DEC-S2019-002

EQUAL STATUS ACTS, 2000 to 2015

DECISION NO. DEC-S2019-002

PARTIES

Mr. and Mrs. S and their 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/2014/089 &

ES/2014/090

Date of issue: 1st February, 2019

1.    Background to the Claim

1.1      The Complainants referred these complaints 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.

2. 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 the rules and requirements were applied in respect of their application for an Exceptional Needs Payment for homelessness assistance. Mrs. S also claims that she was subjected to harassment contrary to Section 11 of the Acts.

3. 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 these complaints. These issues of jurisdiction are set out hereunder.

Referral of Multiple Complaints

3.2       The Complainants’ representative, Ms. Rosen, 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 these complaints named Mr. and Mrs. S and their children as the complainants. The Complainants’ representative, Ms. Rosen, has submitted that the complaints in respect of Mr. and Mrs. S and their 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 Mr. and 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 Mr. and 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 Mr. and 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 Mr. and Mrs. S and their 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 Mr. and 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. In this regard, I am satisfied that the alleged discriminatory treatment which was detailed in the referrals which have been allocated the reference numbers EE/2014/089 and EE/2014/090 are inextricably linked and relate to events that took place surrounding the same individual application for an Exceptional Needs Payment. Accordingly, I have decided that my findings in relation to the alleged discriminatory treatment detailed in both of these referrals 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 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 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.

4. 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 in relation to the manner in which the rules and requirements were applied in respect of their application for an Exceptional Needs Payment for homelessness assistance.

4.2       The Complainants submit that they had been living in conditions of extreme deprivation in the early Autumn 2013 and had been granted an Exceptional Needs Payment by the Respondent towards the cost of renting private accommodation for a period of time in October, 2013. When the lease arrangement in relation to this property could not be renewed the family became homeless again and sought further assistance from the Respondent to cover the cost of alterative accommodation by way of an Exceptional Needs Payment. Mrs. S attended the Homelessness Clinic which was operated by the Respondent in Town A (being her local town) on 22nd October, 2013 to explain the dire situation the family was experiencing in relation to homelessness. She was informed by officials in the Clinic to go and look for rented accommodation and bring back proof of a booking if anywhere could be found to take the family in and the matter would be considered further.

4.3       Mrs. S went to Town B (being the County town) on 23rd October, 2013 to try and locate temporary accommodation but first visited the Homelessness Clinic there to ask officials how to properly follow the instructions given the day before as it was extremely difficult to source accommodation for a Traveller family. Mrs. S contends that she was informed by officials on this occasion that no further payments would be made to her unless she could provide a receipt on headed paper from the proprietor of the property which she had previously rented in early October, 2014. Mrs. S contends that she was unable to comply with this requirement and give that the Respondent refused to grant any further payment at that juncture to source temporary accommodation, her family was left with no option but to return to their caravan where they were subjected to terrible and inhumane living conditions during the following weeks.

4.4       Mrs. S contends that she had a sum of €270 remaining from the previous Exceptional Needs Payment which she had been granted but had to spend this money on straps to hold down the caravan and laundry expenses during the period that her family had been forced to return and live in their caravan in the preceding few weeks. Mrs. S returned to the Homelessness Clinic in Town B on 15th November, 2013 to return the receipts for the money expended on the straps and laundry costs, in order to account for the remaining money from the previous payment after she had previously been refused further assistance because of the un-headed receipt. However, Mrs. S was informed by an official that she was entirely under the oversight of the Community Welfare Officer at the Clinic in Town A, so any receipts must be brought there. Mrs. S was also informed that she had been taken off the homelessness list on the basis that she had a caravan to reside in. After a great deal of very stressful passing of messages back and forth to the officials on duty in the front kiosk of the Clinic, Mrs. S was informed by an official that, after all, she could have payments reinstated. However, she was also informed that the payment would only be permitted if she could first identify accommodation to rent and submit confirmation of the booking. Mrs. S contends that this was a further unreasonable requirement and placed an almost insurmountable hurdle in her efforts to find alternative accommodation.  

4.5       Mrs. S subsequently spent a number of hours trying to source accommodation on 15th November, 2103 and eventually was successful in finding one possible place to accommodate her family. However, when Mrs. S returned to the Respondent’s Office with the relevant paperwork for this accommodation there wasn’t any officials present in the Homelessness Clinic. Mrs. S was put on the telephone from the reception to one of the officials who informed her that no further payments would be allowed until she had reimbursed the sum of €270 which was outstanding from the previous payment she had been granted. Mrs. S explained to an official that this money had been spent on straps for the caravan and laundry expenses and that she had already returned the receipts earlier that day. Mrs. S was in great distress on hearing this as her husband was on his way to the Clinic with their children to collect her and go to the temporary accommodation which she had earlier sourced. The talk back and forth on the telephone lasted until 5:20 pm until the Office was closed by the Security Officer.

4.6       The Complainants submit that the additional requirements and rules which the Respondent sought to impose in order to avail of an Exceptional Needs Payment to assist with homelessness amounted to less favourable treatment on the grounds of their membership of the Traveller community and ethnic origins. It was submitted that this treatment constitutes discrimination within the meaning of the Equal Status Acts.

4.7       The Complainant, 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 obtain payments to assist with homelessness. Mrs. S contends that a number of incidents occurred in terms of her interaction with officials at the Homelessness Unit 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, the turning on and off of lights in the small kiosk.

5. 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 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.

5.3       The Respondent submits that Mrs. S had applied for, and was refused, an Exceptional Needs Payment in October, 2013 as she had not accounted for monies already provided to her under the scheme. 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”.

The Respondent submits that that a Deciding Officer has regard to both means and needs when exercising their discretion. Therefore, until such time as Mrs. S could account for previous payment of an Exceptional Needs Payments, her means could not be truly assessed in compliance with the scheme. The Respondent adduced evidence that Mrs. S had not provided receipts in respect of an amount of €270 which was outstanding from a previous Exceptional Needs Payment which she had been granted. The Respondent submits that the requirement to account for payments granted before further assistance is provided is applicable to everyone seeking an Exceptional Needs Payment and not just members of the Traveller community.

5.4       The Respondent submits that the allegations made by the Complainants that the Exceptional Needs Payment scheme was operated to harass them are denied in their entirety. The Respondent adduced evidence that assistance for emergency accommodation by way of Exceptional Needs Payment is decided upon once an applicant has, in first instance, contacted the Local Authority (housing body) and checked regarding any availability of Local Authority accommodation. Accommodation had been offered to the family in the instance case (by letter dated 25th November, 2013) and because of this the need for an Exceptional Needs Payment did not arise.

5.5       The Respondent submits that as soon as it received an e-mail on 20th December, 2013 from the Local Authority confirming that the family had a housing need then any application for Exceptional Needs Payment could be processed in accordance with the guidelines. The Respondent was subsequently advised that the family had sourced private rented accommodation and the cost of a deposit by way of an Exceptional Needs Payment was provided.

5.6       The Respondent submits that there is no basis in law or on the facts to sustain this claim and that it is entirely misconceived based upon Ms. Rosen’s belief that Deciding Officers should disregard guidelines that apply to everyone in preference to members of the Traveller community. The Respondent submits that Ms. Rosen, in her submissions, states that the trauma to her clients should have been of paramount importance. The Respondent’s witnesses who gave evidence at the hearing have not denied the Complainants’ circumstances and there was no conflict of fact as to why the payment did not issue until receipts were accounted for. The Respondent submits that Ms. Rosen fails to comprehend how a payment could be denied in circumstances that guidelines were not met by the Complainants. The Respondent further submits that the Complainants have failed to present a comparator and blandly assert that they were discriminated against because they did not get that to which they were “entitled”. They have failed and or neglected to show where in law this entitlement arises, and it is submitted that the reason why they have omitted to do so is that it does not arise. The Respondent submits that the foundations to claim discrimination and harassment, likewise, did not and do not arise.

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

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 Complainants on grounds of their membership of the Traveller community and/or ethnic origins in terms of Sections 3 of the Equal Status Acts and (ii) whether or not the Respondent subjected the Complainants 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.

1. 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. The Complainants claim that the Respondent attempted to introduce additional requirements to frustrate their attempts to obtain assistance including the requirement that they would not be granted any further Exceptional Needs Payments until monies expended from a previous payment were reimbursed. The Complainants contend that the Respondent’s insistence on compliance with these additional requirements in order to avail of further assistance 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 are applied to all applicants for an Exceptional Needs Payment, irrespective of their ethnicity or Traveller identity.

1.  
2. 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. 

Harassment

6.7       The next 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 Unit to try and resolve the issue that had arisen in relation to her application for an Exceptional Needs Payment was offensive, humiliating and intimidating.

6.8       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.

6.9       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, Mrs. S, 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 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