EQUAL STATUS ACTS
DECISION NO: DEC-S2016-024
PARTIES
Brendan Donaghy
Vs
The Department of Health
(Represented by Clíona Kimber BL
on the instructions of the Chief State Solicitor)
File No: ES/2014/0039
Date of issue: 19 April 2016
1. Dispute
1.1. This dispute concerns a complaint by Mr Brendan Donaghy (the “Complainant”) that the Department of Health (the “Respondent”) discriminated against him on grounds of civil status contrary to the Equal Status Acts by implementing a measure announced in ‘Budget 2014’ whereby the criteria for eligibility for a “medical card” were altered. Specifically, the income thresholds for eligibility were reduced from €600 to €500 per week for single persons and from €1200 to €900 per week for married couples. Essentially the Complainant asserts that the new income threshold for married couples is discriminatory as it amounts to €100 less than the combined income threshold for 2 single persons.
2. Background
2.1 Eligibility for access to a range of health services free of charge (commonly referred to as the “medical card”) is based on the satisfaction of a number of criteria. Those criteria are prescribed in law, i.e. the Health Act 1970, as amended. The Complainant takes issue with the criterion that specifies the income thresholds. These thresholds were reduced following an announcement by the Minister for Finance on 15 October 2013 as part of Budget 2014.
2.2 The Budget changes in question were given effect via the Health (Alteration of Criteria for Eligibility) (No. 2) Act 2013 which amended the relevant section (45A) of the Health Act 1970 and became effective on 1 January 2014.
2.3 On 10 January 2014 the Complainant referred a complaint to the Equality Tribunal under the Equal Status Acts alleging discrimination on the ground of civil status.
2.4 On 15 October 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated the case to me, Gary Dixon, Equality/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part III of the Acts. This is the date on which I commenced my investigation under section 25 of the Equal Status Acts. Written submissions were received from both sides and I proceeded to a hearing on 9 December 2015.
2.5 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 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
3. Summary of Complainant’s case
3.1 The Complainant submits that prior to Budget 2014 the income threshold for a medical card was €600 per week for a single person and €1200 per week for a married couple, i.e. the threshold for a married couple was double the single person threshold. Budget 2014 reduced the single person threshold to €500 pw and the married couple threshold to €900 pw (i.e. 1.8 times the single person threshold), thereby treating married couples less favourably than 2 single persons.
3.2 The Complainant states that, previously, the relevant income thresholds for medical card qualification had been even higher, at €700 pw for single persons and €1400 pw for married couples. However, he states that those thresholds were not discriminatory in terms of their treatment of married couples vis-à-vis single persons.
3.3 The Complainant cited other examples of married couples being treated equally by the State, e.g. married couples may opt for separate income tax allowances which, he states, are non-discriminatory. On the other hand, however, the Complainant believes that the revised income thresholds that were announced in Budget 2014 are directly discriminatory on the civil status ground and contrary to the provisions of the Equal Status Acts.
4. Summary of Respondent’s Case
4.1 The Respondent submits that the matter complained of does not involve the provision of a good or a service as defined under the Equal Status Acts and therefore, is outside the remit of the legislation. The Respondent further submits that the Complainant has not referred a complaint regarding the application of the new criteria to him, nor has he asserted that he is personally adversely affected as a result of the Budget changes; for example, through the loss of his own medical card. What the Complainant asserts is that the policy decision discriminates against married couples generally. The Respondent considers, therefore, that the Complainant cannot claim any less favourable treatment of himself, nor can he establish discrimination within the meaning of the Equal Status Acts.
4.2 The Respondent submits that the policy announcement complained of (i.e. the Budget) is the manifestation of a Government Decision. Therefore, the Respondent considers that the Workplace Relations Commission (previously the Equality Tribunal) has no jurisdiction in the matter under Equal Status legislation. By purporting to review a Government Decision the Respondent asserts that the Commission/Tribunal would be acting ultra vires of its powers conferred by the Equal Status Acts; further, as the Budget is a collective Government Decision, the Respondent refers to Article 28.4 of the Constitution which, inter alia, specifies that the Government is responsible to Dáil Éireann solely in relation to such budgetary matters.
4.3 The Respondent accepts that the medical card income threshold for married couples was previously twice that for single persons. However, it does not accept that this fact had arisen for equality reasons. The Respondent asserts that married couples benefit from economies of scale in their households, e.g. living costs for single persons living alone are, per person, higher than the similar figure for married couples. The Respondent also argues that such costs do not necessarily diminish relative to the number of persons in the household. The Respondent contends, therefore, that there is no less favourable treatment of married couples, but rather “different” treatment.
4.4 The Respondent submits that the concept of differential cost is applied in a number of other areas of public policy and is not peculiar to the qualification criteria for a medical card, including the rate of payment of the State pension and the assessment for Supplementary Welfare Allowance.
4.5 In conclusion, the Respondent refers to that Section 14(1) of the Equal Status Acts which states that –
“nothing in this Act shall be construed as prohibiting….the taking of any action that is required by or under…any enactment or order of a court…”.
The Respondent submits, therefore, that Section 14(1) provides an absolute defence to any allegation that the terms and conditions upon which eligibility for a medical card is determined are discriminatory, as the conditions for determining eligibility are set in statute, i.e. an enactment in accord with Section 14(1).
5. Conclusions
5.1 While I consider that the Complainant has put forward a reasonable case in relation to the revised eligibility criteria for a medical card impacting more adversely on married couples than on single persons, the first matter I need to consider is whether I have jurisdiction within the remit of the Equal Status acts to decide on his complaint.
5.2 Eligibility for a medical card is based on criteria that are prescribed in law, i.e. the Health Act 1970, as amended. The Budget changes to which this complaint refers were given effect via the Health (Alteration of Criteria for Eligibility) (No. 2) Act 2013 which amended the relevant section (45A) of the Health Act 1970.
5.3 Section 14 of the Equal Status Acts provides: –
“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……”.
An enactment is defined at Section 2 of the Interpretation Act as: -
“an Act or a statutory instrument or any portion of an Act or a statutory instrument;”
Therefore, each of the Acts cited at 5.2 above constitutes an enactment within the meaning of Section 14 of the Equal Status Acts. Accordingly, any action taken under those enactments must be exempt from the provisions of the Equal Status Acts.
5.4 As I have noted that the terms and conditions upon which eligibility for a medical card is determined are set out in an enactment and that the action complained of (i.e. the revision of the eligibility criteria) was also required by or under an enactment, I consider that Section 14(a)(i) of the Equal Status Acts (as cited at 5.3 above) is applicable to the current case. I conclude, therefore, that this complaint is not justiciable before the Workplace Relation Commission under the Equal Status Acts. Accordingly, I have no jurisdiction to consider the matter further.
6. Decision
6.1 In reaching my decision I have taken account of all submissions, oral and written, made to me in the course of my investigation, including evidence presented at the hearing.
6.2 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
· I consider that I have no jurisdiction to decide on the complaint of alleged discrimination referred by the Complainant under the Equal Status Acts.
____________________
Gary Dixon
Adjudication Officer/ Equality Officer
19 April 2016