Complainant

Respondent

Parties

Vera Tarnavska

Health Service Executive

Complainant

Respondent

Anonymised Parties

Not Applicable

Not Applicable

Representatives

David Sheehan & Company Solicitors

Ms. Sarah-Jane Hillery B.L. on the instructions of the Office of the Chief State Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00006512-001

17/08/2016

The Complainant is originally from Belarus and has been residing in Ireland since 2005. The Complainant claims that she was discriminated against by the Respondent on the grounds of her disability and race in terms of sections 3(1) and 3(2)(g) and 3(2)(h) of the Equal Status Acts and contrary to section 5(1) of the Equal Status Acts in relation to the Respondent’s decision to disallow the payment of Rent Allowance to her.

The Complainant was in receipt of Rent Allowance from the Respondent. The Complainant claims that the payment of her Rent Allowance was withdrawn by the Respondent in January, 2014 without any prior warning or notification. The Complainant appealed the Respondent’s decision and it was held by the Appeals Officer that the Designated Person was correct in refusing the Rent Allowance as her rent of €500 was in excess of the rent limit applicable to her family size and therefore she did not qualify under normal legislative requirements for entitlement to Rent Allowance.

However, it was also decided by the Appeals Officer that the Complainant should be granted a payment under exceptional circumstances (in accordance with the Supplementary Welfare Allowance Scheme) to approve an allowance equivalent to the value of the rent in payment of €500 per month, to assist her with the accommodation costs from the date her Rent Allowance ceased to 8 January, 2015.

The Complainant claims that her Rent Allowance ceased on 8 January, 2015 without any further explanation by the Respondent and resulted in her facing the prospect of becoming homeless. The Complainant claims that the Respondent’s decision to cease the payment of her Rent Allowance on 8 January, 2015 amounted to discrimination on the grounds of race contrary to the Equal Status Acts. The Complainant also claims that the Respondent has failed to provide her with reasonable accommodation within the meaning of Section 4 of the Acts.

The Respondent submitted that under the Supplementary Welfare Allowance Scheme a rent allowance may be paid where a person is paying rent which is within the limit set out in the social welfare legislation. The limit varies according to the area in which the person lives and the number of people sharing the accommodation.

The Complainant’s Rent Allowance was discontinued with effect from 8 January, 2014 as she did not satisfy the requirements as laid out in statute for payment of such allowance. The Complainant subsequently appealed this decision and it was held by the Appeals Officer on 29 September, 2014 that the Designated Person was correct in refusing the Rent Allowance on the basis that the Complainant did not satisfy the relevant qualification requirements.

However, the Appeals Officer decided to award the Complainant payment under exceptional circumstances (as provided for in the Supplementary Welfare Allowance Scheme), which was equivalent to the value of the rent in payment of €500 per month, to assist her with the accommodation costs from the date her Rent Allowance ceased in January, 2014 to 8 January, 2015.

The reason for granting this payment under exceptional circumstances was to allow the Complainant time to re-negotiate the cost of her rent with her landlord or to source alternative accommodation within the rent limits applicable to her family size as set out in the social welfare legislation.

The Respondent submitted that the reason the Complainant’s Rent Allowance was disallowed was due to the fact that she did not satisfy the requirements as laid out in statute for payment of such allowance.

The Respondent denies that the Complainant was subjected to discrimination on the grounds of her race or that there was any failure to provide her with reasonable accommodation contrary to the provisions of Section 4 of the Equal Status Acts.

Issues of Jurisdiction

The Respondent raised two separate issues in relation to the jurisdiction of the Director General of the WRC to investigate the instant complaint.

The first issue of jurisdiction relates to the name of the person identified by the Complainant as the Respondent in these proceedings. The Respondent submits that the decisions the subject matter of this complaint were made by the Department of Employment Affairs and Social Protection and/or the Social Welfare Appeals Office, an independent body. Neither party is named as Respondent, instead Ms. X, Higher Executive Officer of the Department of Employment Affairs and Social Protection is named. The Respondent submits that Ms. X is incorrectly named in her personal capacity. The Respondent submits that in all her interactions with the Complainant, Ms. X was acting in the course of her duties with the Department of Employment Affairs and Social Protection. The Respondent submits that if the Complainant, has any claim to make, which is denied, the Department of Employment Affairs and Social Protection is the appropriate Respondent in the within proceedings.

The Complainant did not dispute the Respondent’s contention on this issue of jurisdiction and concedes that the correct Respondent in these proceedings is the Department of Employment Affairs and Social Protection. The Complainant requested that the name of the Respondent in the within proceedings be amended to read the Department of Employment Affairs and Social Protection.

In considering this issue, I note that Section 42 of the Equal Status Acts makes provision for the concept of vicarious liability, where it provides:

42. — (1) 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.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

In considering this matter, I am satisfied, firstly, that Ms. X is an employee of the Department of Employment Affairs and Social Protection and that she was acting in the course of her duties in all her interactions with the Complainant in this case. Secondly, I note that the legal representative for the Department of Employment Affairs and Social Protection consented to an application by the Complainant to amend the name of the Respondent in these proceedings to that entity. Having regard to the foregoing, I find that the Department of Employment Affairs and Social Protection is the correct Respondent to the within proceedings and that the name of the Respondent be amended accordingly.

The second issue of jurisdiction relates to the Respondent’s contention that the complaint has not been referred to the Director General of the WRC within the relevant time limits provided for in Section 21(6) of the Equal Status Acts.

The Respondent contends that the initial decision to disallow the Complainant’s Rent Allowance occurred in January, 2014 and that the decision of the Appeals Officer to affirm withdrawal of the Rent Allowance took effect on 8 January, 2015. The Respondent submits that the 8 January, 2015 is the date of the most recent occurrence of the alleged discrimination. The Respondent submits that the instant case was referred to the WRC on 17 August, 2016 which was 19 months after the date of the most recent occurrence of the alleged discrimination and therefore, the complaint was clearly referred outside of the time limits provided for in Section 21(6) of the Acts.

Section 21(6) of the Acts provide as follows:

“(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”

In effect, the provisions of Section 21(6) of the Acts require that a complaint be referred to the WRC within 6 months from the date of occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence. This period of 6 months can be extended up to a maximum of 12 months, if the Complainant can show that reasonable cause prevented referral within 6 months. The Director General of the WRC does not have any power to extend the time limit for the referral of a complaint beyond 12 months after the most recent occurrence of discrimination.

Having regard to the evidence adduced, I am satisfied that the most recent occurrence of the alleged discrimination in the instant case is 8 January, 2015 i.e. being the date that the decision of the Appeals Officer to affirm withdrawal of the Rent Allowance took effect. The complaint was referred by the Complainant to the Director General of the WRC on 17 August, 2016, and therefore, this referral was made some 19 months after the most recent occurrence of the alleged prohibited conduct. The complaint was clearly referred outside of the time limits set out in Section 21(6) of the Equal Status Act. Accordingly, I find that the Commission has no jurisdiction to investigate the within complaint.

I find that the complaint was not referred to the Director General of the WRC within the time limits set out in Section 21(6) of the Equal Status Acts. Accordingly, I find that the Commission has no jurisdiction to investigate the within complaint.

Equal Status Acts 2000- 2015 – Discrimination – Rent Allowance – Race and Disability Grounds – Section 21 – Time Limits – No Jurisdiction