EQUAL STATUS ACTS 2000-2015
Decision DEC – S2016 – 076
PARTIES
Mr Joseph Merry
and
Office of the Revenue Commissioners
File Reference: et-149772-es-14
Date of Issue: 29th November 2016
Keywords: S. 14 – actions carried out as required by statute outside the remit the of the Equal Status Acts –S. 20 time limits – renewed action by respondent brings parts of complaint into time – no link to protected ground on substantive complaint – no prima faciecase.
1. Claim
1.1. The case concerns a claim by Mr Joseph Merry, that the Office of the Revenue Commissioners discriminated against him on the ground of marital status, family status and disability contrary to Sections 3(2)(b), (c) and (g) of the Equal Status Acts 2000 to 2011, in terms of withdrawal of a particular tax credit following the complainant’s divorce. The complainant also complains of victimisation.
1.2. The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 17 October 2014. A submission was received from the complainant on 21 June 2016. A submission was received from the respondent on 10 August 2016. On 15 September 2016, in accordance with her powers under S. 25 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. On this date my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 25 November 2016.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that the respondent withdrew a flat rate tax credit, for nurses who supply and launder their own uniforms, from him on marital status grounds, because he is divorced. The connection between the ground and the respondent’s action is not clear from the complainant’s submission. The complainant states that this alleged discriminatory action started on 8 July 2011 and is continuing.
2.2. The complainant further submits that the respondent removed the incapacitated child tax credit from him following his divorce, instead of splitting the tax credit between him and his ex-wife. He also states that a named official of the respondent organisation revoked the payments for this tax credit entirely, not just the overpayments. The complainant states that this is discriminatory against him as a parent of a disabled child and hence constitutes discrimination on the grounds of marital status, family status and disability. The complainant further states that in his view, it was discriminatory of the named official to request receipts from the complainant, in respect of his son’s maintenance. The complainant dates this as ongoing from 8 July 2011.
2.3. Last, the complainant submits that the threat of a €6000 fine by the respondent is discriminatory on the ground of marital status and family status. Again, the connection between the ground and the respondent’s action is not clear. The complainant dates this event as 23 October 2014.
2.4. The complainant does not set out any complaint of victimisation in his written submission.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies that it discriminated against the complainant in any way. It notes in its submission that the flat rate expense deduction for nurses is an agreed tax deduction available to individuals employed as a nurse. The maximum allowance of €733 is available to individuals employed as a nurse who supply and launder their own uniform. The respondent further notes that a tax deduction is also available under S. 114 of the Taxes Consolidation Act 1997, as amended, where an individual incurs expenses wholly, exclusively and necessarily in the performance of the duties of his or her employment. It is the respondent’s position that the provision of suits in respect of an employment, such as the complainant’s role as a Senior Outreach Officer, does not satisfy this statutory requirement as they are not exclusive to the exercise of the duties of his employment.
3.2. With regard to the incapacitated child tax credit, the respondent states that this is governed by S. 465 of the Taxes Consolidation Act. It notes that only one tax credit is allowed per child, and that when the child is maintained by one parent only, that parent is entitled to claim the credit. If the child is maintained by both parents, each parent is entitled to claim such part of the tax credit as is proportionate to the amount expended by him or her on the maintenance of the child. The respondent states that the complainant failed to provide evidence of the financial support he provided for his son, and accordingly, the credit was withdrawn.
3.3. With respect to the penalty imposed on the complainant, the respondent notes that pursuant to s. 864 of the Taxes Consolidation Act, any person who makes a false claim will be liable to a penalty of €3000. This penalty was imposed on the complainant in line with the respondent’s compliance code, and settled by the complainant for €300.
4. Conclusions of the Equality Officer
Preliminary issues: Section 14 exemption and time limits
4.1. The preliminary issues for decision in this case are whether the Commission has jurisdiction to investigate the matter, given that S. 14(1) of the Equal Status Acts provides that
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
[…]
4.2. I requested detailed information on the statutory provisions on which its actions were based from the respondent ahead of the hearing, and received same by post on the morning of the hearing. The complainant was also copied on this correspondence. From the information received, I am satisfied that the complainant’s complaints regarding the Incapacitated Child Tax Credit, and the discrimination complaint regarding the penalty imposed on him by the respondent (which could also be understood as victimisation, for which the complainant made no argument), are in fact comprehended by Sections 465 (Incapacitated Child Tax Credit) and 864 (Making of claims etc.), of the Taxes Consolidation Act 1997, as amended. Both of these sections are very detailed and I am satisfied that they encompass the respondent’s actions in its dealings with the complainant in relation to these two issues. The complainant argued that the respondent made mistakes in their implementation which resulted in discrimination; however, the provisions of S. 14(1) of the Equal Status Acts mean that such alleged mistakes are outside the Tribunal’s jurisdiction. The appropriate remedy for such a situation arising from the administration of a statute would be judicial review proceedings.
4.3. Accordingly, I am satisfied that pursuant to the provisions of S. 14(1), I have no jurisdiction to investigate the complainant’s complaints of discrimination with regard to the issue of his Incapacitated Child Tax Credit, or regarding the financial penalty imposed on his for wrongly claiming tax credit, regardless of whether one understands this as discrimination or victimisation.
4.4. With regard to his Flat Rate Expense Tax Credit, the respondent stated in evidence that whilst S. 114 of the Taxes Consolidation Act, 1997, governs the principle of the Flat Rate Expense Tax Credit, the specific rules for individual professional groups were arrived at by the respondent in consultation with those groups and are not statutory. This includes the rule that nurses can only claim the tax credit in respect of nursing uniforms. The complainant wears business suits for his work. It is the respondent’s position that a business suit is not an expense “wholly, exclusively and necessarily” incurred in the performance of the complainant’s duties and hence should not attract the tax credit.
4.5. Be that as it may, I am satisfied that the complainant’s complaint on the Flat Rate Expense Tax Credit does not fall under the exemption of S. 14(1), as the specific rules which govern this scheme for various professions are not statutory, and hence constitute no bar to my investigation.
4.6. The second preliminary issue is whether the complaint was brought in time. The Flat Rate Expense Tax Credit was originally withdrawn from the complainant in July 2011; however, he re-applied for it, and after a further review of his tax credits by the respondent, it was withdrawn from him again on 28 March 2014. The complainant brought his complaint on 17 October 2014. Whilst this is outside the six-month time limit set down in S. 20 of the Acts, the complainant is not much delayed in bringing his complaint. He also stated in evidence that he suffered serious illness in 2013, and although he did not bring evidence for this at the hearing, I am prepared to give the complainant the benefit of the doubt and not obstruct his access to justice. I am also mindful that the complainant is unrepresented. Accordingly, I am willing to extend time pursuant to my powers in S. 20(5)(b) of the Acts, and investigate this complaint.
4.7. I will now proceed to consider the merits of the substantive case.
Substantive Case
4.8. The main issue for decision in this case is whether the complainant was discriminated against on the ground of marital status because the respondent twice removed the Flat Rate Expense Tax Credit for nurses from him.
4.9. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 38A of the Acts. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him, and how it is connected to the protected ground. 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.
4.10. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.11. In response to my direct question on how a tax credit for professional clothing could possibly be connected to someone’s marital status, the complainant stated plainly that he did not know this. Based on this evidence, I am satisfied that the complainant has failed to establish a prima facie case of discrimination, since, as stated above, demonstrating a link between the acts complained about and the protected ground is firmly on the complainant in any possible complaint of discrimination. I find it impossible to see how such a link could exist in the within case. The respondent reiterated its position that the tax credit was withdrawn because a business suit is not an expense “wholly, exclusively and necessarily” incurred in the performance of the complainant’s duties, contrary to the provisions of S. 114 of the Taxes Consolidation Act, 1997. It disputed, credibly in my view, that a tax credit for expenses incurred in professional clothing could conceivably linked to a person’s marital status at all. I concur. For this reason, the complaint must fail.
5. Decision
5.1 Based on all of the foregoing, I find, pursuant to Section 25(4) of the Equal Status Acts, that the provisions of S. 14(1) of the Acts prevent me from having jurisdiction regarding the complainant’s complaints regarding the withdrawal of his Incapacitated Child Tax Credit and his complaint of victimisation and that these parts of his case are therefore misconceived pursuant to S. 22 of the Acts; and that the Office of the Revenue Commissioners did not discriminate against the complainant on marital status with regard to the withdrawal of his Flat Rate Expense Tax Credit for professional clothing.
______________________
Stephen Bonnlander
Equality Officer/Adjudication Officer
29 November 2016