The Equality Tribunal
Equal Status Acts 2000-2008
Decision
DEC-S2011- 061
Parties
Michael Dowd
V
Minister for Finance
(represented by Eoin Carolan BL instructed by the Chief State Solicitor's Office)
File Reference: ES/2008/108
Date of Issue: 15th December 2011
Decision
DEC-S2011-061
Michael O'Dowd
v.
Minister for Finance
(represented by Eoin Carolan BL instructed by the Chief State Solicitor's Office)
Key Words
Equal Status Acts, 2000 -2004 - Direct discrimination, Section 3(1), Section 3(2)(g) - disability, 3 less favourable treatment - section 5(1), access to a service - medical criteria, Regulations S.I. 353/ 1994 - Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994 exemption under Section 14 - definition of an enactment , Interpretation Act 2005 - no jurisdiction
Delegation under Equal Status Acts, 2000-2008
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2008 on the 24th September 2009. On the 12th April 2011, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director delegated the case to me, Marian Duffy, 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 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 18th May 2011. The complainant was not represented and given that the case raised important legal issues the Equality Tribunal sought a legal opinion from a Senior Counsel concerning the interpretation of Section 14(1) of the Equal Status Acts. The opinion was received by the Tribunal and in accordance with procedures and in the interest of fair procedures and natural justice it was sent to both the complainant and respondent on the 14th November 2011. Both parties were given an opportunity to respond before a decision issued in the matter. A response was received from the respondent on the 6th December 2011.
1. Dispute
1.1 The dispute concerns claims by the complainant that he was discriminated against by the above named respondent on the disability ground in terms of Sections 3(1)(a) and 3(2)(g) contrary to Section 5 of the Equal Status Act, 2000-2008 in relation to access to a service which is generally available to the public.
2. Summary of the Complainant's
2.1 The complainant has a disability and was assessed by the HSE in Sligo for a Primary Medical Certificate in respect of a tax concession from the Revenue Commissioners for the adaptation of a car seat to meet his needs as a passenger with a disability. The complainant was assessed by the HSE in accordance with the criteria set down by the Minister for Finance and his application was unsuccessful. The medical assessment criteria is set out in Regulations S.I. 353/ 1994 - Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994 made by the Minister for Finance pursuant to Section 92 of the Finance Act 1989. The Regulations provides that a person is assessed for a Primary Medical Certificate as follows:
"For the purposes of section 92 (2) (a) of the Finance Act, 1989, the eligibility on medical grounds of disabled persons who are severely and permanently disabled shall be assessed by reference to any one or more of the following medical criteria:
( a ) persons who are wholly or almost wholly without the use of both legs;
( b ) persons wholly without the use of one of their legs and almost wholly without the use of the other leg such that they are severely restricted as to movement of their lower limbs;
( c ) persons without both hands or without both arms;
( d ) persons without one or both legs;
( e ) persons wholly or almost wholly without the use of both hands or arms and wholly or almost wholly without the use of one leg;
( f ) persons having the medical condition of dwarfism and who have serious difficulties of movement of the lower limbs."
The complainant said that his complaint relates to the how the medical assessment criteria are defined and interpreted under the Regulation. He believes that the definition is too narrow and does not take account of the effects that a combination of a mental and physical disability can have on a person.
3. Summary of the Respondent's Case.
3.1 The respondent stated that the complaint is inadmissible as it relates to the eligibility criteria which is set out in a Regulation and which applies to applicants for a Primary Medical Certificate in order to obtain a tax concession to adapt a car for a disabled driver or passenger. It was submitted that S.I. 353/ 1994 - Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994, which sets out the medical criteria at Regulation 3 is an enactment and is exempt from being challenged under Section 14(1)(a)(i) of the Equal Status Acts.
4. Conclusions of the Equality Officer
4.1 The first matter I have to decide is whether I have jurisdiction in the matter. I note that the medical assessment criteria to qualify for a tax concession either as a disabled driver or passenger is set down in regulation 3 of S.I. No. 353/1994 cited above and the HSE is required to apply the criteria when carrying out a medical examination.. Section 14(1)(a)(i) of the Equal Status Acts provides:
"Nothing in this Act shall be construed as prohibiting --
(a) the taking of any action that is required by or under --
(i) any enactment or order of a court,"
And Section 2 of the Interpretation Act 2005 defines an "enactment" as "an Act or a statutory instrument or any portion of an Act or statutory instrument".
A "statutory instrument" means an order, regulation, rule, bye-law, warrant, licence, certificate, direction, notice, guideline or other like document made, issued, granted or otherwise created by or under an Act and references, in relation to a statutory instrument, to "made" or to "made under" include references to made, issued, granted or otherwise created by or under such instrument.
I note that in his commentary on Section 14(a) of the Equal Status Act 2000 in the Annotated Statutes for 2000 by TJ McIntyre (at page 8-28), he stated:
"Actions required by law: This exception covers actions which are required to be taken by or under statute, court order, European Union Law or International Convention. Two limitations must be noted in relation to its scope. In the first place, it is limited to actions which are required by the relevant laws. Consequently, it would not appear to apply where, for example, a statute authorises discriminatory treatment in a way which is permissive but not mandatory. Secondly, the exception as far as it relates to domestic law, is limited to actions required by or under "any enactment or order of a court". This wording makes it clear that the exception does not apply to discrimination provided for under administrative schemes or departmental circulars unless and insofar as these have statutory underpinning."
4.2 I note that the complainant's complaint of discrimination on the disability ground solely relates to the interpretation and application of the medical assessment criteria contained in the S. I. Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994 and not to any other matter outside of the Regulations. Taking into consideration the matters cited above, I am satisfied that the above cited Regulations are exempt from consideration by me pursuant to Section 14(1)(a)(i) of the ES Acts. It could be argued that the definition of the terms "enactment" and "statutory instrument" in the Interpretation Act 2005 are strictly speaking for the purposes of that Act. However, it is clear that the Interpretation Act also governs the interpretation and construction of Acts and by implication also governs the meaning of the term "enactment" contained in section 14(a)(i) of the ES Acts.
5 Decision
5.1 The application of the medical criteria set out in the SI of 1994 to the complainant's assessment for a Primary Medical Certificate is required under an enactment and therefore under Section 14(1)(a)(i) of the ES Acts it is not a prohibited act. Accordingly, I find I have no jurisdiction to consider the complaint of discrimination referred by the complainant.
_________________
Marian Duffy
Equality Officer
15th December 2011