Equal Status Acts 2000- 2011
DECISION NO. DEC-S2017-004
PARTIES
Mr Bernard Costello
AND
Department Of Social Protection
File Reference: ES/2013/0094
Date of issue: 21 December 2017
1. DISPUTE
1.1 This dispute concerns a claim by Mr Bernard Costello that he was discriminated against by the Department of Social Protection on age grounds in terms of Section 3(1) and Section 3(2)(f) contrary to Section 5 of the Equal Status Acts in relation to access to a service . A concurrent claim for Victimisation was retracted .
1.2 The complainant referred a claim to the Director of the Equality Tribunal on August 27, 2013 under the Equal Status Acts .
1.3 On 23 August 2016, in accordance with his powers under the Equal Status Act , the Director delegated the case to me, Patsy Doyle, an Adjudication / Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Acts, on which date my investigation commenced. Submissions were received from both sides. As required by Section 25(1) and as part of my investigation, I proceeded to a hearing in the case on 9 September 2016.
1.4 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.
1.5 On 10 February 2016, The WRC issued a Direction in this case under Section 21 of the Equal Status Acts 2000-2011 . The complainant had referred his complaint to the then Equality Tribunal on age and victimisation grounds on 27 August 2013, alleging that he had been discriminate against on the age ground by a Government Dept. on 8 May 2013.A question of compliance with statutory time limits had arisen.
1.6 Mr Peter Healy , Adjudication /Equality Officer directed :
“I am therefore empowered under the Acts to accede to the complainants application to direct that an extension of time for notification to four months be given in this case “
The case proceeded on that basis .
2 Summary of the Complainant’s Case
2.1 The complainant states that on May 3, 2013 that he approached the Offices of the Dept. of Social Welfare ( DSP ) in Cork to ask advice on his return to the State . The complainant is a UK national , who had lived in Ireland previously .He submitted that he had been dealt with badly and had received a poor reception at the DSP Offices at an impromptu meeting on May 3, 2013 . He stated that he would be signing on for Benefits on the following Tuesday .He contended that he was informed that he would not receive benefits as he had a house active in the UK .
2.2 He approached NASC ( Irish Immigrant Support ) for advice and assistance with his appeal of this decision. NASC obtained documentation under the Freedom of Information Act on information held on the complainant by DSP. In particular, he drew the attention of the hearing to a report and recommendation of a Community Welfare Officer, Ms CW in his case, dated 8 May 2013 and submitted a one page document in evidence . A short extract is attached.“ ……He is currently residing in X Hostel and in my opinion his prospect of work is low due to his age and the huge demand for jobs for the people already residing here ….Client will be refused housing as he has no local connection here and he voluntarily made himself homeless by moving and leaving accommodation in the UK .”The complainant told the hearing that his Appeal directed by NASC had been successful and he had received arrears in benefits some six months later. He has been living here in Ireland on a continuous basis since. He was very troubled by the disrespect shown to him by DSP and wished for his claim of discrimination alone to be investigated and sought redress. He submitted that his age had been used against him and he had been denied social activity, when the deciding officer told him that:“ I am not going to pay you and They won’t pay you either ….. “ ( referring to the Job Seekers Benefit Section ) Every single item on the report of May 8, 2013 was negative.The effect of this was that he was denied a Hostel placement and a subsistence payment which caused him hardship.2.3
2.3 The complainant submitted his ES1 form to the DSP on July 8 2013.He received a reply on ES 2 form dated August 7, 2013 The ES 2 form stated that: “ You first attended DSP on April 25, 2013.As is normal procedure, I conducted an interview with you, noting as much information as possible in order to establish any entitlements available to you . I set out the standard procedures that apply in the Homeless Persons Unit (HPU),and the qualifying conditions for payment Supplementary Welfare Allowance outlining habitual residency conditions .….. I offered you the option of financial assistance to return to the UK …..The statement went on to confirm that the complainant had submitted an application for SWA on 8 May 2013 which was under appeal .The complainant submitted his ES 3 form to the then Equality Tribunal on 27 August 2013 and outlined his complaint :
“ …An opinion that my prospect of work is low due to my age …” which was detailed on 8 May 2013 by Ms CW on a DSP report …”
The complainant contended that there was no need to refer to or use his age in either an opinion or in forming a decision , imputing the ability to obtain work, irrespective of the reply on ES 2 and its untruths .
2.4 The complainant submitted a copy of a letter from the DSP dated August 16, 2013.This outlined that a Divisional Manager for the DSP met with the complainant in the context of his “ complaint regarding services” on July 19, 2013. He confirmed that he had received and accepted a personal apology , but this did not address the “ age “ complaint which remained live .
3 Summary of Respondent’s Case
3.1 The respondent denied discrimination .The respondent referred to records where the complainant first presented to the Homeless Persons Unit of DSP on 25 April, 2013.
This office provides a specialist service combining income support and accommodation assistance to homeless persons .Customers are most commonly referred either from other DSP/ Homeless Support Offices where they had been unable to satisfy the criteria for benefits .
On April 25, 2013, Ms CWO interviewed the complainant as a designate person with decision making capacity .She explained the services available , the qualifying conditions for Supplementary Welfare Allowance including habitual residence conditions. It was the respondents case that the complainant left without taking an SWA application form or making an application for income support .
The respondent confirmed that the complainant returned to the office on 8 May and submitted his application for Swathe form was accepted and processed .
The respondent submitted that Eligibility for SWA is determined under Chapter 9 of the Social Welfare ( Consolidation) Act 2005 and in the Supplementary Welfare Allowance Regulations SI 412 2007. Ms CWO issued her decision to refuse the complainant SWA on 9 May 2013 stating :
You have no established pattern of genuine employment in Ireland . The length and continuity of your residence in Ireland does not support habitual residence. You have no close links or ties with Ireland . Your main centre of interest is not Ireland , You have lived most of your life in the UK. From the evidence provided there is nothing to substantiate that you are a habitual resident in the State . You cannot be considered as a former EEA Worker as you have not worked here since 2008 and no current work record since your arrival back to Ireland. You cannot be considered as a former EEA worker as you have not lived here continuously. You voluntarily deprived yourself of an income by leaving UK and moving to Ireland “
3.2 The respondent asserted that the complainant was treated no differently than any other customer in a comparable situation would have been treated and that a single reference to his age in a two page CWO report does not ,and by no reasonable measure could be held to , amount to discrimination as defined in Equality Legislation .
(a) The complainant received information in the same manner and to the same extent as any other customer of the DSP.
(b)Neither the grounds used to assess habitual residence or the manner in which they were applied in the case make any reference to the complainant’s age.
(c ) As a payment of last resort for those in financial need, SWA was deliberately constructed with some aspects of discretion open to the CWO , having regard to the typically extreme circumstances surrounding these payments .That is the reason behind the interview accompanying the application .
(d) Identity , Place of residence and property and financial means information will be captured .SWA reports may also include references to a customer’s age/time of life , general health, education status , family circumstances and information of a personal nature which the applicant choses to divulge to CWO .These factors are not linked to establishing statutory payments but “ may only be note in respect of the discretionary element attaching to SWA.
( e) Age has no bearing in assessing habitual residence where the five factors to be assessed are
- Length and continuity of residence in Ireland
- Length and purpose of any absence from Ireland
- Nature and pattern of employment
- Main Centre of Interest
- Future Intentions to live in Ireland
Age was not mentioned in the letter of refusal of 9 May 2013.The application was assessed entirely in line with applicable guidelines and procedures
3.3 The DSP issued two apologies to the complainant by phone and letter . The apologies were given in recognition of the complainant’s sincerely held belief that his treatment by DSP fell short of the standard he expected .
The respondent concluded that while the DSP acknowledged the complainants upset at a refusal of his application for financial assistance , he had not produced evidence supporting an allegation of discrimination on the grounds of age as defined in legislation .Any other customer making an SWA application in the same circumstances would have been assessed against the same criteria as those applied to the complainant which did not include age .
4. Conclusions of the Equality Officer
4.1 The Equality Officer/Adjudication Officer must first 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 in a claim of discrimination. 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. 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, both written and oral, made to me by the parties to the case
4.2 In the instant case, the prohibited conduct was referenced by the complainant as the mention of his age in the Report dated May 8, 2013 retrieved via Freedom Of Information procedures
4.3 Discrimination under the Acts is defined in Section 3 of the Acts Discrimination (general).
3.— (1) For the purposes of this Act discrimination shall be taken to occur — ( 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) or, if appropriate, subsection (3B) , (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,
4.4 There was conflict in the record of the complainant’s attendance at the Homeless Unit. The respondent was clear that the first meeting was on April 25, 2013. The complainant was equally clear that his first meeting was on May 3, 2013. I find that I have resolved this conflict in favour of the respondent’s account of the time line in light of the evidence submitted at the hearing from Ms. CW.
4.5 It is clear that the complainant was dissatisfied with his experience on that first occasion .He told the hearing that it was his wish to reside in Ireland and obtain work and he believed that his age at the time, 59 was not an obstacle to that plan . I could see that the complainant presented as very distressed by his viewpoint that his age should not have been mentioned against the decision making criteria for his allowance claimed . I have sought to examine this position from both parties perspectives in my investigation.
4.6In G VDept. of Social Protection [2015]IEHC 419. O Malley J in the High Court in dismissing the appeal regarding maternity benefit in a surrogacy situation stated :
, that the 2000 Act, as a remedial statute with the intended purpose of reducing the social wrong of discrimination based on improper considerations, must be liberally construed (Bank of Ireland v Purcell[1989] I.R. 327; Gooden v St Otteran's Hospital[2005] 3 I.R. 617 considered). The 2000 Act was intended to cover a broad range of human life and activity and therefore could be relied on in novel factual situations even though they were not familiar to the legislature at the time of the enactment.
The service provided by the respondent was the operation of the statutory code and of other non-statutory payments.
4.7 The issue of the substantive appeal of the DSP refusal to grant the SWA payment to the complainant in May 2013 has long been concluded in the complainants favour . The sole issue before me is the reference to age on the one page document dated May 8,2013 which was submitted by the complainant .The respondent was in agreement with the complainant that “habitual residence” was not linked to age .
I am mindful by the comparative analysis engaged by the respondent during the course of the hearing where they referenced having to ascertain applicants ages in the course of their application for benefits . They cited in particular that a 19 year old applicant for benefits would not be permitted into a Simon Hostel and that information on age in that situation was justified as a protection measure .
4.8 I have examined the Codes cited by the respondent as the statutory frameworks for decision making. Chapter 9 of the Social Welfare (Consolidation) Act 2005 and in the Supplementary Welfare Allowance Regulations SI 412 2007. I note the discretion of the Designated Person with regard to the application of the allowance or otherwise .
4.9 I have found during my investigation that the complainant appeared to personalise his disappointment squarely against Ms CW from the outset in his bid to secure a service . He submitted documents where she was named rather than the Department and it clear the initial conversation he had with her had a lasting negative effect .He was clear that his self confidence had been diminished.
4.10 I am satisfied that there was no mal intent on the respondents behalf in managing the complainants application . However, from the totality of the evidence adduced , I am satisfied that the complainant has established a prime facie case of discrimination on grounds of age in terms of S.3(a)(iv) where he raised the presumption that he was treated less favourably because his age was unfavourably imputed in the course of his application for a Social welfare benefit .The respondent has not managed to rebut that presumption .
I have considered the extensive submissions of the respondent and I appreciate that the intended reference to age was factual in the course of an information gathering and recording exercise necessary under the Acts, however , given the discretionary power of the Designate person in terms of deciding to grant the allowance , I have found that reference to age serving as an impediment to employment constituted a discriminatory remark .I note that the complainant submitted just page one of a two page document in this regard .
5 Decision
5.1 In accordance with Section 25(4) of the Equal Status Acts , I conclude my investigation and issue the following decision .
5.2 I find that the complainant has established a prima facie case of direct discrimination on the grounds of age .
5.3 In accordance with Section 27 of the Acts , I order the respondent to pay the complainant €800.00 in compensation for the distressed caused .
5.4 In addition and in accordance with Section 42(2) of the Irish Rights and Equality Commission Act, 2014, I request that the respondent promotes the IHREC ( Irish Human Rights and Equality Commission) 40 minute on line training module, Delivering Equality in Public Services in Ireland : for front line managers for the attention of all Designated persons involved in decision making within 6 months from the date of this decision .
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Patsy Doyle
Equality Officer/Adjudicator .
Dated : 21st December, 2017