THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2011
Decision No. DEC-S2011-064
PARTIES
A Complainant
-v-
A Life Assurance Provider
File Reference: ES/2010/049
Date of Issue: 19th December, 2011
Equal Status Acts
Decision No. DEC-S2011-064
A Complainant
-v-
A Life Assurance Provider
Key words
Equal Status Acts - Section 3(2)(g), Disability - Section 5(2)(d) exemption - Life assurance application - relevant underwriting or commercial factors - consideration of life assurance application
1. Delegation under the relevant legislation
1.1. On 26th April, 2010, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 25th July, 2011, in accordance with his powers under Section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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, on which date my investigation commenced.
1.2. Written submissions were received from both parties. A hearing of the complaint was held on 11th October, 2011. Further documentation was sought from both parties and final correspondence in this respect was received on 2nd November, 2011.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts in terms of Sections 3(1) and 3(2)(g) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated her less favourably by postponing her application for life assurance for a year.
3. Summary of the Complainant's evidence
3.1. The complainant stated that she had recently suffered from depression. She said she had drunk heavily following a bereavement but had not done so for four years. She denied that she had ever been diagnosed as being an alcoholic. She submitted that she was discriminated against by the respondent with respect to an application for life cover in that it refused her life cover for which she applied on the basis of her disability (i.e. depression).
3.2. The complainant outlined the history of her depression and treatment in that respect, saying that she had not been taking medication since 2007. She described how she was affected by the depression. She stated she had not suffered from depression since November 2009. She later stated that she was on medication again in 2009 for six months.
3.3. The complainant stated that she applied to the respondent for life assurance, through a broker, on 20th November, 2009 as she "wanted to get on with my life". She stated that she received a letter from the respondent requesting further information concerning an unrelated medical condition and had no other communication with it or from it until she received a letter on 19th January, 2010 informing her that it would be unable to offer her "terms..for one year" but that if she wished to reapply in a year it would "be happy to reassess her application". She stated that she asked for a copy of the report from her G.P. which had informed the respondent's decision. She said that it told her that it would send the report on but that it did not do so. She said she rang the respondent a few times after this but, when she did not hear back from it, she proceeded to make her complaint to the Tribunal.
3.4. The complainant said that her current G.P. had given a positive report on her depression. She also submitted that she had not been given a medical or an opportunity to explain her situation. She also submitted that she had not experienced any of the physical symptoms which were described in the medical literature upon which the respondent sought to rely in this respect. Furthermore, she submitted that the test results provided to the respondent with respect to the functioning of the relevant organs were normal.
3.5. The complainant stated that she did not see the difference in waiting for a year and that she was not given a chance to explain her situation. She gave a detailed description of the effect the respondent's decision had on her, reiterating that she had just wanted to get on with her life. She said she no longer has confidence to make any further applications for life assurance. In that respect, she denied that her depression was relapsing in 2009. She said that the respondent's postponement of her application was not fair and she just wanted to get on with her life.
4. Summary of the Respondent's case
4.1. The respondent stated that, on foot of the complainant's application form in which she had disclosed depression, it sent out a depression questionnaire to her and to her G.P. It said that it also asked the complainant's G.P. for her medical records with respect to depression and alcohol consumption. It said that it received reports back from her current and previous G.P. in that respect. It said that it then evaluated the medical evidence and sent a report to its underwriters on the basis of which the underwriters felt they could not offer the cover and the decision was to postpone for a year. The respondent said that this was the normal procedure it would follow with respect to such applications (i.e. where depression was disclosed).
4.2. The respondent pointed to a letter from the complainant's psychiatrist dated 20th October, 2009, which it said indicated that her depression was relapsing. It said that this letter informed its decision with respect to the complainant's application as did the report from her G.P.'s which said she had long-term and ongoing depression. It said that it relied on text books and statistics in informing its decision on the risks associated with the complainant's particular circumstances, and provided the Tribunal with the information and statistics in question. It also stated that it had sought the opinion of its Chief Medical Officer with respect to the application. It stated that the postponement of the application for a year was to see if the applicant's condition would improve, in which case it may then be able to provide cover.
4.3. The respondent also stated that the evidence it received showed that the complainant was affected by both depression and alcohol dependency syndrome. It said that in an underwriting scenario, the risk is significantly higher where depression and alcohol dependency syndrome are taken together and gave an account of the statistical evidence to support its position in that respect. It added that the report from the complainant's G.P. stated that she was diagnosed as suffering from alcohol dependency syndrome in 2001 but was totally abstinent since 2007 whereas the complainant had stated in her application for that she drank approximately six units of alcohol per week.
4.4. In short, the respondent was relying on its understanding, based on the evidence presented to it, that the complainant's depression was ongoing and long-term. In addition, it said that her reports revealed alcohol dependency. It submitted that her application was only postponed and she was free to apply for life cover again after a year. In that context, it sought to avail of the exemption provided in Section 5(2)(d) of the Acts.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. In accordance with Section 5(1) of the Acts, the respondent shall not discriminate against the complainant "in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public." It is accepted by the respondent that the complainant's application was postponed for a year because of her disability. It is clear, then, that the complainant has raised a prima facie case of discrimination against her on that ground in that context.
5.3. However, Section 5(2)(d) provides an exemption from the application of Section 5(1) with respect to "differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk.....where the treatment --
(i) is effected by reference to --
(I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or
(II) other relevant underwriting or commercial factors,
and
(ii) is reasonable having regard to the data or other relevant factors"
5.4. It is clear that the respondent considered the complainant's application from the perspective that the evidence it was presented with was that she was suffering from depression and was diagnosed with alcohol dependency syndrome. In that context, and while I note that the complainant submits that she did not suffer from alcohol dependency syndrome, whether she did or not is not for me to determine. Instead, what I must consider is whether it was reasonable for the respondent to postpone the cover in question for a year based on the evidence compiled by it in the context of the complainant's application. Furthermore, this decision must be made in light of either actuarial or statistical data which was obtained from a source on which it was reasonable to rely, or other commercial or underwriting factors, or both.
5.5. I consider that, in that context, the first thing I must look at is whether the respondent took reasonable steps to investigate the extent to which the complainant was still affected by the diagnoses (as it understood it) of depression and alcohol dependency syndrome. It is clear that, on foot of her application form, it wrote to the complainant's medical practitioners and to the complainant herself to seek further information with respect to her depression/anxiety and with respect to her consumption of alcohol. It is clear that it received replies from those medical practitioners as well as from the complainant. It is also clear that it consulted with its own consulting medical officer, on foot of which enquiry it sought further clarification on some elements of the replies it received from at least one of the complainant's medical practitioners.
5.6. Therefore, I am satisfied that the respondent did take reasonable steps to gather information with respect to the complainant's condition. The next question that arises is whether this decision was made by reference to actuarial or statistical data which was obtained from a source on which it was reasonable to rely, or other commercial or underwriting factors, or both. I have examined the information provided to the Tribunal by the respondent in this respect. I note that some of this material referred to certain actuarial or statistical data concerning risk factors relating to the life expectancy of persons with depression, particularly those who suffer from alcohol dependency syndrome.
5.7. However, it is clear that the decision of the respondent in this respect was based on the conclusion it drew from what it considered to be reliable medical research into the matter. It concluded that this research showed that the risks associated with providing cover to persons in a similar situation to the complainant with respect to depression and alcohol dependency were so high as to make it untenable to provide cover to such persons while they were still affected by both disorders simultaneously. In that sense, it was a decision based on commercial factors more than anything else. In any event, it meets the first test of the Section 5(2)(d) exemption.
5.8. The next question that arises is whether this decision was reasonable having regard to these factors. The information upon which the respondent made its decision in this respect was clear and quite convincing with respect to the risks arising from providing life cover to persons who were affected simultaneously by both depression and alcohol dependency syndrome. The evidence was also clear in showing that it was reasonable for the respondent to take into account the commercial implications of this in making its decision in the matter, and that this decision was also reasonable (i.e. that the cover should be postponed for a year with a view to providing the complainant with an opportunity to show evidence of a more complete recovery from the conditions in question).
5.9. In coming to this conclusion, I have also noted that the respondent took into account the inconsistency between the complainant's own statement with respect to the issue of alcohol dependency and the advice and information provided by her medical practitioners in this respect. I have also noted that it also took into account that the respondent was provided with a report from a clinical psychiatrist that clearly indicated the complainant's depression was relapsing. I consider that it was reasonable for the respondent to take these factors into account in coming to its decision in the matter.
5.10. I would add that it was not explicitly stated to the complainant, or indeed to her broker (at least prior to initiating her complaint to the Tribunal), that the respondent would give consideration to providing the cover in question a year later if the complainant's condition improved in the meantime. It would have been better had the respondent done so. I also note that it is clear from the documents provided to the Tribunal in this respect that the application was not, in fact, sent to the underwriters and that the decision was made directly by the respondent. (It did seek the underwriters view on the matter after the fact and this view was in agreement with the respondent's decision). However, in all the circumstances of the present complaint, I am satisfied that the decision was reasonable nonetheless, given that the cover was postponed rather than refused outright.
5.11. In short, I consider that it was reasonable for the respondent to conclude, based on the evidence provided to it and its own reasonably comprehensive inquiries into the matter, that the complainant was still affected by both depression and alcohol dependency syndrome. It is clear that the respondent's medical evidence indicated that the life expectancy of the complainant was significantly reduced in that context. Furthermore, I am satisfied that this evidence falls under the criteria of "other relevant underwriting or commercial factors" and that it was reasonable for the respondent to postpone the cover based on these factors.
5.12. In all the circumstances of the present complaint, then, and having considered all the evidence provided to the Tribunal with respect to this complaint, I am satisfied that the respondent was entitled to avail of the exemption provided under the Acts in Section 5(2)(d).
6. Decision
6.1. Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:
6.2. I find that the complainant has established a prima facie case of discrimination on the Disability ground in terms of Sections 3(1)(a), 3(2)(g) and Section 5 of the Equal Status Acts but that the respondent is entitled to avail of the exemption provided in Section 5(2)(d) of the Acts in that respect.
6.3. Therefore, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
19th December, 2011