EQUAL STATUS ACTS, 2000 to 2015
DECISION NO. DEC-S2019-001
PARTIES
Mrs. S and her seven children
(represented by Ms. Heather Rosen)
-v-
The Minister for Employment Affairs and Employment Affairs and Social Protection
(represented by Mr. Mark Finan B.L. on the
instructions of the Chief State Solicitor)
File reference: ES/2014/069
Date of issue: 1st February, 2019
Background to the Claim
1.1 The Complainants referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts on the 20th May, 2014. 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 25th and 26th April, 2018. Final correspondence from the parties was received on 31st May, 2018.
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. Given the sensitivities of the issues connected with the complaint, I have decided to exercise my discretion to anonymise the identities of the Complainants.
Dispute
2.1 The dispute concerns a claim by the Complainants that they were discriminated against by the Respondent on the grounds of their race and membership of the Traveller community in terms of Sections 3(1)(a), 3(2)(h) and 3(2)(i) contrary to Section 5 of the Equal Status Acts in relation to the manner in which their application for an Exceptional Needs Payment for homelessness assistance was dealt with. Mrs. S also claims that she was subjected to discrimination on the grounds of disability in terms of Section 3(1)(a), 3(2)(g) in relation to this matter. Mrs. S also claims that she was subjected to harassment contrary to Section 11 of the Acts.
Preliminary Matters
3.1 There were a number of preliminary issues raised by the parties of a jurisdictional nature during the course of the proceedings in relation to this complaint. These issues of jurisdiction are set out hereunder.
Referral of Multiple Complaints
3.2 The Complainants’ representative referred a number of complaint referral forms to the Equality Tribunal on behalf of the Complainants during the period between March and June, 2014 alleging discrimination and harassment relating to issues connected with applications for Exceptional Needs Payments to assist with homelessness and matters related thereto. The complaint referral forms which were submitted in respect of the instant complaint named Mrs. S and her children as the complainants. The Complainants’ representative, Ms. Rosen, has submitted that the complaints in respect of Mrs. S and her children constitute individual “standalone” complaints within the meaning of Section 21 of the Acts and should be dealt with individually at separate hearings.
3.3 The Respondent disputes the Complainants’ position on this issue and submits that:
- The same factual matrix applies to each of the individual Complainants and the effect of the alleged discrimination is reflected as such in each complaint form submitted.
- There is no individual fact or set of facts that separates the individual members of the Complainants’ family to necessitate an individual hearing on each complaint.
- If, which is denied, any prejudice or damage has been suffered as a result of the acts and/or omissions of the Respondent, Ms. Rosen’s case is that such damage and suffering has been felt by each member of the family cumulatively. No evidence has been proffered to suggest otherwise and no medical evidence has been exhibited or relied upon. Therefore, it is logical that all of these matters be dealt with together.
- The complaints relating to Mrs. S’s children should not be dealt with separately in the context of Section 21 as there is no factual complaints submitted by the children. All of the alleged acts or omissions of the Respondent were directed towards Mrs. S.
- 3.4 Having considered the extensive submissions of both parties on this issue, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that there has been any specific discriminatory treatment of any of Mrs. S’s children on an individual basis. It is clear that the same factual matrix in terms of the alleged discrimination/harassment is applicable to all of the members of the family and that there are no individual facts which would necessitate the requirement for a separate hearing in relation to the complaints referred on behalf of the individual Complainants. In the circumstances, I find that the individual complaints referred on behalf of Mrs. S and her children do not constitute “standalone” complaints within the meaning of Section 21 of the Acts.
- 3.5 A further issue arose in relation to whether or not the alleged incidents of discrimination and harassment as outlined in the complaint referral forms constitute individual acts of discrimination or ongoing discrimination within the meaning of Section 21(11) of the Acts. I decided to hear the evidence in relation to a number of the abovementioned complaints which had been referred by the Complainants at the hearing on 25th and 26th April, 2018. Having regard to the evidence adduced, it is clear that Mrs. S had frequent interaction with the Respondent over the course of a number of months during 2013/2014 in relation to a number of separate applications for Exceptional Needs Payments and matters related thereto. I have taken cognizance of the Respondent’s evidence that an Exceptional Needs Payment is a once off payment and that it must be determined on each application and on the particular circumstances pertaining to that application. I am satisfied that the alleged discriminatory treatment referred to in the complaint referral forms relevant to the instant complaint relates to an individual act of alleged discrimination concerning the manner in which a specific application for payment of an Exceptional Needs Payments was dealt with by the Respondent. Accordingly, I have decided that my findings in relation to the alleged discriminatory treatment detailed in complaint referrals relating to this specific application should be encapsulated in the within decision.
- Vicarious Liability
- 3.6 The Complainants referred complaints against six named individuals, who were all officials of the Department of Employment Affairs and Social Protection at the material time of the alleged discrimination, and the Department of Employment Affairs and Social Protection itself. The Complainants’ 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.”
3.7 The Acts therefore provide 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 Employment Affairs and 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.
3.8 Having considered the submissions, I am satisfied that the named officials are all employees of the Department of Employment Affairs and Social Protection and acted in the course of their employment, and therefore, the Department of Employment Affairs and 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 Employment Affairs and Social Protection is the correct Respondent and the case should proceed against this body only and not the named individuals.
Summary of the Complainants’ Case
4.1 The Complainants submit that they are members of the Traveller community and have been discriminated against by the Respondent. It was submitted on behalf of the Complainants that they had been living in conditions of extreme deprivation in the early Autumn 2013 until Mrs. S was granted an Exceptional Needs Payment by the Respondent towards the cost of renting accommodation on a short-term emergency basis. Mrs. S, after an extensive search, was successful in sourcing a rented holiday house for her family from 7th to 17th October, 2013 which cost €500 for the period in question. Mrs. S paid this amount to the owner of the house on 16th October, 2013 and obtained a receipt to confirm payment of the cost of the accommodation.
4.2 Mrs. S subsequently brought this receipt to the Homelessness Clinic, as she had been instructed to do by the Respondent’s officials, so that authorization could be granted for a further payment to continue renting the existing house or to source alternative accommodation. However, Mrs. S was informed by an official that the receipt was not acceptable as it was not on headed note paper and did not contain the VAT number of the owner of the property. Mrs. S was totally taken aback by the Respondent’s refusal to accept the receipt and explained that this was the only receipt which she was given and that she didn’t think the owner would provide another. Mrs. S subsequently contacted the owner to try and obtain a further receipt in the format requested by the Respondent but was unable to do so.
4.3 Mrs. S and her representative made several further visits to the Homelessness Clinic in relation to this matter to try and resolve the issue in relation to the receipt but was informed that she would not be granted any further payments to source accommodation unless the receipts were provided in the required format. Mrs. S submits that the officials which she dealt with in relation to this matter were totally uncooperative and as a result she was unable to continue renting this property and had to return to living in deplorable conditions in a caravan.
4.4 It was submitted that the reason why the Respondent would not accept the receipt and that the Complainants were treated in such a manner was attributable to the fact of their Traveller identity and ethnic origins. The Complainants claim that the Respondent would have accepted the receipt from a non-Traveller and submit that the manner in which they were treated by the Respondent amounts to discrimination contrary to the Equal Status Acts.
4.5 The Complainant, Mrs. S, also contends that she was subjected to discrimination by the respondent in relation to the above matters on the grounds of disability. Mrs. S submits that she is covered by the disability ground within the meaning of Section 2(1)(e) of the Acts on the basis of her poor literacy skills, being a condition which made the relationship to the written documents which she was required to deal with in her interaction with the Respondent, different to that which would have been present, typically, for members of the settled community. The Complainant contends that there was a refusal by the Respondent to do all that was reasonable to accommodate her needs as a person with a disability on the basis that its officials failed to provide special measures to facilitate her illiteracy by way of providing an explanation relating to the requirements that existed in terms of the receipt.
4.6 Mrs. S also claims that she was subjected to harassment by the Respondent contrary to Section 11 of the Equal Status Acts in relation to the hostile and intimidating manner in which she was treated by officials employed by the Respondent during her visits to the Homelessness Clinic to try and resolve the issue in relation to the receipt for her accommodation. Mrs. S contends that a number of incidents occurred in terms of her interaction with officials at the Homelessness Clinic which constituted offensive, humiliating and intimidating behaviour such as the long periods she was left waiting for attention, the transferring of messages back and forth between the officers on duty, the terminating of interviews and the turning on and off of lights in the small kiosk.
Summary of the Respondent's Case.
5.1 The Respondent submits that financial assistance to any person who presents as homeless is on a “means” and “needs” assessment basis. Payments are made under Supplementary Welfare Allowance legislation and are called Exceptional Needs Payments. Certain criteria must be met in order to qualify for an Exceptional Needs Payment and all applicants presenting as homeless are assessed individually but in the same manner. Firstly, a customer must have a “housing needs assessment” carried out by the Local Authority and also register for Social Housing. The “housing needs assessment” will be one of the main factors in establishing whether or not they have a need for assistance under Emergency Needs Payment.
5.2 The Respondent submits that in the instant case it was informed by the Local Authority that Mrs. S’s family did have a housing need, but no Local Authority accommodation was available to them and as soon as emergency accommodation became available to the family, they were assisted under Exceptional Needs Payment in respect of same.
5.3 The Respondent submits that where an entitlement has been established and assistance is approved under Emergency Needs Payment to persons presenting as homeless, if ongoing financial assistance is required over a period of time, it is the policy of the Department to request receipts for monies expended before a further payment can issue. This policy is to ensure that funds administered are appropriately expended, staff are accountable to the Department for monies approved and also for the purposes of audit both “internal” and by the Comptroller and Auditor General’s Office. There is no discretion on this policy and same applies to all beneficiaries of assistance under the Scheme.
5.4 The Respondent submits that the Complainants have failed to provide any evidence to substantiate a claim of discrimination or harassment contrary to the Equal Status Acts. The Respondent submits that Mrs. S applied for an Exceptional Needs Payment pursuant to Section 210 of the Social Welfare Consolidation Act 2015 which provides:
“201.- The Executive or deciding officer may, in any case where the Executive or deciding officer considers it reasonable, having regard to all the circumstances of the case, so to do, determine or decide that supplementary welfare allowance shall be paid to a person by way of a single payment to meet an exceptional need”.
It is alleged by Mrs. S that she presented a receipt that was not in compliance with the rules and therefore funds were withheld. The Respondent submits that funds were not withheld as the Exceptional Needs Payment is a once off payment. The Deciding Officer, who dealt with Mrs. S in relation to the instant case, applied the rules governing the payment and using her own discretion determined that the payment should not be granted. Mrs. S presented a bare receipt to the Deciding Officer which was not on headed paper and it did not contain the VAT number of the proprietor. The Respondent submits that these requirements applied to everyone and if a member of the settled community presented the same claim then it too would have been denied for failure to comply. The Respondent contends that this was explained to Mrs. S and that she was aware of the need to comply.
5.5 The Respondent submits that Mrs. S had an unfettered right to ask for a review of the decision by a Social Welfare Review Officer, but she failed or neglected to use this mechanism prior to instigating the within claim. The Respondent submits that Mrs. S has failed to provide any evidence that the requirement for headed paper acted as a deterrent for the landlady to ever rent to a Traveller family again. The evidence adduced was that the landlady refused to provide a receipt on headed paper with her VAT number on it. The Respondent submits that a proper receipt is required as the Exceptional Needs Payment comes from public funds, and therefore, any discretion to give the said payment needs to be fully accountable. The requirements are not prohibitive and/or arbitrary but arise from the need for transparency within the system.
5.6 The Respondent submits that there is no basis in law or on the facts to sustain the within claim. It is entirely misconceived and based on Ms. Rosen’s belief that the Deciding Officers should disregard guidelines that apply to everyone in preference to members of the Traveller community.
5.7 The Respondent disputes the claim of discrimination on the disability ground and submits that Mrs. S does not have a disability within the meaning of Section 2(1) of the Acts. The Respondent submits that illiteracy is not covered by the definition of “disability” within Section 2(1), and notwithstanding the foregoing, refers to the fact that the Complainant’s representative, in her submissions, states that Mrs. S is not illiterate.
5.8 The Respondent also denies that the complainant was subjected to harassment contrary to Section 11 of the Equal Status Acts.
Conclusions of the Equality Officer/Adjudication Officer on substantive matter
6.1 The issues for decision by me are (i) whether or not the Respondentdiscriminated against the Complainants on grounds of their membership of the Traveller community, ethnic origins and/or disability in terms of Sections 3 of the Equal Status Acts and (ii) whether or not the respondent subjected Mrs. S 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.
6.2 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 Complainants to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. 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.
Traveller community and Race grounds
6.3 The present complaint of discrimination has been grounded on both the Traveller community and race grounds. It was not in dispute that the Complainants are members of the Traveller community and I am therefore satisfied that they are covered by the Traveller community ground. The Complainants have also claimed that they were subjected to discriminatory treatment on the grounds of their ethnic origins as members 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 Complainants, being members of the Traveller community, are also covered by the race ground for the purpose of this complaint.
6.4 The Complainants have claimed that they were subjected to discriminatory treatment on the grounds of their membership of the Traveller community and ethnic origins in relation to the manner in which the rules and requirements governing the payment of an Exceptional Needs Payment for homelessness assistance were applied by the Respondent. More specifically, the Complainants claim that the requirement to produce a receipt on headed paper and a VAT number from the owner of a property which they had rented on a temporary basis amounted to less favourable treatment on the grounds claimed and that a non-Traveller or a person of different ethnic origin would not have been subjected to such a requirement in order to avail of an Exceptional Needs Payment. The Respondent denies the claim of discrimination and contends that the Complainants have failed to furnish any evidence that they were treated less favourably than any other applicant, who was not a member of the Traveller community or of a different ethnic origin, was or would have been in similar circumstances, in relation to the manner in which the requirements governing the payment of an Exceptional Needs Payment were applied to them.
6.5 In considering this issue, I note that the provisions of Section 201 of the Social Welfare Consolidation Act, 2005 confers the power upon a deciding officer to grant a supplementary welfare allowance by way of a single payment to meet an exceptional need (i.e. by way of an Exceptional Needs Payment). It is clear that applications for such payments are considered on an individual basis and can only be granted in circumstances where the applicant satisfies the relevant criteria and requirements governing the Scheme under which the payments are administered. I heard cogent and compelling evidence from the Respondent’s witnesses regarding the manner in which applications for Exceptional Needs Payments are administered and I accept the Respondent’s evidence that uniform requirements in relation to the provision of a receipt in the specified format are applied to all applicants for an Exceptional Needs Payment, irrespective of their ethnicity or Traveller identity.
6.6 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 Complainants were treated less favourably on the grounds of their Traveller identity and/or ethnic origins in relation to the manner in which the requirements to avail of an Exceptional Needs Payment were applied in the circumstances of the present case. Accordingly, I find that the Complainants have failed to establish a prima facie case of discrimination in relation to this complaint on the grounds of their membership of the Traveller community and/or ethnic origins.
Disability Ground
6.7 The Complainant, Mrs. S, has also claimed that she was discriminated against on the grounds of her disability and that the Respondent failed to provide her with reasonable accommodation as a person with a disability in accordance with the provisions of Section 4 of the Acts. “Disability” is defined in Section 2(1) of the Acts as meaning:
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behavior
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”.
6.8 The Complainant contends that she is illiterate and that this condition constitutes a “disability” within the meaning of Section 2(1)(e) of the Acts. “Illiteracy” is defined in the Cambridge English Dictionary as “a lack of the ability to read and write”. The question arises as to whether or not illiteracy is a condition or malfunction which results in a person learning differently or which affects a person’s thought process. I am of the view that illiteracy may become a disability within the meaning of Section 2(1) of the Acts if it is the result of a physical or mental impairment. For example, if a person suffers a stroke or severe head trauma that leaves that person unable to read, or if a person has a severe learning disability that made it impossible to learn to read, it may constitute a disability within the meaning of Section 2(1) of the Act. However, I am of the view that if a person has the ability to learn to read but just never did so because of "social, cultural and economic" factors, and consequently, is illiterate, it does not constitute a disability for the purpose of the Acts.
6.9 In the instant case, I do not accept that the Complainant is illiterate within the ordinary meaning of this word. Having regard to the evidence adduced, I am satisfied that the Complainant was able to communicate in writing with the Respondent in relation to matters pertaining to the circumstances surrounding the alleged discriminatory treatment in the instant complaint. Accordingly, I find that the Complainant is not covered by the disability ground.
Harassment
6.10 The final element of the complaint which I must consider relates to the claim by Mrs. S that she was subjected to harassment by the Respondent contrary to Section 11 of the Equal Status Acts. Mrs. S has claimed that the manner in which she was treated by officials employed by the Respondent during her visits to the Homelessness Clinic to try and resolve the issue in relation to the receipt for her accommodation was offensive, humiliating and intimidating.
6.11 In order to raise an inference of harassment the Complainant must establish that she 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 her dignity and creating a hostile, humiliating or offensive environment for her. I heard direct evidence from a number of witnesses on behalf of the Respondent who had interaction with Mrs. S in relation to her application for an Exceptional Needs Payment. I have found the evidence of these witnesses to be credible and compelling in terms of their interaction with Mrs. S and I am satisfied that they did not engage in any conduct towards her which could be construed as harassment within the meaning of the Acts.
6.12 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 Mrs. S was subjected to harassment contrary to Section 11 of the Acts. Accordingly, I find that Mrs. S has failed to establish a prima facie case of harassment within the meaning of Section 11 of the Acts.
Decision
7.1 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and I find that:
i. The Complainants have failed to establish a prima facie case of discrimination on the disability, race or Traveller community grounds within the meaning of Section 3(1)(a) of the Acts.
ii. The Complainant, Mrs. S, 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
1st February, 2019