Equal Status Acts
DECISION NO: DEC-S2016-007
Gesio Da Rocha Campos
(Represented by Migrant.ie)
V
Department of Social Protection
(Represented by David Dodd B.L. instructed by Chief State Solicitor’s Office)
File No. ES/2013/0032
Date of Issue: 1 February 2016
Keywords Equal Status Acts – Discrimination – Gender, Marital Status & Family Status - section 3 (2)
1 Delegation under the Equal Status Acts
1.1 The complainant referred his claim against the Department of Social Protection under the Equal Status Acts on 8 April 2013. On 26 February 2015 in accordance with his powers under section 75 of the Employment Equality Acts, the Director then delegated the case to me, Hugh Lonsdale, 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, on which date the investigation under section 25 commenced.
1.2 Written submissions were received from both sides and I proceeded to a hearing on 27 March 2015.
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 83.3 of the Workplace Relations Act 2015.
2. Complainant’s Submission
2.1 The complainant submits that on 15 January 2013 he was refused child benefit as he was not deemed to be a qualified person.
2.2 On 2 April 2013 the respondent refused to process the complainant’s application for Child Benefit solely because he is a man. He was told that a woman must apply.
2.3 On 2 April 2013 the respondent also refused to pay the mother of the complainant’s children Child Benefit because she has no legal status to reside in Ireland.
2.4 The complainant submits that the refusal to consider his application to be discriminatory.
3. Respondent’s Submission
3.1 The respondent confirms that in January 2013 the complainant was refused Child Benefit. This decision was made in accordance with the provision of Child Benefit which is governed by Part 4 of the Social Welfare Consolidation Act 2005. This Act refers to “a qualified person” for the receipt of Child Benefit. The identification of “a qualified person” is determined in accordance with S.I. No. 142 of 2007, Social Welfare (Consolidated Claims, Payments and Controls) Regulations 2007.
3.2 The complainant appealed the decision and on 1 October 2013 he was informed that his appeal had been allowed in full, and he was “a qualified person”. The Child Benefit Payment was fully backdated to the date of the original application, 11 January 2013. The respondent submits that in these circumstances the claim is now moot.
4. Jurisdictional Issue
4.1 The first matter I have to decide is whether I have jurisdiction to investigate this claim. 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,”
And 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.”
4.2 In a legal opinion sought by the Equality Tribunal in relation to the construction of Section 14 (a) (i) in respect of another case the Senior Counsel’s opinion included: “ [the complainant] has chosen to make a claim under the Act, rather than proceeding by way of judicial review. If he wishes to challenge an administrative decision that is ordinarily done by way of judicial review. If he wishes to assert that a statutory regime violates his personal rights as a citizen, it is open to him to so by constitutional challenge, whether by way of judicial review, or by plenary proceedings. Likewise, if he wishes to assert that the regulations contravene the European Directive, he can issue proceedings to assert that claim. What Section 14 (a) (i) makes clear is that he is not entitled to avail of the Equal Status Act 2000 for the purpose of impugning a statutory regime as one might do for example in a constitutional challenge.”
4.3 In this claim it is clear that the provisions for the payment of Child Benefit are set out in Part 4 of the Social Welfare Consolidation Act 2005 This is further clarified in Article 159 of S.I. No. 142 of 2007 which states:
“For the purposes of Part 4, the person with whom a qualified child shall be regarded as normally residing shall be determined in accordance with the following Rules:
1. Subject to Rule 2, a qualified child, who is resident with more than one of the following persons, his or her—
mother,
step-mother,
father,
step-father,
shall be regarded as normally residing with the person first so mentioned and with no other person.”
I am satisfied that the complainant’s application was dealt with in accordance these provisions. In these circumstances the complainant has not argued that his application was dealt with any differently than another applicant’s would have been. The claim is based on his initial application being rejected because he did not qualify as “a qualified person” and, as such, is based on what the complainant considers to be discriminatory aspects of the provisions for the payment of Child Benefit set out in the Social Welfare Consolidation Act 2005 and S.I. No. 142 of 2007.
5 Decision
5.1 This claim is based on the provisions of the Social Welfare Consolidation Act 2005 and S.I. No. 142 of 2007. These are enactments and as such the claim falls under Section 14(1)(a)(i) of the Equal Status Acts. Accordingly, I find I have no jurisdiction to consider the complaint of discrimination referred by the complainant.
____________________
Hugh Lonsdale
Adjudication Officer/Equality Officer
1 February 2016