ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00012138

Complaint(s):

Date of Adjudication Hearing: 14/08/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 21 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant has a disability which is the congenital shortening of her right arm. The Complainant requested funding from the Respondent for a prosthetic limb that would allow her to play the violin. The Complainant’s application was refused on the basis that the request for this prosthesis was for leisure purposes and not for function or mobility purposes.

Preliminary Issue:

The Respondent raised the following preliminary issue:

On her WRC Complaint Form, the Complainant refer to the date of the first incident of discrimination and the most recent date of discrimination as both being the 28th September 2017. This is the date on which the letter was sent by the Respondent to the Complainant, at her request, confirming the Respondent’s decision to decline her application for a prosthesis. The decision had been communicated to the Doctor applying on her behalf on 19th July 2017.

The decision to decline the application was communicated on 19th July 2017.

The Complainant did not give notice to the Respondent within 2 months of the 19th July 2017 that she intended to make a claim under the Equal Status Act as amended. The first notification received but the Respondent in relation to the Complainant’s intention in that regard was when it received the ES1 form on 26th October 2017. The ES1 form was dated 23rd October 2017. This is more than 3 months from the date of the Respondent’s decision on the Complainant’s application.

The Complainant has not complied with the 2 month time limit set out in Section 21 (2) (a) of the Equal Status Act 2000 as amended, for giving notification of her intention to make a claim, which is a requirement prior to her claim being listed for adjudication.

The Complainant stated that she did not know about the timeline. She stated that she wanted to compromise and pay the difference between the two types of prostheses.

The Complaint has referred to the date of 28th September 2017 as the most recent date of discrimination.

The Adjudicator accepts this date and so the hearing proceeded.

Summary of Complainant’s Case:

The Complainant stated that she had a lifelong dream to play the violin. She researched the options available and having seen an Artist online playing the violin with a prosthetic arm, she went to her Doctor and requested a referral to apply for funding to obtain a similar prosthetic arm.

The Complainant got an appointment with a specialised Unit and the Doctor there agree to apply for funding for her. The cost was approximately €1,700. The Complainant stated that the cost of a standard prosthetic limb is usually between €5,000 and €6,000.

She found out by letter on 28th September 2017 that her application was not successful.

The request for funding was rejected on the basis that the medical device was deemed desirable rather than essential. She was advised by the Prosthetic Allocation Group that she could purchase the device herself for €1,700. They advised that she should obtain a prosthesis for everyday mobility use but the Complainant states that this refers to legs and not arms. She specified that she wanted to be able to use her arms to play the violin and stated that upper limb prostheses are usually for specific jobs like riding a bike, rock climbing and horse riding.

The Complainant stated that she wanted to compromise when her application was denied and wanted to pay the difference in the cost of a standard prosthetic arm and the cost of the specialised prosthetic arm that she was requesting. She stated that the Respondent feels that they cannot compromise on this situation as it would have wider implications for other cases.

The Complainant expressed her concern that recreation for people with a disability was not deemed to be important and feels that the Respondent’s policy denies her access to fulfil her potential within the limitations of her disability. The Complainant referred to Article 10 and Article 30 of the UN convention regarding her right to culture and recreation.

The Complainant stated that had she been under the care on a comparative care provider in the UK they would have facilitated her request.

The Complainant stated that the policy on funding should have been communicated to the Doctor who applied for the funding on her behalf when she applied and this Doctor should have then confirmed the policy to her at that stage.

The Complainant feels that she should have been given a different prosthetic arm that the device for playing the violin could have been attached to.

The Complainant stated that she understands that people are entitled to one prosthetic arm and she is only looking for funding for one prosthetic arm, which is cheaper and different to the other standard ones. She therefore feels that she is different to others as they have an everyday standard prosthesis and she does not.

On cross examination the Complainant stated that she would not necessarily keep up the violin. She stated that the Doctor applying for the funding had advised her that it would be difficult in making her case to get the specific prosthesis she was requesting.

She stated that she had no further communication with this Doctor after they initially met and he did not send her any letter.

When asked about the letter of 28th September 2017, the Complainant does not remember a call in advance of receiving this letter. She believes that this letter was the first she heard of her application being refused.

The Complainant stated that the Respondent’s policy is for daily living and her requested prosthesis was for playing the violin which is not daily living. The Respondent told her that the requested prosthesis would not have created a functional outcome or be necessary for daily living.

The Complainant stated that the Doctor applying for the funding should have advised that she apply for a standard use prosthesis with an attachment additional to it. In relation to the application that he did make, the Complainant stated that the application form stated that she did not wear a prosthetic arm or need one for daily living. The Respondent stated that she applied for this specialised prosthesis without seeing the Policy on funding. She stated that this policy is only available to the Doctor applying for the funding and is not publically available.

The Complainant stated that she was treated less favourably but does not have a specific comparator but feels disadvantaged versus another person without a disability. She stated that only people with a disability apply for those prostheses so a person without a disability does not apply as a comparator.

The Complainant said that 71% of people with disabilities are unemployed and they need to be able to do more than their disability.

The Complainant stated that this was really important to her. She stated she could have asked for lots of other adjustments but didn’t. She stated that the playing of the violin would also be therapy for her and she asked if this would be considered as rehabilitative. She really has a lifelong passion to play the violi and feels it is unfair that this hasn’t been offered. She doesn’t ask for anything as the challenges put her off. She feels that the Policy should state that prostheses for leisure activity will not be funded rather than just stating they will not be prioritised.

Summary of Respondent’s Case:

In addressing the burden of proof, the Respondent stated that pursuant to Section 38A of the Equal Status Act as amended, it is for the Complainant to establish facts from which it may be presumed that prohibited conduct has occurred in relation to her. The Respondent puts forward that the Complainant does not establish such facts and thus submits that the burden of proof has not been met by the Complainant.

The Respondent is a service operated for the purpose of clinically reviewing and prioritising applications for prostheses within a defined monthly budget; the decision to approve and the level of priority is determined on a case by case basis within available resources taking into account the information submitted. The service is effectively provided exclusively to persons with a disability.

All applications to the Respondent are dealt with by the Prosthetic Resource Allocation Group (PRAG). IN 2017, the PRAG received and reviewed a total of 206 applications. There is a policy in place that sets out recommendations in relation to applications and the pathways for submission of same, resource allocation and prioritisation of applications. The policy also sets out an appeals process in the event that an applicant is dissatisfied with the outcome of their application. This policy has been in place since 2014 to standardise the application process to agree prioritisation criteria, to agree the mechanism of providing clinical support for their prioritisation process. A copy of the Policy was submitted to the WRC with the Respondent’s submission.

The Respondent outlined the general principles within the Policy informing the approval or prioritisation process which includes:

1. Prostheses for “everyday mobility use” will be prioritised over cosmetic or high tech specialised activity limbs
2. Client’s pre-existing medical status (existence of any conditions affecting the likelihood of healing) must be taken into consideration
3. Client’s motivational levels as assessed by members of a specialised team and an ability to participate in prosthetic rehabilitation, baes on biological frailty or robustness
4. Client’s cognitive status as assessed by members of a specialised team using a standardised assessment tool
5. Client’s pre-existing mobility baseline and predicted functional outcomes, using a standardised outcome measure.

The Respondent explained at the hearing that there is a group of three clinicians on the panel, including a physiotherapist, that makes the decision and they can seek advice from other Consultants if they need guidance. They can also request additional information via the Doctor or Consultant that makes the application but they have no direct contact with the person who is requesting the prosthesis.

The Respondent explained at the hearing that there are two paths to apply for prostheses. One is via a specialised unit in a particular hospital. The other is an application by a Doctor or Consultant on behalf of a patient.

The Complainant has a disability and made an application via a Consultant in Rehabilitative Medicine, for an upper prosthetic limb to be funded from the resources of the Respondent. The application was received in July 2017. It is clearly stated that the purpose of the prosthesis for which funding is sought is for leisure purposes – namely playing the violin. A copy of the application was submitted to the WRC with the Respondent’s submission.

The Respondent declined to grant the Complainant’s application on the basis that the prosthesis sought was for a leisure activity rather than for functional or mobility reasons and on the basis of clinical needs assessment and given its limited resources and budget, priority is given to applications for prostheses for functionality or mobility reasons. This is in line with the guidance in the Policy document submitted. A letter issued to the Complainant’s Consultant confirmed the decision of the Respondent. Subsequently, the Complainant sought clarification on the decision in a telephone call to the Respondent and at her request, a letter was issued directly to her confirming the decision and outlining the appeals process. No appeal was received by the Respondent from the Complainant. The Respondent received an ES1 Form from the Complainant on 26th October 2017 and responded to same on the ES2 From on 22nd November 2017.

The Respondent stated that the clinical assessment of an applicant’s needs is the primary consideration in the process of assessing an application.

The Respondent also explained that urgent cases are prioritised based on clinical need using specific criteria which is outlined in detail in the policy.

The Respondent stated that the cost can vary in each case from €200 to €20,000.

The Policy makes clear that all request for the provision of prostheses should be submitted on the standardised application form and should include the details of relevant medical factors, predicted functional activity levels and relevant prognosis factors for successful prosthetic use.

The Policy also gives guidelines to the clinical personnel who make the application for the prosthesis on behalf of the applicant – in this case, the Complainant’s Consultant – and states that the application should include a full description of the need for the device and that the rationale should include a full description of why new or replacement prosthesis is being requested.

The Respondent noted that the Complainant indicated that to play the violin has been a lifelong dream and is purpose of the specialised prosthesis which is sought to be provided by the Respondent. It was noted by the Respondent that the Complainant’s disability has existed from birth. The Respondent notes that the Complainant’s statement suggests that she would choose to take up playing the violin for the first time if her application for a specialised prosthesis were granted. In those circumstances, the Respondent submits that it is conceivable that the Complainant may “try out” playing the violin and dislike it, in which case the prosthesis in question may be redundant. The Respondent submits that this would raise questions as to whether the funding of a specialised prosthesis was the appropriate use of public monies. This demonstrates why the Policy of the Respondent is assessing applications for prostheses has to be fair and transparent. There are waiting lists for funding due to limited resources of the Respondent and it was submitted that is reasonable to prioritise applications for prostheses for day to day mobility or functional use and on clinical need rather than specialised or high tech prostheses for leisure or hobby use.

The Respondent stated that they do not seek to minimise the importance of recreational or leisure activities for persons with disabilities or without, but the allocation of limited public funds must be based on objective and appropriate criteria.

The Respondent provided figures regarding other applications for prostheses in the years 2013-2017 and submitted that there have been prostheses applications other than the Complainant’s application which have been declined on the grounds that a prosthesis was sought for leisure purposes or high tech specialised activity purposes or cosmetic purposes.

The Respondent submits that its practice has been consistent in prioritising applications for prosthesis for function or mobility reasons.

When asked under cross examination if they provided any activity limbs, the Primary Care Services Manager for the Respondent said that they do not as funding is only provided for functionality and clinical need and not for specialist activities. She said that the funding id to facilitate rehabilitee back to moving around and functioning in daily like. When asked if the Complainant could get a prosthetic limb for driving, she confirmed that the Respondent would have to review a new application for this.

When asked if the Respondent considers the National Disability Inclusion Strategy up to 2020 regarding facilitating inclusion for those with a disability, she confirmed that they do not.

When asked if all of the budget is spent, she confirmed that it always is and that there is always a waiting list.

When asked if the Complainant can apply for a rotator on a prosthetic arm separately, she confirmed that there is no limit to the applications that can be made so the Complainant can apply for a standard prosthetic arm with a rotator, which she feels is what the Complainant’s Consultant should have advised she apply for in the first instance, particularly if he felt her application would be difficult to get approved.

When asked under cross examination, a Physiotherapist at the specialised unit and a member of the panel who assesse applications, said that the group has processed approximately 500 applications over the three years that he has been involved. He was not involved in the assessing of the Complaint’s application. He explained that the group has two clinicians and one admin person. The two clinicians assess if the application meets the policy, sometimes sending it back if they required more information. The clinicians consider the person’s current function and what the prosthesis would give them in term of rehabilitation goals. The policy document dictates how you make the decision and it is there for clarification Hr stated that upper or lower limb prostheses did not have preference as it is a completely clinical decision. Once approved, the applications are prioritised based on available funding. The Physiotherapist stated that id he was reviewing the Complainant’s application, he would refuse it as it does not impact her daily living.

The Respondent put forward relevant case law for consideration including A Complainant (on behalf of her daughter, J) v A Health Service Provider DEC-S2012-043 where an Equality Officer found that the professionals in this case only took clinical considerations into account when deciding on treatment and therefore found that the treatment in this case could not be considered to be discrimination as defined by the Acts.

The Respondent also put forward Anthony Ronald Preston v HSE Western Area Ambulance Service DE-S2009-046. In this case the Equality Officer found that although the Complainant did receive less favourable treatment from a certain point in time, this was as a result of cutbacks to budget and based on a decision taken when the medical needs of those involved were taken into consideration.

The Respondent summarised their case stating that there is no evidence of a comparator, as is required to demonstrate direct discrimination. Treating a person differently due to a clinical decision is not discrimination and the Respondent must prioritise based on clinical needs and based on appropriate and legitimate aim.

Findings and Conclusions:

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

Section 38(A) of the Equal Status Act, 2000 and 2004 sets out the burden of proof which applies in a claim of discrimination.    

38A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.  

In deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. 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.  

The Complainant has presented evidence through her written and oral submissions which constitute a prima facie case and it is the opinion of this Adjudicator that the Complainant has established the burden of proof in regards to her complaint.

In line with Section 3 (1) and (2) of the Equal Status Act, 2000 and 2004;

“3. (1) For the purposes of this Act, discrimination shall be taken to occur where—

(a) on any of the grounds specified in subsection (2) (in this Act referred to as “the discriminatory grounds”) which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated,

(b) (i) a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated, and

(ii) similar treatment of that person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) (i) a person is in a category of persons who share a common characteristic by reason of which discrimination may, by virtue of paragraph (a), occur in respect of those persons,

(ii) The person is obliged by the provider of a service (within the meaning of section 4 (6)) to comply with a condition (whether in the nature of a requirement, practice or otherwise) but is unable to do so,

(iii) substantially more people outside the category than within it are able to comply with the condition, and

(iv) the obligation to comply with the condition cannot be justified as being reasonable in all the circumstances of the case.

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(a) that one is male and the other is female (the “gender ground”),”

(b) that they are of different marital status (the “marital status ground”),

(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

(d) that they are of different sexual orientation (the “sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),

(f) subject to subsection (3), that they are of different ages (the “age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”),

Decision:

Section 27 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

The Respondent has outlined in detail the process of assessing applications. The Respondent has an established policy in place for dealing with such applications. It has been demonstrated that this policy is applies consistently to each application.

The Respondent provided witness testimony that the primary consideration in the process of assessing applications is clinical assessment.

The Respondent has demonstrated that it is their position to prioritise applications for prostheses for day to day mobility or functional use and on clinical need rather than specialised or high tech prostheses for leisure or hobby use.

In this case, the clinical assessment of the Complainant did not satisfy the panel of independent medical experts in place to assess her application.

I have investigated the above complaint and make the decision that the Complainant was not discriminated against based on her disability. The decision was made based on consistent criteria applied to all applications in line with set criteria and budget constraints. On this basis her complaint of discrimination fails.

Dated:   10.10.18

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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