DEC-S2015-017

Equal Status Acts 2000-2012

DEC – S2015-017

Mr T

(represented by Eamon Keaney, Benen Fahy Solicitors)

versus

Department of Social Protection

File reference: ES/2012/0166

Date of issue: 30th October 2015

Keywords: Equal Status Acts, Disability, Spinal injuries, Indirect discrimination, Objective justification

Dispute

1.1 The case concerns a claim by Mr T against the Department of Social Protection. His claim is that he was indirectly discriminated on the grounds of disability in terms of 3(2)(g) of the Equal Status Acts 2000 to 2012 [hereinafter referred to as ‘the Acts’].

1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 21st November 2012. On 5th December 2014, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 3rd March 2015 as required by Section 79(1) of the Acts.

1.3 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 (3) of the Workplace Relations Act 2015.

Summary of the complainant’s case

2.1 The complainant suffers spinal injuries following a road traffic accident and has incomplete paraplegia since. It affects his movement and sensations from his chest down. He usually ambulates with crutches but occasionally uses a wheelchair.

2.2 He is a recipient of Disability Allowance - a means-tested Social Protection payment –. He was anxious to obtain employment so returned to education. He deliberately selected a practical course – to become Accounting Technician – so he would be more employable and therefore become a more productive member of society. Mr T passed the entrance exam and on enrolment day he met a FÁS employee who explained that previously he would have been entitled to a portion of his Disability Allowance on top of the FÁS training payment of €188. He submits that The FÁS official explained that due to budget constraints these ‘double payments’ were abolished.

2.3 While on the course, Mr T was surprised to discover that recipients of the One Parent Family payment or Deserted Wives Allowance continued to receive double payments. He states that he believes this practice to be discriminatory. He submits that, as a first port of call, Mr T rang the Department of Social Protection in Longford where the section dealing Disability Allowance is located. The official he was speaking to (regrettably Mr T did not get his name) empathised with the complainant but said that all double payments would be eventually be ceased.

2.4 Mr T followed up this phonecall with a letter to the Minister for Social Protection, Joan Burton T.D. He received a holding reply from the Minister’s office but never received a substantive reply. He decided to lodge a complaint with the Equality Tribunal and sent the Department of Social Protection an ES2 form, as per procedure. This afforded the Department an opportunity to respond but they did not avail of it.

2.5 The complainant submits that this is discrimination on the grounds of disability. He asks why a deserted wife with no children would be more deserving of a double payment than him. Mr T is married. The course does result in increased costs for Mr T e.g. food, transport etc. He points out that because of his reduced mobility many tasks present a greater challenge to him than, for example, a deserted wife.

Summary of the respondent’s case

3.1 First of all, the respondent regrets the false information given by the FÁS employee. It appears she gave the impression that, immediately prior to Budget 2012, Mr T would have been able to retain a portion of his Disability Allowance as well as his training allowance for the Accounting Technician course. That is not the case. Budget 2012 abolished retaining social welfare payments for new entrants to Community Employment Schemes rather than further education courses conducted by FÁS. What the Department official in Longford told Mr T was mainly accurate. It is Government policy to move to a ‘One person, One Payment’ welfare system to achieve Exchequer savings. The respondent points out that this was particularly prescient in 2012 as social welfare savings was one of the top priorities of the EU/ECB/IMF Troika. However, the respondent recognises that it also has a significant role in providing income supports to vulnerable people.

3.2 The respondent points out that the social welfare system is designed to address a range of different (unfortunate) contingencies whether that be disability, widowhood, or raising children alone. Consequently the structures are necessarily different with variations in the eligibility conditions, the applications of means etc.

3.3 In relation to the Disability Allowance scheme, the position is that claimants of this scheme engaged on a FÁS-funded training programme are eligible for a FÁS training allowance in lieu of Disability Allowance which is at least equivalent to the Disability Allowance payment participants would receive. Secondary benefits are kept e.g. free travel pass and medical card. Therefore all Disability Allowance recipients transferring to FÁS training are guaranteed that they will not lose out by taking up training and in the event that they are unable to continue with training (e.g. their condition worsened) they would be restored automatically to Disability Allowance on receipt of notification of cessation. The purpose of this policy is to encourage the take-up of training by disabled people while providing security of income.

3.4 The respondent also points out that there have been no new entrants to Deserted Wives Scheme since 1997. There were only 336 recipients in 2012 in comparison to 101,704 on Disability Allowance and 87,918 in receipt of One Parent Family (OPF) payments.[1] As far as the Department of Social Protection is aware none of
them were participating in a course of further education in 2012 through FÁS and therefore recipients of OPF payments are a more appropriate comparison pool.

3.4 In relation to the One Parent Family Payment, there have been many reforms to streamline the scheme with other social assistance payments. However, these changes have to be made gradually as the EU Survey on Income and Living Conditions (EU-SILC)[1] has identified single parent households at significantly more at risk of poverty than other groups:
 

*This will also include recipients of disability benefit, illness benefit or private income protection

** The adult in this household may or may not be working

Direct comparisons between groups are difficult e.g. as a single parent could have a disability. However, it does highlight that households headed by one adult with children under 18 are at a high risk of consistent poverty (at risk of poverty with two or more deprivation factors e.g. cannot afford to keep the house adequately warm or do not own two pairs of strong shoes). Therefore this group needs extra protection in terms of income supports. Nevertheless, it is Government policy to facilitate financial independence and that single parents will not remain outside the labour force indefinitely. To this aim, the age limit of the youngest child for One-Parent Family Payment entitlement purposes has been reduced to seven years of age – from age 14 in 2011 to age 12 in 2012, to age 10 in 2013 and to age 7 in 2014. Thereafter single parents have been moved to Jobseekers Benefit or Jobseekers Allowance and are expected to be actively seeking work. In 2012 OPF recipients were entitled to get a training payment on top of their OPF payment. However, by 2014 recipients of OPF payments, who are new entrants to a further education training scheme, will not get an additional allowance. They will just get their OPF payment. The respondent points out that single parents are not automatically entitled to secondary benefits like a medical card and free travel pass in the way DA recipients are.

Conclusions of the Equality Officer

Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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 raised. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.

4.2 Section 5 (1) of the Equal Status Acts states:

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 Department of Social Protection clearly is providing a service to the public – see McQuaid v Department of Social Protection.[2] As a recipient of Disability Allowance and from the direct evidence given, it is not in dispute that Mr T has a disability within the meaning of Section 2 of the Acts. The complainant gave direct evidence that there were no Deserted Wives Allowance recipients but that there were OPF recipients getting double payments on his course. The respondent has stated that they were not aware of any Deserted Wives doing a FÁS course in 2012. Therefore I accept the respondent’s contention that a person in receipt of OPF payment is the appropriate comparator.

4.3.Section 14 of the Acts allows exceptions from unlawful discrimination:

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 on, 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 under the State

Although the basis for both DA and the OPF payment is in the Social Welfare Consolidation Act 2005, no evidence was presented to me to show a legislative basis (either primary or secondary) for the payment of allowances or otherwise of Social Welfare recipients while participating in FÁS (now ETB) courses. This appears to be done on an administrative basis rather than in legislation. Therefore the respondent cannot avail of the Section 14 defence in relation to this case.

4.4 The circumstances of Mr T’s case are one of indirect discrimination. Section 3(1)(c) defines indirect discrimination as ‘where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.’ The definition of ‘provision’ in Section 2 is broad: ‘a term in a contract or a requirement, criterion, practice, regime, policy or condition affecting a person.’

4.5 Mr T raises compelling arguments – ones which I had to consider carefully. On the face of it, he is put at a particular disadvantage. Obviously a person in receipt of Disability Allowance is statistically more likely to have a disability than a recipient of OPF payment. A single parent with one child under 14[3] doing the identical course to Mr T would receive €342.60 (€188 + €29.80 + €124.80) in 2012 while Mr T received €212.60 (€208 + €4.60). I appreciate that Mr T has the benefit of a medical card as well as a travel pass. It would be highly unusual for somebody in receipt of OPF to have both of these valuable benefits. However, as these benefits are difficult to quantify in net present value terms, I will proceed to see whether the respondent can objectively justify this difference in weekly payments between recipients of DA and OPF.

4.6 The three limbs of objective justification are:

1. whether the aim is legitimate
2. whether the means of achieving that aim is appropriate and
3. whether the means of achieving that aim is necessary

Keeping the costs of social welfare down while protecting the most vulnerable in society, especially in the middle of an economic crisis, is in the national interest. Therefore, they are legitimate aims. I will now look at whether the means chosen to achieve those aims are suitable. In the context of Social Protection, it is appropriate to treat different groups differently depending on their different vulnerabilities. For example recipients of Disability Allowance get preferential treatment regarding free travel (presumably to attend medical appointments easily) as well as a medical card. The EU-SILC has shown (see Paragraph 3.5) that households headed by one adult with child(ren) under 18 are more vulnerable to poverty. It is a highly-regarded source of data for economic and social research. Therefore, it is appropriate to give single parents additional income supports. It is worth noting that the Department of Social Protection gives recipients the most beneficial payment to them e.g. if a single parent with a disability is entitled to either Disability Allowance or the One Parent Family Payment, s(he) would receive whichever was the more generous payment. Again this is an appropriate means of achieving the twin but conflicting aims of protecting the Exchequer while protecting those most at risk of poverty. Streamlining to ‘One person, one payment’ while encouraging all recipients of social assistance back to the Labour Market (where able) is another suitable means of achieving these aims. A single parent starting the same course as the complainant now would not be in receipt of a double payment.

4.7 Now I will turn to whether the means chosen to achieve these aims is necessary. In relation to recipients of the One Parent Family payment, a ‘Big Bang’ approach simply would not work. Indeed the gradual changes to the OPF scheme met considerable resistance e.g. the powerful ‘7 is too young’ campaign and much public discourse as to how many single parents were at a loss as a result of these changes. Therefore the tapered approach taken by the Department of Social Protection to implementing these changes was a necessary means of achieving its aims.

4.8 Consequently, I find that although the complainant raises questions that he was at a particular disadvantage in 2012 because of his disability in relation to double payments for certain other social assistance recipients, the respondent has objectively justified this.

Decision

5.1 I have investigated the above complaint and make the following decision in accordance with section 25 of the Equal Status Acts and section 41 (5)(a)(iii) of the Workplace Relations Act 2015 that Mr T was not indirectly discriminated.

Therefore, I find against the complainant.

_________________

Orlaith Mannion

Adjudication Officer/Equality Officer

'Footnotes'

[1] http://www.cso.ie/en/statisticsarchived/socialconditions/atriskofpovertyratebydemographiccharacteristicsandyear/

[2] Equality Tribunal Decision DEC-S2014-015

[3] I appreciate that Mr T does not have a child.

3.4 The respondent also points out that there have been no new entrants to Deserted Wives Scheme since 1997. There were only 336 recipients in 2012 in comparison to 101,704 on Disability Allowance and 87,918 in receipt of One Parent Family (OPF) payments.[1] As far as the Department of Social Protection is aware none of them were participating in a course of further education in 2012 through FÁS and therefore recipients of OPF payments are a more appropriate comparison pool.





3.4 In relation to the One Parent Family Payment, there have been many reforms to streamline the scheme with other social assistance payments. However, these changes have to be made gradually as the EU Survey on Income and Living Conditions (EU-SILC)[2] has identified single parent households at significantly more at risk of poverty than other groups:







[1] https://www.welfare.ie/en/downloads/Social%20Stats%20AR%202012_Section%20C.pdf



[2] http://www.cso.ie/en/statisticsarchived/socialconditions/atriskofpovertyratebydemographiccharacteristicsandyear/