ADJ-00008117

Complainant

Respondent

Anonymised Parties

 A Complainant

 A Health Insurance Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00010729-001

10/04/2017

The dispute concerns a claim by the Complainant that she was discriminated against by the Respondent on the grounds of age in terms of Section 3 (2) (f), contrary to Section 5 of the Equal Status Acts, 2000 – 2015 relating to the terms of a health insurance policy sold to her which did not cover the Complainant for the provision a mammogram when she was aged over 70 years of age.

The Complainant renewed her VHI membership in January 2016 as she had done since 2005. 

She was issued with a membership certificate for the plan purchased which set out the policy details. The Complainant understood that she had full cover for a mammogram in an approved mammogram centre. The Complainant submits that the information furnished to her was inaccurate, false and misleading. 

The Respondent declined to cover her mammogram cost on the 31^st May 2016. She was advised this in a phone call on the 30^th May 2016. 

The Complainant took this as a breach of contract and terminated her contract with them.  She had paid half of the premium due on the 29^th January 2016. She did not pay the balance of the premium due. 

The Complainant gave evidence that she was advised in a telephone call with a member of staff with the Respondent that she had cover with the Respondent between January and June 2016. She further confirmed that she moved to a different health insurance company at the end of June 2016.

 The Complainant furnished an ES.1 form to the Respondent on the 9^th of December 2016. The date of unlawful treatment set out in the ES.1 form was 31^st May 2016. The Respondent replied to same on the 3^rd of January 2017.

 The Complainant stated that this date 3^rd January 2017 was the most recent date of discrimination in her complaint form lodged with the Workplace Relations Commission (WRC) on the 10^th April 2017.

 The Complainant didn’t seek advice on her treatment by the VHI for a number of months. This was because she was suffering from financial stress and her brother died during the month of June 2016. It was September 2016 before she attended with advisers and November 2016 before she completed an ES.1 form.

 An application was made to extend the time to bring a claim under section 21(6)(b) of the Act citing the above reasons as reasonable cause to extend the period to 12 months from the date of occurrence of the discrimination.

 The Complainant submitted that she was discriminated against on grounds of age, despite paying the same membership charge as other members. She was treated less favourably than a younger VHI member.

 The Complainant gave evidence that two alternative health insurance providers cover the cost of mammograms for women over 70 years of age.  

The Respondent made a number of preliminary applications: 

The Complainant did not comply with the time limits set out in Section 21(2)(a). 

The Respondent submitted that the date of occurrence of the alleged incident of discrimination was the 31st of May 2016. The Complainant mentioned age discrimination in her call of the 30^th May 2016 to a representative of the Respondent. The claim was only lodged with the WRC on the 10^th of April 2017 outside the six-month time limit and therefore the complaint should be deemed inadmissible. 

The complainant had no locus standi as there was no binding contact between the parties. The Complainant had failed to pay the full premium for the service the Respondent was required to provide. Under the subscription rules of the Respondents terms and conditions, non-payment of the premium constituted a breach of the policy. The Respondent operated a 12-month rule policy. Once the premium was not paid, it constituted a breach of policy and triggered a recovery of losses and expenses. 

The Respondent was entitled to rely on the exemption contained in Section 5 (2)(d)(i). A medical doctor who worked for the Respondent gave evidence as how the Respondent looked at the benefits to providing cover for medical procedures, looked at best quality evidence, took on board the submissions from its own advice group which comprised consultants working in the field. The Respondent relied on a Swedish two country trial the outcome of which was published in the medical journal Future Oncology in 2013 “to screen or not to screen older women for breast cancer – a conundrum”. 

The eligibility criteria for the Mammogram benefit in the Table of Benefits did not contain a blanket refusal for members aged over 70.   The benefits of cover requested a member to contact them for further details. 

The Respondent was entitled to rely on the exemption contained in Section 16(2)(a).

In making my decision, I have considered all the evidence both written and oral made to me by the parties at the hearing of this case.

I accept that the Complainant has locus standi to bring her case as she falls within Section 21(1) the Act. 

The Complainant gave the following evidence: - 

She had a membership certificate with the Respondent from the 1^st January 2016 to the 31^st December 2016. 

She was advised on the phone by a representative of the Respondent that she had cover between 1^st January 2016 and 30^th June 2016.

 The correspondence she received from the Respondent regarding breach of contract for not paying her second moiety was dated 4^th July 2016. The statement of costs from the Respondent stated

 Renewal period: 1 January 2016 to 1 January 2017

Paid up to date:   2^nd July 2016

She considered the contract with the Respondent at an end in May/June 2016 because of it’s refusal to cover the costs of her mammogram.   She did not pay the second moiety of her premium. She paid the levy cost and administration charge required by her. Due to a close family bereavement and financial constraints, she did not take advice on the matter until September 2016. 

She completed the ES.1 form on the 23^rd November 2016 which was outside the 2 month or even 4 month notification period.   She set out in that form that the 31^st May 2016 as the date she was treated unlawfully by the Respondent. 

She lodged her complaint with WRC on the 10^th April 2017. On the complaint form she stated the most recent date of discrimination was the 3^rd January 2017. 

I will invoke Section 21(3)(a)(ii) and direct that Section 21(2) (the notification obligation) is not to be applied in this case. I make this decision following hearing the evidence of the complainant and the fact of the death of her brother in June 2016 and the financial strain that the complainant was under. It is fair and reasonable in those circumstances to make this direction. In addition, the failure to give the notification did not prejudice the Respondent’s ability to deal with the complaint. 

Section 21(4) falls accordingly. 

As regards section 21(6), the Act requires the Complainant to bring her claim within 6 months of the date of occurrence of the prohibited conduct. I have taken that date as at its latest the 2^nd July 2016 being the date that the Respondent noted in its documents that she was paid up to. 

I am distinguishing the facts of this case from the case of King -v- The Voluntary Health Insurance Board DEC– S2008-116.   In that case, there was an ongoing contractual relationship with the Respondent to the end of the renewal period. The alleged discriminatory term in that contract of insurance was an ongoing term throughout the duration of the contract between the parties. 

To be within the time limits of this section, the Complainant should have lodged her complaint by the 1^st January 2017.   The Complainant had attended with her advisers in September 2016 and had completed the ES.1 form on the 23^rd November 2016. 

The reasonable cause the Complainant set out in applying for an extension of time under Section 21(6)(b) was the circumstances of her brother’s death and financial strain before she attended with her advisers.   These explain the delay between the 31^st May 2016 and up to the September 2016 or at the outside 23^rd November 2016. This was before the six-month time limit expired. 

Unfortunately, I cannot concede to the complainant’s application for an extension of Section 21(6)(a) for the reasons given by her as explaining the delay in lodging the complaint. These reasons given pre-date the 23^rd November 2016 and don’t explain the delay between the 23^rd November 2016 and the 10^th April 2017. 

The complaint was lodged outside the time limits set out in Section 21(6) of the Equal Status Acts 2000 – 2015.

Accordingly, I have no jurisdiction to hear this case.

Contract of insurance, time limits, ongoing contractual relationship, reasonable cause.