Equal Status Acts 2000 to 2011
DECISION NO: DEC-S2015-014
Sally Smith
V
Department of Social Protection
(Represented by Cathy Smith B.L.,
Instructed by the Chief State Solicitor’s Office.)
File Nos. ES/2013/0046
Date of Issue: 20th October 2015
Keywords
Equal Status Acts 2000 to 2011 – Direct Discrimination, section 3 - race ground,
4.1 1 Delegation under the Equal Status Acts 2000 to 2004
1.1 Ms Sally Smith (the complainant) referred her claim to the Director of the Equality Tribunal under the Equal Status Acts (hereinafter referred to as “the Acts”) on 15 May 2013. On 26 February 2015, in accordance with his powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director then delegated the case to me, Peter Healy, 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. A hearing took place on the 14 May 2015 and the respondent made a final submission on 2 June 2015. The complainant submitted their observations on the respondent’s final submission on 23 June 2015. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
1.2 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 83.3 of the Workplace Relations Act 2015.
2 Dispute
2.1 The dispute concerns claims by the complainant that she was discriminated against by The Department of Social Protection (the respondent) on ground of race in terms of Sections 3(2) (h), contrary to Section 5 of the Equal Status Act, 2000-2012 when they selected her on the basis of her nationality for special treatment in order to receive child benefit payments. The complainant also claims that she was victimised by the respondent. The respondent was notified on the 27th March 2013 in accordance with the provisions of the Acts.
3. Complainant’s submission.
3.1 The complainant has been an Irish citizen since 2002 and was born in Indonesia. The complainant has been living at the same address since 2001 and her daughter who was born in Ireland has always been an Irish citizen. The complainant submits that she has never been in receipt of welfare payments and that her main point of interaction with the respondent has been in regards to child benefit payments for her daughter.
3.2 In 2010 the respondent issued a child benefit certificate request to the complainant requiring that she provide certain information. Point 3 on the form requests that the complaint state her nationality and the form states that failure to return it will result in the suspension of child benefit payments. The complainant returned the completed form, but she submits that every three months another form would arrive. The complaint felt very upset by receiving a form on a regular basis that made her state her nationality on threat of the suspension of a universal benefit and felt that an organ of the state was not treating her as an Irish citizen or even recognising her as such. The complainant submits she discussed the form with her neighbours none of whom were receiving the form regularly. The complainant submits that she also contacted the respondent on a number of occasions by phone to enquire about the issue of her nationality. The complainant submits that the absence of any change in behaviour by the respondent confirmed her view that her place of birth was the reason for the respondent’s discriminating behaviour.
3.3 In 2012 the complainant brought the issue to the attention of her husband, who contacted the respondent to complain about what he said was a shocking waste of money. He wrote to the respondent stating that their practice was causing offence and wasting money and asserted that as an Irish citizen his wife deserved to be treated like all other Irish citizens. The complainant received assistance from her local T.D. at this time who made representations on her behalf. However the complainant states that she received no satisfactory response from the respondent.
3.4 In February 2013 the complainant again received a certificate request resulting in significant distress for her, leading to her lodging a complaint with this Tribunal. The complainant issued an ES 1 form to the respondent in which she made the respondent aware that she felt she was being singled out for because of her place of birth.
3.5 The complainant submits that after years of attempting to get the respondent to recognise her Irish citizenship resulting in her lodging of a complaint with the Equality Tribunal that the greatest offence by the respondent came in the form of their response to the lodging of the complaint. The respondent replied to the notification of the complaint with a three page letter detailing measures to prevent fraud of the chid benefit system including the following paragraph about foreign nationals
“The fraud and error survey on child benefit which led to the current programme highlighted on the case of 500 Irish Nationals surveyed, the extent of fraud that arose was 1.7% as compared to 13.9% in the case of 500 non-Irish nationals surveyed”
3.6 The complainant submits anecdotal evidence that some of her neighbours have never received the certificate requests, leading her to believe that she is still the subject of discrimination.
4 SUMMARY OF RESPONDENTS WRITTEN SUBMISSION
4.1 The Respondent submits that in takes appositive approach to ensure that child benefit is paid to eligible families and that fraud and error surveys are an integral part of the Departments overall approach to control and tackling social welfare fraud. The Respondents submits that
”a 2004 Fraud and Error survey results confirmed the Departments view that child benefits was a low risk scheme. The results of the survey indicated that the level of fraud/abuse was 1.66% in monetary terms but that there was a significant difference in the levels between Irish Nationals and foreign Nationals and between those paid by EFT and those who collected payments a the post office.”
4.2 The Respondent states that in 2007 that “a policy of issuing continuing eligibility certificate to parents commenced in late 2007 aimed initially a non-Irish born customers” These certificates requested recipients to confirm their continuing eligibility to receive payment.
4.3 The respondent submits following a review in 2010 that 200,000 certificates were issued to Irish born customers in addition to 100,000 that were issued for education purposes (checking on children continuing in full time education).
4.4 In its written submission that respondent submits further details of its efforts to tackle fraud and offers comparisons between the behaviour of Irish and non-Irish nationals.
5. Summary of Respondent’s submission at the Hearing.
5.1 The respondent submits that from 2010 to February 2012 the complainant was subject to the requirement to submit a certificate every four months. Therefore, the respondent submits that this Tribunal is statute barred from considering this treatment of the complainant ( one certificate every four months) , in that is outside the six month time limit set out under the Acts for the referral of a complaint.
5.2 The respondent submits that the complainant is now subject to the same treatment as Irish born customers, specifically that all customers receive one certificate request per year regardless of their place of birth.
5.3 The respondent submits that its actions in this case arise from Article 188 of SI 142 of 2007
Provision of information
188. (1) Every claimant or beneficiary and every person by whom any benefit
is receivable on behalf of a claimant or beneficiary shall—
(a) furnish in such manner and at such times as an officer of the Minister
may determine, such certificates, documents and information affecting
the right to benefit or to the receipt thereof as the said officer
may require, and
(b) notify the Minister of any change in circumstances which affect the
right to benefit, or to the receipt thereof, as soon as is reasonably
practicable thereafter.
(2) Every institution of education shall, on request, provide the Minister with
such of the following information as the Minister may request in respect of each
person who is registered or enrolled, as the case may be, as a student at such
institution at the commencement of each academic year and who ceases to
attend at such institution prior to the completion of the relevant academic
year—
(a) name,
(b) address,
(c) date of birth, and
(d) the date on which the student ceased to attend the institution of
education.
(3) The information requested under sub-article (2) shall be submitted by the
institution of education in such format as is acceptable to the Minister and shall
be sent, within 30 days of the receipt of a request for such information from the
Minister, to such office of the Department as may be specified by the Minister.
and therefore, that this Tribunal is statute barred from considering this complainant under the provisions set out under Section 14 of the Acts,
14.— 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,
(ii) any act done or measure adopted by the European Union, by the European
Communities or institutions thereof or by bodies competent under the
Treaties establishing the European Communities, or
(iii) any convention or other instrument imposing an international obligation
on the State,
6 CONCLUSIONS OF THE EQUALITY OFFICER
6.1 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 subjected to victimisation in accordance with Section 3.(2).(j) 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.
6.2 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) provides that:as between any two persons, the discriminatory grounds ...are ... (h) that they are of different race, colour, nationality or ethnic or national origins (the ”ground of race”),”
6.3Section 5(1) provides that:
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.
6.4 In the instant case it is admitted by the respondent that from 2010 to 2012 the complainant (an Irish Citizen) was subjected to more rigorous auditing then others on the basis of her country of birth. I find that this is a clear form of direct discrimination. Under the Acts such direct discrimination cannot be justified although the respondent has continually attempted to do so by reference to a single survey. I must consider if discrimination continued up to the lodging of the complaint or is ongoing.
6.5 The burden of proof is set out in Section 38A which provides that: " 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."
Although the instant case is taken under the Equal Status Acts, Section 38A is analogous to Section 85A of the Employment Equality Acts. In this regard, I consider that it is appropriate for me to consider the Labour Courts comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”.
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
6.6 The next matter I have to consider is whether the complaints were referred within the statutory time limits. Section 21 (6) (b) of the Equal Status Acts, states that
(a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of occurrence of the prohibited conduct to which it relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.
The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal unless the acts relied on constitute ongoing discriminatory treatment. I must consider whether there was ongoing discrimination and whether all of the incidents were interlinked.
6.7 In considering the issue of whether the matters complained about constitute a chain of linked events or if all of the instances are separate events, I have taken into consideration the Labour Court reasoning in the case of County Louth VEC -v- Johnson EDA0712 which considered if separate acts of discrimination were linked. The Court stated:
"Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.”
In the instant case, it is clear that the original treatment of the complainant in regard to her requirement to submit a certificate every three months (under the fraud measures) is outside of the six month time limit for referral. However, the complainant submits that the most egregious element of her complaint relates her treatment by the respondent since the original treatment ended.
The most recent of such is dated 26April 2013 and within the required six months. I must therefor consider if the all of the incidents of alleged discrimination are separate manifestations of the same disposition to discriminate.
6.8 I can find nothing in Article 188 of SI 142 of 2007 that allows the Respondent to apply different treatment to its customers based on their place of birth or their nationality or exempts they from the provisions of the Acts.
6.9 When examining the treatment of the complainant by the respondent, I must consider Section 3 (1) (a) of the Equal Status Acts, states that
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’)
which—
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
In March 2012 the respondent wrote to a representative of the complainant assuring her that
“ on receipt of Ms Smiths Irish Nationality and Citizens Act certificate her nationality was updated and she will now receive a certificate for completion once a year as opposed to three times a year previously”
On the basis of this correspondence (and all other correspondence from the complainant) it is clear that not only did the respondent treat the complainant differently on the ground of race in regards the provision of services but that her citizenship itself was in question. I find that the respondent has imputed the ground of race to the complainant (who was at all relevant times an Irish citizen.) I accept the complainant’s assertion that this was a source of extreme distress to her and her family.
6.10 In March 2013 the complainant notified the respondent of the details of the complaint now before this Tribunal and setting out in clear terms how allegations that the respondent has been undermining her citizenship. In direct response to those concerns the respondent issued a three page letter outlining their concerns about fraud and non-nationals. It went on to assure the complainant that Irish nationals were not exempt from the various certification requirements or controls.
I accept the complainant’s assertion that the above correspondence left her in no doubt that the respondent had and was continuing to treat her differently as a foreign national and I am satisfied that any reasonable person would reach the same conclusion as the complainant.
Direct Discrimination.
6.11I am Satisfied that the following are the relevant facts in the instant case.
· The respondent operated a system of fraud detection which was a clear form of direct discrimination. Under the Acts direct discrimination cannot be justified.
· The respondent has at all times including at the hearing of this complaint has attempted to justify this direct discrimination.
· It is agreed by the respondent that the complainant was subjected to the fraud detection.
· The complainant was forced to exert great lengths to acquire some acknowledgement from the respondent of her Irish citizenship.
· In response to these requests from the complainant the respondent issued a series of letters restating their belief that foreign nationals were more likely to commit fraud, and statistical basis for this belief.
· In the face of this correspondence the complainant had no alternative but to lodge a complaint with the Equality Tribunal.
6.12 I note that the respondent did adduce evidence in relation to the circumstances surrounding the implementation of the policy that was in place, whereby persons born outside of Ireland were subject to more rigorous auditing then others. In this regard, it should be noted that the type of conduct to which the complainant was subjected in the circumstances of the present case is strictly prohibited by the Equal Status Acts. I therefore cannot accept that the reasons advanced by the respondent for the implementation of the discriminatory policy in question in any way mitigates against the discriminatory treatment to which the complainant was subjected.
Based on the evidence adduced in the present case, I am satisfied that the complainant was clearly subjected to less favorable treatment by the respondent on the ground of her race in terms of the original treatment requiring a certificate every three months and also in regards to all following communications up to the hearing of this complaint. Accordingly, I find that the complainant has succeeded in establishing a prima facie case of discrimination on the grounds of her race in the circumstances of the present case and that the respondent has not rebutted the inference of discrimination raised.
6.13 While the respondent was on notice of the complaints concerns from March 2013, I find that their behavior towards the complainant was motivated by the original discriminatory policy and not as a reaction to the fact of a complaint. Therefore I find no evidence of victimisation as set out under the Acts.
7 Decision
7.1 In accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision:
• That the complainant has established a prima facie case of direct discrimination on the ground of race and this has not been rebutted by the respondent.
7.2 Therefore, as per Section 27(1) (a) I order the respondent to pay to the complainant €3,000 in compensation for the effects of the prohibited conduct.
7.3 I direct that the Respondent review their fraud detection practices for the child benefit scheme, to ensure that they comply with the requirements set out by the Equal Status Acts in relation to the ground of race.
______________
Peter Healy
Adjudication Officer
20th October 2015