The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
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Website: www.@equalitytribunal.ie
Equal Status Acts 2000-2008
Decision
DEC-S2011-056
Waldemar Walczak
v.
Community Welfare Services, HSE West
File Reference: ES/2010/089
Date of Issue: 30/11/2011
Decision
DEC-S2011-056
Waldemar Walczak
v.
Community Welfare Services, HSE West
Key words
Equal Status Act, 2000 - 2008, Direct discrimination, Section 3(1) - less favourable treatment, Race - 3(2)(h) - provision of a service, Section 5(1), no prima facie case.
Delegation under Equal Status Acts, 2000-2008
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2008 on the 24th of August 2010. On the 17th of August 2011 in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 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. On this date my investigation commenced. A submission was received from the complainant on the 24th of August 2010 and the 8th of August 2011 and from the respondent on the 5th April 2011. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 7th of September 2011. The final correspondence was received from the respondent on the 3rd October 2011.
1. Dispute
1.1 The dispute concerns a claim by the complainant that he was discriminated against on the race ground in relation to the services provided by the Community Welfare Services. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status and contrary to Section 5(1) of that Act.
2 Complainant's Case
2.1 The complainant, a Polish national, referred a complaint to the Equality Tribunal claiming that the respondent discriminated against him in relation to his application for rent supplement allowance. The complainant's wife applied for the allowance after he and his wife were made redundant and they were granted it without any difficulty. They received same for the period 16th November 2009 until 22nd May 2010. He said that their financial situation was assessed in April 2010 and he understood that assessment was valid and gave them an entitlement to rent supplement allowance up until November 2010.
2.2 The complainant said that he spoke to the Community Welfare Officer in May 2010 about changing house, because the house the family was living in was damp and cold and it was difficult to heat. The complainant said that he went into the office and spoke to the CWO and he gave him a letter dated 6th May 2010 outlining the reasons he wanted to change. He said that the CWO understood the reason they wanted to change the house and he stamped their application. He said that he understood, after that conversation, that he could change house and it would not affect the rent supplement allowance. They changed house on the 14th May 2010 and on the 22nd May 2010 the rent supplement was stopped.
2.3 The complainant said that he believed that he had met the criteria for the payment of rent supplement. The complainant said that a letter of approval for local authority housing from Galway County Council was with the CWO since 6th June 2009. They were not informed that they required a new assessment letter at the time they spoke to the CWO. On the 17th of June 2010 his wife wrote to the CWO enquiring why the rent supplement was stopped and outlining the difficulties this had caused to the family. They were informed that they needed a new housing assessment from Galway County Council and this was provided on the 17th of June and immediately forwarded to the CWO. However the rent supplement was not reinstated. The complainant said that they received a letter from the Superintendent of the CWO on the 21st June 2010 refusing their application for rent supplement because they did not meet the criteria i.e. be residing in the private rented accommodation for a period of 183 days within the proceeding twelve months of the date of the claim for rent supplement, or have an assessment of housing needs carried out by the relevant local authority within 12 months of the date of the claim and is deemed eligible for and in need of social housing. The complainant was informed of his right to appeal. The complainant and his wife appealed the decision to the Appeals Officer on the 24th June 2010 and they also complained that they considered that the treatment by the respondent was discriminatory. On the 5th July 2010 the complainant sent a notification under the Equal Status Acts to the respondent complaining about discriminatory treatment.
2.4 The complainant's wife was awarded rent supplement by letter dated the 6th September 2010 which was backdated to the 6th of May 2010. The complainant submits that he was discriminated against on the race ground in that he believes that Irish people applying for rent supplement or other benefits did not experience the same delay as he did. He attaches the blame for the delay to the CWO and stated that this was the second time that he was made wait for approval from this office. He said that he applied for supplementary welfare allowance in 2009 and he had to wait 3 months for payment.
3 Respondent's Case
3.1 The respondent denies that the complainant was discriminated against. It was submitted by the General Manager of the respondent that the delay in paying the rent supplement to the complainant and his wife occurred because of an administrative error. The complainant, in February 2009 and his wife in March 2009 made an application for supplementary welfare allowance to the CWO and his wife also made an application for rent supplement. Rent supplement was paid from the 2nd March 2009 until 13th June 2009. Payment ceased when confirmation was received by the CWO that the complainant's wife was in full time employment and therefore did not qualify for rent supplement. The complainant appealed this decision and also complained by email dated 5th August 2009 that he had not been awarded supplementary welfare allowance on foot of an application he made in June 2009.
3.2 Following receipt of this complaint the CWO contacted the complainant and advised him that no application had been made in June 2009 for supplementary welfare allowance. The complainant then applied for the basic Supplementary Welfare Allowance on the 3rd of September 2009. Following a means test of his wife's earnings a supplementary welfare allowance in the amount of €70.90 was paid to the complainant. A further application for rent supplement was made in November 2009 and this was granted by the CWO on the 16th November 2009. On the 6th May 2010 the respondent received an application from the complainant's wife for supplementary welfare allowance and rent supplement. The CWO said that he probably spoke to complainant or his wife about the regulations for rent supplement. As there was no housing need letter from the Local Authority attached to the claim, the claim was processed and sent to the Superintendent CWO for decision.
3.3 On the 21st June 2010, in a letter to the complainant, the respondent in refusing the application stated that the complainant and his wife had failed to satisfy the conditions for paying a rent supplement. The respondent stated in evidence that this letter should not have been issued because at that stage the respondent had a letter from Galway County Council confirming that the complainant had a housing assessment and was in need of housing. The complainant's wife contacted the CWO's office on the 17th June 2010 and she was informed that she needed a letter from her Local authority before the CWO could process her rent supplement application. This letter was received on the 21st June 2010 in the CWO office in Loughrea but it was not associated with the file because the file was in Galway with the Superintendent and she issued the letter of refusal on the 21st June unaware that the letter was in the Loughrea office. The file was then returned to the Loughrea office and the CWO, who was on holiday when the housing need assessment letter was delivered to the Loughrea office, was not aware this letter arrived and the complainant's file was put away. On the 24th June the complainant appealed the decision to refuse the rent supplement and the appeals officer requested a copy of all the documentation pertinent to the appeal and also a report from the Superintendent CWO.
3.4 The CWO, on the 20th July 2010, contacted the complainant's wife to give them a further opportunity to provide a housing needs assessment. The one already provided had still not been associated with the file. The complainant's wife then submitted the letter from Galway County Council dated the 21st June but she failed to mention that she had already provided it to the office while the CWO was on holidays and the CWO then submitted the file to the Superintendent for approval for the payment of rent supplement as the conditions were now met. When the file arrived in the Superintendents office, she understood it was submitted in relation to the appeal, and the file was put in the appeals tray in her office rather than the approval tray and the claim was not put forward for payment. The application for rent supplement was eventually granted by letter dated the 6th September 2010 and was backdated to the 10th May 2010. In the letter the respondent apologised for the delay in processing the claim. The CWO denied that he discriminated against the complainant and said that he usually deals with his wife whom he has a good relationship with. He said that he administers all the services provided in accordance with the regulations and applies them equally to all applicants regardless of their nationality. It was submitted that there was no documentation requested of the complainant that was not requested from all other applicants regardless of their nationality and part of the delay can be attributed to the complainant not initially providing all the supporting documentation required.
3.5 The respondent submits that the delay in processing the application was due to an administrative error and was not discriminatory treatment due to the complainant's nationality. They also submitted that the CWO office was under severe pressure from the large increase in all claims being processed by the office e.g. there was a 51% increase in new claims for rent supplement in the period 2007 to 2010 and similar increases in demand for other services provided by the office. About 40% of their customers are non Irish and of these they provide assistance to about 40 Polish people. It was submitted that applicants are refused rent supplement because they do not meet the requirements to qualify including the means test and the habitual residency requirement, but they are never refused rent supplement because of their race. The GM said that at the moment he is dealing with 2 cases of Irish applicants whose documentation went astray in their system. He said that there are always some level of complaints about the operation of the service but given the huge increase in demand for services the volume of complaints are lower than expected.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(h) of the Equal Status Act and in terms of Section 5 (1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case the race ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(h) provides that: as between any two persons, the discriminatory grounds ... are ... that they are of different race, colour, nationality or ethnic or national origins (the "ground of race")," and
Section 5. -- (1) provides: " A person shall not discriminate 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".
The burden of proof is set out in Section 38A which provides:
38A. -- (1)" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
4.2 A person making an allegation of discrimination under the Equal Status Acts must first establish a prima facie case of discriminatory treatment. This requires the complainant to establish facts from which it can be presumed that he was discriminated against because of his nationality. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. The matter for consideration is whether the delay in approving the complainant's application for rent supplement amounts to discriminatory treatment ion the race ground contrary to the ES Acts.
4.3 In order for the complainant to establish that he was discriminated against on the race ground he has to submit some evidence that he was treated less favourably than an Irish person or a person of a different nationality was treated in similar circumstances. The complainant submits that he was discriminated against on the grounds of his race when the respondent cut off the rent supplement when he and his family moved house with the permission of the respondent because the house they were living in was damp and cold. Furthermore he submits there was a delay of over 4 months by the respondent in approving their application for rent supplement for their new house. Despite having submitted the documentation to the respondent and contacting the CWO office in person and by email, the complainant claims that the respondent did not allow their application in a timely manner and did everything to say that they were ineligible. The respondent accepts that there was a delay in awarding the rent supplement and it arose because of an administrative error which was eventually corrected. The respondent submitted that they apologised by letter to the complainant's wife about the delay and explained the reason and the delay was in no way connected to the complainant's nationality.
4.4 Having examined all the evidence presented to me including all the documentation in relation to the application for the rent supplement, I can find no evidence that the treatment of the complainant was in any way motivated by the complainant's nationality. The complainant has presented no evidence to establish less favourable treatment on the race ground. I note from the respondent's evidence that they have received complaints about the services they provide from both Irish people and non-nationals and at the time of the hearing the GM said that he was dealing with a similar complaint from two Irish nationals whose documentation was lost in the system. It is clear that the respondent's evidence that the CWO office experience a great increase in applications for services from 2007 onwards resulting in delays in approving and providing the services. However, I am satisfied from the evidence in this case that the delay was caused by a series of administrative errors and the lack of clarity in the communications with the complainant. While the handling of the application for rent supplement by the respondent was careless and inconsiderate, I am satisfied it was not discriminatory. I find therefore the complainant has failed to establish a prima facie case of discriminatory treatment on the race ground.
5. Decision
5.1 I find that the complainant was not discriminated against on the race ground and contrary to the Equal Status Acts.
I recommend that the respondent reviews their procedures and to put systems in place to ensure that such administrative errors do not occur in the future, and where English is not the first language of applicants that the procedures and the supporting documentation required by applicants for such services are clearly communicated and explained.
___________________
Marian Duffy
Equality Officer
30th November 2011