EQUAL STATUS ACTS
DECISION NO. DEC-S2016-060
PARTIES
Ms. Georgina Maher Brosnan
-v-
The Department of Education
(Represented by Sarah-Jane Hillary Barrister instructed by Tony Joyce Solicitor)
FILE NO: ES/2013/0045
Date of issue: 30th of September, 2016
1. Dispute
This dispute involves a claim by the complainant
that she was discriminated against by the respondent, on grounds of family status and marital status in relation to a decision not to award her the Special Rate Maintenance Grant for her college education.
Background
2.1 The complainant referred a complaint under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 14th of May, 2013. The complainant submits that she was refused the Special Rate Maintenance Grant for her college education on the marital status and family status grounds due to the fact that her application was assessed based on the income of her mother who was deemed not to be in receipt of a qualifying benefit for the purpose of the grant, instead of her stepfather who was in receipt of a qualifying payment, in circumstances where her stepfather was deemed not to be her “parent” for the purposes of the assessment. In addition she submits that the refusal was due to marital status on the basis of her mother’s marital status.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 and under the Equal Status Acts, 2000-2015, the Director General delegated the case on the 16th of November, 2015 to me Orla Jones, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 3rd of May, 2016. Final correspondence from the parties was received on 28th of June 2016.
2.3 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 84(3) of the Workplace Relations Act, 2015.
3. Summary of complainant’s case
3.1 The complainant submits that
she made an application for the Special Rate Maintenance Grant to Kerry Education Service and was refused due to the fact that her application was assessed in accordance with her mothers income and her mother was not in receipt of one of the specified eligible payments which would make the complainant eligible for the grant,
she appealed this decision to the Student Grants Appeals Board and was refused again,
her application should have been assessed based on the income of her stepfather, Mr. B who was in receipt of Job seekers benefit, which is a specified eligible social welfare payment,
the complainant’s mother is married to the complainant’s stepfather Mr. B and they have lived together for a number of years but he is not deemed to be a “parent” of the complainant for the purposes of the Special Rate of Maintenance Grant assessment,
the specified social welfare payment which the complainant’s stepfather, Mr. B is in receipt of, is Jobseekers benefit and although it is in his name elements of the payment are for his wife Ms. M and for their four children,
the complainant’s mother prior to marrying Mr. B was in receipt of a deserted wive’s benefit which is a specified eligible social welfare payment for the purpose of the grant assessment,
if the complainant’s mother had not married Mr. B she would have remained on deserted wives benefit and so her daughter would have received the Special Rate Maintenance Grant,
Mr. B should be considered to be the complainant’s parent for the purposes of the grant assessment and the complainant would then qualify for the Special Rate of Maintenance grant as he was on Job seekers benefit,
4. Summary of Respondent’s case
4.1 The respondent submits that
the complainant was not discriminated against on either of the grounds specified,
the complainant was refused the Special Rate of Maintenance Grant as she was not in receipt of a specified social welfare payment as set out in Schedule 2 of the Student Support Grant Act 2011,
the assessment for eligibility is based on the income of the student and her parents and has to meet two criteria i.e. income of the assessed parent must be under a specified amount and the parent must be in receipt of a specified social welfare payment,
the complainant was assessed based on her mother’s income, in accordance with the details provided in her application form, which did come under the income ceiling but she did not meet the second criteria of being in receipt of a specified social welfare payment,
the complainant was assessed based on her mother’s income, which included maintenance payments from the complainant’s birth father, in accordance with the details provided in the complainant’s application form
the complainant was not assessed on her stepfather’s income as he was not a guardian and was not deemed to be her ‘parent’ in accordance with the definition contained in Section 2 of the Student Support Grant Act 2011,
5. Preliminary Jurisdictional Issues –
5.1 A number of preliminary and jurisdictional issues were raised by the respondent at the hearing of this matter, including a submission by the respondent that the present complaint is inadmissible as it relates to an action required under Statute.
5.2 The respondent denies that the complainant was subjected to discrimination. The respondent advised the hearing that the assessment for the Special Rate Maintenance Grant is governed by legislation and Statute and that the Workplace Relation Commission is not entitled to overrule a Statutory Instrument. The respondent advised the hearing that the complainant’s application was assessed in accordance with the criteria set out in the Student Grant Scheme 2011 S.I. No. 305 of 2011 which operates under the Student Support Act 2011, Number 4 of 2011, which set out the eligibility criteria under which applicants are assessed for the Special Rate Maintenance Grant. The respondent submits that the complainant was assessed as a ‘dependant student’ in accordance with Article 12 of the Scheme. The respondent further submits that Article 20 of the Scheme provides that it is the income of the ‘dependant student’ and their parents that is taken into account and where the parents are divorced, it is the income of the applicant and the parent with whom the student resides that is assessed. The respondent submits that the complainant in this case was assessed based on her mother’s income as she is the parent with whom the student resides. The complainant was awarded the full standard rate of grant (100%) based on the income assessed. The respondent advised the hearing that in order to qualify for the additional Special Rate Maintenance grant the reckonable income must also include one of the specified social welfare payments which the complainant’s mother was not in receipt of.
5.3 The complainant's claim is that she was refused a Special Rate Maintenance grant by the respondent because she did not meet the eligibility criteria of having a parent who is in receipt of a specified payment. The complainant submits that her stepfather Mr. B who is married to her mother was in receipt of a specified payment but that his ‘specified payment’ was not considered for the assessment as he is not considered to be her parent for the purpose of the assessment.
5.4 The respondent submits that that the operation of the grant scheme pursuant to the Student Support Act 2011 is constrained by the definition of “parent” which is set out in Section 2 of that Act as follows: “”parent” includes a guardian appointed under the Guardianship of Children Acts 1964 to 1997, and, in the case of a child who has been adopted under the Adoption Act 2010 or, where the child has been adopted outside of the State, means the adopter or adopters or the surviving adopter;” . The definition of parent is therefore prescribed by Statute and it is respectfully submitted that the Workplace Relations Commission cannot look behind that. The respondent submits that the appropriate forum to take issue with any legislation is the High Court.
6. Conclusions of the Equality Officer
6.1 The first matter I have to decide is whether I have jurisdiction to investigate the present complaint. The respondent has submitted that I do not have jurisdiction to investigate the complainant on the basis that the eligibility criteria to qualify for the Special Rate Maintenance Grant is provided for in legislation. The respondent advised the hearing that the complainant did not meet the eligibility criteria as prescribed in the legislation, and therefore, the taking of any action that is required by an enactment does not constitute discrimination in accordance with the provisions of Section 14(1)(a)(i) of the Equal Status Acts.
6.3 I note that the eligibility criteria for the Special Rate Maintenance Grant is set out in the Student Grant Scheme 2011 S.I. No. 305 of 2011 which operates under the StudentSupport Act 2011, Number 4 of 2011 and I have to consider the application of Section 14(1)(a) of the Equal Status Acts which 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,"
6.4 In considering the application of this Section, 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."
6.5 I am satisfied from the totality of the evidence adduced that the Student Grant Scheme 2011 has statutory underpinning. I note that the complainant's claims of discrimination on the family status and marital status ground relate to eligibility criteria set out in the Student Support Act 2011, Number 4 of 2011 and the Student Grant Scheme 2011.
These two pieces of legislation set out the eligibility criteria for the granting of the Special Rate Maintenance Grant and define the word "parent" for the purposes of eligibility for the grant. I am satisfied that the above cited legislation is exempt from consideration by me pursuant to Section 14(1)(a)(i) of the Equal Status Acts. The "action" by the respondent in assessing the complainant’s eligibility in accordance with the eligibility criteria and applying the definition of "parent" as defined in the Act, and in refusing the complainant a grant because she does not meet the eligibility requirements, is required under an Act and a Statutory Instrument and is not a prohibited act.
7. Decision
7.1 The application of the criteria set out in, the Student Grant Scheme 2011, S.I. No. 305 of 2011, which operates under the Student Support Act 2011, Number 4 of 2011, to the complainant’s assessment for entitlement to a Special Rate Maintenance Grant is required under an enactment and therefore under Section 14(1)(a)(i) of the Equal Status Acts it is not a prohibited act. Accordingly, I find I have no jurisdiction to consider the complaint of discrimination referred by the complainant.
___________________
Orla Jones
Adjudication Officer/Equality Officer
30th of September, 2016