DEC-S2016-026

EQUAL STATUS ACTS

DECISION NO. DEC-S2016-026

PARTIES

Michael McGirr

-v-

Revenue Commissioners

File reference: ES/2014/0178

Date of issue: May 2016

Introduction:

1.1 On the 1st September 2014, the
complainant referred a complaint pursuant to the Equal Status Acts on the grounds
of gender, civil and family status. The complaint relates to the decision of
the respondent, the Revenue Commissioners, to refuse the complainant’s
application for the Single Person Child Carer Tax Credit for the 2014 tax year.

1.2 On the 7th December 2015, in accordance with his powers under section 75 of the Equal Status Acts, the
Director General of the Workplace Relations Commission delegated the case to
me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision
and for the exercise of other relevant functions of the Director General under
section 25 of the Acts, on which date my investigation commenced.

1.3 In accordance with section 25(1) and as part of my investigation I proceeded to a hearing on
the 14th December 2015. The complainant attended the hearing and was represented by
Stephen Moran, BL, instructed by Kieran Friel of McHale Muldoon Solicitors. Clíona
Kimber, BL, instructed by Declan Sherlock, Deputy Revenue Solicitor represented
the respondent. Two Revenue officials attended the hearing. During the hearing,
the respondent asked to make written submissions to respond to legal
submissions made by the complainant. The complainant filed additional written
submissions on the 8th January 2016 and the respondent filed additional
submissions on the 29th January 2016.

1.4 This decision is issued by me following the establishment of the Workplace Relations Commission
on the 1st October 2015, as an Adjudication Officer who was an
Equality Officer prior to the 1st October 2015, in accordance with
section 83(3) of the Workplace Relations Act, 2015.

2. Summary of the complainant’s case:

2.1 In the complaint form, the complainant outlines that he was discriminated against on the grounds of family status and
gender contrary to the Equal Status Acts. The complainant has joint custody of
his teenage son, who lives 40% of the time with him. The complainant and the
child’s mother are divorced and she married again in 2010. The complainant had
previously availed of the one parent family credit. This complaint arises out
of the tax credit introduced by the Finance (No. 2) Act, 2013, which came into
operation on the 1st January 2014. The complainant exhibited
correspondence from the respondent of the 24th April 2014 and the 30th
May 2014 pertaining to the refusal of the tax credit to him, as well as the
completed E.S.1 form sent to the respondent. The complainant was refused the
tax credit on the basis that he was not the primary claimant with respect of
the child and that he could not avail of the credit as a secondary claimant as
the primary claimant (his ex-wife) was married. Had the primary claimant not
re-married, he could have availed of the credit, provided he complied with the
other provisions of the section.

2.2 The complainant outlines that the changes introduced by the Finance (No. 2) Act 2013 discriminate against men in legally recognised shared parenting arrangements. The fact that the tax provision
determines which parent receives the tax credit in line with the payment of
Child Benefit is discrimination on grounds of gender. He objects to the
designation of primary and secondary claimants, outlining that there are simply
two parents who, while they live apart, take equal responsibility for their
children. The tax credit creates a category of secondary parent, relegating the
role played by fathers in shared parenting arrangements. It is submitted that
the credit discriminates on the grounds of family status as shared parenting arrangements
are penalised. It makes the secondary claimant’s entitlement dependent on
whether the primary claimant has remarried or cohabiting is unjust, irrational
and discriminatory.

2.3 At the hearing of the complaint, the
complainant outlined his dissatisfaction with the reference in section 462B of
the Taxes Consolidation Act, as amended by section 7 of the Finance (No. 2) Act,
2013, to certain parents being “secondary” carers. He described the reference
as “disgusting”. He also outlined that the discriminatory act is his secondary
designation according to the civil status of his former spouse. He and his ex-wife also share a family status;
they are both parents of their son. They are, however, treated differently in
respect of the tax credit. The complainant and his ex-wife have different civil
status to each other; he is single and she has re-married. It is submitted that
the respondent has assessed the complainant’s entitlement to this tax credit on
the basis of his wife’s civil status and not on the basis of his status.

2.4 The complainant further argued that the
respondent had adopted a particular interpretation of the statutory provision.
The complainant objected to this interpretation on the grounds that it was
discriminatory. It was within the jurisdiction of this hearing to consider this
complainant and section 14 of the Equal Status Acts does not remove this
jurisdiction. It was submitted that in assessing whether section 14 applied, it
first had to be considered whether the treatment was required by an enactment.
If so required, it then fell to consider whether section 14 provided a full
defence. In considering what is required by the enactment in question, it was
submitted that the statutory provision was wrongly applied, or it fell to be
re-interpreted in accordance with EU law. Where there is doubt over what the
Oireachtas intended, it fell to consider the purpose of the enactment in
question. Applying section 5(1)(b) of the Interpretation Act, it was submitted
that it was not part of the purpose of the Act in question to discriminate
against taxpayers such as the complainant on grounds of civil status. It was submitted that the interpretation of
the provision that vindicates the complainant’s rights should be preferred. It
was further submitted that for the respondent to succeed, it would have to show
that within the purpose of the provision was the discriminatory act. The provision
need not be explicitly discriminatory, but the discrimination must be within
its purpose.

2.5 The complainant submitted that it was
also appropriate to have regard to the preamble of the Finance (No.2) Act, 2013
and the heading of section 7 (“Single
Person Child Carer Tax Credit”)
to conclude that it was the plain intention of the Oireachtas to establish a
tax credit for single persons who are child carers. It was submitted that the
preamble of the Act does not provide that is is an Act to discriminate between
parents, nor an Act to diminish the role of one set of parents. The complainant
concluded that the respondent has failed to properly interpret the statute,
leading to an incorrect and discriminatory interpretation of the test for eligibility
of the tax credit. It was further submitted that it would not have been the
plain intention of the Oireachtas that one carer’s civil status vis a vis a
third party should have an adverse impact on the eligibility of the other
carer, who is single. It would be absurd, illogical and irrational to implement
a tax credit for carers of children in such a discriminatory manner, in
particular where the eligibility of an applicant is linked to the civil status
of another. As a matter of construction, the reference to “marriage” in section
462B(1)(c) should be construed as meaning as a marriage between the child’s
parents, and not meaning one parent and a third party.

2.6 In relation to redress, the complainant
outlined that the value of the tax credit is €1,650 for each year of
assessment. He outlined that he is entitled to the credit as a tax credit as
his former spouse had agreed to relinquish her entitlement to the credit.

3. Summary of the respondent’s case:

3.1 In submissions made prior to the hearing,
the respondent outlines that the Equality Tribunal does not have jurisdiction
to hear the complaint and that this issue should be decided as a preliminary matter.
The complaint relates to an application for a tax credit and that because the
credit was not granted in accordance with section 462B of the Taxes
Consolidation Act, the respondent is entitled to rely on section 14 of the
Equal Status Acts. It outlines that the Single Person Child Carer Credit came
into force on the 1st January 2014 and was only available to one
parent, rather than to two parents (as provided by the credit it replaced). It
states that the primary objective of the Single Person Child Carer Tax Credit was
to provide support for a “single parent” with the additional responsibility of
caring for a child while in employment. The respondent refers to the definition
of “primary claimant” in the provision and outlines that the primary claimant
may only relinquish their entitlement to the payment where they qualify for the
payment in the first place. In this
regard, section 462B(1) provides that a person who is married, in a civil
partnership or cohabiting is not entitled to the credit. Such a person is not a
single parent and therefore cannot relinquish the credit to another qualifying
person. There is a requirement for a person to have a certain family status,
irrespective of gender, as it is a credit to provide support for lone parents.

3.2 In additional submissions of the
respondent, it denies that the scheme of the tax credit is discriminatory, but
raises the preliminary point of the defence provided by section 14(1) of the
Equal Status Acts. It is submitted that the wording of section 462B is clear
and the respondent is required to grant the credit in line with the plain
meaning of the words used in the provision. The respondent outlines that the
rejection of the literal interpretation of a statute on the basis that this
construction is absurd can only occur where there is a very exceptional and
clear absurdity. The threshold for “absurdity” is very high. The respondent
also refers to the primacy of literal interpretation in tax statutes, where it
is a matter for the Oireachtas to determine who is to be taxed and who is
exempt. It relies on various authorities, including McGrath v Inspector of Taxes [1988] I.R. 258 to submit that the
only purpose of tax statutes is to tax, and there is no scope to attribute any
particular intention to the statute other than to collect tax from the
taxpayer. It is submitted that the Finance (No. 2) Act, 2013 does not have a
social or remedial purpose, so cannot be interpreted as contended by the
complainant. It is submitted that the phrase “intention of the legislator” has
a narrower meaning than contended by the complainant and means seeking the
meaning of the words used by the legislature. It is also submitted that it is
not permitted to add to the provision, or to treat parts of the provision as
surplusage. It is submitted that section 5 of the Interpretation Act does not
apply as the provision is clear, in that a person with whom a child spends a
minority of time will not be entitled to avail of the credit where the person with
whom spends the majority of their time is married or cohabiting.

3.3 The respondent submitted Articles 28.4
and 28.5 of Bunreacht na hÉireann provides that matters related to the
Estimates and expenditure are for the Oireachtas to determine. It referred to
the Equality cases of Dowd v Minister for
Finance DEC-S2011-061, A Complainant
v Department of Social and Family Affairs DEC-S2008-013, A Complainant v Minister for Social
Protection DEC-2011-53, and King v
Voluntary Health Insurance Board DEC-S2008-116 regarding the application of
section 14 of the Equal Status Acts. The respondent also relied on the decision
of the High Court in Commissioner of An
Garda Síochána v the Director of the Equality Tribunal and Boyle [2009] E.L.R.
116 regarding the limitations of statutory tribunals in relation to the application
of EU law and that the Equality Tribunal, in that case, was bound by the
relevant Statutory Instrument regarding the maximum age of Garda recruitment.

4. Findings and reasoning:

4.1 The complainant outlines that the
respondent has incorrectly applied section 462B of the Taxes Consolidation Act
in declining his application for the Single Person Child Carer Tax Credit. It is submitted that the
provision has been interpreted and applied in a discriminatory manner. The
respondent asserts that, as a tax provision, it must be strictly construed and
that the meaning of the words used in the statute are unambiguous. The
respondent states that it is entitled to rely on section 14 of the Equal Status
Acts and that this issue should be determined as a preliminary matter.

4.2 The first issue to consider is whether
this is a case that can be concluded on a preliminary issue. I consider that
the complainant is correct in his submission that in order for a respondent to
rely on section 14 of the Equal Status Acts, it must show that the action
complained of is required by an enactment. By necessity, this involves
investigation into the nature of the action complained of, as well as the scope
and wording of the enactment at issue. It follows that this involves evidence
from the parties as well as submissions on the application of section 14. It is
not a matter for determination at a preliminary stage.

4.3 In this case, the action complained of is
the refusal by the respondent of the complainant’s application for the Single Person
Child Carer Credit for the 2014 tax year. While the letter issued by the
respondent on the 24th April 2014 does not give the reason for the
refusal of the complainant’s application, the subsequent letter states that as
his ex-wife has remarried, she has no entitlement as a so-called primary
claimant.

4.4 The complainant asserts that the
respondent has incorrectly applied the relevant statutory provision and has done
so in a discriminatory manner. He argues that it cannot have been the intention
of the provision to discriminate against certain carers of children and relies
on the Interpretation Act to argue that the provision should be given another
interpretation to the literal interpretation, as this is absurd or could not
reflect the plain intention of the Oireachtas. The respondent argues that the
wording of the statute is unambiguous and was properly applied by the
respondent. As this is the case, it submits that no recourse can be made to the
Interpretation Act to reach a different interpretation of the relevant section.

4.5 I appreciate the frustration expressed by
the complainant. He has joint custody of his son, who stays with him some 40%
of the time. He is single and not cohabiting, and complies with all
requirements for the Single Person Child Carer Tax Credit. His application fell
because the child’s mother remarried, disentitling her to the tax credit as the
“primary claimant”. The complainant objects to designation of one set of
parents as “primary” and another as “secondary”. The first question to consider
is whether the wording of section 462B(1)(c)(i) can be given a different interpretation
than that given to it by the respondent. Section 462B(1)(c)(i) provides:

“[T]his section shall not apply for any year of assessment to
either party of a marriage unless (I) the parties are separated under an order
of a court of competent jurisdiction or by deed of separation, or (II) they are
in fact separated in such circumstances that the separation is likely to be
permanent.”

4.6 The complainant submits that section
462B(1)(c)(i) should be interpreted to mean the marriage of the parents of the
child. Given that the provision refers to “a marriage”, it cannot be said to
refer to one specific marriage, i.e. any marriage between the parents of the
child. The complainant also sought to rely on Interpretation Act to argue that
a different interpretation should be given to the words used in the section,
having regard to the shoulder note and what was not contained in the Act’s
preamble or Long Title. However, the words and subsections of section 462B are
clear that it defines eligibility of both “primary” and “secondary” claimants.
It is a clear requirement of both sets of claimants that they not be married or
in a civil partnership (or if married or in a civil partnership, they must be separated)
or not cohabiting. The complainant makes the point that a relationship with a
third party cannot impact on an otherwise eligible parent from accessing the
credit. Irrespective of the logic of this argument, given the plain meaning of
the words used in the statute, it follows that they cannot be given anything
other than the ordinary and readily-discernible meaning gleaned from their
reading. Section 462B requires that any claimant, including a relinquishing
“primary claimant” must not be married etc. What the complainant has
articulated is that this is “absurd” in the sense of policy, as opposed to the
strict legal definition of absurd. In reaching this conclusion, I have regard
to Kinsella
v Dun Laoghaire Rathdown County Council
[2012] IEHC 344, where Hogan J. considered the duties of housing authorities
pursuant to the housing assessment regulations and held that the Court was
bound to apply the clear meaning of the words used in statute, holding “It goes without saying that the
judicial branch cannot choose as between these policy perspectives, still less
could I reject the latter interpretation because, for example, I deemed it to
be to be unreasonably broad or even an absurd policy choice. If - as is the
case here - a particular policy choice is expressed in clear and unambiguous
language by the Oireachtas, then it is task of the judicial branch to give
effect to it.”

4.7 I have found that the respondent has
implemented the enactment as provided by section 462B of the Taxes
Consolidation Act. It follows that the action of refusing the complainant the application
for the 2014 tax credit falls within the scope of section 14 of the Equal
Status Acts. The complaint, therefore, does not succeed.

5. Decision:

5.1 The refusal by the respondent of the complainant's
application for the Single Person Child Carer Tax Credit is required under
an enactment, namely section 462B of the Taxes Consolidation Act. Pursuant to
Section 14 of the Equal Status Acts, the refusal is not a prohibited act and
the complaint does not succeed.

______________________________

Kevin Baneham

Adjudication Officer / Equality
Officer

May 2016