The Equality Tribunal
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2012-001
Parties
Fizel
(Represented by Hennessy and Perozzi Solicitors)
V
Health Service Executive
(Represented by Mason Hayes & Curran)
Case ref: ES/2010/0080
Issued: 6 January 2012
DECISION NUMBER DEC-S2012- 001 - CASE REFERENCE ES/2010/0080
Keywords:
Equal Status Acts 2000 to 2008- Discrimination - Harassment - Victimisation - Civil Status - Family Status - Race - Provision of good and services - Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Ms. Andrea Fizel (hereafter "the complainant") referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 5 August 2010. The respondent was notified of this complaint on 13 May 2010. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, 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 29 July 2011. An oral hearing, as part of the investigation, was held in Dublin on 8 November 2011.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination, harassment and victimisation on civil status, family status and/or race grounds. The complainant submitted that the Health Service Executive (hereafter "the respondent") discriminated and harassed her by asking repeated questions about the father of her unborn child and whether she was in receipt of any maintenance payments.
3. Case for the complainant
3.1. The complainant has worked and resided in this jurisdiction since 2006. She is single (divorced). In or about September 2009 the complainant became pregnant. Since she knew she would be dependent on statutory maternity benefit after 6 May 2010 and her tenant had declared that he would be moving out on 1 May 2010, the complainant sought assistance from the community welfare service in relation to meeting the cost of her rent. Pursuant to this aim, the complainant, on the advice of a social worker, approached her local health centre and met with a community welfare officer.
3.2. The complainant, who is a Hungarian national, single and pregnant at the material time, submitted that she was harassed and discriminated against by a named community welfare officer who:
1. Repeatedly badgered the complainant about her pregnancy and her inability to contact the child's father;
2. Called her a liar when she said she did not know how to contact the father of her unborn child;
3. Was tired of being told lies by foreign nationals;
4. Claimed that there had to be another person residing in the house;
5. Searched the complainant's wardrobes;
6. Claimed that people who owned a printer did not require rental supplements;
7. Claimed that while the complainant was outside the jurisdiction, the community welfare officer had visited her residence; and
8. Indicated to the complainant that he was unhappy about the complainant leaving the jurisdiction to go and visit her family.
3.3. The complainant submitted that the treatment that she had to endure over 4 meetings with the community welfare officer put the complainant in real fear that she would not be able to make her rental payment. The complainant approached her Solicitor and a complaint was lodged on 13 May 2010.
3.4. The complainant had travelled to Hungary for a couple of days in late April 2010. She visited her family and had finalised some matters relating to her reverting back to the use of her maiden name (the complainant had been married in Hungary and while divorced had continued to keep her marriage name). On her return, she discovered that the community welfare officer had visited her house twice and that he suspected that there was someone else residing in the house.
3.5. The complainant who has no contact with the father of her then unborn child felt humiliated by the named community welfare officer whose questioning about the father deeply embarrassed the complainant.
3.6. The complainant submitted that a hypothetical comparator ought to be used to establish discrimination in accordance with Conroy v Carney (DEC-S2001-002) as there is an absence of an actual comparator. It was submitted that an Irish national in similar circumstances would not have been treated in the same manner as the complainant was treated. It is further submitted that a married woman or an individual who is not pregnant would have been subjected to the same treatment afflicted on the complainant. The complainant relied on Fleming v Dr. J Maloney, Blackrock Clinic (EE04/1996) where the complainant was asked irrelevant questions that the officer found would not have been in similar circumstances been asked of a male or a single female. The complainant submitted that a married woman or a woman with the father present would not have been asked such discriminatory, irrelevant and disparaging questions. The complainant relied on A student's mother v A Local Authority (DEC-S2004-086) where the equality officer found that a person with different family and marital status would not have been questioned to such a level in relation to their circumstances and same would have been accepted at face value.
3.7. The complainant submitted that her race was a further aggravating factor leading to the discrimination and harassment. The treatment that was afforded to the complainant has made extremely disheartened to have chosen Ireland as her home and she finds it incredible that she would have been treated in such a horrific, humiliating manner at a time when she needed assistance.
3.8. The claim of victimisation was withdrawn at the hearing.
4. Case for the respondent
4.1. Community Welfare Services are provided by Community Welfare Officers (CWOs) in the HSE (at the material time). CWOs are responsible for administration of Community Welfare Services and are based in health centres. The majority of the work carried out by CWOs involves the administration of the Supplementary Welfare Allowance Scheme which is funded by the Department of Social and Family Affairs and administered by the HSE. Rent allowance is included under these schemes and is paid to individuals who live in private rented accommodation who cannot pay the rent from their own resources. There are certain requirements that must be met in relation to the accommodation in questions. Income that in is included in the assessment includes:
1. Net income;
2. Social welfare payments (some exceptions)
3. Family Income Supplement;
4. Cash income (for example, maintenance);
5. All income and the value of the property of which the applicant deprived him/herself in order to qualify for supplementary welfare allowance;
6. Capital (e.g. savings, investments, etc.).
4.2. Some assessments may involve home visits to verify a person's place of residence for rent supplement purposes. It was submitted that all persons in the relevant area who seek rent supplement support will have a CWO inspect the relevant premises. The respondent is required to make relevant enquiries of any person applying for supplementary welfare allowance.
4.3. The respondent denied that it discriminated against the complainant. The complainant attended a clinic in April 2010 seeking supplementary welfare allowance to help with rent payments. The respondent advised the complainant of the procedure, necessary documents and gave her the relevant form to be completed and returned to him to commence the assessment process. The meeting took a matter of minutes and the respondent submitted that the complainant appeared to have fully understood the process and the requirements. The complainant was treated exactly like any other person seeking such assistance would have been treated in similar circumstances.
4.4. The complainant returned to the clinic on 22 April 2010 with the completed form and the respondent went through the form with the complainant who advised the respondent that she was pregnant. The respondent informed the complainant that this information would assist in her application and a dependent child would increase the level of supplementary allowance paid. The complainant was also advised that if she was not supported by the child's father she was entitled to make a maintenance application at any stage upon the baby's birth. The respondent also informed the complainant that a routine visit would be carried out to establish that there was a bona fide tenancy. No specific date was given in relation to this visit according to practice.
4.5. The respondent called at the complainant's address on 26 April 2010 and, accompanied by a colleague, 29 April 2010. The complainant was not in on either occasion. During the second visit, the respondent was told by a neighbour that a "guy and girl" lived in the house.
4.6. The respondent returned to the complainant's address on 10 May 2010. Due to the fact that the complainant had not disclosed any details concerning a second resident in her application form, the respondent enquired whether there was a second tenant. The complainant stated that she lived alone. The respondent asked the complainant if she was in contact with the child's father and was informed that there was no contact. The respondent asked whether the father would be paying maintenance and the complainant replied that she did not know where he was.
4.7. The CWOs proceeded with the residency check. When the respondent queried whether the second bedroom was occupied the complainant, on her own volition, opened a door of a wardrobe to demonstrate that she lived alone and that it was her belongings that she was storing in that room. It was submitted that a CWO would not open doors or drawers. The complainant also told the respondent that she had previously shared the house with another tenant who had moved out sometime during the time the complainant had been in Hungary.
4.8. The respondent absolutely denied that it at any time called the complainant a liar or that it made any comments about foreigner nationals being liars. The respondent also denied that it had sough information about the complainant from a third party. It was submitted that the neighbour approached the community welfare officers while they were outside the complainant's house and volunteered this information. The complainant was never asked to open drawers or told that a person who owned a printer did not require supplementary welfare assistance. It was denied that the male community welfare officer went in to the complainant's bedroom or that the community welfare officers were separated during the inspection.
4.9. As the complainant's complaint form was received in the respondent's officer by fax on 13 May 2010, the assessment was completed by a named Superindentent CWO. He also met with the complainant, an interpreter and her solicitor on 16 August 2010 in order to hear the complainant's complaint against the service. A meeting was arranged with the named community welfare officer on 22 September 2010 where the complainant's case was put to him. The community welfare officer vehemently denied the allegations made against him.
4.10. The respondent denied badgering or humiliating the complainant. Furthermore, it is strongly denied that disparaging, discriminatory and irrelevant questions were put to the complainant at any stage.
4.11. The respondent does not accept that a hypothetical comparator is appropriate in this case. It was submitted that 1) the complainant received the benefit and 2) the issues raise by the respondent were relevant to her application. The respondent distinguished Fleming v Dr. J Maloney, Blackrock Clinic in this regard.
4.12. The respondent distinguished A student's mother v A Local Authority where the complainant was asked to swear an affidavit in circumstances where a person with a different family status would not have been asked to swear. In the circumstances of this case it was submitted that any questions asked about her family status were raised in order to assist her with her application. Her responses were accepted at face value and she was successful in her application.
4.13. The respondent categorically denied stating that he was exasperated by foreign nationals making excuses or lying. The respondent forms his decisions on the basis of objective facts outlined to him and within the parameters set out by social welfare legislation.
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. 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.
5.2. This matter relates to the payment of a rental supplementary allowance, a discretionary payment. I find that the complainant received this allowance in a timely fashion on 8 July 2010 (backdated to 1 May 2010) and therefore this complaint is about the process of obtaining such allowance.
5.3. Having heard the full facts of this case I find the following. I am satisfied that the respondent engaged in professional conduct that cannot be deemed as harassment in accordance with these Acts. I find that the respondent is entitled and indeed must ask certain questions in carrying out its duties in relation to the allocation of discretionary benefits. The questions asked of the complainant where appropriate and in pursuit of a legitimate policy. It is clear, in the circumstances of this case that the mere questioning about maintenance payments cannot be construed as unwanted conduct linked to a protected ground. These questions were asked to in order for the respondent to form a comprehensive view regarding the complainant's financial situation. I am satisfied that the respondent would ask similar questions from other women who presented themselves in a similar situation as the complainant. While it is clear that the complainant believed such questions to be laden with moral judgment, I find that they are not and cannot be so construed in such circumstances. I do not find that the respondent made statements such as: "I am sick of foreign people lying to me" or "people with printers do not require social welfare". It is clear that the community welfare officer in question, whose account in relation to the actual home visit was verified by a colleague, has carried out his duties in professional manner dictated by his role.
5.4. It is clear that the complainant, who filled in her application in late April, 2010 had indicated in it that she was residing alone. However, on her own evidence, I find that it is clear that her tenant only moved out on or about 1 May 2010. Thus, I find it perfectly feasible that when the CWO called over to carry out the home visit a neighbour informed him that the complainant was away but that a man living in the house was asleep upstairs. Needless to say, having been informed about this second person, the CWO then enquired about this fact. I find that a CWO in fulfilling his/her duties would have made similar enquiries in relation to any person who claimed that they were residing alone, regardless of their nationality, family status or civil status.
5.5. A person who has a different civil status (formerly marital status) than the complainant may be treated differently in such assessments than a person who is residing alone. Such different treatment cannot be construed as less favourable treatment as one is not comparing two identical realities. Equally, it ought to be clear that it would be highly irrelevant to ask a person with a different family status from the complainant, that is, a person who is not pregnant nor has a responsibility as a parent of a child, about maintenance payments. Such an approach is not less favourable treatment, it is different treatment necessitated by the protected ground. I have been presented with no facts from which I can infer discrimination in relation to the complainant's nationality. While some argument was put forward about how foreign nationals ought to be treated differently, I have found, in the circumstances of this case, nothing that supports such an assertion. No facts have been forthcoming to support any case of less favourable treatment I am entirely satisfied that the complainant did not experience less favourable treatment in relation to any aspect of her claim.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. The complainant has not established a prima facie case of less favourable treatment on the civil status, family status and/or race ground(s).
6.3. The complainant has failed to establish a prima facie case of harassment on the civil status, marital status and/or race ground(s).
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Tara Coogan
Equality Officer
6 January 2012