The Equality Tribunal
Decision
DEC-S2012-011
Parties
Waldemar Walczak
v.
Minister for Social Protection
(Represented by Cathy Maguire BL instructed by Chief State Solicitor's Office)
File Reference: ES/2010/0112
Date of Issue: 23rd March 2012
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 9th of December 2010. On the 3rd of October 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 9th of December 2010 and from the respondent on the 16th May 2011. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 27th October 2011. The final correspondence was received from the respondent on the 14th March 2012.
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 his local social welfare office. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a) and 3(2)(h) 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 jobseeker's benefit/jobseeker's allowance. On the 4th of February 2009, he made an application to the Social Welfare office in Loughrea and he was awarded a jobseeker's allowance on the 17th of October 2009 a wait of over 9 months to process his application. He was awarded a weekly sum of money and this was backdated to the date of his application. Therefore arrears were owed from the 4th of February 2009 until the 21st of September 2009. The complainant submitted that the arrears were not paid until November 2010 and after he notified the respondent of his complaint under the ES Acts. He also appealed the decision to award him the jobseekers allowance rather than jobseekers benefit on the 4th of November 2009 and he submits he did not get a response until November 2010. He said that the respondent said that they sent him the outcome of the appeal in a letter dated the 15th July 2010. Despite informing the respondent of a change of address he said that they sent the decision to his old address. The complainant disputed that this letter was sent in July 2010 and said that his former landlord forwarded all his post to his new address and he did not get the letter rejecting his appeal. He got the letter from his local representative who made representations on his behalf to the respondent. His appeal was turned down because he did not have 39 contributions in the relevant contribution year to qualify for jobseekers benefit.
2.2. The complainant made a further application for jobseeker's benefit on the 4th of January 2010. He said that he was told by the Loughrea office that this application would not be considered until after his appeal was decided. He submitted that the respondent did not look at this application until December 2010 and some 4 months after the decision on his appeal. He said that he met all the conditions to qualify him for jobseeker's benefit but that he was not awarded it until 29th September 2011when he was also paid the outstanding arrears. He submits that this long delay in considering his application was discriminatory treatment on the race ground. He stated that an Irish applicant would not have been subjected to such treatment and they would have their application processed much quicker. He submitted that since his first dealings with the local social welfare office he has been subjected to delays. He said that there were delays in getting PPS numbers for his children and he was not paid the fuel allowance he believed he was entitled to.
3 Respondent's Case
3.1. The respondent denies that the complainant was discriminated against because of his race. It was submitted that any delays which occurred were due to the increase in the live register. The Loughrea Social Welfare Local Office covers Loughrea, Portumna and most of Athenry town and a large geographical area between these three towns in east Galway. The office was set in 2006 and the existing branch office in Loughrea, which was managed by and was part of the Galway Social Welfare Local Office, was closed. Social Welfare Branch offices, which provide front-end services such as providing information and taking in claims, are managed by private individuals under contract to the Department of Social Protection. Local Offices are staffed by civil servants where decision making functions etc are carried out. In 2006 it was decided to separate the Loughrea area from the Galway area and the Loughrea Local Office was established and was also given responsibility for the Tuam and Ballinrobe Branch Offices. However the Galway manager managed both offices until 2009 when a manager was appointed to the new office.
3.2. When the Loughrea office opened in 2006 the Live Register claims in that offices were 2,467 by February 2009 this had risen to 5,669 and by November 2010 it had risen to 6,509. The live register is a count of the number of customers claiming jobseekers benefit, assistance or credits in a particular week but it excludes other customers of the office claiming back to education allowance, farm assist, one parent family payments and a number of other schemes, whose claims are processed by each Local Office. Taking these categories of claims together with the live register figures there were 7,056 claims being dealt with by the office in February 2009 when the complainant first made his claim. In November 2009 when the decision was made on the complainant's claim the office had a total claim load of 8,219. In 2009 the total new claims received was 9,493 (about 183 per week) compared with 2006 when 3,493 (about 67 per week) new claims were received. The staff in the new Loughrea Local office did not increase in line with the increase in claims and in the period January 2006 to October 2010 staff increased from 8 to 18. The office found it extremely difficult to cope with the increase in claims and consequently decisions on the claims for the Loughrea office were made in 4 different offices all of which were staffed by new and inexperienced staff who had been redeployed from other Departments.
3.3. The complainant made a claim for a jobseekers payment on 4th of February 2009. At the time because his contribution record was unclear 2 applications were opened for him, a jobseekers benefit application which is based on his contribution record and a jobseekers allowance application which is subject to a means test. His jobseekers benefit claim was given priority. In order to qualify for this benefit a person must satisfy a number of conditions relating to their social insurance contributions. A person must have at least 104 weeks PRSI contributions and there are a number of rules and conditions which apply in relation to the calculation of these contributions in the relevant tax year. Contributions paid in other EU/EEA countries are added to the Irish record when calculating entitlements. The complainant indicated in his application that he had worked in Poland and Cyprus and a request was sent to these countries requesting his insurance record. In the complainant's case, for the purposes of calculating his contributions the relevant tax year was 2007, and while he had 104 weeks contributions he did not have the required contributions paid in the relevant tax year, that is 39 contributions in 2007, and he did not qualify for jobseekers benefit. The complainant was informed of the decision in October 2009 and also of his right to appeal. The delay in deciding on his application was due to the large volume of work in the office as outlined above and also because of the necessity to get details of the complainant's social insurance records in Poland and Cyprus.
3.4. The complainant appealed the decision not to award him jobseekers benefit on 4th November 2009. The Social Welfare Appeals Officer examined the documentation and upheld the original decision on the grounds that the complainant did not have sufficient contributions paid in the relevant tax year. The decision was made on the 28th June 2010 and communicated to the complainant by letter dated the 15th July 2010. The complainant had informed the office of a change of address but this was overlooked by the appeals office and the decision was issued to his old address. The respondent submitted that the delay in processing the complainant's appeal was due to the large volume of appeals received in the Appeals office.
3.5. The complainant's application for jobseekers allowance which was made on the 4th of February 2009 was also considered. A decision was made on that application in October 2009 and he was granted jobseekers allowance. In order to qualify for jobseekers allowance an applicant is means tested and regardless of their nationality they must show that they are habitually resident in Ireland. The complainant had to complete a detailed questionnaire and supply supporting documentation to establish habitual resident. At the time habitual resident decisions were dealt with in a specialized unit in Dublin. In 2009 due to the sharp increase in claims severe backlogs in processing these claims were experienced. A decision was made on the complainant's claim on the 24th September 2009 and he was deemed to be habitually resident in Ireland. The complainant was also means tested and this involved an interview with a Social Welfare Inspector. This interview took place on the 7th September 2009 and a report on his means was completed 2 days later. A decision on the means element of his claim was made on the 8th October 2009 and a full decision to grant his claim was on the 17th October 2009. The complainant was notified of the decision to award him jobseekers allowance by letter dated 17th October 2009 and he was also informed that arrears were due from 4th February 2009. Arrears of large payments are not always processed automatically by the computer system and a manual calculation is required. In this case the arrears were not calculated or paid out and this error was not spotted until the complainant contacted the office in November 2010. As soon as the office became aware of the error the arrears were calculated and paid to the complainant.
3.6. In relation to the January 2010 claim for jobseekers benefit, this was a new claim so the relevant tax year for contribution purposes changed to 2008, and before this application could be processed the respondent had to await the outcome of the appeal. If he was successful in his appeal and had qualified for the 2009 jobseekers benefit claim he could not qualify again for payment of jobseekers benefit in 2010. The respondent said that this claim should have been considered by the office in June 2010 when the complainant's appeal was disallowed but due to an oversight the claim was not dealt with. In May 2011 and after correspondence from the complainant in connection with his complaint to the Tribunal, the respondent said that they realised that the claim of January 2010 had not been processed. The respondent then sent a query to the Polish authorities regarding the complainant's period of unemployment in Poland and if it could be considered as a period of insurable contributions for the purposes of jobseekers benefit. This letter was sent on the 15th of July 2011 and a response was received and forwarded to the Loughrea Office on the 8th of August 2011. The claim for jobseekers benefit was allowed for the period 4th January 2010 to the 24th July 2010. As the complainant had already been paid jobseekers allowance for this period this amount was deducted from the outstanding arrears due to him. The complainant was paid the arrears in October 2011.
3.7. In relation to relation to the complainant's claim about delays in receiving PPS numbers for his children, the respondent stated that there was no delay. The complainant came to Ireland in October 2007 and his wife and children came in December 2007 and a claim for child benefit was received in January 2008. The claim was processed in March and in accordance with standard procedures the claim was backdated to October 2007 the month after the respondent's arrival and the children were allocated PPS numbers. In relation to the fuel allowance complaint, the respondent stated that the complainant did not qualify because it is only paid to people who are in receipt of a jobseekers payment for 390 days.
3.8. The respondent submitted that the delay in processing the applications was mainly due to the large increase in the volume of work the Loughrea office. It was further submitted that the complainant had failed to establish that he was treated less favourably than other applicants for services from the office. Therefore he has not discharged the burden of proof.
4. Conclusion of Equality Officer
4.1. Statutory Time Limits
The first matter I have to consider is whether the complaints were notified to the respondent and served on the Tribunal within the statutory framework of the ES Acts.
"(2) Before seeking redress under this section the complainant --
21(2)(a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of --
(i) the nature of the allegation,
(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act,"
And
"21(11) For the purposes of this section prohibited conduct occurs --
(a) if the act constituting it extends over a period, at the end of the period,
(b) if it arises by virtue of a provision which operates over a period, throughout the period."
4.2. The respondent counsel submitted that each incident of alleged discriminatory treatment raised by the complainant in his submission were stand alone incidents and that I had to look at each incident as a separate alleged incident of discrimination. She further submitted that some of these incidents were notified to the respondent either outside the 2 months statutory time limit for notifying the respondent and the 6 month time limit for referring a case to the Tribunal and that I have no jurisdiction to consider them. She said that the first incident referred by the complainant in his notification of the 4th November 2010 concerning his claim for jobseekers allowance was out of time, in that his application was made on the 4th of February 2009, and granted on the 17th of October 2009 and this is the date that this matter had crystallised. The complainant had 2 months from the 17th of October 2009 to notify the respondent in accordance with Section 21(2) but the notification to the respondent in relation to this incident was dated the 4th of November 2010 and the complaint was received by the Tribunal on the 9th of December 2010. Counsel for the respondent, while accepting that some of the incidents are properly before me, submits that I have no jurisdiction to hear this and two other stand alone complaints because they were notified and referred outside the statutory time limits. She further submitted that the notification did not mention all the incidents in the notification of the 4th of November 2010 and that I had no jurisdiction to hear these matters.
4.3. I have considered the legal submission made by the respondent and having regard to section 21 cited above, I am satisfied that each of the incidents are connected and intertwined in that the complainant was seeking related services from the Social Welfare Services over a period of time. Section 21 in my opinion envisages an act of alleged discrimination extending over a period of time, that could be either a once off incident or a number of incidents, and the date of notification to the respondent is the date of the last occurrence or the end of the period The Act clearly provides that where the alleged prohibited conduct extends over a period of time that the 2 month time limit for serving the notification in accordance with section 21 runs from the end of that period. Therefore I cannot accept the respondent's submission that I should treat each incident as a stand alone incident and examine each of these separately to see if the notification and referral complies with the statutory time-limits. The complainant is complaining about delays which he alleges constitutes discrimination in the course of his dealings with that office. I note in the complainant's notification to the respondent of 4th November 2010 under section 21 he raises a number of incidents which he considers discriminatory and in particular he states that arrears from the jobseekers allowance from 2009 was paid on the date of the notification i.e. 4th November 2010. He alleges that the delay of over a year from September 2009 to November 2010 in paying him the arrears is discriminatory treatment. I am satisfied that the alleged prohibited conduct has extended over a period of time and was ongoing when the notifications were served on the respondent. I am satisfied that this incident was notified to the respondent within the statutory time limit and was referred to the Tribunal on the 9th of December 2010 which is also within the statutory time limit of 6 months and this brings all of the alleged incidents within the time limits.
Issues in Relation to the Notification
4.4. I have also considered the respondent's submission in relation my jurisdiction to hear the incidents of alleged discriminatory treatment raised by the complainant in his submission and not mentioned in the notification under section 21. I note that Section 21(2)(a) cited above requires the complainant to notify the respondent of the nature of the allegation. Having examined the notification, I am satisfied that the complainant clearly stated that he believed that he was discriminated against on the race ground by the respondent and that it was his intention to refer a complaint, if the respondent did not deal with the matter, to the Equality Tribunal. He goes on to mention in a one page letter a number of concerns he had about the way his applications for certain services were processed by the respondent. This section does not require a complainant to make a detailed submission or mention every aspect of his complaint so long as he sets out the nature of the allegation. I am satisfied that the complainant's notification of the complaint to the respondent dated 4th of November 2010 complies with the requirements of Section 21 cited above.
4.5. For the above reasons and having regard to the provisions of sections 21(2)(a) and 21(11) of the Act, I find that the notification served on the respondent and the referral of the complaints to the Tribunal comply with the statutory time limits set out in the Equal Status Acts.
Discriminatory Treatment
4.6. 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."
4.7. 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 delays in approving the complainant's various applications for jobseekers benefit and jobseekers allowance amounts to discriminatory treatment on the race ground contrary to the ES Acts.
4.8. 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 submitted a number of instances outlined above from paragraph 2.1 to 2.2 where he says that the delays by the respondent in processing his applications for jobseekers/jobseekers benefit constitute discrimination. He submits that an Irish person would have their application processed much quicker.
4.9. The respondents accepts that there has been delays in processing the complainants claims and states that in the main these delays were caused the huge increase in the volume of new claims the office experienced in 2009 and onwards. They submitted that the delays cannot be construed as discrimination on the race ground. In the complainant's case these delays were added to by the fact that the complainant's social insurance contributions had to be checked in both Cyprus and Poland and he had to satisfy the habitual residence condition in order to qualify for jobseekers allowance. At the time all decisions in relation to habitual residence was made in a dedicated Dublin office and this office also experienced a very big increase in their workload. The respondent accepts that there were a number of errors made in handling the complainant's claims and regrets that his experience in dealing with the Social Welfare Office was not as it should have been. They accept that they failed to keep him informed of what was happening at various stages of his claims. It was submitted that this was not discriminatory treatment and the complainant has failed to establish any connection between his race and the treatment and for this reason he has not discharged the burden of proof.
4.10. Having examined all the evidence presented to me including all the documentation in relation to the complainant's various applications for jobseekers allowance and jobseekers benefits; I can find no evidence that the treatment of the complainant was in any way connected to the complainant's nationality. It is clear from the information provided by the respondent that there was a very substantial increase in the workload of the Loughrea office in 2009 without the corresponding increase in staff. While the office took measures to alleviate delays by farming out some of the work to other local offices, these offices were staffed by inexperienced staff and delays were inevitable and these delays impacted on all the customers of the office regardless of their nationality. The need to check social insurance contributions, if a person has worked outside Ireland, applies equally to all applicants for jobseekers benefits regardless of their nationality. I note that the habitual residence condition applies equally to all applicants, including Irish, UK, EU, and Non EU, for jobseekers allowance if they have lived outside Ireland. I note however that there were some inexplicable delays and errors in processing some of the complainant's claims which were over and above the general delays experienced by all applicants. There was a delay of over a year in calculating arrears of jobseekers allowance and another delay of over a year in calculating jobseekers benefit and paying arrears also the failure of the Appeals office to note the complainant's change of address which prolonged the outcome of the complainant's appeal of the jobseekers benefit claim and impacted on the processing of the new 2010 claim. However, I am of the view that these particular delays were due to system failures and that the respondent was careless in dealing with these particular applications but this treatment was not due to the complainant's nationality. I am satisfied therefore that he has presented no evidence to establish less favourable treatment on the race ground. I find therefore that the complainant has failed to establish a prima facie case of discriminatory treatment on the grounds of his nationality. It is my opinion that the issues raised in this complaint are more appropriate to the remit of the Office of the Ombudsman.
5. Decision
5.1. I find that the complainant was not discriminated against on the race ground contrary to the Equal Status Acts.
I recommend that the respondent reviews their procedures and to put systems in place to ensure that such system failures or delays caused by office errors do not occur in the future, and where English is not the first language of applicants that the procedures for such services are clearly communicated and explained.
___________________
Marian Duffy
Equality Officer
23rd March 2012