Complainant

Respondent

Parties

Matthew  Reilly

Link Credit Union Limited

Representatives

Terry Gorry Terry Gorry & Co Solicitors

Rebecca Lacy BL instructed by Nathaniel Lacy & Partners Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00034910-001

28/02/2020

The respondent Credit Union runs a car draw and to participate the member must consent to an annual €60 deduction. The complainant has a mental disability that means that such informed consent cannot be given by him. His mother has looked after his interests and set up a credit union account for him when he was a minor. In September 2016 the Credit Union asked the respondent’s mother to provide a letter from a doctor confirming that he needed assistance and in turn that was provided.

In line with the Car Draw scheme rules €60 was debited from the respondent’s account in October 2017. In November 2018 there were insufficient funds in the respondent’s account and the Credit Union wrote to Matthew Reilly asking him to put €50 into his account so that he could be included in the five remaining car draws.

The complainant’s mother lodged the money into her son’s account and at the same time was asked to sign forms so that her son could enter the car draw. The forms were in fact forms to change her son’s account into an “incapacitated member’s account”.

On the 15th of November 2018 his mother was encouraged to apply on behalf of her son for membership to Link Credit Union. The application was accompanied by a preformatted letter to the Board of Directors of the Credit Union. The Board accepted the recommendation of the Branch Office that the complainant’s mother would be the designated person to operate her son’s account.

On the 19th of November 2018 when the complainant’s mother went to the Credit Union to give her son’s PPS number and proof of address, she was advised that her son could no longer participate in the car draw.

In emails dated 22nd and 27th November 2018 the Credit Union stated that as the member was incapable of using the car it would be inappropriate for the credit union to facilitate a withdrawal from the account.

Mrs O’Reilly has delegated authority to act for her son regarding his Credit Union transactions; she alleges that her son is being discriminated against because of his disability and is being treated less favourably to others who have access to the draw; without any requirement to show that they can use a car. The Credit Union has a fiduciary duty to the complainant based on his incapacity to consent to a contract or agreement and this duty is underpinned by the Credit Union Act 1997 as amended and Central Bank Codes to ensure that they act in the best interest of the complainant.

The conduct complained of amounts to ongoing and continuing discrimination. While the matter was previously before the Workplace Relations Commission and was deemed not properly before the Commission as the required statutory notice of the claim was not served on the respondent; the alleged prohibited conduct continues, and the respondent has been properly served with notice in a form referred to as ES 1 on or about the 30th of December 2019.

The complainant alleges that the decision to exclude him from the draw is manifestly discriminatory as the only reason given by the Credit Union for that exclusion is based on his disability.

In November 2018 by email, he was informed that he was ineligible as he would not be capable of using the car if he won. However, this is not a criterion applied to other members who participate in the draw.

In the ES 1 response the Credit Union stated that they must exercise caution in the payment out of funds from the account of a mentally incapacitated member. The respondent’s Board on or about the 19th of November 2018 approved the complainant’s mother as a person duly authorised to act on his behalf. It follows that the respondent’s mother is authorised to sign documents in relation to the management of the account.

The respondent relies on section 24 of the Credit Union Act 1997:

24.— (1) This section applies where, in the case of a member of a credit union or a person claiming through such a member, the credit union's board of directors is satisfied—

(a) after considering medical evidence, that the member or other person is incapable by reason of a mental condition to manage and administer his own property; and

(b) that no person has been duly appointed to administer his property on his behalf, whether by a court, pursuant to Part II of the Powers of Attorney Act, 1996, or otherwise.

(2) If, in a case where this section applies, it is proved to the satisfaction of the board of directors that it is just and expedient to do so, the credit union may pay the amount of any property belonging to the member or other person (whether in the form of savings, loans, insurances or otherwise) to any person whom the board judges proper to receive it on his behalf and who furnishes to the board such a statement as is referred to in subsection (3); and a receipt for that amount signed by such a person shall be a sufficient discharge to the credit union for any sum so paid.

(3) The statement mentioned in subsection (2) is one which certifies that the proposed recipient—

(a) understands that it is his duty to apply the amount which is proposed to be paid in the best interests of the person to whom it belongs; and

(b) is aware that he may incur civil or criminal liability if he misapplies the whole or any part of that amount; and

(c) is not aware that any other person has authority to receive the whole or any part of that amount, whether by virtue of an order of a court, a power of attorney or otherwise.

 that provides no obligation on a credit union to facilitate members who are mentally incapacitated. It is noteworthy that the Act does not exclude members who are mentally incapacitated, rather it makes provision for Payments in respect of mentally incapable persons.

Section 4 of the Equal Status Act 2000 provides:

Discrimination on ground of disability.

4.— (1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

(5) This section is without prejudice to the provisions of sections 7(2) (a), 9(a) and 15(2) (g) of the Education Act, 1998, in so far as they relate to functions of the Minister for Education and Science, recognised schools and boards of management about students with a disability.

(6) In this section—

“provider of a service” means—

(a) the person disposing of goods in respect of which section 5(1) applies,

(b) the person responsible for providing a service in respect of which section 5(1) applies,

(c) the person disposing of any estate or interest in premises in respect of which section 6(1)(a) applies,

(d) the person responsible for the provision of accommodation or any related services or amenities in respect of which section 6(1)(c) applies,

(e) an educational establishment within the meaning of subsection (1) of section 7 in relation to any of the matters referred to in subsection (2) of that section, or

(f) a club within the meaning of section 8(1) in respect of admission to membership or a service offered to its members,

as the case may be, and “service” shall be construed accordingly;

“providing”, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly.

Up until November 2018 the complainant was included in the members draw. At that time his mother an authorised account holder was advised that he could not participate based on his mental disability.  The complainant contents that the respondent made little or no attempt to facilitate the complainant in the car draw.

Section 24 of the Credit Union Act 1997 cannot be relied upon by the respondent as it makes provision for payments in respect of mentally incapable persons and the managing and administration of by a person “appointed to administer property on his behalf”.

The complainant respectfully submits that it has established the requisite Burden of Proof as set out at 38A (1) of the Equal Status Act 2000 that a prima facie case of discrimination and that it is for the respondent to prove the contrary.

The respondent claim that they have attempted to facilitate persons who are mentally incapacitated and yet deny the complainant access to the draw through agency of his mother, who was approved in accordance with the Credit Union’s own procedures and confirmed by the board meeting held in November 2018.

 Martina Reilly could operate the account in the best interests of the complainant; since her son first joined the Credit Union in September 1993 and since November 2018 that has been unreasonably withheld based on the facts of the case regarding the members car draw.

The Credit Union is acting in the best interests of the member who has a mental disability that means he cannot give consent and relies on his mother to administer his affairs. There is a fine balance between affording access to the Credit Union services and allowing for deductions to be made from such a member’s account for a draw that at face value is speculative. Other members give their consent, and this is the crux of this dispute. The decision not to allow the member to participate must be viewed in the context of what they are participating in-a draw, with a random chance of winning against the certainty of not having €60 if allowed to enter the draw. It is a reasonable position and is made in the best interests of members who cannot give their consent. The context is a draw, a random event and it is questionable if the member’s funds should be used for a speculative draw. There are competing interests; access to the draw and necessary protection and prudent decision making that must apply when a member is mentally not able to make their own decision. This is particularly so allowing for the regulatory obligations that the Credit Union must comply with under the Credit Union Act 1997 and Central Bank Codes particularly when the member is vulnerable. This is not about denying the member access to a draw; rather it is about ensuring his property is protected and his affairs prudently overseen.

The applicable Credit Union policy relating to a member who has a mental disability such that he or she can’t give consent is:

“no outward automated payment can be set up on these accounts; EFT, direct debit, transfers, standing orders etc with the exception of paying nursing homes, residential care fees for the member.”

As the car draw policy requires automated deduction from the account, it cannot take place having regard to the policy, which acts in the interest of the member. All members who are mentally incapable of managing their affairs are treated the same.

Section 24 of the Credit Union Act states where a member is incapable by reason of a mental condition to administer his own property, the Credit Union will pay any person whom the Board judges proper to receive it on his account subject to funds being available. However, there is no legal obligation on a Credit Union to facilitate members who are mentally incapacitated.

The Credit Union has followed both the Central Bank guidelines, policies and procedures relating to a Credit Union and that any valid contract requires capacity otherwise the contract is unenforceable.

The respondent also relies on the fact that the alleged prohibited conduct complained of in the statutory notice form referred to as ES 1, served on the respondent on the 20th of December 2019, occurred in November 2018 and so is statutorily time barred and relies on Dunnes Stores v Breda Mulholland EDA 179:

“it is settled law that in order for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of the complaint.”

In the alternative if a prima facie case is made out and without prejudice to the forgoing the respondent will rely on section 16(2) of the Equal Status Act to rebut the inference of discrimination:

(b) is incapable of entering into an enforceable contract or giving an informed consent and for that reason the treatment is reasonable in the particular case.

The discriminatory ground is defined in the Act at section 3(2)(g)

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

And the respondent also cites Complainant A and Complainant B v Caledonian Life DEC-S2012-007, as authority that the presumption of discrimination can be rebutted by relying on section 16(2)(b) of the Act:

(b) is incapable of entering into an enforceable contract or giving an informed consent and for that reason the treatment is reasonable in the particular case.

I have already determined that the matter is properly before me as the respondent suffers no prejudice, is not taken by surprise and that the alleged prohibited conduct is continuing and ongoing discrimination:

 And discrimination is defined at section 3 as occurring when:

(a) 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 the ‘discriminatory grounds’) which —

(i)                  exists,

Furthermore, this is a complaint that concerns continuing alleged ongoing discrimination. Section 21(11) states:

(11) For the purposes of this section prohibited conduct occurs-

(a) if the act constituting it extends over a period, at the end of period

(b) if it arises by virtue of a provision which operates over a period, throughout the period.

The alleged prohibited conduct arises from the application of a policy or provision that continues and therefore the alleged prohibited conduct concerns continuing alleged ongoing discrimination and is not based on alleged past prohibited conduct but continues to exist. The effect of the policy is to exclude the complainant from entering the car draw.

At section 38(A) the Burden of Proof that the complainant is required to establish is:

38A. — (1) 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.

Equality Officers in Equal Status Act cases have drawn on the Labour Court Decision Mitchell v Southern Health Board [2001] ELR 201 to explain what constitutes presumed prohibited conduct also referred to as a prima facie case:

“claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

And in Cork City Council v McCarthy [EDA 21/2008] elaborated further on what this meant:

“At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

On the facts the member at a point participated in the car draw and on or about November 2018 was informed by the Credit Union that:

The Solicitor advised us that it would be inappropriate for the Credit Union to allow a withdrawal in relation to the car draw fee for an incapable member as the member would not be able to use such a car if they won.

The policy of the Credit Union is not to allow for automated deductions for members who are classed as having a mental disability that severely impacts their capacity to enter a contract; other than for what has been specified in the policy and the car draw is not provided for in the policy. On the facts the member is precluded from the car draw and that difference in treatment is based on his disability and that treatment continues. This is accepted by the respondent

On the facts, the complainant is treated differently to members who have a different disability or none. Therefore, I determine that he has met the prima facie test and the burden shifts to the respondent to justify their policy and as detailed at 16(2) of the Act:

(b) is incapable of entering into an enforceable contract or giving an informed consent and for that reason the treatment is reasonable in the particular case.

The complainant’s mother has been approved by the Credit Union Board to act on behalf of her son. The factual context is a draw that requires an annual payment of €60. The complainant’s mother is willing to make that payment from her own income for her son’s benefit. There is no question that his Mother as agent relating to his affairs has his best interests at heart and there can be no advantage to her as she in fact is his full- time carer.

The draw itself must run on a breakeven basis and the draw is open to members over 18 years old.

The policies that the Credit Union apply when a member can’t consent to or authorise deductions are prudent. The respondent relies on 16(2) to justify their decision and contend it is not discriminatory since the member can’t give consent.

The complainant’s mother has been approved by the Board to act on behalf of her son. He is over 18 years of age and previously participated in the draw. While the initial reason to disqualify him from the draw was based on his incapacity to drive this was later expanded and contextualised within a broader regulatory framework and fiduciary duty.

The draw is run on a non-profit basis and creates a pot of money that pays for the prizes. It is run as a service for the members’ benefit. The complainant’s mother will also make the contribution of €60 to allow him to participate. The complainant is a member who previously participated in the draw. If he was to win, he would benefit either from the enjoyment of been driven in the car or that the car could be sold and the proceeds used for his care, no differently than any other member.

The complainant’s mother has been approved to act on his behalf, there is only gain for him by participating in the draw, as another will provide him with the €60. The complainant has established facts that raise the presumption of discrimination as he Is excluded from the draw because of his disability and treated differently to other members who have a different disability or none.

The respondent relies on section 16(2)(b) to rebut the presumption of discrimination as the complainant cannot give informed consent and Caledonian Life DEC-S2012-007, as authority that the presumption of discrimination can be rebutted.

The complainant relies on section 4 of the Act which states:

4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service

At section 2 a service is defined as:

“ service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

I have concluded that the car draw does constitute a service for the purposes of the Act.

At section 2 refusal is defined as:

“refusal” includes a deliberate omission;

 It is a fact that he cannot give informed consent; however, his mother has been approved to act on his behalf by the Board of the Credit Union. That agency in turn ensures that decisions made on his behalf are for his interest. There is no question that he would be the beneficiary of the prize and that he will not be at a loss at any time as his mother will provide the €60 to participate in the draw. On these facts I determine that while the complainant is incapable of entering into an enforceable contract or giving an informed consent; his mother has been duly authorised to act on his behalf, it is not reasonable to treat him differently to the other members who have a different disability or none having regard to the fact that his best interests are protected through the agency of his mother. Therefore, treating him differently is unreasonable based on the facts of this case. The respondent has not argued that accommodating the complainant through the agency of his mother would give rise to a cost, other than a nominal cost, to the provider of the service in question.

The refusal of the Credit Union on the facts of this case to do all that is reasonable to accommodate the complainant, by providing special treatment by allowing his mother to act on his behalf and to authorise his participation in the draw and without such special treatment; it would be impossible for him to avail himself of the service, does constitute discrimination and I determine that the respondent is engaged in prohibited conduct. In this particular case I do not hold that section 16(2) can be relied upon by the respondent to rebut the presumption of discrimination as it would not be reasonable to do so. I have determined that the complainant has met the prima facie test that shifts the burden to the respondent to justify their policy. I have not found in favour of the respondent that they can rely on section 16(2) to rebut that inference or presumption of discrimination. As the presumption has not been rebutted; I determine that the complainant has been discriminated against and the Credit Union is engaged in prohibited conduct.

The refusal of the Credit Union on the facts of this case to do all that is reasonable to accommodate the complainant, by providing special treatment and allowing his mother to act on his behalf; to authorise his participation in the draw and without such special treatment it would be impossible for him to avail himself of the service, does constitute discrimination and I determine that the respondent is engaged in prohibited conduct. In this particular case I do not hold that section 16(2) can be relied upon by the respondent to rebut the presumption of discrimination as it would not be reasonable to do so. I have determined that the complainant has met the prima facie test that shifts the burden to the respondent to justify their policy. I have not found in favour of the respondent that they can rely on section 16(2) to rebut that inference or presumption of discrimination. As the presumption has not been rebutted; I determine that the complainant has been discriminated against and the Credit Union is engaged in prohibited conduct.

In accordance with Section 27(1)(b) having found that the respondent has and continues to engage in prohibited conduct I order the respondent take the following course of action:

1.       That the complainant can participate in the car draw subject to authorisation by his mother who is the duly approved person to do so by the Board of the Credit Union.

2.       And make compensation to the complainant of €7500 for the effects of the prohibited conduct, having regard to the principle of proportionality and that the award should be dissuasive.

Mental Incapacity-Agent-Reasonableness