ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00027821

Parties:

	Complainant	Respondent
Anonymised Parties	Parent	Government Department

Representatives

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00035667-001	30/03/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00035917-001	17/04/2020

Date of Adjudication Hearing: 08/04/2021

Workplace Relations Commission Adjudication Officer: John Harraghy

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This matter was heard by way of a remote hearing on 23/03/2020 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/2020, which designated the WRC as a body empowered to hold remote hearings.

At the outset of the hearing the complainant was advised that following delivery of a judgement in the Supreme Court on 6th April 2021 hearings before the WRC are now held in public. That may result in decisions no longer being anonymised. The complainant expressed a preference to have the decision anonymised. Having considered the matter, I have decided to exercise my discretion an anonymise the name of the complainant. Due to the nature of the complaint the respondent (A Government Department) is automatically identifiable in in such circumstances but no official from the Department is named in this decision.

Background:

The complainant contacted the Respondent in January 2020 and inquired if he as the married father of two children if he can receive payment of Child Benefit or what is more commonly referred to as “The Children’s Allowance”. He was informed that he could not. He made a formal complaint using the Department’s website and was advices that Child Benefit is paid to “the qualified person in respect of qualified children under the legislation currently in force”. He then issued Form ES.1 but did not get a reply. He submitted his complaint to the WRC on 17/04/2020.

Summary of Complainant’s Case:

The complainant is the married father of two children. He contacted the Respondent to inquire if he could receive Child Benefit or as it is more commonly known as Children’s Allowance. He was informed that he could not receive this payment. The complainant then submitted a formal complaint to the Department and was advised that Child Benefit is paid to the qualified person in respect of qualified children under the legislation currently in force. The Department also provided details of S.I. 142/2007, S 159: “For the purposes of Part 4, the person with whom a qualified child shall be regarded as normally residing shall be determined in accordance with the following Rules:

1. “Subject to Rule 2, a qualified child, who is resident with more than one of the following persons, his or her-

Mother, step-mother, father, step-father,

Shall be regarded as normally residing with the person first so mentioned and with no other person.”

In that context, where the children live in the same household as both parents, Child Benefit is paid to the mother. The Department also explained that in a situation where custody is shared on a 50/50 basis, the mother would be entitled to benefit as she would be considered the qualified person in line with the legislation. Child benefit can only be paid to one customer and cannot be shared between customers.

The complainant said that he spent about 60% of his time with the children and he cannot understand how he is discriminated against in these circumstances simply because he is the father.

The complainant issued form ES. 1 on 28/01/2020 and did not receive a reply. He received a further e mail from the Department which confirmed the position already notified. He submitted his complaint to the WRC on 26/3/2020.

Summary of Respondent’s Case:

The respondent did not attend the hearing but notified the WRC in writing that the complaint relates to the legislative regime set out pursuant to S 220 of the Social Welfare Consolidation Act 2005 and Article 159 (1) of S.I. 142 of 2007 Social Welfare (Consolidated Claim, Payment and Control) Regulations 2007. In that context the Department is not a “service provider” and the determination of benefit entitlement is not a service pursuant to Section 2 of the Equal Status Act.

In addition, the Department also relies on Section 14(1)a) of the Equal Status Acts which provide that:

“(1) Nothing in this Act shall be construed as prohibiting- (a) the taking of any action that is required by or under – (i) any enactment or order of a court.”

Findings and Conclusions:

I have decided, based on the sensitivities of this case to exercise my discretion and anonymise this decision. It was confirmed at the hearing that CA-00035917-001 was a duplicate complaint

I accept the substance of the submissions advanced on behalf of the Respondents on the question of my jurisdiction under the Act to entertain this complaint.

Accordingly, I have decided that I do not have jurisdiction to take this case beyond this point.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I have decided that I have no jurisdiction to hear this matter and the complaint cannot succeed.

Dated: 26th July 2021

Workplace Relations Commission Adjudication Officer: John Harraghy

Key Words:

Child Benefit. Gender Discrimination. Juristiction.