DEC-S2018-013

EQUAL STATUS ACTS 

DECISION NO. DEC-S2018-013

PARTIES: 

William O’Donoghue

(represented by Ms. Heather Rosen) 

-v- 

The Minister for Social Protection

(represented by Mr. Cian Kelly B.L. on the

Instructions of the Chief State Solicitor)

File reference: ES/2013/0120

Date of issue: 5th June, 2018

1.      Background to the Claim

1.1      The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts on the 11th October, 2013. On the 27th March, 2017, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Enda Murphy, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 29th June, 2017. Final correspondence from the parties was received on 2nd August, 2017.

1.2       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.

2. Dispute

2.1       The dispute concerns a claim by the complainant that he was discriminated against by the respondent on the grounds of his race and membership of the Traveller community in terms of Sections 3(1)(a), 3(1)(c), 3(2)(h) and 3(2)(i) contrary to Section 5 of the Equal Status Acts in relation to the manner in which the rules and requirements were applied to him in terms of accessing to the Fuel Allowance Scheme. The complainant also claims that he was subjected to harassment contrary to Section 11 of the Acts.

3. Summary of the Complainant's Case

3.1       The complainant is a member of the Traveller community and was a recipient of the fuel allowance which is administered by the respondent under the Fuel Allowance Scheme. The complainant contends that his fuel allowance was cancelled by the respondent in or around January, 2013 on the mistaken premise that another person in his household was also in receipt of this allowance. The complainant contends that he was living alone in a caravan in a remote rural location in very difficult and demeaning circumstances at the material time relevant to this complaint and was therefore entitled to the allowance. The complainant claims that payment of the fuel allowance was of the utmost importance to him given the extremely poor conditions within which he was residing at that juncture.

3.2       The complainant’s representative, Ms Rosen, stated that the complainant and his brother had both been using her home address as a postal address for the purposes of correspondence with the respondent in relation to their respective applications for payment of the fuel allowance. Ms. Rosen was notified by the respondent on 18th January, 2013 that the fuel allowance being claimed by the complainant’s brother was cancelled on the mistaken premise that another person in his household was also in receipt of this allowance. Ms. Rosen subsequently engaged in protracted correspondence with the respondent to try and clarify the matter on behalf of the complainant’s brother but to no avail and his fuel allowance was not subsequently reinstated. It also came to Ms. Rosen’s attention during the period of this interaction with the respondent that the complainant’s fuel allowance had been cancelled. Ms. Rosen was unsure as to the precise date the complainant’s fuel allowance had been cancelled but she contended that this occurred in or around January, 2013 as he had not been in receipt of the allowance for at least a number of months during the 2012/13 fuel season which ran from October 2012 to April 2013.  

3.3       Ms. Rosen wrote to the respondent on 18th April, 2013 to inform it that the complainant’s fuel allowance had been cancelled and to explain that he had been using her home address as a postal address only for the purpose of correspondence in relation to the allowance. The complainant claims, that despite the representations made on his behalf by Ms. Rosen, his fuel allowance was not subsequently reinstated or reimbursed for the remainder of the fuel season in 2012/13. It was submitted that the complainant was subjected to discriminatory treatment by the respondent on the grounds of his membership of the Traveller community and ethnic origins in relation to the cancellation of his fuel allowance and the manner in which this matter was subsequently dealt with by officials acting on its behalf.

3.4       Ms. Rosen submitted that the respondent sought to put further obstacles in the complainant’s way in order to have his fuel allowance reinstated such as the rules/requirements to establish proof of address by virtue of having to provide a utility bill or bank statement. It was submitted that the application of these rules/requirements of the Fuel Allowance Scheme by the respondent following the initial cancellation of the complainant’s fuel allowance were indirectly discriminatory against him on the grounds of his membership of the Traveller community and ethnic origins. The complainant claims that it was not possible for him to comply with the additional rules/requirements, such as the request to provide a utility bill or bank statement in order to establish proof of address, which were put in place by the respondent when his representative sought to have his fuel allowance reinstated and reimbursed after it had been cancelled in or around January, 2013.

3.5       Ms. Rosen submitted that the tenets of the Equal Status Acts provide that if a rule, or an aspect of a rule or procedure, has a detrimental outcome for people covered by one of the discriminatory grounds set out in the legislation, then that rule should be adapted or adjusted to take into account the circumstances of these people in the said categories, such that they will not be prohibited from availing of the relevant service. It was submitted that the respondent persisted in its application of the discriminatory rules/requirements relating to the Fuel Allowance Scheme and failed to make appropriate modifications to accommodate the individual circumstances of the complainant after the detrimental effects of these requirements had been clearly brought to its attention.

3.6       The complainant also claims that he was subjected to harassment by the respondent contrary to Section 11 of the Equal Status Acts. It was submitted that the results of the decision-making process surrounding the cancellation of the complainant’s fuel allowance were offensive, humiliating and very detrimental to his health and well-being.

4. Summary of the Respondent's Case.

4.1       The respondent submitted that the Fuel Allowance Scheme was introduced in 1998. The aim of the Scheme is to assist qualified households who are in receipt of long-term social welfare that are unable to provide for their own heating needs. The Scheme is an administrative non-statutory scheme where decisions in relation to the applications for the scheme are made on the basis of these internal guidelines. All and/or any decisions are based on the principle of entitlement and evidence in an impartial fashion whereby the burden of proof regarding same is on the Applicant.

4.2       There are a number of qualification criteria which an applicant must satisfy in order to be eligible for payment of the fuel allowance including the requirement for the applicant to be in receipt of a social welfare qualifying payment (such as Jobseeker’s Allowance) and the applicant must be living alone or only with a person otherwise qualified for the allowance. The rules of the Scheme also clearly provide that a person does not qualify for the allowance if s/he is living with someone already in receipt of the allowance. The season in respect of which the fuel allowance is paid to qualified applicants generally runs during the period from October to March.

4.3       The respondent submitted that as part of the regular control work in the local social welfare office checks are carried out on fuel allowance applicants’ addresses where more than one fuel allowance is in payment per address. These checks are carried out by examining the cases on the live register (of those in receipt of Jobseekers Allowance) who have the same address and where more than one fuel allowance is in payment. Where two people share the same address and both are in receipt of the fuel allowance one of the parties’ fuel allowance is terminated. This is because a fuel allowance is only payable to one person in a household. This check is carried out using a spreadsheet which indicates name, address, PPSN and fuel allowance payment. It does not give any indication of race, ethnic origins or membership of the Traveller community.

4.4       The respondent disputes the complainant’s contention that his fuel allowance was cancelled in January, 2013. The respondent’s computer system automatically sends an invitation to apply for fuel allowance at the time approaching the qualifying time period. The respondent submitted that the complainant had previously made a claim for Jobseekers Allowance on 11th January, 2012 and this claim was closed on 2nd July, 2013 as he was ill and therefore, did not fulfil one of the qualification conditions for this allowance i.e. that he was not available and fit for work. The complainant had not applied for a fuel allowance in 2012/13 and therefore, was not in receipt of the allowance during this period based on this claim for Jobseekers Allowance. The first indication that the complainant wished to apply for the fuel allowance for 2012/13 was a letter which the respondent received from the complainant’s representative, Ms. Rosen, dated 18th April, 2013 asking that his fuel allowance be reinstated. The respondent submitted that the fuel season for 2012/13 had ended on 12th April, 2013 and there is no facility to backdate fuel allowance applications.

4.5       The respondent acknowledges that there had been contact between its officials and Ms. Rosen in relation to the cancellation of the complainant’s brother’s fuel allowance in early 2013. This matter was fully investigated by the respondent and it was established following a visit by an Inspector of the Department that the complainant and his brother were both resident in their mother’s caravan where a fuel allowance was already in payment. As a result the complainant would not have been entitled to payment of the fuel allowance because under the qualification criteria of the Scheme, a fuel allowance is only payable to one person in a household.

4.6       The respondent denies that the complainant was subjected to discrimination, either directly or indirectly, in terms of access to the Fuel Allowance Scheme. The respondent submitted that the complainant was not in receipt of the fuel allowance at the material time of the alleged discrimination in relation to this complaint and therefore, no decision to cancel his allowance could have been made. The respondent submitted that, as a result, the complainant could not have been affected by the alleged discriminatory rules/requirements in relation to his eligibility to qualify for the fuel allowance.

4.7       The respondent relied upon the Supreme Court case of Stokes (A minor) -v- Christian Brothers High School Clonmel & The Equality Tribunal [2015] 2IR 509 in support of its position that there was no discrimination, either direct or indirect, in the present case. The respondent submitted that the Supreme Court in its analysis of the relevant statutory provisions in the legislation sets out that it is essential for an individual to have standing to mount a claim in such a matter they must establish initially that they are affected by the rule. Thereafter they must establish that they are at a disadvantage on foot of the application of the rule as opposed to other who are not members of their scheduled category. Following same an applicant must establish that any disadvantage suffered is significant and appreciable. The respondent submitted that this essentially amounts to a three-step test which is to be considered:

I.       Effected by the rule;

ii.      At a disadvantage on foot of the rule as opposed to other group or non-group members of their group;

iii.      That such a disadvantage is significant or appreciable.

The respondent submitted that the complainant has failed to furnish any evidence that the application of the Fuel Allowance Scheme resulted in him suffering any disadvantage that would have been suffered by any other applicant that was not a member of the Traveller community. It follows that the complainant did not submit any evidence that any disadvantage was significant or appreciable in line with the third prong of Clarke J.’s test.

4.8       The Respondent also denies that the complainant was subjected to harassment contrary to Section 11 of the Equal Status Acts.

5. Conclusions of the Equality Officer/Adjudication Officer on jurisdictional matters

5.1       There are a number of preliminary issues of a jurisdictional nature which I must first consider in relation to this complaint which are set out hereunder.  

Notification Requirements under Section 21 of the Acts

5.2       The first jurisdictional issue that I must consider relates to the question as to whether or not the complainant has complied with the notification provisions of Section 21(2)(a) of the Equal Status Acts. This provision requires that a person seeking redress under the Acts must notify the service provider in question of the nature of the alleged discrimination within two months after the prohibited conduct is alleged to have occurred or where more than one incident of prohibited conduct is alleged to have occurred, within two months of the last such occurrence.

5.3       The notification concerning the present complaint (i.e. the ES.1 Form) was sent to the respondent on 10th June, 2013 and it referred to the alleged discriminatory treatment in relation to the cancellation of the complainant’s fuel allowance for the season 2012/13. The notification form did set out a specific date on which the act of discrimination was alleged to have occurred but instead stated that “not sure when the allowance was cancelled but for at least months of last winter (2012/13)”. The complainant’s representative contends that the effects of the alleged discriminatory rule/requirements in question in terms of access to the Fuel Allowance Scheme were ongoing over a period of time. It was submitted that the discrimination commenced upon the initial cancellation of his allowance in or around January, 2013 and did not end until the payment period for the Scheme had come to an end on 12th April, 2013.

5.4      Section 21(11) of the Acts provides that:

“(11) For the purposes of this section prohibited conduct occurs –

(a) if the act constituting it extends over a period, at the end of the period,

(b) if it arises by virtue of a provision which operates over a period,  

     throughout this period”.

I am satisfied that the alleged discriminatory rules/requirements which the complainant claims prevented him from accessing the Fuel Allowance Scheme were in operation throughout the aforementioned period. In applying the provisions of Section 21(11) of the Acts, it is clear that the notification (ES.1 Form) which was sent to the respondent on 10th June, 2013, was therefore, received within the prescribed period of two months after the prohibited conduct was alleged to have occurred.

5.5       Having regard to the foregoing, I find that the Complainant has complied with the relevant notification requirements as provided for in Section 21(2)(a) of the Acts. Accordingly, I find that I have jurisdiction to investigate the substantive complaint of discrimination in the present case.

Vicarious Liability

5.6       The complainant referred complaints against three named individuals, who were all officials of the Department of Social Protection at the material time of the alleged discrimination, and the Department of Social Protection itself. The complainant’s representative submitted that these individuals should also be held personally liable for the alleged discriminatory actions/decisions taken by them against the complainant. It should be noted that the Equal Status Acts provides that a complaint of discrimination may be referred against a named person or an organisation, public body or other entity.

Section 2(1) defines the term “person”:

““person”, as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity;”

Section 42(1) of the Equal Status Acts provides:

“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.”

The Act therefore provides that a complaint of discrimination may be referred against a person as happened in this case, where the complainant referred the case against named officials and the Department of Social Protection itself. If that person is found to have discriminated in the course of his/her employment (for example implementing a policy on behalf of the employer which may be found to be discriminatory) then it is that person’s employer who may be vicariously liable in accordance with Section 42(1) of the Equal Status Acts. The definition of the term “person” also includes a public body.

5.7       Having considered the submissions, I am satisfied that the named officials are all employees of the Department of Social Protection and acted in the course of their employment and therefore the Department of Social Protection is vicariously liable for their actions in accordance with section 42(1) of the Equal Status Acts. I find therefore, that the Department of Social Protection is the correct respondent and the case should proceed against this body only and not the named individuals.

6. Conclusions of the Equality Officer/Adjudication Officer on substantive matter

1. 6.1   The issues for decision by me are (i) whether or not the respondentdiscriminated against the complainant, either directly or indirectly, on grounds of his membership of the Traveller community and ethnic origins in terms of Sections 3 of the Equal Status Acts and (ii) whether or not the respondent subjected the complainant to harassment contrary to Section 11 of the Equal Status Acts. 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.

1. Discriminatory Treatment – Direct Discrimination

2. 6.2       I will firstly consider whether or not the alleged treatment amounted to direct discrimination within the meaning of Section 3(1) of the Equal Status Acts. Section 3(1) of the Acts provide: 

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

4. (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’ …

5. Section 3(2) of the Acts provide that: 

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

   (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”).

1. 6.3       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.

1. 6.4       The present complaint of discrimination has been grounded on both the Traveller community and race grounds. It was not in dispute that the complainant is a member of the Traveller community and I am therefore satisfied that he is covered by the Traveller community ground. The complainant has also claimed that he was subjected to discriminatory treatment on the grounds of his ethnic origins as a member of Traveller community when compared to the manner in which a person of a different ethnicity such as an Irish national who is not a member of the Traveller community was or would have been treated in a comparable situation. Having regard to the fact that Travellers are recognised as a distinct ethnic group within the Irish nation, I am therefore satisfied that the complainant, being a member of the Traveller community, is also covered by the race ground for the purpose of this complaint.

1. 6.5       The complainant has claimed that he was subjected to discriminatory treatment on the grounds of his membership of the Traveller community and ethnic origins in relation to the cancellation of his fuel allowance during the 2012/13 season and the manner in which the rules and requirements governing the Fuel Allowance Scheme were applied to him by the respondent. The respondent denies the claim of discriminatory treatment and submits that the complainant was not in receipt of the fuel allowance at the material time of the alleged discrimination in relation to this complaint and therefore, no decision to cancel his allowance could have been made. The respondent submitted that, as a result, the complainant could not have been affected by the alleged discriminatory rules/requirements in relation to his eligibility to qualify for the fuel allowance.  

  6.6       I note that the Fuel Allowance Scheme is a non-statutory scheme which is administered by the Department of Social Protection. The allowance which is paid to recipients represents a contribution towards the person’s normal heating expenses and it is not intended to meet those costs in full. There are a number of qualifying criteria which an applicant must satisfy in order to be eligible for payment of the allowance including the requirement for the applicant to be in receipt of a social welfare qualifying payment (such as Jobseeker’s Allowance) and the applicant must be living alone or only with a person otherwise qualified for the allowance. The rules of the Scheme also clearly provide that a person does not qualify for the allowance if s/he is living with someone already in receipt of the allowance.

6.7       I accept the respondent’s evidence that the complainant had not made an application for payment of the fuel allowance for the 2012/13 season and that the first indication that the complainant had a grievance in relation to this matter was when it received a letter on his behalf from Ms. Rosen dated 18th April, 2013. It is clear that the fuel season had finished at that juncture and that there was no provision under the terms of the Scheme to backdate or reimburse the complainant in respect of the allowance at that juncture. I am satisfied that the respondent informed the complainant of his entitlement to apply for the fuel allowance for the following season and that the matter would be reviewed at that juncture to establish if he met the qualifying criteria. Having regard to the evidence adduced, I am satisfied that I have not been presented with any evidence from which it could reasonably be concluded that the complainant was treated less favourably on the grounds of his membership of the Traveller community or ethnic origins regarding the manner in which the respondent dealt with him in relation to this matter. Having regard to the foregoing, I find that the complainant has failed to establish a prima facie case of direct discrimination on the grounds of his membership of the Traveller community and/or ethnic origins in the circumstances of the present case.

Claim of indirect discrimination   

1. 6.8       I will next consider whether the alleged treatment amounted to indirect discrimination contrary to Section 3(1)(c) of the Equal Status Acts. ‘Indirect discrimination’ is defined in Section 3(1)(c) of the Acts as:

2. "where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary".

3. Section 3(3A) of the Acts provides that in any proceedings statistics are admissible for the purpose of determining whether indirect discrimination has occurred.

1. 6.9       Having regard to the provisions of Section 3(1)(c) of the Acts, in order to establish a case of indirect discrimination, it is necessary for a person covered by one of the proscribed discriminatory grounds to establish, on the balance of probabilities, that the apparently neutral provision, puts that person at a particular disadvantage compared to other persons not covered by that ground. If the person succeeds in this regard, it is then a matter for the respondent to successfully rebut the allegation of indirect discrimination, by way to prove that the provision is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary. First of all, it is for the complainant to identify the apparently neutral provision which he seeks to impugn. ‘Provision’ is defined in the Acts to mean a term in a contract or a requirement, criterion, practice, regime, policy or condition affecting a person.

1. 6.10     The qualification criteria administered by the respondent for the Fuel Allowance Scheme provide that it is a necessary for a person to establish proof of address in order to become eligible for payment of the fuel allowance in the first instance or in circumstances where an existing recipient of the allowance seeks to change his/her address. The complainant was informed by the respondent that he would have to satisfy these criteria in order to qualify for the fuel allowance for the season 2013/14. The complainant claims that the rules/requirements to establish proof of address by providing a utility bill or bank statement was an apparently neutral provision which puts Travellers at a particular disadvantage on the basis that they are less likely than non-Travellers to be able to such documentation in order to confirm proof of address for the purpose of meeting the requirement to avail of the fuel allowance. Therefore, in order for the complainant to succeed in his claim of indirect discrimination in the circumstances of the present case, it is necessary for him to establish, on the balance of probabilities, that the impugned neutral provision puts him, as a Traveller, at a particular disadvantage compared with non-Travellers.

1. 6.11   In considering this matter, I have taken cognisance of the case of Stokes -v- Christian Brothers High School Clonmel & anor[1] where the meaning of the term “particular disadvantage” in the context of the provisions of Section 3(1)(c) of the Equal Status Acts was considered by the Supreme Court. In this judgement the Supreme Court has, in effect, set a high evidential barrier to prove “particular disadvantage”. Clarke J. held that this phrase should not be looked at in isolation but in the totality of the definition of indirect discrimination and stated that “the use of the term “particular” brings with it a requirement, as a matter of law, that it must be established that the extent of any disadvantage is significant or appreciable”. In referring to the issue of whether particular disadvantage has been established, Clarke J. held that “it follows that, as a matter of law, the Director, or a court considering whether particular disadvantage has been established, must carry out a proper analysis of the extent of any disadvantage at which a protected group has been placed by reason of the ostensibly neutral measure in order, to determine whether that level of disadvantage is sufficient to meet the particular disadvantage test. As noted earlier, such analysis necessarily requires some statistical consideration.”. Clarke J. also highlighted the requirement for sufficient evidence and materials (including sufficiently robust statistical materials or analysis) to be made available and considered by the relevant deciding body or court to enable a proper assessment to be carried out as to whether there was, in fact, particular disadvantage. Clark J. further stated that “As the onus of proof lay on John Stokes it follows that the absence of sufficiently robust statistical materials or analysis in this case means that the decision of the Circuit Judge to find that there was particular disadvantage was wrong in law due to an absence of sufficient evidence”.

1. 6.12     In applying the above reasoning to the instant case, I am satisfied that the complainant has failed to adduce any meaningful or cogent evidence (including statistical analysis) to establish that the rule/requirement to provide a bank statement or utility bill in order to establish proof of address for the purpose of eligibility to the Fuel Allowance Scheme puts members of the Traveller community at a particular disadvantage compared to non-Travellers. The complainant has relied on mere supposition unsupported by factual evidence in support of his contention that the impugned rule/requirement puts Travellers at a particular disadvantage compared to non-Travellers. In the circumstances, I find that the complainant has failed to establish a prima facie case of indirect discrimination in relation to this element of his complaint. Accordingly, I find that the claim of indirect discrimination fails.

1. Harassment   

   6.13     The final element of the complainant’s complaint which I must consider relates to the claim that he was subjected to harassment by the respondent contrary to Section 11 of the Equal Status Acts. The complainant claims that the manner in which he was dealt with by officials from the respondent in relation to his attempts to access the Fuel Allowance Scheme was offensive, humiliating and very detrimental to his health and well-being.

6.14     In order to raise an inference of harassment the complainant must establish that he was subjected to unwanted conduct by the respondent within the meaning of Section 11(5) of the Equal Status Acts which had the effect of violating his dignity and creating a hostile, humiliating or offensive environment for him. I heard direct evidence from a number of witnesses on behalf of the respondent who had interaction with the complainant in relation to his application for the fuel allowance. I have found the evidence of these witnesses to be credible and compelling in terms of their interaction with the complainant and I am satisfied that they did not engage in any conduct towards him which could be construed as harassment within the meaning of the Acts.

6.15     Having regard to the totality of the evidence adduced, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the complainant was subjected to harassment contrary to Section 11 of the Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment within the meaning of Section 11 of the Acts.

7. Decision

7.1       In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and I find that:

i.  The complainant has failed to establish a prima facie case of direct discrimination on the race or Traveller community ground within the meaning of Section 3(1)(a) of the Acts.

ii.   The complainant has failed to establish a prima facie case of indirect discrimination within the meaning of Section 3(1)(c) of the Acts.

iii.   The complainant has failed to establish a prima facie case of harassment within the meaning of Section 11 of the Acts.

Accordingly, I find in favour of the respondent.  

_________________

Enda Murphy

Equality Officer/Adjudication Officer

5th June, 2018

[1] [2015] IESC 113