Decision DEC-S2013- 005
Parties:
Melissa Poisett
-V-
Co. Clare Vocational Educational Committee
File Reference: ES/2012/076
Date of Issue: 25/06/2013
Key Words
Equal Status Acts, 2000 -2012 - Direct discrimination, Section 3(1), Section 3(2)(g) - disability, Section 3(2)(h) - race, less favourable treatment - section 7(1), access to student support grant, Student Support Grant 2011, Student Support Regulations 2012 S.I. No. 187 of 2012, section 7(5) - defence, exemption under Section 14 - definition of an enactment , - no jurisdiction, victimisation - section 3(2)(j), harassment - section 11, reasonable accommodation -section 4
Delegation under Equal Status Acts, 2000-2008
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2012 on the 20th June 2012. On the 7th January 2013, 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, 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 which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 10th May 2013.
1. Dispute
1.1 The dispute concerns claims by the complainant that she was discriminated against by the above named respondent on the race and disability ground in terms of Sections 3(1)(a) and 3(2)(g), (h), and (j) contrary to Section 7 of the Equal Status Act, 2000-2012 in relation to access to a third level grant. She also claims that the respondent failed to provide reasonable accommodation in terms of Section 4 and that she was harassed in terms of Section 11 of the Acts.
2. Summary of the Complainant's
2.1 The complainant is an American citizen and she came to Ireland in 2006. She was employed for 4 years as a writer/journalist. She then set up her own business. She developed an eye condition and as her eyesight deteriorated and she had to give up being self employed. She applied for and was granted a blind persons pension by the Department of Social And Family Affairs. She then decided to retrain. She applied to Clare VEC for a grant to attend a third level college. She was refused on the basis that she was an American citizen and she was not eligible for the grant under the regulations. The complainant appealed the decision to the Student Grant Appeals Board but her appeal was not successful
3. Summary of the Respondent's Case.
3.1 The respondent denies that the complainant was discriminated against on the disability or race ground in relation to access to a third level grant. It was submitted that the decision not to award her the grant was based solely on the application of the provisions of the Student Support Act 2011 and the Student Support Regulations 2012 as set out by the Department of Education and skills. In applying the provisions of the said Regulations the grant was refused on the grounds of her nationality. The complainant appealed the decision but she was unsuccessful.
4. Conclusions of the Equality Officer
4.1 The matter referred for investigation was whether or not the complainant was discriminated against on the disability and race ground in relation to the refusal of a student grant contrary section 7 the Equal Status Acts. In reaching my decision I have taken into account all the written submissions 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:
3. -- " (1) For the purposes of this Act, discrimination shall be taken to occur --
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ''discriminatory grounds)''
Section 3(2)(g) provides: "(g) that one is a person with a disability and the other
either is not or is a person with a different disability (the ''disability ground''),
(h) that they are of a different race, colour, nationality or ethnic or national origins
(the "ground of race"),"
Section 7 provides:
"In this section ''educational establishment'' means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.
(2) An educational establishment shall not discriminate in relation to --
(a) the admission or the terms or conditions of admission of a person as a student to the establishment,
(b) the access of a student to any course, facility or benefit provided by the establishment,
(c) any other term or condition of participation in the establishment by a student, or
(d) the expulsion of a student from the establishment or any other sanction against the student.
An educational establishment does not discriminate under subsection (2) by reason only that- .............................
(d) without prejudice to section 3 of the Refugee Act, 1996, where the establishment is an institution providing adult, continuing or further education or a university or other third-level institution --
(i) it provides different treatment in relation to --
(I) fees for admission or attendance by persons who are nationals of a member state of the European Union and persons who are not, or
(II) the allocation of places at the establishment to those nationals and other nationals,
........................
(5) (a) In this subsection ''grants'' means grants to assist persons to attend or continue to attend --
(i) an institution providing adult, continuing or further education,
(ii) a university, or
(iii) any other third-level or higher-level institution, whether or not supported by public funds.
(b) The Minister for Education and Science does not discriminate where he or she --
(i) requires grants to be restricted to persons who are nationals of a member state of the European Union, or
(ii) requires such nationals and other persons to be treated differently in relation to the making of grants."
4.2 Section 38A (1) provides that the burden of proof is:
" 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."
It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.3 The complainant's case is that she was refused a maintenance and fee grant by the respondent because she did not meet the nationality clause. The complainant believes she does meet the nationality requirement as she has worked in Ireland for 6 years, is in receipt of a blind pension from the Department of Social Protection and has permission to remain in the country. She submits that the refusal was for discriminatory reasons and she believes that her application should have been granted as Section 14 (1)(e) of the Student Support Act applies to her as she has permission from the Garda National Immigration to remain in the State. The respondent denies that the complainant was discriminated against and submits that she was refused the grant because she did not qualify under Section 14 of the Student Support Act 2011 and under regulation 5 (1) of the Student Support Regulations 2012 S.I.No.187 of 2012 which sets out the classes of students eligible for a grant. It was submitted that the complainant is an American national and she did not fulfill the requirements of the nationality clause of the above cited legislation.
4.4 I note that section 7(5) of the ES Act cited above states it is not discriminatory for the Minister for Education and Science to restrict grants to students who are nationals of the EU and to treat them differently that than other nationalities from outside the EU. The complainant is an American national. I am satisfied pursuant to Section 7 of the Acts that the respondent did not discriminate either on the race or disability ground in refusing the complainant a third level grant.
4.5 Notwithstanding my finding above, I am also going to decide on whether Section 14(1)(a)(i) of the ES Acts applies.
I note that the definition of a student who qualifies for a grant is set down in the Student Support Act 2011 and Student Support Regulations 2012 S.I.No.187 of 2012 and I have to consider the application of Section 14(1)(a) of the Equal Status Acts which provides:
"Nothing in this Act shall be construed as prohibiting --
(a) the taking of any action that is required by or under --
(i) any enactment or order of a court,"
In considering the application of this Section, I note that in his commentary on Section 14(a) of the Equal Status Act 2000 in the Annotated Statutes for 2000 by TJ McIntyre (at page 8-28), he stated:
"Actions required by law: This exception covers actions which are required to be taken by or under statute, court order, European Union Law or International Convention. Two limitations must be noted in relation to its scope. In the first place, it is limited to actions which are required by the relevant laws. Consequently, it would not appear to apply where, for example, a statute authorises discriminatory treatment in a way which is permissive but not mandatory. Secondly, the exception as far as it relates to domestic law, is limited to actions required by or under "any enactment or order of a court". This wording makes it clear that the exception does not apply to discrimination provided for under administrative schemes or departmental circulars unless and insofar as these have statutory underpinning."
4.6 I am satisfied that the student grant has statutory underpinning. I note that the complainant's claims of discrimination on the race and disability ground relate to the interpretation of the Student Support Act and the SI Student Support Regulations. These two pieces of legislation defines a "student" for the purposes of the grant. I am satisfied that the above cited Act and Regulations are exempt from consideration by me pursuant to Section 14(1)(a)(i) of the ES Acts. The "action" by the respondent in applying the definition of "student" and in refusing the complainant a grant because of her nationality is required under an Act and a Statutory Instrument and is not prohibited act.
5. The complainant submitted that the respondent failed to provide her with reasonable accommodation. She said that the respondent failed to assist her to access education by refusing her a grant.
Section 4 of the Equal Status Act provides that, inter alia:
"(1) For the purposes of this Act discrimination includes a refusal or failure
by the provider of a service to do all that is reasonable to accommodate the
needs of a person with a disability by providing special treatment or facilities,
if without such special treatment or facilities it would be impossible or unduly
difficult for the person to avail himself or herself of the service.
The service or facility that the complainant was seeking from the respondent was a grant. There is no evidence that the respondent failed to provide her with special treatment or facilities to access their services in order to apply for the grant. The refusal of the grant cannot be considered as a failure to provide reasonable accommodation. I find that the complainant has failed to establish a prima facie case of discriminatory treatment in relation to this aspect of her complaint.
5.1 The next matter I have to consider is whether the complainant was harassed contrary to Section 11 which states:
"11. -- (1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (''the victim'') where the victim --
(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,
........
(2) A person (''the responsible person'') who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place. .........
(5) (a) In this section --
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or
effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material."
The complainant submits she was harassed following the failure of the respondent to provide her with the grant and the respondent did not answer her correspondence in a timely manner.
I am not satisfied that the complainant has provided any facts from which it can be inferred that she was subjected to a hostile degrading or offensive environment in her dealings with the respondent in respect of her application. In the circumstances I am not satisfied that the complainant has established a prima facie case of harassment.
5.2 The complainant also submitted that she was victimised by the respondent in terms of the manner in which he was treated S. 3(2)(j) of the ES Acts defines victimisation as
"(j) that one --
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the ''victimisation ground'')".
Having regard to the evidence adduced, I find that I have not been presented with any evidence from which I could conclude that the complainant has been subjected to victimisation within the meaning of Section 3(2)(j) of the Equal Status Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground.
6 Decision
6.1 I find:
(i) that I have no jurisdiction pursuant to Section 7(5) and Section 14 of the ES Act to make a finding in relation to the complaint referred by the complainant.
(ii) that the complainant has not established that there was a failure to provide reasonable accommodation pursuant to Section 4.
(iii) that the respondent did not victimise the complainant pursuant to sections 3(1) and 3(2)(j) of the Acts.
(iv) the respondent did not harass the complainant pursuant to section 11 of the Acts.
_________________
Marian Duffy
Equality Officer
25th of June 2013