DEC-S2017-031

EQUAL STATUS ACTS

DECISION NO. DEC-S2017-031

PARTIES

Dominik Halbherr
Complainant

AND

Department of Social Protection
(Represented by Niamh McGowan, BL

instructed by the Chief State Solicitor’s Office)
Respondent

File reference: ES/2012/88

Date of issue: 25th September 2017

1. Introduction:

1.1 On the 23rd July 2012, the complainant referred a complaint pursuant to the Equal Status Acts to the Equality Tribunal / Workplace Relations Commission. The claim relates to discrimination on the grounds of race and marital/civil status as well as victimisation. The complainant had applied for a social welfare payment from the respondent and the respondent is a Government Department.

1.2 On the 24th February 2017, in accordance with his powers under section 25 of the Equal Status Acts, the Director General of the Workplace Relations Commission delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. In accordance with section 25(1) and as part of my investigation I proceeded to a hearing on the 12th April 2017. The complainant attended the hearing in person. Niamh McGowan, BL instructed by the Chief State Solicitor’s Office represented the respondent. Two witnesses attended for the respondent Department. They are referred to in this report as the Deciding Officer and the Office Manager.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

2. Summary of the complainant’s case:

2.1 The complainant asserts that he was discriminated on the grounds of race and civil status in seeking jobseeker’s allowance from the respondent. The complainant is a citizen of Germany and was resident in Spain prior to living in Ireland. In respect of his civil status, he was single. He said that this matter arose following a clerical error which led the complainant to lose his entitlement to jobseeker’s allowance for a period of three months. He had initially lodged the claim in November 2011 after having worked in Ireland for six weeks. He had previously lived in Spain and was unemployed for nine or ten months. He applied for jobseeker’s allowance on the 17th November 2011 via a named office of the respondent in Cork. He returned to the office on a weekly basis to check the progress of his application. In January or February 2012, the respondent informed him that he had failed to respond to correspondence sent to him. This letter, however, had been sent to an incorrect address, an address with which he had never been associated. He looked for his file but was told that it was lost. The complainant had to lodge a second application, which was processed. He received an SWA payment in April 2012.

2.2 The complainant raised the manner in which he had been treated by the respondent with regard to the first application. He was invited to a meeting in March 2012 with a social welfare inspector in the respondent office. He met with the social welfare inspector and was introduced to a man, who the inspector said was a Garda or a former Garda. He was asked for the details of his first application and he learned that the respondent had sent correspondence to an incorrect address. The inspector promised to follow up on the matter, but never did so. There seems to have been a decision made on his first application, but his file was never made available to him.

2.3 In respect of correspondence he sent to the respondent, the complainant said that he had been unfriendly and demanding in these letters but he had not been threatening. He did not believe that the comment made in the letter had been outrageous in the context of how he had been treated. This had been very frustrating. While he had sent angry letters to the respondent, there had been no angry incidents while he was in the respondent offices.

2.4 With regard to discriminatory acts on the race ground, the complainant outlined that he had been told by a male desk clerk in the third hatch to “go back to Germany”. He could not recall whether he had complained about the incident. He referred to an incident of the 24th January 2012 involving a male identified as the same name as the Deciding Officer and another person working on the counter. The complainant outlined that the respondent had never told him that he was entitled to Supplementary Welfare Allowance and he became aware of this possible entitlement through an Irish colleague. He commented that the respondent had wrongly applied the habitual residence test in his case, referring for example to marital status and property ownership even though these factors are not mentioned in the guidelines. He states that the discriminatory treatment includes the delay of six months in processing his application for jobseeker’s allowance and never being told about Supplementary Welfare Allowance.

2.5 In cross-examination, the complainant was asked about his evidence of a second person being at the meeting in March or April 2012 and that this was maybe a Garda; he replied that this person had been introduced as a colleague and he did not think he had been told the person’s name. No-one told him at this point that this person was Garda. It was the Branch Manager who told him in a letter about contacting the Gardaí regarding his behaviour. It was the coincidence of the letter and the meeting from which he inferred that the second person was a Garda. He said that he was unhappy that the social welfare inspector had not allowed him to submit documents. It was put to the complainant that these documents, which related to the status of a migrant worker, were not relevant for his application for jobseeker’s allowance; he replied that he had not known about Supplementary Welfare Allowance. He had tried to establish what criteria were relevant for habitual residence and he had not been asked about local ties. He had wanted to submit documents to show that his centre of interest was in Ireland, for example job applications and offers of employment. The contents of his correspondence of the 24th January 2012 were put to the complainant, in particular the following comments regarding respondent officials “scumbag fraudsters”, “liars and betrayers”, that “names will be recorded”, “I will come for you if I find out where you live” and “[the decision maker’s] kids have a painful death”. It was put to the complainant that this letter was threatening. He said that it was not a threatening letter and that he had not recorded the names of the officials he had met. He took the respondent’s behaviour as discrimination on grounds of nationality. It was put to the complainant that he had not made an application pursuant to the Freedom of Information Act; he said that he had made an FOI application and he thought he had done so in writing. On further questioning, he said that he had not made a formal FOI application, but had asked for his file. He had not received the letter refusing his first application. It was put to the complainant that there had been no refusal of a FOI application and no Garda present at any meeting with the complainant. The respondent had contacted the Gardaí following the email of the 24th January 2012 and it had been responsible of the manager to notify the Gardaí and to have a Garda presence in the office. He accepted that this step was reasonable and that the respondent could have treated an Irish person in the same way.

2.6 In respect of the male official he named, the complainant said that the Deciding Officer present at the hearing was not the person who made the comment of the 24th January 2012. They shared the same name. The complainant was asked which came first: the incident or his email; he said that the incident had occurred first and led him to send the email. He acknowledged that he had not referred to the incident in the email. It was put to the complainant that he would have referred to the incident as the first item on the email, had it happened. He commented that he had met with the appeals officer on the 23rd January 2012 and this was likely when he was told to “go back to Germany”. The complainant was asked who told him that the file was lost; he said that this had been someone at the desk and he believed that the file had been put away with no outcome. In respect of the respondent letter of the 3rd February 2012, the complainant was asked whether he had provided information regarding his German contributions; he had not as he had been self-employed in Germany and had not paid contributions. It was put to the complainant that due to a clerical error the December 2011 letter had omitted a house number and was returned having been marked “gone away” and this came to light following his email of the 24th January 2012. He said that he did not recall the Office Manager saying to him that his behaviour was inappropriate. He applied for Supplementary Welfare Allowance as soon as he became aware of it and received it in March 2012. He said that Irish citizens were told of their right to Supplementary Welfare Allowance. It was put to the complainant that his application was made on the 17th November 2011 and a decision issued on the 3rd February 2012; he agreed.

2.7 In reply to the respondent’s evidence, the complainant said that he did not know if he received the letter of the 18th January 2012. In closing comments, the complainant said that it was really obvious that there had been discriminatory treatment. There had been an irregular application of the five pillars that form part of the assessment of habitual residence, including the consideration of family ties and his contribution record in Ireland. He had not known about the Supplementary Welfare Allowance. He had not been allowed to submit information in support of his application and he had been fobbed off by the respondent.

3. Summary of the respondent’s case:

3.1 The respondent submitted that the complainant had not established a prima facie case of discrimination and sought a direction that the case be deemed not well-founded.

3.2 In evidence, the Deciding Officer outlined that all applications for jobseeker’s allowance are subject to a habitual residence test, based on the HRC1 form. At this time, he decided all HRC applications and in this case, looked at the short duration of the complainant’s residence in Ireland. He had had six weeks occupation and had never lived in Ireland before. He had the complainant’s P45 and a record of five contributions. His approach was to look for reasons to say “yes” and he did not have to determine where an applicant’s centre of interest was if he concluded that it was not in Ireland. Family ties were included in the analysis of a person’s centre of interest and he could not take into account the five or six friends referred to by the complainant. While the complainant had referred to his future intention to remain in Ireland, he had to weigh up all the factors. The same factors were applied to all nationalities. While an Irish person has ties to Ireland, they are still assessed on all the grounds. The Deciding Officer said that the HRC assessment he carried out was separate to the application to jobseeker’s allowance, so he made a decision on the complainant’s HRC entitlement even though the JSA application had been closed. The Deciding Officer denied telling the complainant that he should go back to Germany. In respect of Supplementary Welfare Allowance, the Deciding Officer said that people are told of the Community Welfare service in general terms. In 2011/2012, it took three months to turn round an application, so that an application made on the 17th November would be processed in January.

3.3 In cross-examination, the Deciding Officer said that it would take between six weeks and three months to process all parts of an application. At this time, there had been a great many HRC assessments to complete. He confirmed that staff working on the counter could see who the file was with at that moment. It was the respondent’s practice to refer people to the Community Welfare Officer and it did not hand out forms. He outlined that the respondent did not have to decide where an applicant’s centre of interest was if they found that it was not Ireland. There had been no appeal to the decision of the 3rd February 2012. The complainant said that he had not been able to submit documents; the Deciding Officer replied that it was normal practice for counter staff to take in documents relating to an application.

3.4 In re-examination, the Deciding Officer addressed whether the complainant had been notified of the outcome of the application. He referred to the letter of the 18th January 2012, refusing the first application. This was sent to the complainant and he was also informed of the outcome of the application when he called to the office. The letter of the 3rd February 2012 had addressed both the JSA application and the HRC component, so the complainant had been notified of the outcome of the application.

3.5 The Office Manager gave evidence. He said that it would not happen that a Garda would attend a meeting or interview with a claimant. It was practice for a second person to sit in on a meeting and to act as a witness. He had been concerned at the contents of the email of the 24th January 2012. He had not previously met the complainant and wished to meet him. He arranged to meet the complainant and gave him the letter of the 3rd February 2012. He spoke to the complainant about the threats and asked him not to make threats. He acknowledged that the issue of threats is not referred to in the letter. He commented that an EU national is less likely to know about their EU migrant worker rights and Supplementary Welfare Allowance.

3.6 In cross-examination, the Office Manager said that applicants for a payment are referred to Supplementary Welfare Allowance where they say they have an urgent need for support. They are also given a timeframe in which their application will be processed. The respondent does not record each applicant’s visit to the counter, so it was not possible, as suggested, to consider the number of his visits to the counter as evidence of his need. The complainant stated that he had said to counter staff he was in need; the Office Manager said that he took the email of the 24th January 2012 as a complaint about delay and he could not recall the complainant saying anything about his need.

3.7 In closing comments, the respondent submitted that the complainant has not established a prima facie case of discrimination. Even if the complainant had not been referred to Supplementary Welfare Allowance, the complainant must tie this to his nationality. At this point, Supplementary Welfare Allowance was administered under the auspices of the Department of Health. There had been no excessive delay on the respondent’s part in processing the first application and the assessment of habitual residence had been carried out fairly.

4. Findings and reasoning:

4.1 The complainant asserts that he was in receipt of discriminatory treatment in relation to how the habitual residence test was applied to his application. The complainant asserts that this discrimination arose on grounds of race and civil status. The complaint in relation to race also relates to the manner in which the complainant was treated and his assertion that he was advised to go home. He is a German citizen who moved to Ireland to take up a job, which came to an end after a period of time. The complaint in relation to civil status relates to how his interpersonal relations were assessed in Cork. The respondent denies the claims, stating that the complainant has not established a prima facie case of discrimination and relied in submissions on section 14 of the Equal Status Acts.

4.2 It is clear that there were deficiencies in how the respondent treated the complainant. It wrote to the complainant in an undated letter inviting the complainant to interview on the 5th December 2011. The letter of invitation gives an incorrect and incomplete address for the complainant. It was clearly not a valid address. This should have been obvious to the person completing the letter of invitation and to anyone who dealt with the file after it was issued. Because the complainant did not attend the interview on the 5th December 2011, his file was closed and adverse criticism is made of him in subsequent documentation, for example in the decisions of the Social Welfare Appeals Officers. This includes the review undertaken by the Social Welfare Appeals Officer of the 29th November 2012 where the Appeals Officer states: “With regard to non-attendance for an interview, the essential element of this is that the claim was closed as the appellant had not responded to an invitation to the interview as the letter was sent to an incorrect address. The letter reflected the address supplied by the appellant on the original claim form. There is an onus on the claimant to provide accurate information and it is accepted that perhaps an incomplete address should be spotted and corrected by the clerical officer dealing with the claim. This is not always possible given the volumes of claims passing through the local office.” The review undertaken by the Social Welfare Appeals Office declines to amend the original decision. It is clear, however, that the complainant accurately inscribed his address in his application for jobseeker’s allowance. The complainant discharged the onus imposed on him to provide accurate information, as elucidated by the Appeals Office. The error arose on the respondent’s side when issuing the letter of invitation.

4.3 The next issue to address is the email sent by the complainant to the respondent on the 24th January 2012. It is the email about which the complainant was cross-examined in detail and which he described as not threatening. On reading the email, it is clear that it contains egregious threats made to staff of the respondent. It is a communication that is intemperate and outrageous. There is, of course, no justification for such threats to be made to public officials or their families.

4.4 It now falls to consider whether the complainant has established a prima facie case of discrimination on grounds of race or civil status. The complainant is a German citizen, who at the time of the claim had moved to Ireland following a period working in Spain and a period of self-employment in Germany. He did not have sufficient PRSI contributions or equivalent for a contribution-based payment such as jobseeker’s benefit. For the sake of clarity, it is not before this adjudication whether the complainant should have been awarded a social welfare payment; my exclusive jurisdiction is whether a prima facie case of discrimination or victimisation has been made out.

4.5 In respect of the complaint of race discrimination, I make the following findings. There are two aspects to the complainant’s case; the first relates to the application of the habitual residence test and the second relates to how he was treated by respondent officials. The habitual residence test is set out in section 246 of the Social Welfare (Consolidation) Act, 2005, as amended. As applied by the respondent, it assesses an applicant’s habitual residence on five criteria elucidated from the CJEU case law:

“(a) the length and continuity of residence in the State or in any other particular country;
(b) the length and purpose of any absence from the State;
(c) the nature and pattern of the person’s employment;
(d) the person’s main centre of interest; and
(e) the future intentions of the person concerned as they appear from all the circumstances.”

As submitted by the respondent, section 14 of the Equal Status Acts provides that measures taken pursuant to a statutory enactment cannot amount to discrimination within the scope of the Equal Status Act. It is outside the remit of this adjudication to find that section 246 is discriminatory. In relation to the actions of the respondent regarding the complainant’s application for jobseeker’s allowance, I find that the complainant has shown insufficient evidence that there was any difference in treatment given to him as compared an Irish applicant. He refers to returning Irish citizens not being subject to the same test, but this was not borne out by the evidence presented at the adjudication. Given that part of the habitual residence test examines ties to Ireland, there may certainly be cases where a returning Irish person satisfies the test in a shorter period than someone who has never lived in Ireland. The evidence, however, was that all new entrants to Ireland who apply for an allowance-based payment are subject to the habitual residence test. It follows that the complainant had not made out a prima facie case of discrimination.

4.6 The complainant asserts that he was treated in a discriminatory manner by the respondent, including that he was advised to return to Germany and that he could be deported. He asserts that a Garda attended his interview with a social welfare inspector. Having considered the evidence, I find that the complainant has not made out a prima facie case of discrimination in this regard. I reach this finding for the following reasons. It is clear that the complainant had difficult exchanges with counter staff of the respondent. He was very dissatisfied at difficulties in processing his first application, in particular as it was closed through no fault of his own. While the email of the 24th January 2012 accuses the respondent of being racist, it does not include the specific comments attributed to counter staff, for example that he should go back to Germany. The email also does not refer to his belief that the second person sitting in on his interview with the social welfare inspector was a Garda. These are striking aspects of the case and one would expect to see them front and centre of any contemporaneous complaint, if they were as significant as now relied on by the complainant. I also note that the complainant named an official with the same name as the Deciding Officer, but acknowledged at the hearing that the Deciding Officer had not made such a comment to the complainant. I note that the direct nature of the comments the complainant says were made to him contrasts with the written communication sent to him by the respondent. Taken together, I find that the complainant has not adduced sufficient evidence to find that he was told to go back to Germany, threatened with deportation or that someone other than a Department official attended his interview with the social welfare inspector.

4.7 The complainant raises the issue of not being informed that he could apply for Supplementary Welfare Allowance. This is a payment available where an applicant can demonstrate exceptional need or pending an application for a social welfare payment. It is also available to EU migrant workers who have lost genuine and effective employment in Ireland. It is not subject to the habitual residence test. At the time of the complainant’s application, this was administered on behalf of the respondent by the Health Service Executive. It was not dealt with by the social welfare office visited by the complainant. While it may have been desirable that clearer communication be available to the complainant regarding the availability of SWA in his capacity as a EU migrant worker (as opposed to exceptional need), this does not amount to discrimination.

4.8 The complainant asserts that he was discriminated against on civil status in relation to how the habitual residence test was applied to his ties in Ireland. I find that the complainant has not made out a prima facie of discrimination in how the respondent assessed ties to Ireland. If this assessment was incorrect, it is a matter to challenge on appeal within the Social Welfare Acts. I also find that the complainant has not established that he was victimised within the definition of the Equal Status Acts, in particular as he has not established less favourable treatment.

5. Decision:

5.1 In reaching my decision, I have taken into account all the submissions, written and oral, made by the parties. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision: the complainant has failed to establish a prima facie case of discrimination or victimisation on either of the race or civil status ground contrary to the Equal Status Acts, 2000-2015.

___________________________________

Kevin Baneham

Equality Officer / Adjudication Officer

25th September 2017