EQUAL STATUS ACTS, 2000 to 2015
DECISION NO. DEC-S2019-003
PARTIES
Mr. S
(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/2014/091 & ES/2014/0124
Date of issue: 1st February, 2019
1. Background to the Claim
1.1 The Complainant referred these complaints to the Director of the Equality Tribunal under the Equal Status Acts on the 20th May, 2014 and 5th June, 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 Complainant that he was discriminated against by the Respondent on the grounds of his disability, race and membership of the Traveller community in terms of Sections 3(1)(a), 3(2)(g), 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. The Complainant also claims that he 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 Complainant’s representative, Ms. Rosen, referred a number of complaint referral forms to the Equality Tribunal on behalf of the Complainant and other members of his family 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 (namely EE/2014/091 and EE/2014/0124) which were submitted in respect of the instant complaints named Mr. S as the Complainant.
3.3 An 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 on behalf of Mr. S and other members of his immediate family at the hearing on 25th and 26th April, 2018. Having regard to the evidence adduced, it is clear that Mr. S and his wife 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 which was detailed in the referrals which have been allocated the reference numbers EE/2014/091 and EE/2014/0124 are inextricably linked and relate to events that took place surrounding the same individual application by Mr. S 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
3.5 The Complainant referred complaints against three 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 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.”
3.6 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.
3.7 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 Complainant’s Case
4.1 The Complainant submits that he is a member of the Traveller community and has been discriminated against by the Respondent in relation to the manner in which the rules and requirements were applied in respect of his application for an Exceptional Needs Payment for homelessness assistance.
4.2 The Complainant is the father of seven children and was estranged from his wife at the material period of time in question relevant to these complaints. The Complainant submits that his family had been living in conditions of extreme deprivation in a caravan during early Autumn 2013 and that he was doing his utmost to try and alleviate the situation. The Complainant was also homeless at this juncture and was forced to sleep in his car outside of the family’s caravan. The Complainant had responsibility for driving his children to school, to the doctor when they were sick, and he also brought his wife to any place they could think of where help and assistance could be found to try and alleviate their dire living conditions.
4.3 The Complainant submits that his wife had made a number of applications to the Respondent for Exceptional Needs Payments to assist with the family’s homelessness situation. However, he claims that it was also necessary for him to make an application to the Respondent for an Exceptional Needs Payment to try and source rented accommodation for himself as he was estranged from his wife at that juncture. The Complainant received a letter from the Respondent on 19th November, 2013 stating that his application for assistance had been refused on the basis that he had failed to attend at a designated hostel in Town A for an assessment in relation to his homelessness.
4.4 The Complainant had very poor literacy skills and did not fully understand the contents of this letter, so he attended the Homelessness Clinic on 22nd November, 2013 to try and ascertain the reason for the refusal of his application and obtain a better understanding of the assessment criteria that the was required to meet to qualify for assistance. The Complainant spoke to a female official at the Clinic in relation to this matter but instead of providing clarification she responded in a manner that made him feel ashamed and humiliated by pointing repeatedly to the section of the form that dealt with the procedure for appeals. Given that the Complainant did not have the required literacy skills to ascertain this information from the form, it was submitted that he was treated scornfully and in a most inappropriate manner by the official.
4.5 The Complainant contacted Ms. Rosen in relation to this matter and they returned to the Clinic later the same day to try and explain that the refusal of his application had been based on misinformation. A different official was sent to talk to them on this occasion but persisted with the stance that the decision had been made and it could only be reviewed on appeal to the relevant Appeals Officer. They attempted to explain to the official that there was no point in submitting an appeal as matters stood, because the Appeals Officer would also be making the decision based on misinformation, unless amended. It was submitted that the Complainant pleaded with the official to reconsider the decision in light of the dire living conditions and associated dangers he was facing, but to no avail.
4.6 The Complainant submits that there was a refusal by the Respondent to do all that was reasonable to accommodate his needs as a person with a disability on this date. The Complainant attended the Clinic alone on this occasion and it was submitted that the special measures which he required from the Respondent in order to accommodate his disability, namely his illiteracy, was for the officials to explain the requirements detailed on the relevant form and the reasons why his application had been refused.
4.7 The Complainant submits that the severity and far-reaching consequences of the Respondent’s decision to refuse his application for assistance were made very clear shortly thereafter during the course of a bad storm that swept the country. The storm winds sent a passing van careering across the slope that separated his family’s caravan from the road and its path only just missed the caravan. The path of the van instead veered across the place where the Complainant would normally have been asleep in his car, but thankfully he was not present on this occasion, as he had brought his children to stay with a relative for the night in anticipation of the dangers they would be subjected to by the impending storm.
4.8 The Complainant submits that the manner in which he was treated by the Respondent in relation to the assessment of his application for an Exceptional Needs payment and the decision to refuse same amounted to less favourable treatment on the grounds of his disability, membership of the Traveller community and ethnic origins. It was submitted that this treatment constitutes discrimination within the meaning of the Equal Status Acts on the grounds claimed.
4.9 The Complainant also claims that he 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 he was treated by officials employed by the Respondent during his visit to the Homelessness Clinic to try and seek clarification in relation to the refusal of his application for assistance with homelessness.
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 Mr. S applied for an Exceptional Needs Payment in 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”.
The Respondent submits that as the Complainant was looking for the payment to seek accommodation, his needs for accommodation had to be satisfied. The Respondent adduced evidence that it was explained to Mr. S that this assessment was to be carried out by a designated charitable organization who operated a homeless hostel for men in the area where the Complainant resided. An appointment was made for the Complainant to attend for assessment but he omitted, and/or failed, and/or neglected to turn up. As his needs could not be assessed, the payment of an Exceptional Needs Payment could not be granted to the Complainant.
5.3 The Respondent submits that the requirement to assess “need” is applied to every applicant equally and therefore no grounds for discrimination arise from the Complainant’s own decision to forego that assessment. The request for assessment is part of the protocol for all single males presenting as homeless in the county where the Complainant resides in order to consider them for assistance under Exceptional Needs Payments. The Complainant failed to turn up for the assessment. He made this decision himself and was not coerced or prevented from doing so. It was not an overly onerous task and would have in fact facilitated the Complainant’s application. The Respondent submits that the Complainant has failed to meet the threshold imposed by Section 38A of the Equal Status Acts, and therefore must fail.
5.4 The Respondent denies that the Complainant was treated in a hostile or intimidating manner by officials when he attended the Homelessness Clinic on 22nd November, 2013 to seek information in relation to the refusal of his application for an Exceptional Needs Payment. The Respondent adduced evidence from officials who dealt with the Complainant at the Homelessness Clinic on 22nd November, 2013 who disputed the version of events as recounted by him in his evidence. The Respondent submits that the Complainant could not remember the exact nature of his conversation with the relevant official and could not recall receiving the refusal form or the facts contained in the refusal form relevant to his application. The Respondent contends that the Complainant’s recollection of events changed at the oral hearing when presented with the evidence from the relevant official. In this regard, the Respondent submits that the Complainant accepted that he was busy ferrying children to and from school and that he was very depressed at the material time in question. The Respondent submits that there is no basis in law or on the facts to sustain this claim and that it is entirely misconceived and is based upon the faulty memory of the Complainant which was not sustained in evidence.
5.5 The Respondent disputes the Complainant’s claim that he is covered by the disability ground within the meaning of Section 2(1) of the Acts. The Respondent submits that the Complainant’s illiteracy stems from his personal and family circumstances and is not attributable to “a condition or malfunction which results in a person learning differently from a person without the condition or malfunction”. The Respondent contends, therefore, that hiss deficient literacy skills could not be accepted as failing within the definition disability in the Section 2(1) of the Acts. The Respondent relied upon the decision of the Equality Officer in the case of Two Complainants -v- A Primary School [DEC-S2006-028] in support of its position on this issue.
5.6 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 his disability, 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 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.
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 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.
6.4 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 manner in which the rules and requirements governing the payment of an Exceptional Needs Payment for homelessness assistance were applied by the Respondent. The Complainant claims that the Respondent refused his application for an Exceptional Needs Payment to assist with homelessness on the basis that he failed to attend an assessment at a designated hostel. The Complainant further claims that the Respondent treated him in a wholly inappropriate manner when he attended the Homelessness Clinic to seek clarification from officials in relation to this refusal and clarification in relation to the procedures required to obtain assistance. The Complainant contends that the manner in which his application was dealt with by the Respondent and the inappropriate behaviour of officials towards him 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 claims of discrimination and contends that the Complainant has failed to furnish any evidence that he was 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. The Respondent also disputes the claim that he was subjected to inappropriate treatment by officials during the course of their interaction with him in relation to this application.
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.
6.6 I am satisfied that the reason why the Complainant’s application for an Exceptional Needs Payment was refused was wholly attributable to the fact that he had failed to attend an appointment for an assessment in relation to his accommodation needs at the designated hostel at the material time in question. It is clear that this requirement is applied to all applicants who are in similar circumstances to the Complainant, and who apply to the Respondent for assistance to source accommodation by way of an Exceptional Needs Payment. I have also found the Respondent’s evidence to be more compelling in relation to the interaction that took place between the Complainant and officials during the course of his attendance at the Homelessness Clinic on 22nd November, 2013. I am satisfied that the Complainant’s recollection of the events that transpired on this date was unconvincing and lacking in clarity. On balance, I prefer the Respondent’s evidence in relation to this matter and I cannot accept that the Complainant was subjected to discriminatory treatment by the Respondent’s officials on the grounds claimed on the material date in question.
6.7 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 treated less favourably on the grounds of his Traveller identity and/or ethnic origins in relation to the manner in which the requirements to avail of an Exceptional Needs Payment were applied to him, or in relation to his interaction with officials concerning this matter in the circumstances of the present case. Accordingly, I find that the Complainant has failed to establish a prima facie case of discrimination in relation to these complaints on the grounds of his membership of the Traveller community and/or ethnic origins.
Disability Ground
6.7 The Complainant has also claimed that he was discriminated against on the grounds of his disability and that the Respondent failed to provide him 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 behaviour,
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 he 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 am satisfied that the Complainant has not adduced any evidence to suggest that his illiteracy is attributable to any physical or mental impairment which has affected his ability to learn or communicate. Accordingly, I find that the Complainant’s deficient literacy skills is not a disability within the meaning of Section 2(1) of the Acts, and therefore, is not covered by the disability ground.
Harassment
6.7 The next 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 has claimed that the manner in which he was treated by officials employed by the Respondent during his visits to the Homelessness Clinic to try and resolve the issue that had arisen in relation to his 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 he was subjected to unwanted conduct by the Respondent within the meaning of Section 11(5) of the 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 an Exceptional Needs Payment. 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.
6.9 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 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.
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 discrimination on the disability, race or Traveller community grounds within the meaning of Section 3(1)(a) of the Acts.
ii. 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
1st February, 2019