Complainant

Respondent

Anonymised Parties

An Individual

A Government Department

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00003111-001

07/03/2016

The Complainant applied for an Invalidity Pension (IP) on 13 April   2015. She was notified on 22 April 2015 that her application was refused on   the grounds that the PRSI contribution conditions for the scheme were not   satisfied.

The Complainant sought a review of the decision and, following consideration   of her case by a Deciding Officer in the Department of Social Protection, the   original decision was upheld. The Complainant then exercised her right to   appeal the decision to the independent Social Welfare Appeals Office (SWAO).   Following consideration of her case by an Appeals Officer, who fully   considered all of the evidence presented, the Complainant was notified that   the Department's original decision was upheld and her appeal was disallowed.

The Complainant stated in evidence that the requirement to have a   minimum number of paid contributions in order to qualify for the IP   discriminated against people like her, who, due to a disability, have an   inconsistent and limited working history.

The Complainant stated that due to her disability she would probably   never be able to work and satisfy the criteria to qualify for the IP.

The Complainant stated in evidence that she has no control over her medical   disability and her efforts to work have been made almost impossible by her   physical health.

The Complainant contends that someone suffering from a serious   disability, as she is, could not possibly be treated equally to others.

While acknowledging that she is currently in receipt of the Disability   Allowance (DA), the Complainant contends that the means test applying to the   DA discriminates against her, her partner and their two children on the   grounds of family status. The Complainant contends that if she were to   cohabit with her partner (the father of her two children), their combined situation   would be means tested and as a result she would lose the DA.

In response to this complaint, the Respondent outlined that there   are three Social Welfare schemes in place to support citizens who are not in   a position to work as a result of illness or disability.

The first scheme, Disability Allowance (DA) is a weekly allowance   paid to people with a specified disability who are aged over 16 and under 66.   The disability must be expected to last for at least one year and the   allowance is subject to a medical assessment, a means test and a habitual   residency test.

The Respondent stated in evidence that the Complainant has been in   receipt of DA, at the maximum weekly personal rate, since October 2009.

The second scheme is Invalidity Pension (IP). The Respondent stated   in evidence that IP is a social insurance based payment, the objective of   which is to provide insured workers and their dependents with security   against loss of personal income in the event of illness, disability and/or   occupational injuries which render the insured worker incapable of working.

The Respondent stated that the IP is funded from the Social Fund and   any deficits in funding are made up from general taxation. The Respondent   further stated that the IP scheme is means tested because it is targeted at   recipients who need it most.

The Respondent submitted in evidence that to qualify for an   Invalidity Pension, claimants must, inter alia, have at least 260 (5 years)   paid PRSI contributions since entering social insurance and have 48   contributions paid or credited in the last complete contribution year before   the date of their claim.

It was also submitted that, according to Section 119 (1) of the   Social Welfare Consolidated Act 2005 only PRSI classes A, E or H contributions   are reckonable for IP purposes.

With regard to the Complainant's individual situation, the   Respondent stated that according to their records the Complainant had a total   of 67 contributions paid, with none paid or credited in 2014.

The Respondent stated in evidence that the Complainant's application   did not satisfy the PRSI contribution criteria for IP and, consequently, her   application was rejected.

The third scheme in place is called Supplementary Welfare Allowance.   The scheme is described as a final "catch all" for people who do   not qualify for the DA or IP schemes. This scheme has no particular relevance   in this case as the Complainant is in receipt of DA and her complaint relates   to the rejection of her application for IP.

Prior to considering the substantive elements of this claim, I must   first decide whether or not I have jurisdiction to investigate this claim.

The Equal Status Acts 2000-2015 (‘the Acts’) prohibit discrimination   in the provision of goods and services, accommodation and education.

The Acts cover the nine grounds of gender, marital status, family   status, age, disability, sexual orientation, race, religion and membership of   the Traveller. In addition, the Acts prohibit discrimination in the provision   of accommodation services against people who are in receipt of rent   supplement, housing assistance, or social welfare payments.

Section 14 of the Acts sets out certain measures or activities which   are not prohibited, as follows:

“ 14 (1) 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,

Section 2 of the Interpretation Act 2005 defines an “enactment” as “an Act or a statutory instrument or any portion of an Act or statutory instrument”.

A “statutory instrument” means   “an order, regulation, rule, bye-law,   warrant, license, certificate, direction, notice, guideline or other like   document made, issued, granted or otherwise created by or under an Act and   references, in relation to a statutory instrument, to “made” or to “made   under” include references to made, issued, granted or otherwise created by or   under such instrument”.

I note that in his commentary on Section 14 (a) of the Equal Status   2000 in the Annotated Statutes for 2000 by TJ McIntyre (at pages 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 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.”

Additionally, in a legal opinion sought by the Equality Tribunal in   relation to the construction of Section 14 (a) (i), in respect of another   case, the senior counsel’s opinion included:

” [The complainant] has chosen   to make a claim under the Act, rather than proceeding by way of judicial   review. If he wishes to challenge an administrative decision that is   ordinarily done by way of judicial review. If he wishes to assert that a   statutory regime violates his personal rights as a citizen it is open to him   to so do by constitutional challenge, whether by way of judicial review, or   by plenary proceedings. Likewise, if he wishes to assert that the regulations   contravene the European Directive, he can issue proceedings to assert that   claim. What Section 14 (A) (i) makes clear is that he is not entitled to   avail of the Equal Status Act 2000 for the purpose of impugning a statutory   regime as one might do for example in a constitutional challenge.”

The conditions pertaining to and the provisions governing   qualification for an Invalidity Pension are set out in Section 119 (1) of the   Social Welfare Consolidated Act 2005, as follows:

“The contribution conditions   for invalidity pension are that before the relevant date the claimant has–

(a)   qualifying contributions in respect of not   less than 260 contribution weeks since his or her entry into insurance, and

(b)   qualifying contributions or credited   contributions in respect of not less than 48 contribution weeks in the last complete   contribution year before that date.”

Having carefully considered the evidence presented, I am satisfied   that the Complainant’s application for invalidity pension was dealt with in   accordance with these provisions. The Complainant’s application for   invalidity pension was rejected on the basis that she only had 67   contributions paid, none of which were paid or credited in the year before   the application.

Having carefully considered all the evidence adduced, the   representations made and in line with the considerations/findings as detailed   above, I find that the claim in question is based on the provisions of the   Social Welfare Consolidation Act 2005. These are enactments and as such the   claim falls under Section 14 (1) (a) (i) of the Equal Acts.

Consequently, I have no jurisdiction to consider the complaint of   discrimination as referred by the complainant.

Equal Status Acts

Social Welfare Consolidation Act

Disability Allowance

Invalidity Pension