EQUAL STATUS ACTS 2000-2015

Decision DEC–S2019–008

PARTIES

Mr. and Mrs. S and their seven children (represented by Ms Heather Rosen)

and

Clare County Council (represented by J P. Shaw, County Solicitor)

File References:  ES/2014/0125-0133; 0147-0155; 0158 & 0163.

Date of Issue: 15th of November 2019

1.    Claim

1.1           This case concerns claims by Mr and Mrs S and their seven children, that Clare County Council discriminated against them on the ground of their race (ethnic origins) and their membership of the Traveller Community contrary to Sections 3(1)(a), 3(2)(h) and (i) of the Equal Status Acts 2000 to 2015, in terms of discrimination, harassment and permitting the harassment of the complainants contrary to the Equal Status Acts 2000-2015.

1.2           The complainants referred complaints under the Equal Status Acts 2000 to 2015 to the Director of the Equality Tribunal: complaints have been taken by each family member against four named officials of the respondent on 5th of June 2014, these complaints refer to a failure by the respondents to provide assistance to the complainants regarding accommodation and basic services of electricity water heat and a safe place to live for the family and where it is submitted that permission to seek a house under the rent allowance scheme was of no use due to prevailing aversions against travellers in the area.  These complaints were submitted on the 5th of June 2014 thus the cognisable six-month period for these complaints date from the 6th of December 2013.

1.3           The next complaint was submitted on the 13th of June 2014, this is a complaint taken by nine family members against four named officials of the respondent, this complaint refers to an allegation that a notice to move the complainants caravan coincided with the cancellation of other protections. This complaint was submitted on the 13th of June 2014 thus the cognisable six-month period for this complaint dates from the 14th of December 2013. 

1.4           The next complaint was submitted on the 11th of June 2014, this is a complaint taken by nine family members against three named officials of the respondent, and refers to an allegation that cancellation of emergency services and being told that homelessness payments would stop in 2 days amounted to an attempt to coerce the complainants into accepting a house in a different traveller family Group Scheme where they were incompatible with other tenants.   This complaint was submitted on the 11th of June 2014 thus the cognisable six-month period for this complaint date from the 12th of December 2013.

1.5           In accordance with his powers under S. 25 of the Acts, the Director General of the Workplace Relations Commission delegated the cases to me, Orla Jones, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Acts. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the cases on 9th of March 2018 in Ennis, County Clare. I scheduled a second day of hearing and following a number of adjournments this hearing was held on the 22nd of March 2019. The respondent was not in attendance at the second day of hearing having refused to attend the hearing in the absence of a preliminary decision regarding whether a prima facie case of discrimination had been raised by the complainants.   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.    Summary of the Complainants’ Cases

2.1           The complainants are members of the Traveller community. In their complaints against the respondent and against named council officials, they complain of living in a caravan on the side of the road on a dangerous bend without running water electricity or refuse facilities specifically from September 2013 to December 2013.

2.2           The main part of their complaint against the respondent is as follows:  The family was living in a house in a traveller scheme and due to violence and threats from other traveller families on the site vacated the house and went to live in a caravan on the side of the road in September 2013.   The family then lived in the caravan on the side of the road in a dangerous spot and in a place where a van came off the road one night and damaged the ropes tethering the caravan which it is submitted could have caused serious harm to the complainants had they been in the caravan at the time of the incident.    

2.3          According to Mrs. S who is the wife of Mr. S and mother of seven of the complainants the family struggled due to lack of facilities in their caravan. Mrs. S told the hearing that they had no washing facilities or bin collection facilities and also had no electricity or running water.   The hearing was advised that the complainants were in difficult financial circumstances and repeatedly sought assistance from the respondent to provide these services and to provide the family with a safe place to live.  The complainant in this regard sought to rely on documentation and correspondence between the complainant and the respondent dating from summer 2013 to November 2013.  Documentation was provided in the form of letters written to the respondent on behalf of the complainants by the principle of the primary school attended by the children of the complainant, by the doctor attended by the complainants and by the Educational Welfare Officer seeking assistance.  The complainant Mrs. S told the hearing that she and her family were at the time in question offered a house by the respondent but she stated that they could not accept this house as it was situated in a different traveller group scheme in a site with another traveller family with whom the complainants extended family had experienced an ongoing difficult relationship. The complainant told the hearing that she could not accept the house on the proposed site as the other traveller family living there did not want her there and she stated that she and her family would not be safe living in that site.

2.3           It is submitted that in December 2013, the complainants received an eviction notice from the HSE and were instructed to move from the side of the road pursuant to S. 10 of the Housing (Miscellaneous Provisions) Act 1992, as amended.   The complainants then proceeded to seek accommodation from the respondent as a matter of urgency.  

2.4       The evidence of Mrs. S is that she and her family were also advised at this time that their homelessness payments were going to be stopped by the Department of Social Protection.

2.5           Mrs. S advised the hearing that she contacted the respondent at this time seeking accommodation as they were about to be left homeless and with no homelessness payments from Department of Social Protection.     It emerged at the hearing that financial assistance was provided to the complainants after this time which they used to secure a six-month tenancy on a privately rented house from 24th of December 2013 to 23rd of June 2014.

2.6           Mrs. S told the hearing that the respondent at the time had offered them a house in a traveller scheme with another Traveller family. Mrs. S told the hearing that they could not accept the house in the other Traveller family’s site as there was an ongoing difficulty with that traveller family and her extended family and that the traveller family on the site would not want the complainants living on their site.

3.    Summary of the Respondent’s Case

3.1           The respondent denies any discrimination of the complainants and submits that it is not possible to discern any discrimination or harassment of the complainants from the claims submitted. The respondent also stated that it had written to the complainants to ascertain the specifics of the allegations being made but no specifics had been forthcoming.   The respondent added that the complainants had chosen to leave their house in a Traveller group scheme and live on the side of the road in a caravan following which they were offered a house in a different traveller group scheme which they refused.   It also emerged that the respondent had placed advertisements in local newspapers at the end of November 2013 seeking a private house for rent which could then be rented to the complainants by the respondent.    The respondent also added that the issuing of homelessness payments was a matter for a different department. The respondent added that the homelessness unit did eventually provide the complainants with financial assistance.

3.2           The respondent at the first day of hearing stated that it intended to adduce direct evidence from Mr. K who was not in attendance at the first day of hearing.   The respondent refused to attend the second day of hearing in the absence of a preliminary decision regarding whether or not the complainant had raised a prima facie case of discrimination and or harassment on the ground of race and or membership of the traveller community.

3.3           The respondent advised the hearing that all requests to the complainants to move their caravan were carried out pursuant to Section 10 of the Housing (Miscellaneous Provisions) Act 1992, as amended, and are therefore outside the jurisdiction of the Commission pursuant to Section 14(1) of the Equal Status Acts 2000-2015.

3.4           During the hearing of the complaint, and in correspondence, the representative of the respondent also raised the point that the respondent has been the subject of some 1200 individual similar complaints taken by Ms. Rosen on behalf of Traveller families in the area and the respondent makes the point that a large number of these cases are without basis.

4.    Conclusions of the Equality Officer

4.1       Traveller community and Race grounds

4.1.1    The present complaint of discrimination has been grounded on both the Traveller community and race grounds.   It is 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.

4.2        Vicarious liability

4.2.1        The within cases are brought against four named officials of the respondent.  The complainants’ representative argued that for moral, if not legal reasons, the named individuals who were employees of the respondent at the relevant time should answer individually for their actions.

4.2.2        This matter has been raised by Ms. Rosen on a number of occasions in previous cases against the same respondent and was dealt with in a cogent and exhaustive legal analysis carried out by the Equality Officer in DEC-S2008-039, J and Angela Mongans and Children v. Clare County Council. This has also been followed in more recent decisions of the WRC in DEC-S2018-017 and DEC-S2019-001.

4.2.3        I am satisfied that this is a correct statement of the law of vicarious liability within the context of the provisions of the Equal Status Acts, and as applies to the within parties. I am therefore satisfied that Clare County Council is the correct respondent for all of these complaints.

4.3           Multiple complaints

4.3.1        The Complainants’ representative referred a number of complaint referral forms to the Equality Tribunal on behalf of the Complainants (20 claims in total). The complaint referral forms which were submitted in respect of the instant complaints named Mr. and Mrs. S and their seven children as the complainants. The Complainants’ representative, Ms. Rosen, has submitted that the claims submitted constitute individual “standalone” complaints within the meaning of Section 21 of the Acts and should be dealt with individually and that a decision needs to be made on each separate distinct claim which has been made.  

  4.3.2      Having considered 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 separate treatment of any of the complainants 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 and or decision 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 seven children do not constitute “standalone” complaints within the meaning of Section 21 of the Acts. In addition, I have outlined above the issues referred to in each of the complaint forms and these issues will be dealt with in this decision based on the totality of evidence adduced and taking into account oral and written submissions made.   Accordingly, I have decided that my findings in relation to the alleged discriminatory treatment and harassment detailed in these referrals should be encapsulated in the within decision.

5. Substantive Case

5.1           The main issue for decision is whether the complainants were discriminated against on the ground of their membership of the Traveller community and or race because of various actions alleged to have been taken or not taken by officials employed by the respondent. In addition, the complainants have submitted claims of harassment on the same grounds.

5.2           In evaluating the evidence before me, I must consider whether the complainants have established a prima facie case pursuant to S. 38A of the Acts. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred.   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. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.

5.3           The complainants submit that in December 2013 they were subjected to an eviction notice in respect of the caravan they had been living in on the side of the road.   The complainants submit that they were also at this time told that their homelessness payments were going to be stopped and submit that these actions amount to a campaign by the respondent to force them to accept the offer of a house in a Traveller group scheme which was inhabited by a different traveller family with whom the complainants had an ongoing difficult relationship and whom the complainants state would not accept the complainants into their family group scheme.

5.4           The complainants in the present case submit that they had in September 2013 moved from a house in a traveller scheme where they were subjected to abuse and threats.   The complainants submit that they lived in caravan on the side of the road from September 2013 to December 2013 and were served with eviction notices in December 2013 in order to force them to move from their caravan on the side of the road.   The respondent advised the hearing that all notices to move from roadside encampments were carried out pursuant to S. 10 of the Housing (Miscellaneous Provisions) Act 1992, as amended. The respondent submits that such notices are exempt from investigation by the Commission pursuant to the provisions of Section 14 of the Equal Status Acts. Section 14(1) states that

Nothing in this Act shall be construed as prohibiting –

the taking of any action that is required by or under –

any enactment or order of a court.

[…]

[…]

5.5           Having considered the evidence adduced in relation to this matter and given that the removal of the complainants from an unauthorised site was done under statute, I am satisfied that I have no jurisdiction to investigate same.  

The Equal Status Acts, in Section 3(1)(a) state that

For the purposes of this Act discrimination shall be taken to occur –

where a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection 3B (in this Act referred to as “discriminatory grounds” which –

exists,

existed but no longer exists

may exist in the future or

is imputed to the person concerned

[…] or

where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

5.6           Section 3(2)(i) sets out that a comparator for the provisions above, as concerns a complainant from the Traveller Community, must be a person who is not a member of the Traveller Community.

5.7           The complainants also advised the hearing that following receipt of the eviction notice they were also at this time told that heir homelessness payments were going to be stopped. The complainants submit that these actions amount to a campaign by the respondent to force them to accept the offer of a house in a Traveller group scheme which was inhabited by a different traveller family with whom the complainants had an ongoing difficult relationship and whom they complainants state would not accept the complainants into their family group scheme.

5.8           The complainants’ assertion is that they were subjected to this treatment due to the fact that they are members of the Traveller Community and that a non-Traveller family would not have been treated in this way.   Both parties agree that the complainants were offered a house in another Traveller Group scheme. I note the complainants evidence that they had an ongoing difficult relationship with the occupants of the other Traveller Group scheme and assert that they would not be welcome or wanted by the other traveller family on that site however I cannot accept it as a given that a local authority would be much better placed to assist a non-Traveller family in similar circumstances. Crime, intimidation and catastrophic events happen in one community as much as in the other and providing appropriate assistance can put great stress on public resources.   I therefore cannot accept a mere assertion that a non-Traveller would have been treated better by the respondent.

5.9           The complainants’ representative also submitted that the respondent was not implementing its own policies towards the Traveller community properly and that I should have regard to the provisions of Section 3(1)(c).   Mrs. S at the hearing argued that she was being treated less favourably than a settled person by being offered a house on a Traveller scheme rather than in a non-traveller scheme and she submitted that a settled person would not be forced to live in a house in a Traveller scheme.

5.10         In considering this argument I am satisfied that the provisions, which address indirect discrimination, do not apply here. This argument was also considered in a previous Commission decision in the matter DEC-S2018-002.   I note that the legal framework for indirect discrimination only comes into play for policies and rules which are designed to apply generally, but which members of minority communities may find more difficult to comply with, like a requirement to have a fixed address, a requirement to use information that is not available in adapted formats for users with disabilities, or the need to master a particular language fluently where this is not strictly necessary. I am thus satisfied that none of this applies to the within complaint and cannot be used as an alternative argument to advance the complainants’ case.   Any complaints that the respondent falls short in the implementation of its policies towards the Traveller community in the county need to be brought to other fora and under other proceedings than the Equal Status Acts.   In addition, the respondent in response to this assertion advised the hearing that it has additional provisions for Traveller accommodation over and above the level of accommodation provided for the settled community and that it has allocated more accommodation for members of the Traveller community than for non- travellers.   The respondent stated that they are required to provide more accommodation for members of the Traveller Community.

5.11         The complainant told the hearing that they were served with an eviction notice when living in their caravan at the side of the road. I am satisfied that this decision was not made by the within respondent and as indicated above an order under Section 10 of the Housing (Miscellaneous Provisions) Act 1992, as amended is exempt from investigation by the Commission pursuant to the provisions of Section 14 of the Equal Status Acts and thus is outside of my jurisdiction. In addition, the complainant told the hearing that two days after receiving the eviction notice they were told that their homelessness payments were to be stopped.   It is clear from the evidence adduced that the complainants did receive further financial assistance after this time in the relevant period which they refer to as rent allowance and which they advised the hearing allowed them to seek accommodation in the private rental accommodation sector. In addition, it is clear from the evidence adduced at the hearing that the complainants secured accommodation in the form of a six months tenancy for a private rented house commencing on 24th of December 2013 up to 23rd of June 2014.   The submission provided by the complainants also indicate that the family stayed in a guesthouse in Ennistymon on the 9th and 10th of December and in a holiday home from the week beginning the 11th of December 2013 for which they received financial assistance. The submissions on behalf of the complainants indicate that such accommodation was possible due to the fact that they were provided with financial assistance. The submissions indicate that the complainant was advised in or around the 18th of December (exact date not stated) over the phone by an official of the homelessness unit of the Department of Social Protection that they would not receive any more payments due to the fact that there was a house available to them on a traveller group scheme however it appears from the submissions and evidence adduced that further payments were provided which allowed the complainants to rent a house for the next six months.

5.12         It is clear that the case being raised by the complainant against the within respondent must be confined to the actions of Clare County Council and its officials in the circumstances.    Thus the complainants must show that they were discriminated against on the Traveller Community ground and or the race ground in the period encompassed by the complaints.

5.13         It is clear that the time period for submission of a complaint is 6 months from the last date of discrimination save where an application has been made to extend the time period for submission of the complaint from 6 months to a year and where reasonable cause can be shown which both justifies and explains the delay in submitting the complaint.   No arguments or evidence have been advanced in respect of the within matters which would justify and explain the delay and which would amount to reasonable cause for extending the time limit for submission of the complaint from 6 months to a year. Given the dates of submission of the complaint forms it is clear that complaints in relation to these matters refer to time periods dating from 6th of December 2013, 14th of December, 2013 and 12th of December 2013 to the date of receipt of the complaint forms on 5th of June 2014, 13th of June 2014 and 11th of June 2014. The complainants in the present case advised the hearing that they did receive rent allowance during the relevant period which allowed them to seek accommodation in the private rental accommodation sector and they also told the hearing that had they secured such accommodation in the form of a six months tenancy for a house from a private landlord commencing on 24th of December 2014 a tenancy which lasted until the 23rd of June 2014.  

5.14         Thus the extent of the matters encompassed by these claims date from the 6th of December 2013 to the 13th of June 2014 during which time the complainants had secured private rented accommodation from 24th of December 2013 to 23rd of June 2014.   In order for the present claims to succeed I must be satisfied that the complainants have raised a prima facie case of discrimination on grounds of membership of the traveller community and or on the ground of race in the time period encompassed by the complaints.

5.15         Having considered the totality of the evidence adduced and the numerous and lengthy submissions provided in relation to these matters I am satisfied that the complainants have failed to establish a prima facie case of discrimination on the Traveller Community ground and or on the race ground against the within respondent within the time period encompassed by these complaints.   Accordingly, I am satisfied that the respondent did not discriminate against the complainants on the ground of their membership of the Traveller Community, or on the ground of race in respect of these matters.

1. Harassment

6.1       The complainants also claimed that they were subjected to harassment by the respondent contrary to Section 11 of the Equal Status Acts. 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.

6.2       However, neither the complainants nor their representative have put forward any evidence other than that in relation to their complaint of discrimination. I can find nothing that I can consider in relation to the claim of harassment. 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 ground within the meaning of Section 3 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.

______________________

Orla Jones

Adjudicator

15th of November 2019