EQUAL STATUS ACTS
DECISION NO: DEC-S2016-027
PARTIES
A Student (represented by McCarthy Solicitors)
v
A Government Department (Represented by Tim Bracken, B.L. instructed by the Chief State Solicitor's Office)
Date of issue: 19th May, 2016 Dispute: 1.1 The case concerns a complaint by A Student against A Government Department. Her claim is that she was discriminated on the grounds of disability in terms of 3(1)(a) (c) of the Equal Status Acts 2000 to 2015 [hereinafter referred to as ‘the Acts’] and denied reasonable accommodation under Section 4( 1) of the Acts .
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 11 February 2014. On 3 November 2015, in accordance with his powers under Section 25 of the Acts, the case was delegated to me, Patsy Doyle, an Equality Officer, for investigation, hearing and decision. On this date, my investigation commenced. Submissions were received from both parties and a hearing was held on 18th November 2015 as required by Section 25(1) of the Acts.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 84 (3) of the Workplace Relations Act 2015. 2. Summary of the Complainant’s Written Submission 2.1 The Complainant commenced as a student of Social Science on a three-year degree programme at University College Cork, in 2010. She received a maintenance grant from the Cork City Council to assist her in her studies. The complainant had a number of physical and psychological conditions ranging from dyslexia, migraine and obsessional compulsive disorders which constituted a disability. Due to these conditions, the complainant was unable to work to support herself during her degree course. The management of these conditions caused a difficulty for the complainant during her studies and it became apparent that she would need extra time to complete her course work. During 2011 She agreed with UCC that she could undertake Year 1 over the course of two years and likewise for the remainder of the course. This permitted 30 credits over both years, to reach the cumulative credits of 60 assigned to year 1. This allowed her time to complete her course work and avoid having to repeat time. This practice was replicated throughout her degree course, which turned a three-year attendance degree course into a six-year attendance degree course. 2.2 The complainant received a maintenance grant to cover Year 1 of her course. The complainant made application to Cork City Council for the continuation of the maintenance grant to support Year 2 of her studies, she was refused on 21 September, 2011. The complaint within refers to this refusal and the subsequent refusals for grant aid during her 4th and 6th years of study. “Cork City Council, in its role as granting authority, remains impartial when applying these terms and conditions and exceptions cannot be made for individual students, irrespective of their individual circumstances. Grants are renewable subject to successful progression to the next year of an approved course only and unfortunately there is no provision in the Scheme for a splitting arrangement such as yours “ (extract from the Letter of 21 September, 2011) 2.3 The complainant contended that the “neutral provisions of the Student Grant Scheme 2011, namely clauses 7.2 and 7.6 thereof put her at a particular disadvantage compared to other students”. The University had granted her an extension in her course work and this should have been endorsed by the City Council, who approve the loans and by the respondent who are the funder of the grants. 2.4 The complainant appealed the decision to the respondent and received a response on 12 December, 2012, refusing the maintenance grant for 2011/2012 academic year stating: Clause 7.2 of the Higher Education Grant Scheme states that “a grant is tenable for the normal duration of an approved course and is renewed annually subject to the terms and conditions of clause 7.6. Grants may not be paid in respect of a repeat year study on the same course…. There is no provision to provide for one year of course to be pursued over a two-year period. Accordingly, you are eligible to be considered for funding for year 2 of your course in the 2012/2013 academic year” The complainant contends that this response constituted a failure to provide her with reasonable accommodation under the Acts. 2.5 There was a variance in how UCC and the funder of the maintenance grant, Cork City Council / DES viewed the complainant. UCC as the education provider agreed to accommodate the complainant on a 6-year version of a 3-year course. On 17 September, 2012 the Head of Disability Support at UCC, confirmed to the City Council that “(the complainant) will be pursuing the second year of the B Soc programme in 2012/2013. Due to the implications of these conditions,(the complainant) will need to split the second year of her degree programme over two years ……. Her registration status will be full time to allow her gain access to the library and other academic services” The Complainant was charged a full registration fee for 2011, 2012, 2013,2014 and 2015. 2.6 The Complainant confirmed that there was a delay in submitting her appeal to DES due to a lack of information on the appeals process. Her appeal was lodged in Summer 2012 and November 2012, in it, the complainant enclosed the details of the rejected application and: 1 Letters from two Consultant Psychiatrists 2 Letter from a Psycho therapist 3 Educational Psychology report 4 Letter from provider of grinds As collateral support and testament to her conditions. The Complainant submitted a written account of the difficulties that she faced in 2012/2013 academic year in seeking to manage her finances at college. She stated that she was compelled to approach the hardship fund at the student Union to secure the funding for her registration fees. In order to secure the financial assistance necessary, she felt obliged to disclose sensitive matters of her condition which caused her some embarrassment. She registered as a full time student on three occasions supplementing this by paying a full student capitation fee of €165 annually. 2.7 The Complainant contends that the DES failed to consider the facts of her case and had failed to correctly apply the provisions of the student grant scheme thereby treating the complainant less favourably than another student would have been treated in a comparable situation on the grounds of her disability. 2.8 The complainant submitted that the 6-year duration of her course, did not preclude the provision of the grant over six years to her, because the normal duration of the course for her was, in fact 6 years. She was not compelled to repeat at any time. She did receive a confirmation from Cork City Council on 11 October 2012 confirming payment of the maintenance grant for 2012/2013 “with nothing further payable until your planned progression to third year in 2014/2015” An appeal form to the Minister was enclosed. 2.9 The Complainant confirmed that she received tuition costs pertaining to one hour per week from the “Fund for Students with Disabilities” to assist with her dyslexia. She received an Invalidity allowance of €201.20 weekly from DSP on the grounds of her disability. 2.10 The Complainant argued that the refusal to award the maintenance grant was both arbitrary and unfair. When UCC made a decision to extend the complainants attendance commitment, the City council accepted the revised status in the full knowledge that he complainant was in fact a full time student, necessitated by her disabilities. The Complainant was disadvantaged by the delay in the appeals process as she satisfied the criteria. 2.11 The complainant sought the protection of S.I 159 of 2013, Regulation 15(1) of the Student Grant Scheme, 2013 and contended that she had been a subject of indirect discrimination.
3 Summary of the Respondent’s Written and Oral Submission.
3.1 The respondent denies discrimination against the complainant. It submitted as a preliminary objection that the application was misconceived by the complainant as she had misinterpreted the regulations contained in “Higher Education Grants Scheme, 2010”. There was no permissible pathway open to the complainant to secure grant funding over a 6-year period. Two supporting cases were pro offered to submit that the Equality Officer should not advance in hearing the case. An Taoiseach v Commissioner for Environmental Information and Gary Fitzgerald (Notice Party) [2010] IEHC 241 MJELR and the Commissioner of a Garda Siochana v The Director of the Equality Tribunal and Ronald Boyle, Gerard Cotter and Brian Fitzpatrick (Notice Parties) [2009] IEHC72.
3.2 The complainant registered on a three year, Social Science degree course as a full time student in academic year 2010/2011. A maintenance grant was awarded by Cork City Council on the “full non adjacent special rate”. This followed a successful application of the criteria of residence, means, nationality/immigration status and previous academic attainment. The presiding scheme was referred to as “Higher Education Grants Scheme(HEG) 2010”. This would continue to be the umbrella scheme attributed to the administration of the grant throughout the complainant’s case. The Complainant was not covered by S.I 159/2013. The respondent pointed out to the Tribunal that the system of administration of maintenance grants changed after the commencement of Student Support Act, 2011 via Statutory Instrument 159, 2013, which became operational on 14 May 2013.” SUSIE “is currently the approved body for administration of maintenance grants. There is provision for an Appeals Board in the case of rejection of an application for a maintenance grant. However, the regulations as described in 2010 scheme would continue to apply to the complainant, as her grant had been first established under those regulations.
3.3 When the City Council was informed by UCC that the complainant was not progressing to year 2 of her course and was instead extending Year 1 over the course of two years, it was unable to sanction a maintenance grant for Year 2 i.e. academic year 2011/2012. The complainant was informed and subsequently lodged two appeals, one to the City Council in ……. and one to the Minister on 12 November 2012, both of which were unsuccessful.
3.4 The HEG scheme provided that continuation of funding was subject to “progression”. This was considered by the respondent to constitute “moving from year to year within a course, having satisfactorily completed the previous year of that course or be transferring from one course to another, where the award from the subsequent course is of a higher level than the previous course “ Clause 7 of 2010 HEG scheme deals with the progression requirement, specifically in Clause 7.1 and 7.2 as follows:
Clause 7.1 A grant awarded under this scheme shall be provisional for the 2010/2011 academic year and shall; not be continued in any subsequent academic year, unless the local authority is satisfied that the provisions of the scheme continue to be complied with fully”
Clause 7.2 A grant is tenable for the normal duration of the approved course and is renewable annually subject to satisfactory attainment and the approval of the local authority, subject to the terms of Clause 7.6. Grants may not be paid in respect of a repeat year of study on the same course. A local Authority shall have discretion to waive this provision in exceptional circumstances, such as certified serious illness. (extract from HEG scheme 2010)
3.5. The respondent was clear that they had absolutely no lea way or discretion under regulation to alter the terms of the scheme to award the complainant a 6-year maintenance grant for a three-year degree course. They did, however stress that the complainant had benefitted from a number of informal and formal supportive financial arrangements made available to her via UCC which were paid for ultimately by the DES. They contended that these supports constituted reasonable accommodation on grounds of disability, as the complainant was registered with the Disability Support Service at UCC. 1 Student Assistance Fund 2. Fund for students with disabilities 3 Occupational Therapy 4. Benefaction Trust Fund
3.6 The Complainant was awarded a revised, reduced maintenance grant in 2012 to take account of the fact that she now resided within the city district. The respondent submitted that a very small number of students registered over a two-year period to complete a 1-year component of a course. They estimated the number to be less than 10 per year out of 20,000 students at the University.
3.7 This submission outlines the total expenditure by the DES/UCC on the Complainants Course. 3.8 The Complainant had been supported by the DES/UCC in her course, but the terms of the grant aid could not be altered as the complainant had not progressed through her course on a yearly basis. The respondent was compelled to apply payment of the maintenance grant to yearly progression for three years. The cost of additional financial support to cover 6 years would amount to 20,000-euro additional expenditure. There were limited resources available and the resources had to be applied to all students. 3.9 In July 2014. The Department responded in their preparatory submission to the Equality Tribunal that: “The 2010 HEG scheme included a provision to allow the awarding authority to award repeat year funding on a discretionary basis in exceptional circumstances. As (the complainant) attendance arrangement with the institution was to split each of the three individual years of her course over two academic years, i.e. over a six-year period, there is no basis for the awarding authority to consider (the complainant) under the exception circumstances provision of the scheme “
4. Findings and Conclusions of the Equality Officer:
4.1 The relevant sections of the Equal Status Acts are as follows: Section 2 (1) – “disability” means— (a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person's body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.
Discrimination is defined in Section 3 - (1) (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 Or Indirect Discrimination is defined as:
(c) 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. (2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are: (g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”) And in Section 4 (1) and (2)– “Reasonable Accommodation” on grounds of disability is outlined 4.— (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. (2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question .
4.2 Preliminary Issue: The Respondent has contended that I should not proceed to investigate this matter given the precedence established in the cases cited in their submission, which limit my jurisdiction. 1 An Taoiseach v Commissioner for Environmental Information [2010] IEHC 241. This case concerned the requested public access to a document on environmental information. The EU Directive 2003/4/EC was incorporate into Irish Law on May 1, 2007 through EC Regulations 2007, S.I 133, 2007. The Environmental Commissioner had ordered the release of a document on “greenhouse gas emissions” and this decision was contested. In the High Court, O Neill J. held that that the document constituted “internal communications” and was exempt from release. He found that the Environmental Commissioner did not hold the jurisdiction to decide that the effect of the “Access to Information on the Environment “Regulations were at odds with the provisions as stated in the Directive. I have given some consideration to the premise advanced by the respondent and I disagree that this case has application in the instant case. The Complainant has made her case under Equal Status Acts 2000-2012. The case refers to the refusal of a maintenance grant from the respondent. The complaint was received by the Equality Tribunal on 11 February, 2014. And delegated to me by the Director General of WRC on 3 November, 2015. The Regulations referred to in this case refer to the terms of the Higher Education Grants Scheme (HEG Scheme) 2010 which are not statutory rules. The award of grants is outlined as Clause 2 of the scheme: “The local authority shall award grants for higher education to eligible candidates in accordance with the provisions of the Local Authorities (Higher Education Grants) Acts, 1968 to 1992 and the terms of this scheme “ This clearly distinguishes the HEG scheme from the EC Regulations referred to in the Environmental case. Given the participation of the DES in previous cases , Two Complainants v DES DEC S2003-042/43,Two Complainants v Minister for Education and Science DEC S2006-077, and Cahill v Minister for Education and Science [2010]IEHC 227 , I see no basis for permitting the above case to limit my jurisdiction to hear and consider the arguments put forward by both parties in the case .It is of note that the Respondent confirmed that the rules governing the administration of grants is now on a statutory footing post the commencement of the Student Support Act, 2011 and S.I 159/2013 which commenced in May 2013.
4.4 (2) The second case advanced referred to a Judicial Review taken by Minister for Justice, Equality and Law Reform and the Commissioner of a Garda Siochana V. the Equality Tribunal, [2009] IEHC 72. This involved a challenge on the grounds of age discrimination in relation to the upper age limit of 35 years for entry to the Gardaí. The Equality Act, July 2004 had given effect to the Council Directive 2000/78/EC which prohibited discrimination on age. Secondary Legislation was passed subsequent to primary legislation in November, 2004. Charleton J in the High Court in granting the relief held:
“that the respondent, as a body whose powers are defined by statute, was not entitled to commence a hearing that assumed a legal entitlement to overrule a statutory instrument made by the first applicant where by law it was not entitled to do so “.
Again, I do not accept the application of this case to the current case as I contend that it would result in a procedural disadvantage to the complainant given the long standing findings in Costa v ENEL C-6/64, [1964] ECR 585, in relation to the premise of EU Supremacy.
“law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question…”
In addition, the respondent relied on the argument that SI 159/2013 did not have retrospective application to the complainant, given that her application for a maintenance grant predated May 2013, the commencement date of SI, 159/2013. They argued that she was covered solely by the terms of the non statutory HEG scheme, 2010. I find, therefore, that I have jurisdiction to proceed with and conclude my investigation.
4.5 I must 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 to 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, written and oral, made to me by the parties to the case.
4.6 I first have to establish whether the complaint as received by the Equality Tribunal on February 11,2014 is within the statutory time limits permitted. The Complainants case was first notified to the respondent on the statutory form ES1 on 25 November 2013. This referred to an ongoing complaint originating on 12 December 2012, when DES rejected the complainants’ appeal for access to the maintenance grant for the academic year 2011. This was subsequently replicated in 2013 and 2015 when the maintenance grant was allocated and paid for three years in 2010, 2012 and 2014 alone. The complaint was received by the Tribunal on 11 February, 2014 on form ES 3. In considering the issue of whether the matters complained about constitutes 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: " 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.” I find that the Complainant has established the required link between the separate manifestations as outlined in the above case and that her complaint is ongoing and within the statutory timeframes permitted under the Acts.
4.8 The Complainant submitted reports which confirmed her functioning as having • A specific learning difficulty formally diagnosed in 2011 • Migraine, anxiety and Obsessional Compulsive Disorder I am satisfied that these conditions constitute a Disability as defined under the Acts. 4.9 The Complainant has alleged that she was subjected to indirect discrimination and lack of reasonable accommodation when her disability was not taken into account in responding to an appeal of the refusal to grant a maintenance grant over 6 years instead of 3 years. This has been strongly rebutted by the respondent. Both parties accepted that the Complainant had a disability in my investigation, I engaged in an in-depth examination of the written submissions covering this Appeal. 1 Letter of 11 October 2012 from Cork City Council to the Complainant outlined the basis of the rejection to apply full a maintenance grant to the 6 split years of study on the complainant’s course. This letter referred to the terms of the 2012 Student Grant scheme and in particular Art 26(4) which stated; “…. Annual renewal will be based on compliance with the reckonable income limit of the relevant academic year and the student progressing from year to year within the course, having successfully completed the part of the course as required during the previous year……” The Letter confirmed that the maintenance grant was approved for academic year 2012 instead. The respondent confirmed at the hearing that the adjacent grant was paid in 2012 as opposed to the non adjacent grant in 2010. There was a €3,810 differential in the payments to the complainant. 2.This was followed by a submission of an appeal to DES on 12 November 2012 by the complainant citing: • My situation is frankly dire, on the verge of dropping out of college • My situation has not improved and is not likely to improve unless I am given a real chance to succeed and deal with the long list of complex problems I encounter on a daily basis. • Letters were enclosed from a myriad of Health care professionals in support of the complainant’s appeal. Of particular note was a report of the Educational Psychologist dated 15 July 2011 to UCC disability services recommending “an additional allotment of time to complete exams and written assignments over the course of her third level education” 3. Letter of 12th December 2012 from DES to the complainant referred to her application for financial assistance for the academic year 2011/2012 under the terms of HEG scheme, 2010. “There is no provision in the HEG scheme, 2010 to provide for one year of course pursued over a two-year period. Accordingly, you are eligible to be considered for funding for year 2 of your course in the 2012/2013 academic year “ The complainant was in fact directed towards the fund for students with disabilities “The purpose of the fund is to provide students with serious physical/sensory disabilities with grant assistance towards the cost of special material and technological aids, targeted transport services, personal assistance …… to be eligible for the fund an applicant must meet prescribed criteria …. applications are made by individual students through the Disability Office “. The Complainant received an annual payment consecutively over the 6 years of her course from this fund to the value of €3,821. 4.10 I find that there was a marked inconsistency in the administration and application of the maintenance grant to the complainant. Cork City Council/DES on their part referred to two different schemes in their response to the application for funding. The Complainant received a full maintenance and special award grant in 2010.This was reduced to a single maintenance grant on a non adjacent basis in 2012. This was confusing. In October 2012, Cork City Council referred to the 2012 statutory scheme whereas during the hearing the respondent was clear that the complainant was covered by the 2010 HEG scheme. I examined both schemes as the appeals mechanism differed under both. Clause 3, HEG scheme 2010 specifically refers to candidates commencing in academic year 2010 And S.4 of S.I.159/2013 states “This scheme applies to students who wish to apply for a grant ….in the academic year 2013/2014, other than a person attending a course who was, prior to the coming into operation of Section 6 of the Act and this scheme, awarded a grant to attend their current course under a prior scheme “ I find that the HEG scheme 2010 must, therefore be viewed as the presiding scheme in this case. Taken in tandem with Section 6 of the Local Authorities (HEG) Acts 1968- 1992, this provides that the Minister has ultimate approval for approval of grant aid. The situation changed following the commencement of the Student Support Act, 2011 where SUSI (Student Universal Support Ireland) became the body charged with all grant applications and a Student Grant Appeals Board is now in existence for appeals relating to grants post 2011. 4.11 HEG Scheme 2010: Clause 4 outlines the eligibility of candidates for grants on • Residence (resident here for 3:5 years) • Age (At least 17 yrs. old) • Academic attainment (Leaving Cert or Mature Student) • Means (Tax year 2009, Income limits preset) • Nationality (Member of EU State, Refugee Act 1996 provisions) Tenure of Grants is set out in clause 7 “A grant is tenable for the normal duration of the approved course and is renewable annually subject to satisfactory attainment and approval of the local authority, subject to the terms of clause 7.6. Grants may not be paid in respect of a repeat year of study on the same course. A local authority shall have discretion to waive this provision in exceptional circumstances, such as certified serious illness” There is also provision for a further financial assessment in the event of changed circumstances based on reckonable income. Reading these criteria and taking them at face value, I am somewhat perplexed that the myriad of medical submissions submitted by the complainant to the City Council in the first instance and subsequently on appeal to DES did not appear to have generated any response from the respondent. I found the testaments in support of the complainant to be factual, well balanced and clear that the complainant was having an extreme difficulty in surviving on a financial basis and that a relaxation of the refusal of the splitting of the maintenance grant would clearly assist. I sought clarification on this point during the hearing and the respondent was clear that the presence of the Special Assistance Fund was administered by UCC and funded by DES and this constituted additional financial support for the complainant. I find that there was a missed opportunity at the time the decision was made by UCC to facilitate the complainant over 6 years in completion of her course. I find that there was an ample opportunity for DES to engage with the complainant on the discretion held under Clause 4 (yearly review of means) and 7.2. DES did not undertake an in-depth examination of the complainant’s case and did not respond to her repeated submissions of financial difficulty. I contend that the City Council erred in their reference to the applicability of the wrong scheme and DES did not seek to right that wrong in their Appeal verdict. The Respondent contended that additional supports at a number of levels were placed before the complainant and that everything possible was done. I have a difficulty with this contention, given the reported fact that less than 10 students out of 20,000 were supported in a repeat year funding of the maintenance grant under the discretionary clause, the majority of these were linked to family circumstances. In addition, the Maintenance grant was reduced by half in 2012 and the respondent did not submit any evidence of the review conducted on the complainants means during 2011,2013, or 2015. I find that DES fettered their discretion in this case to provide an opportunity for the complainant to be considered for access to extended funding. I note that the terms of S.I 159/2013 are concrete on the definition of progression within the degree course. No such clarity exists in the 2010 scheme, instead wording such as “normal “and “satisfactory attainment” are components of S 7.2 without expansion. 4.12 INDIRECT DISCRIMINATION is defined in S3 of the Acts:
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
Objective Justification : Case 170/84 Bilka Kauhaus[1986] ECR 1607
• Correspond to a real need on the part of the undertaking • Be appropriate with a view to achieving the objective pursued • Be necessary to that end
The Labour Court applied this test in Inoue V NBK Designs[2003]ELR 98 where a part time secretary was dismissed when she refused to increase to a full time contract . This was indirect discrimination because more women than men engage in job sharing and would therefore be adversely affected by a requirement. Here, the employer gave no consideration to alternative ways of achieving efficiency at the office. In the Ursula Voss v Land Berlin C-300/06, ECJ Dec 2007 ,The ECJ found that overtime paid at a lower rate for part time workers constituted a difference in treatment and disadvantaged part time workers and was not based on an objective justification , thus infringing Article 141 EC on the principle of Equality .
In the Irish High Court mc Carthy J. held in the case of Stokes V Christian Bros High School [2015] IESC 13 ,when a school gave preference on admission to children whose fathers had attended the school ,this did not constituted Indirect Discrimination on the grounds of Traveller Status . “ The disadvantage relates to persons in addition to travellers and is not peculiar or restrictive to travellers and does not distinguish them among others of the kind and cannot be said to be “ more than ordinary, worth notice, marked and special because of course, there are others in the same position as they are “
This was upheld in the Supreme Court.
In the instant case , I would suggest the facts are distinguished from Stokes. There are two variable factors which distinguish this case: Discretion and the evolution of the Statutory Framework associated with the Maintainance Grants from 2011 onwards. Discretion is defined in the Oxford Dictionary as “Freedom to decide what should be done in a particular situation “. In this case, UCC exercised a discretion to facilitate a 6-year attendance on a three year programme to take account of an accepted disability. This was operationalised via an annual capitation payment to allow the complainant maintain a full time commitment at college albeit that the complainant was splitting her course. The Complainant paid every year for 6 years. In addition, she received two other discretionary payments every year for the 6 years.
This was supplemented by a number of supportive measures i.e. Occupational Therapy, Grinds and technological aids aimed at maintaining the complainant on her course but the structure of these supports predated the complainant’s arrival at UCC.
The complainant sought that Cork City Council and the re4spondent on appeal would have regard for the circumstances she found herself in regarding insufficient funding via a maintenance grant to correspond to a 6-year course commitment. She was unable to work and she was managing a number of illness alongside her learning difficulties.
There was provision for an annual review on altered circumstances and scope to consider a discretionary funding for a repeat year. The Respondent stated that this was impossible to provide and they were restricted to informal and alternative year funding. While I find that UCC stopped short of matching the grant aid to their approved extension of the course in 2011, I must assess and decide on the role of the respondent.
I find that the respondent failed to objectively justify the HEG 2010 scheme by not engaging in an in-depth examination of the complainant’s appeal, thus ignoring relevant matters such as the Disability pronounced by the complainant in the context of her appeal to DES. This placed the complainant at a particular disadvantage. Therefore, I find that the complainant has satisfied the burden of proof necessary for indirect discrimination under the Acts and the respondent has failed to rebut the findings through objective justification.
4.13 Reasonable Accommodation: Section 4 of the Acts outlines the obligations to provide reasonable accommodation which is qualified by not exceeding a nominal cost. The obligation to provide special treatment emerges from the premise where it would be impossible or unduly difficult for the person to avail of the service without such special treatment.
In Mc Mahon V Magowans, Pub Judge Delahunt in the Circuit court on appeal of an Equality officer decision held that in order to succeed in a claim for reasonable accommodation, the service provider had to have “actual/implied “knowledge of the disability and disregarded such knowledge either intentionally or unintentionally in order to succeed in the claim. (Equality Authority Review 2005). In Two Complainants v DES, (DEC S 2003 -042/43) the Equality Officer found that a maintenance grant was a “facility “under section 2 of the Acts.
In ECJ HK Danmark v Dansk Almennyttigt Boligselskab DAB and KK Danmark v Pro Display C-335/11and C-337/11The ECJ marked the transition from the medical to the social approach to Disability , “If a curable or incurable illness entails a limitation which results in particular from physical, mental, or psychological impairments which in interaction with various barriers may hinder the full an effective participation of the person concerned in professional life on an equal basis with other workers and the limitation is long term one, such an illness can be covered by the concept of disability within the meaning of Directive 2000/78/EC.”
4.14 In Nano Nagle Centre v Marie Daly [2015] IEHC 785, Noonan J. held that options with regard to reasonable accommodation need to be put to the person claiming under this clause. In addition, if a difference between provisions of S 16 of the act and Directive 2000/78/EC Framework Directive, the provisions of the Directive must take precedence.
4.15 In the instant case, I was struck by the pleadings contained in the complainant’s submission for continuation of the maintenance grant. These pleadings were submitted by Healthcare professionals, advocates and the Complainant herself, they appealed for a reestablishment of the grant from 2012 onwards on alternate years to match the attendance components. The respondent made a very strong argument that reasonable accommodation had been effected via the myriad of support aids and the Special assistance funds paid for by DES. The Complainant submitted that these were not comparable to grant aid. Based on these facts which were not dispute at the hearing. I find that the complainant has satisfied the burden of proof and it falls to the respondent to address the “nominal charge “component. I accept that that there is no obligation to provide reasonable accommodation if it gives rise to more than a nominal cost. However, the respondent had not examined the appeal for costings, no options of alternative funding streams were explored bar the assistance referred to above, neither did DES ever meet with the complainant to tease out her views, Nano Nagle applies. The Respondent was clear that it was unable to veer away from the parameters in the HEG scheme, and that the cost of reasonable accommodation could not be nominal. They submitted the grid of expenditure on the complainant’s course by the respondent and stood by the reasonableness of their approach. I find that the respondent is a public sector service, not required to make a profit, I appreciate that they went some way to assisting the complainant in progression through her course but the lack of preparedness on their behalf to view the appeal particular to the complainant and her unique disability caused me concern. The continuation of the maintenance grant plus registration fee over a further 3 years would have amounted to almost 15,000 euro(13,875) , if it had been applied in full. The Complainant made it clear at the hearing that she was looking for supplementary funding to preserve her place on the course. Her advocates submitted that she denied herself food on occasions to realise this goal. I find that DES failed to accommodate the complainant on reasonable accommodation grounds and nominal costs were not a bar to progression on this occasion.
DECISION
5.1 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.
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 indirect discrimination on the ground of disability and this has not been rebutted by the respondent.
• That the respondent has failed to afford the complainant reasonable accommodation in accordance with S 4(1) of the Acts 5.2 Therefore, as per Section 27(1) (a) I order the respondent to pay to the complainant €5,000 in compensation for the effects of the prohibited conduct.
5.3 I direct that the Respondent review their Grant Application Mechanism to include an opportunity for an Applicant to meet and engage with decision makers, to ensure that they comply with the requirements set out by the Equal Status Acts in relation to the ground of disability. In addition I direct that the Academic Centres strengthen and formalise their liaison with decision makers in this regard also.
Patsy Doyle
Adjudication/ Equality Officer
Date : 19 May 2016