EQUAL STATUS ACTS
DECISION NO. DEC-S2015-018
PARTIES
Mr. C
-v-
The Department of Social Protection
FILE NO: ES/2013/0079
Date of issue: 9th of November, 2015
1. Dispute
This dispute involves a claim by the complainant
that he was discriminated against by the respondent, on grounds of age and disability, contrary to section 3(2)(f) & (g) of the Equal Status Acts, 2000-2012 .
2. Background
2.1 The complainant, referred a complaint under the Equal Status Acts, 2000-2012 to the Equality Tribunal on the 2nd of July, 2013. The complainant has been employed in a number of Community Employment Schemes up to the 24th of May 2013 and submits that after this date there were no other employment schemes open to him. The complainant submits that this is due to his age and disability.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 and under the Equal Status Acts, 2000-2012, the Director delegated the case on the 7th of May, 2015 to me Orla Jones, Equality Officer, for for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2012. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 25th of September, 2015. Final correspondence in relation to this matter was received on the 28th of October, 2015.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 The complainant submits that he has been in receipt of an Invalidity Pension from the respondent for a number of years.
3.2 The complainant submits that he was employed on a number of successive Community Employment (CE) schemes dating from 6th of September, 1993 up to the 25th of May 2013.
3.3 The complainant submits that following his completion of the Community Employment Schemes there were no other employment schemes available to him due to his age and disability.
4. Summary of Respondent’s case
4.1 The respondent submits that the complainant is in receipt of an Invalidity Pension.
4.2 The respondent submits that the complainant was employed on a number of successive Community Employment schemes up until 24th of May, 2013.
4.3 The respondent submits that since April 2000 participation in Community Employment Schemes is limited to 3 years for persons under the age of 55 and to 6 years for persons over the age of 55.
4.4 The respondent submits that eligible persons in receipt of a disability-linked Social Welfare payment are eligible for one additional year on CE over the maximum participation caps. The respondent submits that the complainant was granted this one additional year bringing his number of years of participation on CE Schemes since April 2000 to the maximum allowable of 7 years (for periods dating from 3rd of September 2005 to 24th of May 2013).
4.6 The respondent submits that the complainant after finishing his CE schemes retained his Invalidity Pension and that it was also open to him to apply for the respondents Partial Capacity Benefit (PCB) Scheme which provides for people who have been assessed as having restricted employment capacity to avail of employment opportunities while continuing to receive an income support payment.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of age and disability in terms of sections 3(2)(f) & (g) of the Equal Status Acts, 2000-2012 . In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:
(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)(f) & (g) provide that: as between any two persons, the discriminatory grounds of age and disabilityare,
(f) subject to subsection (3), that they are of different ages (the “age ground”),
(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”),
5.3 The complainant is required to establish 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. I am satisfied that the respondent is providing a service within the meaning of section 2 of the Equal Status Acts.
5.4 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 the 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.
5.5 The complainant advised the hearing that he had ceased to be allowed to participate in Community Employment Schemes on 24th of May 2013. The complainant advised the hearing that he had at that point completed 7 years on CE schemes since April 2000. He also stated that he had no other employment options open to him following the end of his CE scheme employment and that this was due to the restrictions on CE schemes and due to the fact that he was in receipt of an invalidity pension. The complainant advised the hearing that he had no employment options open to him due to his age and disability. The complainant stated that if he had been in receipt of a disability allowance and not an invalidity pension he would have had other schemes open to him.
5.6 The complainant at the hearing submitted that he was a person with a disability for the purposes of the Act. The complainant at the hearing submitted a medical report which indicated that he suffers from deafness in one ear, Asthma and bronchoscopy, Stress, Gastritis and Diverticular disease. The complainant repeatedly stated that he is in receipt of Invalidity Pension for a number of years. The respondent did not dispute that the complainant suffers from a disability and agreed that he has been in receipt of an Invalidity Pension having been approved for same by the respondent. I am satisfied from the totality of the evidence adduced that that the complainant is a person with a disability for the purpose of the Acts.
5.7 The respondent advised the hearing that the complainant is in receipt of an Invalidity Pension. The complainant advised the hearing that he has no employment options open to him due to his age and disability. He stated that he would have access to a greater number of employment schemes if he were in receipt of a Disability Allowance. The complainant also advised the hearing that the respondent had sought to reclassify his disability from a physical disability to an inference of a mental disability. The complainant provided no evidence in support of this assertion. The respondent denied that any attempt had been made by it to ‘reclassify’ the complainant’s disability. The respondent advised the hearing that both the Invalidity Pension and Disability Allowance are benefits which are payable on different grounds and for different reasons and that the schemes available to recipients of these benefits have different underlying policies. The respondent at the hearing elaborated on the policies underlying the various schemes.
5.8 The respondent advised the hearing that participation in Community Employment (CE) Schemes is limited, since April 2000, to 4 years for persons under the age of 55 and to 6 years for persons over the age of 55. The respondent advised the hearing that eligible persons in receipt of a disability-linked Social Welfare payment are eligible for one additional year on CE over the maximum participation. The respondent stated that the complainant was granted this one additional year bringing his total number of years of participation on CE Schemes, since April 2000, to the maximum allowable of 7 years. The respondent advised the hearing that persons over the age of 55 are permitted a greater number of years participation on CE schemes than those under 55, as the respondent recognises the difficulties that face older workers, thus those over 55 are permitted a greater number of years on CE schemes.
5.9 The parties advised the hearing that the complainant during his employment in CE Schemes retained his Invalidity Pension and received a top up of €20 per week for participation in the schemes. The respondent stated that the complainant after finishing the CE schemes retained his Invalidity Pension and continues to do so, but that he could, in the event that he wished to work while receiving his benefit apply for the respondents Partial Capacity Benefit (PCB) Scheme which provides for people who have been assessed as having restricted employment capacity, to avail of employment opportunities, while continuing to receive an income support payment. The respondent stated that the complainant had been advised of this option but had declined to avail of it.
5.10 The complainant advised the hearing that he would have a greater number of schemes available to him if he was in receipt of a Disability allowance rather than an Invalidity pension. The respondent advised the hearing that both benefits have very different aims and purposes. The respondent advised the hearing that Invalidity Pension is a pension payable to persons who have been medically assessed as permanently incapable of work due to illness or those who have an incapacity which existed for 12 months prior to the claim and who are deemed to unable to work the following 12 months, it is not means tested and is only available to persons who have paid a Social Insurance stamp for a number of years. This also gives access to the State pension upon reaching the age of 66.
5.11 The respondent advised that Disability Allowance is a means tested benefit available to those whose income falls below a certain level, unconnected to Social Insurance payments and is available to those who are medically deemed to be unable to work due to an injury disease, physical or mental disability that has or can be expected to continue for at least a year.
5.12 The respondent stated that the complainant was deemed to qualify for Invalidity Pension and had for a number of years been in receipt of that pension. The respondent stated that the assessment for Invalidity Pension or Disability Allowance were underpinned by different policies and intent and were based on set criteria on which each application was assessed. The respondent advised the hearing that certain schemes have been developed to meet the needs of persons in receipt of such benefits. One such scheme is the Community Employment scheme which is open to people in receipt of Invalidity Pension who are long term unemployed and who wish to contribute to the Community.
5.13 The complaint seems to centre on the fact that the complainant has, since April 2000, completed his 7 years maximum in relation to CE schemes, and submits that if he were in receipt of a Disability allowance as opposed to an Invalidity pension he would have other schemes available to him. The complainant advised the hearing that he had applied to the respondent to have his entitlement to Invalidity Pension reclassified as entitlement to Disability Allowance but that he was refused. The complainant stated that he had in July/August 2013 applied to the respondent for a transfer to Disability Allowance and that he had been refused. The respondent advised the Tribunal that the complainant had appealed this decision and that his appeal was successful and that he was advised of this in February 2014, documentary evidence was provided by the respondent regarding this matter. The complainant did not dispute this. The respondent submits that it had at that time advised the complainant that it was then open to him to transfer to the Disability Allowance but also advised him that he was financially better off on his Invalidity Pension. It emerged that the complainant following this advice opted to retain his Invalidity Pension and not to move to Disability Allowance. Thus it is clear from the evidence adduced that the complainant could have opted to transfer to Disability Allowance and avail of the employment schemes open to those on Disability Allowance but that he chose not to as it emerged that he was financially better off in his current position in receipt of an Invalidity Pension.
5.14 It is thus clear from the totality of the evidence adduced that the complainant has not established a prima facie case of less favourable treatment on the grounds of age and/or disability. It is clear that a person of a different age and disability would be treated in the same way, in respect of access to employment schemes, where a qualifying criterion was qualification for receipt of Disability Allowance. As regards access to CE schemes it is clear that the complainant due to his age had in fact benefitted from a greater number of years of entitlement to CE schemes than someone in the under 55 age group.
5.15 Accordingly I am satisfied from the totality of the evidence adduced that the complainant has not provided any evidence to substantiate his claim that he was subjected to discrimination on grounds of Age and/or Disability by the respondent.
6. DECISION OF THE EQUALITY OFFICER.
6.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.
(i) the complainant was not discriminated against by the respondent on grounds of age and disability, contrary to section 3(2)(f) & (g) of the Equal Status Acts, 2000-2012 .
___________________
Orla Jones
Adjudication Officer/Equality Officer
9th of November, 2015