Complainant

Respondent

Parties

Damian O'Leary

Minister for Tourism, Transport and Sport.

Complainant

Respondent

Anonymised Parties

Damian O'Leary

Minister for Tourism, Transport and Sport.

Representatives

Self-represented

Karen MacNamara , and Mr Conor Quinn, Chief State Solicitor's Office.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021259-001

10/08/2018

The complainant is a driver with a static disability. He states that in order to renew his insurance, the insurance company imposed less favourable and more costly conditions than those imposed on persons without a disability. He maintains that the respondent Minister has overall responsibility for the imposition of these conditions upon drivers with a disability.

He submitted his complaint to the WRC on 22 August 2018.

The complainant is a driver with a static disability which means that it has remained and will remain unchanged. It is a neurological condition which impairs the use of his legs. The car has been adjusted with hand controls.

He states that upon renewing his insurance in May 2018, his insurance broker asked him to produce   a medical certificate from his GP attesting to his fitness to drive. Neither EU or Irish law require him to produce a medical certificate for purposes of renewing his motor insurance. EU Directive 166 Council of Europe, appendix 3, section 2 states that driving licence can be renewed without the need for a medical examination. He does not therefore have a medical restriction on his driving, so the requirement to produce a medical certificate is discriminatory. He claims that an additional discriminatory act perpetrated by the Minister is the requirement to produce a certificate from a garage affirming that the hand controls in the car were fully functional.

The National Standards Authority of Ireland demand that an insurer obtains certification by a recognized garage that hand controls are in order and the same authority also require a statement of fitness to drive. He submitted certification of hand controls to Revenue in 2016 for an exemption from Vehicular Registration Tax. He is exempt from motor tax since 2016. So that information was available from Revenue and could have saved the complainant time and effort. Drivers seeking motor insurance who do not have a disability do not have to spend the time and energy on this activity,

The complainant in explaining why he identifies the respondent as the party responsible for this discriminatory treatment states that he did submit a complaint to the insurance company, then thereafter to the Financial Ombudsman, then to the Insurance Federation of Ireland. All of these organisations disclaimed any responsibility for the matter. The IHRC advised him to refer his complaint to the WRC. He states that it is the Minister’s responsibility to protect disabled drivers from insurance companies. The requirement for validation of hand controls only applies to persons with static disability as opposed to persons with other disabilities.

He estimates the cost of annual certification of fitness to drive from a GP will cost him €4,400 up to age 70. This is a cost not imposed on drivers without a disability and amounts to less favourable treatment.

He was obliged to purchase more expensive motor insurance. He states that a simple online search revealed a 50 % cost difference between drivers with a disability and those without.

The complainant states that he cannot be certain of the date on which these 2 conditions (a medical certificate and verification by a garage of hand controls) were imposed upon him.

The respondent denies that the respondent Minister breached section 5 of the Equal Status Act, 2000 as amended, which prohibits discrimination in the provision of goods or services.

The respondent maintains that the complaint has no basis, is misconceived and should be dismissed. The Minister cannot be understood to have provided the goods or services in question to the complainant and even taking the complaint at its height, and accepting the facts as outlined in the complaint form, the minister cannot be close to the meaning of a service provider for the purposes of section 5 of the Equal Status Act,2000. Therefore this complaint has no basis in law.

The complaint form submitted by the complainant to the WRC and the form ES.I, dated the 6th of July, state that he was discriminated against by virtue of his disability and and by a provider of goods, services or facilities in that he was obliged to produced evidence of fitness to drive and evidence of fully functional hand controls. For his complaint to succeed, he needs the respondent to be the person who has treated him unlawfully.

He is not making a complaint relating to the failure to provide reasonable accommodation. The date of the first instance of discrimination is May 2017. The date of the most recent instance of discrimination is cited as May 2018 in the form ES.I.

The complainant maintains that the insurance company could have obtained confirmation from Revenue that the car is certified as roadworthy and should not have requested this information from the respondent. The complainant also maintained that the fact that they omitted to provide reasons to him as to why these documents were required is also discriminatory.

The complainant also asked in section 6 of form ES.1 if the respondent Department liase with insurance industry over costs and requirements for persons with disabilities seeking car insurance.

By letter dated the 17th of October, the CSSO responded to the complainant’s questions and provided information. They outlined that the complainant's complaint against the Minister had no basis for reasons which the letter went on to outline, and urged the complainant to withdraw the complaint.

Role of the respondent Department in the provision of motor insurance.

The Department’s primary role in the provision of motor insurance is that it has responsibility for the legislative framework. This is provided for in sections 56 to 81 of the Road Traffic Act, 1961 as amended which obliges all drivers to have a valid motor insurance and associated requirements. It does not deal with the issue of the documentation that insurance companies should request from prospective customers when entering a contract of insurance or with anything relating to the provision of motor insurance for a person with a disability. Aside from its responsibility for the legislative framework governing motor insurance, it has no role in relation to the regulation of insurance companies or in the pricing or provision of motor insurance. This is the department’s only function in relation to motor insurance.

The Central Bank of Ireland is responsible for the supervision and regulation of insurance undertakings that are authorised by the Central Bank and is statutorily independent in the exercise of these regulations and supervisory functions. The consumer issues in relation to insurance are covered by the Central Bank of Ireland’s consumer protection code

The Burden of Proof.

The complainant has not outlined any legal basis for the complaint. The burden of proof contained in section 38A of the 2000 Act, as amended, provides that

"whereas in any proceedings facts are establish bar on behalf of the person from which it may be presumed that prohibited conduct has occurred in relation to him or her it is for the respondent to prove the countrary”.

The respondent relies on Mitchell v Southern Health Board, 2001, DEE011,where the Labour Court outlined that

“a claimant must prove on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the court and they are regarded by the court as being of a significant significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.

The complaint has not established or even outlined the primary facts which would show any prohibited conduct on the part of the respondent.

Section 5(1) of the 2000 Act provides as follows:

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service whether the disposal or or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Clearly what is prohibited is discrimination by a provider of the service. It is clear that the respondent Minister could not in any way be seen to be a provider of the insurance services. The complainant has not made out this case and as such there is no conduct by the respondent that is a breach of section 5.

Section 22 of the 2000 Act allows for the dismissal of a claim where it is misconceived. The rerspondent relies on the meaning of misconceived as set out by the High Court in Keane v Minister for Justice, (1994) 3 IR 347 where Lynch J. found the actions of the relevant Minister in relieving Leitrim Co Council of its duty to provide   courtroom facilities to have no basis in law. The respondent also relies on the decisions of Thomas Whelahan v The Football Association of Ireland ,DEC-S2018- and Neary v Louth Co.Council, DEC-S 2011-020 .Both of these decisionsfound that the respondent was not a service provider within the meaning of section 5 of the act as they did not provide services to the complainants in those case and the complaints were dismissed under section 22 as being misconceived

Time limits

The responddnet maintains that the complainant has failed to produce evidence that he complied withy the time limits required by section Section 21(2)A of the 2000 Act which provides that

“Before seeking redress under the section the complainant-shall, within two months after the prohibited conduct is alleged to have occurred or more than one incident of prohibited conduct is alleged to have occurred, within two months after the last such occurence notify the respondent in writing of

the nature of the allegation and

the complainant's intention if not satisfied with the response to the allegations to seek redress under this Act.”

The ES.I one form dated the 6th of July was posted on the 6th of July. This means that for the complainant's case to be within time, the latest incident of discrimination must have taken place on or after the 7 May 2018. However the complainant has not provided evidence of the date on which the latest incident occurred. He has also stated at the hearing that he is unsure of the dates of the disc riminatory acts.

The resxpondent asks the adjudicator to dismiss the complaint.

I am obliged to establish if the respondent discriminated against the complainant on grounds of disability and contrary to section 5 of the Act as manifested in the different, less favourable conditions imposed on persons with a disability seeking to renew their motor insurance as compared to applicants without a disability.

Section 5 of the Equal Status Act 2000 states.

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service whether the disposal or or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 2 of the Act includes insurance in its definition of service.

Before I consider the acts complained of, I must decide, in the first analysis, if the respondent Minister was a service provider in the context of section 5 of the Act of 2000. Where does the Minister for Transport come into this complaint?

The Road Traffic Act 1961 sets out the responsibilities of the Minister in relation to motor insurance. These are found in sections 56-81of the Act of 1961.The Minister requires drivers of mechanically propelled vehicles to be insured, imposes penalties on those who ignore this requirement, obliges insurers of said vehicles to honour their obligations in event of injury but exercises no control over costs or conditions which insurance companies impose on customers. How the insurance company interacted with the complainant or the conditions which they imposed upon the complainant are actions independent of the Minister.

I accept the conviction of the complainant, but section 5 of the Act 0f 2000 is quite clear in that responsibility for any alleged act of discrimination lies with the provider of the goods and or services.

I find that the respondent was not providing any service or facility within the context of section 5 of the 2000 Act. Therefore, the complaints of discrimination are misconceived and cannot succeed.

I find that the complaint is misconceived and cannot succeed.

Equal status; correct respondent.