for issuing a declaration of homelessness was vested in the local housing authority and accordingly, Ms. B did not have any role or function in this regard. I am satisfied that the local housing authority i.e. Kerry County Council did not issue the complainants with a declaration of homelessness and it is therefore clear that Ms. B could not authorise the payment of the rent allowance on the basis of this criterion. Ms. B stated in evidence that she did not consider it appropriate to exercise the discretion that was available to her under the legislation to authorise the payment of a rent allowance to the complainants in the absence of a declaration of homelessness on the basis that she did not consider that their circumstances constituted an exceptional need. Ms. B stated that the reason she decided not to exercise her legislative discretion in this regard was based on the fact that her investigations into the complainants' circumstances had confirmed that there was accommodation available to them in England at that juncture. She also stated that she had not been presented with any evidence to suggest that the complainants could not return to their house in England on the basis that they were fleeing a violent situation in that jurisdiction. I accept that there was a dispute between the parties as to whether or not it was a realistic or viable option for the complainants to return to this accommodation in England. However, based on the totality of the evidence adduced, I find that the reason Ms. B did not ultimately exercise her discretion to authorise the payment of rent allowance to the complainants was not in any way attributable to their Traveller status but rather it was based entirely on her genuine belief that the complainants' situation did not constitute circumstances of exceptional need.
4.7 In coming to this conclusion, I have also taken into consideration that Ms. B did in fact authorise a number of other payments to the complainants under the Supplementary Welfare Allowance Scheme including an exceptional needs payment on 14th May, 2007 and a basic supplementary welfare allowance which was made payable to Mr. John O'Brien on a weekly basis from 17th May, 2007. I also note that Ms. B had further contact with Mrs. Roseanne O'Brien (in the period after her husband had been barred from the Homeless Information Centre on 4th July, 2007) and that she authorised a number of payments to Mrs. O'Brien under the Supplementary Welfare Scheme as a result of this contact. I am of the view that if it had been the intention of Ms. B to discriminate against the complainants on the grounds of their membership of the Traveller community that she would not have authorised these payments. In the circumstances, I find that the complainants have failed to establish that they were treated less favourably than another person or family would have been, in similar circumstances, on the grounds of the membership of the Traveller community in terms of the manner in which Ms. B dealt with their application for the payment of rent allowances and other benefits under the Supplementary Welfare Scheme.
Disability Ground
4.8 In the present case, it was not disputed that two of Mr. and Mrs. O'Briens' sons have been diagnosed as autistic and I am therefore satisfied that they are persons with a disability within the meaning of Section 2(1) of the Equal Status Acts. The complainants have claimed that they were subjected to discrimination on the disability ground on the basis that Ms. B failed to take their sons' disabilities into consideration in terms of the manner in which it dealt with their application for payments under the Supplementary Welfare Allowance Scheme. In considering this issue, I am satisfied that Ms. B, in her role as a Community Welfare Officer, did not have any jurisdiction in relation to the administration of the Domiciliary Care Allowance i.e. the allowance that the complainants were entitled to claim on the basis of their sons' disabilities. Based on the evidence adduced, I find that the reason Ms. B refused to grant the complainants' application for payments under the Supplementary Welfare Allowance Scheme (in relation to rent allowance and other benefits) was not in any way attributable to their sons' disabilities but rather was on the basis of her assessment that they failed to meet the relevant criteria in order to qualify for such allowances. I therefore find that the respondent did not directly discriminate against the complainants on the disability ground in the present case.
Reasonable Accommodation
4.9 In the case of disability in considering whether discrimination occurred, consideration must also be made to the issue of the provision of reasonable accommodation to a disabled person in accordance with section 4 of the Equal Status Acts. In considering this issue, I am satisfied that the complainants and their children were facilitated by Ms. B in terms of making applications for payments under the Supplementary Welfare Allowance Scheme when they presented at the Homeless Information Centre. I am also satisfied that Ms. B and other members of staff working at the Homeless Information Centre provided assistance to the complainants in relation to the completion of the relevant application forms for these allowances. Having regard to the totality of the evidence adduced, I therefore find that the respondent did not fail in its obligations in accordance with the provisions of Section 4 of the Equal Status Acts.
Harassment
4.10 The complainants also claimed that they were subjected to harassment by Ms. B contrary to the provisions of Section 11(5) of the Equal Status Acts in terms of the manner in which she dealt with them on a personal level during the course of their interaction in relation to their application for payments under the Supplementary Welfare Allowance Scheme. Ms. B emphatically denies that she subjected the complainants to any kind of behaviour that could be construed as harassment during the course of her interaction with them. In considering this issue, I have found the evidence of Ms. B to be very credible in terms of the manner in which she dealt with the complainants and I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that she acted in anything other than a professional manner in terms of her interaction with the complainants. Having regard to the foregoing, I find that the complainant has failed to establish a prima facie case of harassment within the meaning of Section 11(5) of the Equal Status Acts, 2000 to 2008.
5. Decision
5.1 On the basis of the foregoing, I find that a prima facie case of discrimination has not been established by the complainants on the Traveller community and Disability grounds in terms of sections 3(1), 3(2)(g), 3(2)(i) and 4(1) of the Equal Status Acts. I also find that the complainants have failed to establish a prima facie case of harassment within the meaning of section 11 of the Equal Status Acts. Accordingly, I find in favour of the respondent in the matter.
Enda Murphy
Equality Officer
8th March, 2010