EQUAL STATUS ACTS, 2000 to 2011
DECISION NO. DEC-S2016-021
PARTIES
Thomas Mackey
-v-
Minister for Finance
File reference: et-151511-es-14
Date of issue: 6 April 2016
1. Background to the Claim
1.1 The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2011 on the 10 December, 2014. On the 30 December, 2015, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Valerie Murtagh, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 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 14 March, 2016.
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 84(3) of the Workplace Relations Act, 2015.
2. Dispute
2.1 The dispute concerns a claim by the complainant that he was discriminated against by the above named respondent on the disability ground in terms of Sections 3(1)(a) and 3(2)(g) contrary to Section 5 of the Equal Status Acts in relation to access to a service which is generally available to the public.
3. Summary of the Complainant's
3.1 The complainant has a disability (Loss of Dominant Right Arm from the shoulder joint with no possibility of a prosthesis). As a result of this disability the complainant requires special adaptations to his car. The complainant submitted that he was unfairly denied a Primary Medical Certificate which is a requirement to make an application for a tax concession to adapt the car for a person with a disability. The benefit of the Primary Medical Certificate is that a person with a disability may qualify for relief from Vehicle Registration Tax (VRT), VAT, motor tax and fuel costs (up to certain limits) under the provisions of the Disabled Drivers and Disabled Passengers (Tax Concessions) Scheme. The complainant submitted that his applications for a Primary Medical Certificate were refused on the basis that his particular disability does not meet the strict medical criterial to qualify for access to the Scheme. The complainant appealed these decisions to the Disabled Drivers Medical Board of Appeal (namely, the appellate body under the terms of the Disabled Drivers and Disabled Passengers (Tax Concessions) Scheme) but the said appeals were also unsuccessful.
3.2 The complainant submitted that the qualifying criteria for access to the Scheme discriminate against persons (such as him) with an upper body disability in favour of persons with a lower body disability. The complainant submits that the criteria for the Scheme needs to be changed to take account of persons who are missing both a hand and an arm. He states that the current criteria are discriminatory on the following basis;
· It treats the arm and hand as separate entities but only where they are on different limbs.
· Where one lower limb is missing, there is automatic qualification for this Scheme. Modification of a vehicle to adapt to the requirement of a single lower limb is less significant than a missing hand or arm.
· Automatic modern vehicles will cater for one missing lower limb without adaptation whereas a missing arm and hand requires varied adaptations for lights, wipers, steering etc. in addition to requiring an automatic vehicle.
3.3 The complainant contends that he was refused a Primary Medical Certificate because he did not meet the strict criteria and that there is no discretion within the legislation. The complainant submits that discretion has been used in the past to award PMC’s to other individuals as follows;
· regarding the criteria “without one or both legs” – the complainant is aware of persons with an amputation below the knee who have been awarded a PMC
· while the criteria state “wholly or almost wholly without the use”, the complainant contends that this matter is being interpreted differently
· persons with the condition of MS have been awarded a PMC even though they did not meet the criteria according to the complainant
The complainant submits that upper limb amputees should be given equal treatment and given the same supports as persons with lower limb amputations. The complainant contends that the Primary Medical Certificate was introduced in 1989 and revised in 1994, nearly a quarter of a century ago, and much has changed in the interim regarding disabilities but the qualifying criteria for the Scheme have remained unchanged during this period. The complainant states that the spirit of the Scheme when it was being established included assisting persons to be able to engage socially and partake in employment. The complainant states that the Scheme is unfair and discriminatory against a certain group of persons with upper body disabilities in terms of its eligibility criteria.
4. Summary of the Respondent's Case.
4.1 The respondent informed the Commission by letter prior to the hearing that it would not be in attendance at the hearing on 14 March, 2016. In this letter, the respondent made a number of submissions in response to the complainant’s claim of discriminatory treatment which are set out hereunder.
4.2 The respondent denies that the complainant was subjected to discrimination on the grounds of disability in relation to his applications for a Primary Medical Certificate. The respondent submitted that the Disabled Drivers and Disabled Passengers (Tax Concessions) Scheme) provides a range of tax reliefs linked to the purchase or use of specially adapted vehicles by drivers and passengers with a disability. The primary legislation authorising the Minister for Finance to make Regulations providing for tax concessions to disabled drivers and disabled passengers is contained in Section 92 of the Finance Act 1989. The respondent submitted that Section 92(1) of that Act provides that the Minister for Finance shall make regulations providing for repayment of excise duty and VAT and remission of motor tax and repayment of excise duty on motor fuel for a “severely and permanently disabled person”. Section 92(2) provides that such regulations shall provide for “criteria for eligibility for the remission of the taxes specified in subsection (1), including such further medical criteria in relation to disabilities as may be considered necessary”.
4.3 The respondent submitted that the current eligibility criteria, composed of six medical criteria, are set out in the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations 1994 (SI No. 353 of 1994) and to qualify for the Scheme a person must be permanently and severely disabled and satisfy one of the criteria outlined in the Regulations. The Senior Medical Officer (SMO) for the relevant local Health Service Executive administrative area makes a professional clinical determination as to whether an individual applicant satisfies the criteria. An unsuccessful applicant can appeal the decision of the SMO to the Disabled Drivers Medical Board of Appeal which makes a clinical decision in respect of the individual. The respondent submitted that it understands the complainant’s applications for access to the Scheme were refused on the basis that he did not meet the relevant eligibility criteria.
4.4 The respondent submitted that the present complaint is inadmissible as it relates to the eligibility criteria which are set out in a Regulation and which applies to applicants for a Primary Medical Certificate in order to obtain a tax concession to adapt a car for a disabled driver or passenger. It was submitted that S.I. No. 353 of 1994 – Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994, which sets out the medical criteria at Regulation 3 is an enactmentand is exempt from being challenged under Section 14(1)(a)(i) of the Equal Status Acts. The respondent referred to two previous decisions from the Equality Tribunal (namely, DEC-S2011-060 and DEC-S2011-061) which have addressed the medical criteria outlined in S.I. No. 353 of 1994 – Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994. The respondent submitted that these decisions from the Equality Officer have made it clear that if an enactment requires certain measures or actions to be taken, which in this case is the application of the medical criteria provided for in the Regulations, these actions cannot be construed as prohibited conduct under the Equal Status Acts.
5. Conclusions of the Equality Officer
5.1 The Equality Officer/Adjudication Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A 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 she can rely in asserting that prohibited conduct has occurred in relation to her. 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, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 The first matter I have to decide is whether I have jurisdiction to investigate the present complaint. The respondent has submitted that I do not have jurisdiction to investigate the complaint on the basis that the application of the eligibility criteria to qualify for a Primary Medical Certificate and by extension to avail of the Disabled Drivers and Disabled Passengers (Tax Concessions) Scheme are provided for in legislation. The respondent submitted that the complainant did not meet the eligibility criteria as prescribed in the legislation, and therefore, the taking of any action that is required by an enactment does not constitute discrimination in accordance with the provisions of Section 14(1)(a)(i) of the Equal Status Acts.
5.3 Section 14(1)(a)(i) of the Equal Status Acts 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 this issue, I note that the medical assessment criteria to qualify for a tax concession either as a disabled driver or passenger is set down in Regulation 3 of S.I. No. 353 of 1994 and the HSE is required to apply the criteria when carrying out a medical examination. It was not in dispute in the present case, that the complainant did not meet the strict medical criteria that are provided for in these Regulations. The question therefore that must be addressed in the present case is whether or not the regulations under a statutory instrument constitute an enactment for the purposes of Section 14(1)(a)(i) of the Equal Status Acts. Section 2 of the Interpretation Act 2005 defines an“enactment” as “an Act or a statutory instrument or any portion of an Act or statutory instrument”.
A“statutory instrument” means an order, regulation, rule, bye-law, warrant, licence, certificate, direction, notice, guideline or other like document made, issued, granted or otherwise created by or under an Act and references, in relation to a statutory instrument, to “made” or to “made under” include references to made, issued, granted or otherwise created by or under such instrument.
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.”
5.4 Whilst it could be argued that the definition of the terms “enactment” and “statutory instrument” in the Interpretation Act 2005 are strictly speaking for the purposes of that Act; it is clear that the Interpretation Act also governs the interpretation and construction of Acts and by implication also governs the meaning of the term “enactment” contained in section 14(a)(i) of the Equal Status Acts. In the present case, the complainant’s complaint of discrimination on the disability ground solely relates to the interpretation and application of the medical assessment criteria contained in the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994 and not to any other matter outside of the Regulations. Having regard to the foregoing, I am satisfied that the above cited Regulations are an enactment for the purpose of Section 14(1)(a)(i) of the Equal Status Acts. Accordingly, I find that the complainant’s claim comes within the exclusion provided for in Section 14(1)(a)(i) of the Equal Status Acts and therefore, falls outside the scope of those Acts.
6. Decision
6.1 The application of the medical criteria set out in the SI No. 353 of 1994 to the complainant’s assessment for a Primary Medical Certificate is required under an enactment and therefore under Section 14(1)(a)(i) of the Equal Status Acts, it is not a prohibited act. Accordingly, I find I have no jurisdiction to consider the complaint of discrimination referred by the complainant.
_________________
Valerie Murtagh
Equality Officer/Adjudication Officer
6 April, 2016