EQUAL STATUS ACTS 2000-2011
Decision No. DEC-S2011-045
Joe Keane
-v-
Kerry County Council
File Reference: ES/2011/0252
Date of Issue: 21st December 2012
Key words:
Equal Status Acts - Age, Disability, loan, Section 5(2) exemption
1. Delegation under the relevant legislation
1.1 This case concerns a complaint by Mr Joe Keane that he was discriminated against by Kerry County Council on the grounds of age and disability. On 1st November 2011, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000-2011 [hereinafter referred to as 'the Acts']. On 10th September 2012, in accordance with his powers under section 75 of the Employment Equality Acts 1998 -2011 and under the Acts the Director delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. My investigation commenced on this date.
1.2 As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 3rd October.
Summary of the Complainant's Case
2.1 The complainant submits that applied for a mortgage of €95,000 for a house worth €115,000 with Kerry County council under S.I. No. 145 of 2009 Housing (Local Authority Loans) Regulations 2009. He states that when he was discussing applying for this loan with Kerry Co. Council he was told that he could make lump sum payments off the loan. He was 50 when he applied and states he is due to retire at 68 so that he believes that he would have no problem in paying off the loan in 18 years. However, when he formally applied for the loan he was informed that Kerry Co. Council generally would only give a mortgage term for 30 years and that the term could not extend beyond retirement age.
2.2 Mr Keane thought this approach was discriminatory on the ground of age. He is also annoyed that he was not initially given reasons why his application was refused. He submits that it was only when he put in a complaint to the Equality Tribunal that he obtained answers to his questions
Summary of the Respondent's Case
3.1 The respondent states that Mr Keane's loan was assessed in accordance with the aforementioned S.I .No. 145 of 2009 and the Council's credit policy. The standard term of a mortgage loan with Kerry Co. Council is 30 years.
3.2 The standard mortgage protection policy offered by the Council offer protection in the event of serious illness until the loan applicant is 65 and protection until death until 70. Therefore, the Council generally only offer loans until people are 65. When they stress-tested Mr Keane's income and future financial capacity to sustain loan repayments over 15 years, they found the repayments would be greater than 35% of his salary. That is why his loan was refused.
Conclusions of the Equality Officer
4.1 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. The issue for me to decide is was the complainant discriminated against on the grounds of disability and age.
4.2 No evidence was adduced at the hearing that the complainant had a disability. Therefore, this aspect his case fails.
4.3 In relation to the age complaint, Mr Keane has established a prima facie case that his age and consequent capacity for repayment was a significant factor in him being refused a loan. However, I am satisfied that the respondent can avail of the Section 5(2) exemption:
5. -- (1) 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.
(2) Subject to Section (4) (1), subsection (1) does not apply in respect of --
.....
(d) differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk other than on the gender ground or in any other circumstances to which the Gender Goods and Services Directive is relevant 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.
He was refused a mortgage for two reasons:
(i) according to their own credit policy the loan repayments exceeded his capacity to pay
(ii) their mortgage protection only paid up to 65 (except in death). I find that the respondent is entitled to this defence that Mr Keane's age was a risk factor in the repayment of a mortgage loan. Therefore, Mr Keane's complaint fails.
4.4 However, the respondent readily admitted that this is a case that probably should not have come to hearing. Mr Keane is a reasonable man and he accepted their explanation at the hearing. He pointed out that had the reasons been clearly pointed out to him when he was refused the loan, he would never have brought a case to the Tribunal. The respondent said that they will bear this in mind in dealing with future applicants.
Decision
5.1 In accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision:
(i) that the complainant has not established a prima facie case of discrimination on the grounds of disability
(ii) the complainant has established a prima facie case of discrimination on the ground of age but the respondent is entitled to use the exemption in Section 5(2).
Therefore, I find against the complainant.
____________________
Orlaith Mannion
Equality Officer