EQUAL STATUS ACTS
DECISION NO. DEC-S2018-022
PARTIES
Brian O’Reilly
Complainant
V
Passport Office, Department of Foreign Affairs and Trade
(Represented by Sarah-Jane Hillery, BL
Instructed by Chief State Solicitor’s Office)
Respondent
File reference: ES/2013/0039
Date of issue: 22 November 2018
Introduction:
1.1 On the 19th April 2013, the complainant referred a complaint of discrimination on the disability ground. On the 13th January 2016, in accordance with his powers under section 25 of the Equal Status Acts, the Director delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director, on which date my investigation commenced. In accordance with section 25(1) and as part of my investigation I proceeded to a hearing on the 25th January 2016. The complainant attended in person and was accompanied by his parents. The respondent was represented by Sarah-Jane Hillery, BL, instructed by the Chief State Solicitor’s Office and two witnesses attended.
1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
Summary of the complainant’s case:
2.1 In 2012, the complainant applied to renew his Irish passport. He became concerned at the delay in processing his renewal application. He followed up on his application and called to the respondent offices. He wished to travel with a friend to Portugal. He liaised with a named staff member in the Passport Office, who, on the 20th September 2012, asked the complainant to provide a doctor’s letter to say that he was fit to travel. In submissions, the complainant asserts that such a request was ultra vires, unlawful and discriminatory as well as being in breach of his constitutional and Convention rights. In correspondence of the 12th October 2012, the complainant objected to this demand and stated that this impugned his character.
2.2 The complainant outlined that in 2011 he visited Canada with medical permission. While he became unwell in Canada, the complainant rejected the respondent submissions that his family did not help. He also had insurance cover, but there was an exemption in the policy for psychiatric conditions. The complainant found himself without money in Canada and needing hospital care. He could later return to Ireland and was not accompanied on the return flights.
2.3 The complainant submitted that it was wrong for the respondent to request medical information and their request for an interview was not wrong. The complainant said that he was offended by the reference to him “endangering that person or others” and to section 12(1)(c)(iv) of the Passport Act. The respondent had received no evidence of this from Canada. The complainant submitted that the respondent’s power to request documentation under the Passport Act had to be exercised judiciously and must be compliant with human rights. There was no reference to “fitness to travel” in the Passport Acts or the guidelines. The respondent had not said how many times they sought such medical information. The complainant described the letter of the 12th September 2012 as an “Exocet”. He submitted that the withholding of a passport amounted to a refusal, and this was the situation until October 2012. The Department should have obtained the full facts about the Canada situation and not used “spurious” information. The respondent’s action had not been reasonable and they did not have objective grounds to justify the discrimination.
2.4 The complainant said that he had travelled to Canada with friends rather than family. He had an open ticket so he could change his date of travel. The complainant objected to having to supply personal medical information with his passport application. There was no basis for the respondent to rely on the “evidence” of his visit to Canada. The respondent should have interviewed the complainant. It was not for the respondent to police people who could travel. People with psychiatric conditions should be specifically catered for.
2.5 The complainant outlined that he received two telephone calls from the respondent and found out about the insurance issue in the interim. The complainant had been deemed a danger based on spurious information and there was no medical support for its position. There was ample evidence that he was fit to travel. The respondent had not made a reasonable effort to hold a follow-up interview and there were serious issues with the lack of effort between April and September 2012. It took seven months for the respondent to supply the complainant with a passport.
2.6 In reply to the respondent, the complainant outlined that there was no evidence that he was a danger to himself or to others. He did not accept that the GP letter was a less onerous step to take. The respondent had sought his personal confidential information. He commented that the travel insurance did not cover a psychiatric condition. He only became aware of the issue with the renewal application in September 2012.
Summary of the respondent’s case:
3.1 Following the complainant’s renewal application of the 29th March 2012, the respondent requested additional documentation and asked the complainant attend for interview. In correspondence dated the 20th September 2012, the respondent refers to the complainant’s hospitalisation in Canada in August 2011 and requests that the complainant obtain medical certification that he is fit to travel. The respondent then issued the passport. The respondent’s letter of the 19th October 2012 refers to such requests being within the scope of section 12 of the Passport Act and offered apologies if the request caused the complainant offence. The respondent had an entitlement pursuant to section 7 to request further information and there was no refusal in this case.
3.2 The Executive Officer said that she had worked in the respondent office for 20 years and assessed applicants’ entitlement to a passport. When the complainant’s application triggered an alert as he had lost his passport. She stated that the April 2012 letter sought all documentation and this was supplied at the end of May. She phoned the complainant on two occasions (the 1st and 13th June 2012). There was no phone call to her on her direct dial. She was not aware that the complainant had visited the offices. As a matter of course, she reviewed the application and requested medical information. She decided to approve the application based on the Ottawa report, the GP’s letter and the complainant’s passport history, i.e. only one passport being lost.
3.3 The Head of the Passport Office stated that information was retained regarding an applicant’s health status and future well-being, in compliance with the Data Protection Acts. A notification rather than an alert arose when there was a serious consular case or a lost passport. It was unusual for a hospital to bear the cost of treatment, as had occurred here and the State could have made a contribution to the cost.
3.4 The respondent submitted that there was no refusal in this case and it had requested further information. There was insufficient evidence in this case to refuse the passport renewal. Given the integrity of the passport system and the impact of a lost passport, it was reasonable and proportionate to seek additional information. It was less onerous to request the complainant seek documentation from his own GP rather than another GP or medical assessor. This documentation had been weighed in the balance and the incident was not of such a serious nature to warrant refusal. It submitted that it had taken a reasonable and proportionate approach.
Findings and reasoning:
4.1 This case arises from the complainant’s application in 2012 for a new passport. This passport was issued on the 19th October 2012. The kernel of the dispute is the respondent’s request for a GP letter to confirm that the complainant was fit to travel. This request arose in the context of the complainant’s visit to Canada in August 2011 when he lost his passport and required assistance from Embassy officials following his admission to hospital for psychiatric illness. The respondent submitted the case note of the embassy’s assistance to the complainant in August 2011, which includes a reference to the possibility of withholding passport facilities. In the context of the complainant’s application for a replacement passport, the respondent made a pro forma demand, dated the 25th April 2012, for documentation and to ask the complainant attend for interview.
4.2 The respondent letter of the 20th September 2012 stated “In Aug 2011 we received a report from our Embassy in Ottawa regarding your hospitalisation in [location] which necessitated your return to Ireland. In order to safeguard this happening again, before we can consider issuing you with a new passport, we will require a letter from your doctor/physician stating you are fit to travel … On receipt of this information we will then consider the renewal of passport facilities to you.”
4.3 The complainant’s doctor wrote to the respondent on the 9th October 2012 and was reluctant to make a comment that could form grounds to deny a citizen a passport. The doctor stated “I must confess to be at a loss, as I have never before been asked to determine the health criteria for obtaining a passport. You refer to events in Canada when [the complainant] was ill and hospitalised. I regret that I cannot divulge [the complainant’s] confidential medical history. Even if I have his consent to do so, I cannot certify that circumstances could not arise in the future, whereby [the complainant] would again be in need of medical help or diplomatic assistance abroad, a passport is, after all, valid for ten years. I am not aware of any trips planned, so I cannot assess the risks involved or his state of health on departure.”
4.4 The respondent sought medical certification regarding the complainant’s fitness to travel and the doctor, for the reasons set out above, declined to make such a comment. Nevertheless, the respondent issued the complainant with a new passport on the 19th October 2012. In evidence, the executive officer outlined that she weighed up the factors, in particular that the complainant had only lost one passport.
4.5 In assessing whether the respondent discriminated against the complainant on the disability ground, it was not in dispute that the complainant falls within the ambit of disability as set out in the Equal Status Acts. Section 38A of the Equal Status Act sets out the burden of proof in complaints: “Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.” Section 14 of the Equal Status Act provides that any action that is required by or under an enactment (i.e. a legislative provision) shall not be prohibited conduct. As opened by the respondent, section 7 of the Passport Act allows the Minister to require an applicant to provide information for the purposes of the application. Section 12 of the Passport Act sets out the grounds for refusal, including where the applicant would be likely to engage in conduct “that might endanger that person or others”.
4.6 In assessing the evidence, I accept that the complainant visited Canada in 2011 with travel insurance, although was unable to avail of this cover because of the nature of his illness. I also accept that the complainant’s family sought to actively help the complainant while he was ill in Canada. This is reflected in the Social Care Worker’s note of the 17th November 2014. While there was emphasis on the impact these events had on the embassy and the hospital, I note that this was a very traumatic event for the complainant, but he was later well enough to travel back to Ireland unaccompanied. The complainant and his family raised these points in response to correspondence and documentation submitted by the respondent.
4.7 In assessing the complaint of discrimination, I note that the respondent may require an applicant to submit further information. It sought such further information in this case. The complainant’s GP set out the reasons why he could not provide certification of fitness to travel for the currency of the passport. The respondent evaluated the documentation before it and issued the passport. While the respondent did not specify how many times it had requested medical fitness to travel, it outlined that it had done so. This is reflected in the respondent’s case note. Given the wide purview of section 7 of the Passport Act, it cannot be said that a request made pursuant to this section is a fact from which discrimination can be inferred. Even if this was the case, the request would likely come within the ambit of section 14 of the Equal Status Act. In any event, the respondent took on board the doctor’s submission and the other circumstances and issued the passport. It follows that the complaint of discrimination is not made out.
Decision:
5.1 In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decisions: the complainant has failed to establish that the respondent discriminated against him contrary to the Equal Status Acts, 2000-2015.
______________________________
Kevin Baneham
Equality Officer / Adjudication Officer
22 November 2018