DEC-S2019-004

EQUAL STATUS ACTS, 2000 to 2015

DECISION NO. DEC-S2019-004

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/2014/0162

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 11th 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.

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. The Complainants also claim that they were 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 this complaint. 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. 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 an Exceptional Needs Payment was dealt with by the Respondent. Accordingly, I have decided that my findings in relation to the alleged discriminatory treatment detailed in the complaint referrals relating to this specific application should be encapsulated in the within decision.

Vicarious Liability

3.6       The Complainants 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 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 sought Exceptional Needs Payments from the Respondent on a number of occasions around that period of time to assist with homelessness. The Complainants submit that permission had been granted to them to seek accommodation under the Rent Allowance Scheme but for a protracted period of time this permission was of no use in helping the family to avoid homelessness because of the aversions that prevail against Travellers in the wider community, aversions that are particularly strong in the area where the Complainants reside.

4.3       The Complainants submit that the family members were suffering repeated refusals of assistance, on different pretexts, from officials of the Homelessness Clinic under the remit of the Respondent. It was submitted that Mr. and Mrs. S visited the Homelessness Clinic on 22nd November, 2013 to plead for the help the family so desperately needed, but they were handed a form stating that assistance was refused because a house on a Traveller Scheme was available to them. The Complainants were deeply shocked as this was a Scheme for another Traveller family and the offer had never been pursued by the Local Authority because incompatibility of tenants on such Schemes is known to be potentially devastating.

4.4       The Complainants submit that they had been forced to vacate accommodation in another Traveller Scheme a number of years earlier and went to great lengths to try and convince the Local Authority that the latest offer of a house was not suitable for the aforementioned reasons. However, the Local Authority officials did not acknowledge these concerns and instead of putting into writing an explanation as to why the offer was considered inappropriate and, as such, had not been formally offered in any notice of appointment for the family to either accept or decline throughout the Autumn of 2013, a note was written to the effect that the house was available to them. The Complainants contend that fervent efforts were then required to ameliorate the potential damage of this and how vulnerable this made the family members.

4.5       It was submitted that Mrs. S subsequently received a telephone call from the Respondent and was asked to attend the next Homelessness Clinic on 6th December, 2013. The Complainants earnestly hoped that they would receive confirmation at this meeting that further payment would be granted to assist with their homelessness. However, instead Mrs. S was requested to sign a statement by officials acting on behalf of the Respondent as to the reasons why she and her family could not accept the offer of a house on the Traveller Scheme. Mrs. S complied with this request and she was notified later that day by telephone from an official that the payment would be permitted the following Monday and she was instructed to report back to the Homeless Clinic with confirmation of any temporary accommodation which the family had been able to source. The Complainants were successful in sourcing temporary accommodation in a B&B for two nights and a rented house for a further week.

4.6       Mrs. S was anxious to source accommodation for her family for the Christmas period which was approaching, and she contacted officials in the Homelessness Clinic on 16th December, 2103 to establish if they would be provided with a further payment to cover the cost of renting a house for two weeks in a row. However, to her deep shock, Mrs. S was informed by an official that she was only being granted payment to cover two nights’ accommodation and that there would be no further payments allowed to her family as they had accommodation available to them on the Traveller Scheme. Mrs. S contends that she would have been able to secure a rented house for her family for the Christmas period but was unable to proceed at the material time in question because of the Respondent’s refusal to grant the Exceptional Needs Payment on the mistaken premise that they already had accommodation available to them.

4.7       The Complainants submit that the manner in which they were treated by the Respondent in relation to their application for an Exceptional Needs Payment to assist with their homelessness situation 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.

4.8       The Complainants also claim that they were 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 Mr. and Mrs. S were treated by officials employed by the Respondent during their visits to the Homelessness Clinic to try and obtain payments to assist with homelessness. The Complainants contend that a number of incidents occurred in terms of their interaction with officials at the Homelessness Unit which constituted offensive, humiliating and intimidating behaviour such as the long periods they were left waiting for attention, the transferring of messages back and forth between the officers on duty, the terminating of interviews and the failure by officials to explain procedures and information contained on forms relating to their applications for Exceptional Needs Payments.

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 the Complainants, as is the case with other complaints which they have submitted, have entirely misunderstood the nature of an application for an Exceptional Needs Payment. 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 adduced evidence that the Local Authority is the primary agency that deals with housing. When someone presents seeking an Exceptional Needs Payment to assist with homelessness the Respondent must first check with the Local Authority to ascertain the availability of accommodation and that they have a housing need. This is a mandatory requirement and is applied equally to members and non-members of the Traveller community. An Exceptional Needs Payment is a once off payment and is assessed on the circumstances in situ when the application is presented. As this is a once off payment, it cannot be withheld or withdrawn. The Respondent submits that the very premise of this complaint is misconceived in both law and fact.

5.3       The Respondent submits that when it became known that the Complainants’ family had been offered a house by the Local Authority in a Traveller specific development their need for an Exceptional Needs Payment changed as their circumstances had changed. This offer of accommodation had to be taken into account by the Deciding Officer when presented by them with a claim for an Exceptional Needs Payment. However, when the relevant Local Authority confirmed to the Department on 20th December, 2013 that the Complainants’ had a recognized housing need they were afforded an Emergency Needs Payment of €500 to put towards the cost of a deposit for rented accommodation for the family. The Respondent contends that the Complainants have failed to establish that the payment was withdrawn, and it submits that the claim must fall because the threshold set by Section 38A of the Acts has not been met by them.

5.4       The Respondent submits, without prejudice to the foregoing, that the claim must be dismissed because the Complainants have failed and or omitted to provide any evidence of a comparator but insipidly plead that being a member of the Traveller community is enough evidence in itself of discrimination. The Respondent submits, for the avoidance of all doubt, that the conspiracy theory espoused by Ms. Rosen that the Complainants’ family were somehow being coerced by officials from the Department and from the Local Authority are denied as if traversed seriatim. The Respondent further submits that the inclusion of such allegations is unfounded and an abuse of process.

5.5       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.

1. 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 

2. 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 refused to provide assistance on the mistaken and false premise that the family had accommodation available to them in a Traveller specific development. The Complainants contend that the Respondent’s refusal to grant them an Exceptional Needs Payment during the material period of time in question exacerbated their homelessness situation and that the manner in which they were treated amounted to less favourable treatment on the grounds of their ethnicity and Traveller identity. 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.

3. 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. 6.6       I have also taken into consideration the undisputed evidence that the Respondent had provided assistance by way of Exceptional Needs Payments to the Complainants on several occasions to assist with homelessness during the period of time immediately prior to the events which unfolded in the context of the instant complaint. It is clear that all of these payments were sanctioned by the Respondent on the basis that the Complainants had satisfied the relevant requirements of the Scheme at the material times in question to qualify for such payments. I am satisfied that the reason why the Complainants’ application for an Exceptional Needs Payment was initially refused in the instant case was wholly attributable to the fact that the relevant Local Authority had confirmed the family did not have a housing need at the material time in question. Furthermore, I am satisfied that the Respondent immediately sanctioned a payment to the Complainants once it received information from the Local Authority to indicate that the situation in relation to their housing need had been reassessed.

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 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

6.8       The next element of the Complainants complaint which I must consider relates to the claim that they were subjected to harassment by the Respondent contrary to Section 11 of the Equal Status Acts. Mr. and Mrs. S have claimed that the manner in which they were treated by officials employed by the Respondent during their visits to the Homelessness Clinic to try and resolve the issue that had arisen in relation to their application for an Exceptional Needs Payment was offensive, humiliating and intimidating.

6.9       In order to raise an inference of harassment the Complainants must establish that they were 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 their dignity and creating a hostile, humiliating or offensive environment for them. I heard direct evidence from a number of witnesses on behalf of the Respondent who had interaction with Mr. and Mrs. S in relation to their 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 Complainants and I am satisfied that they did not engage in any conduct towards them which could be construed as harassment within the meaning of the Acts.

6.10     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 subjected to harassment contrary to Section 11 of the Acts. Accordingly, I find that the Complainants have 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 race or Traveller community grounds within the meaning of Section 3(1)(a) of the Acts.

ii.    The Complainants have 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