Complainant

Respondent

Parties

Iana  Iakovenko

Department of Employment Affairs and Social Protection

Representatives

Richie Macritchie Welfare Appeals

 Patrick Mair BL &Karen Duggan Chief State Solicitors Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00039672-001

08/09/2020

The complainant was married to an EU National and separated. The complainant applied for certain Social Welfare benefits and entitlements and was declined. In an appeal of the initial decisions to reject her claim for Social Welfare Benefits, it was determined that the initial decision makers erred in law as under the Social Welfare Consolidated Acts at section 246(6)(b) provides that an applicant for specified social welfare benefits shall be taken to have a right to reside in the State if they have the “right under the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) to enter and reside in the State or is deemed under those Regulations to be lawfully resident in the State.”

The alleged prohibited conduct relates to the fact that the initial decision maker declined the application for Social Welfare Benefits on the grounds of Nationality and Civil Status.

The initial processing of the application failed to have regard to the fact that the applicant was married to an EU citizen.

The respondent stated that the complaint is misconceived as the conduct complained of occurred arising from a requirement under a statute to make a decision that did pertain to residency. Section 14(1)(a) of the Equal Status Act 2000 as amended specifically provides for such decisions:

14.—(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,

(ii) any act done or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or

(iii) any convention or other instrument imposing an international obligation on the State,

The fact is the complainant appealed the initial  decisions and succeeded in having the decisions overturned albeit one was rejected based on a technical timeframe requirement but not the principle that benefit entitlement subject to that requirement applied. The complainant is in receipt of social welfare benefits.  All arrears have been paid.

The complainant had a right of action to challenge the lawfulness of the initial decision through Judicial Review. However, this complaint is misconceived and should be dismissed pursuant to section 22(1) of the Equal Status Act as amended.

The complainant maintained that the decisions should have been considered in accordance with EU law. That failure constitutes unfavourable treatment.

The complainant alleges that in the first instance that the deciding officials in refusing her application for social welfare benefits under statutory enactments engaged in prohibited conduct as defined under the Act. The grounds for less favourable treatment are race and civil status and the comparator is an Irish citizen. This arose as it was clearly the case that she was entitled to such benefits arising from her marriage to a European Citizen. Her rights in law were protected under Article 24 of the Citizen Directive. In her complaint form she stated that:

I have been refused three separate social welfare payments, namely Jobseekers Allowance Transition, Supplementary Welfare Allowance and Rent Supplement. The grounds for refusal claim that I do not have a right to receive such payments due to my immigration status. I am a non-EU national, but I am married to an EU citizen who is exercising Treaty rights in Ireland. As the spouse of an Eu national exercising Treaty rights, I have the right to equal treatment with Irish citizens regarding my social welfare entitlement. I believe that the reason I am not being afforded my rights are because I am separated from my husband

The complainant has suffered both financial and emotional hardship arising from the less favourable treatment and the delay in correctly applying the law. There can be no exceptions in this case as the decision makers erred in law and therefore were not applying the relevant statutory provisions. Logically it must follow that the decision makers were engaged in prohibited conduct. A prima facie case has been made out of less favourable treatment on the ground of race and civil status and that must be rebutted. The comparator is an Irish Citizen.

The respondent stated that the complaint is misconceived. The complainant was in fact assessed as entitled to social welfare benefits as required under the relevant enactment. While that decision was made through an appeals process, the fact is no discrimination has occurred. The Equal Status Act specifically prohibits any complaint arising from the exercise of a statutory enactment and the issue in this case is not individual treatment rather the meaning of a specific statute. While the initial assessments erred in law they too were engaged in the process of applying what was meant by the relevant statutory provisions. That exercise of statutory requirements does not equate to prohibited conduct. All arrears were paid to the complainant. No prima facie case has been made out as no discrimination has occurred. The decision process had not concluded and on appeal; the errors in applying what is provided for under statute was corrected. By virtue of law an assessment based on the applicant’s citizenship and civil status was required. The exercise of that assessment based on principals enshrined in law, cannot ground an Equal Status claim regarding prohibited conduct.

The complainant has argued that the complainant was treated less favourably than an Irish Citizen and encountered prohibited conduct on the grounds of race and civil status.

The respondent stated that a requirement of the Social Welfare Consolidated Act is a requirement to consider EU citizenship and the basis on which they are entitled to reside in the state. The basis on which a person is entitled to reside in the State is EU citizenship and that includes marriage to an EU citizen. That determination is required under the statute. That requirement is provided for under section 14.1(a) of the Equal Status Act 2000 that specifically provides for such decisions to be made. The fact that the initial decision maker erred in law when making that decision does not constitute prohibited conduct as it is a requirement to determine eligibility based on National and Civil Status in this case.

The complainant had a right of residence provided for under Article 7 of Directive 2004/38/EC and as transposed by the European Communities (Free Movement of Persons) Regulations 2015.

Article 24 of the Directive requires that all EU Citizens residing based on the Directive are entitled to equal treatment with nationals of the host Member State:

I note Simmons J decision in Voican v Chief Appeals Officer [2020] IEHC 258:

19. Article 24 of the Citizenship Directive ensures that Union citizens residing in another Member State are entitled to equal treatment with the nationals of the host State. The Court of Justice has held that the principle of non-discrimination, laid down generally in Article 18 TFEU, is given more specific expression in Article 24 of the Citizenship Directive. (See Dano, Case C-333/13, EU:C:2014:2358, at paragraph 61).

The decision maker in this case is not a quasi-judicial decision maker; however, they are implementing the requirements of a specific statute, in this case the requirement under the consolidated Social Welfare Act. This obligation requires that the administrator must decide regarding the eligibility of the applicant based on the relevant statutory provisions.

Section 185 of the Social Welfare Consolidated Act 2005 provides that:

Subject to this Act, every person in the State whose means are insufficient to meet his or her needs and the needs of any qualified adult, or qualified child of the person shall be entitled to supplementary welfare allowances

And section 192 provides that:

A person shall not be entitled to an allowance (other than an allowance under sections 201 and 202) under this Chapter unless he or she is habitually resident in the State

And at section 246 the Act provides that:

(5) Notwithstanding subsections (1) to (4) and subject to subsection (9), a person who does not have a right to reside in the State shall not, for the purposes of the Act, be regarded as being habitually resident in the State.

(6) The following persons shall, for the purposes of subsection (5), be taken to have a right to reside in the State.

(a) an Irish citizen under the Irish Nationality and Citizenship Acts 1956 to 2004

(b) a person who the right under the European Communities (Free Movement of Persons) Regulation 2015 (S.I. No. 548 of 2015) to enter and reside in the State or is deemed under those Regulations to be lawfully resident in the State.

It is argued that the decision maker in this instance is required to implement the law and in fact what they were doing was unlawful. The relevant EU Directive had direct effect and therefore even if the decision was made in error it amounts to prohibited conduct.

The complainant relies upon section 38A of the Equal Status Act as amended and states that on the facts the complainant has made out a prima facie case of prohibited conduct that is required to be rebutted:

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

The respondent relies upon section 14 of the Act to state that no claim can be maintained as the respondent was fulfilling a statutory obligation:

14.— (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,

(ii) any act done or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or

(iii) any convention or other instrument imposing an international obligation on the State,

The complainant stated this does not apply as the respondent decision maker was breaking the law and so can’t rely on the protection of section 14.

The respondent stated that this case is misconceived as no prohibited conduct in fact has occurred. The appeal process corrected an error and all arrears outstanding were paid. There were reasons for some delay arising from the immense pressure on the system to administer the Covid specific welfare benefits introduced arising from lockdown. The complainant has in fact received all her benefits as required under law.

The prima facie case has not been met as no prohibited conduct did take place.

The Equal Status Act also requires that a person can show that they were treated less favourably than a comparator-. No comparator has been provided.

The complainant rebutted that assertion and maintained that the comparator was an Irish Citizen; based on the complainant’s race and civil status she was treated less favourably than an Irish Citizen and endured financial and emotional hardship for many months arising from the unlawful decisions of the Social Welfare first instance decision makers.

In the matter of an Appeal under section 28 of the Equal Status Act 2000-2015, A.B. v Road Safety Authority [2021]IEHC Judge Creedon on facts not too dissimilar to the issues in contention in this case stated as follows:

99. The Respondent is a public authority with responsibility for the issuance of driving licenses in this jurisdiction in accordance with law. The Respondent lawfully and indiscriminately applied the statutory requirements to the Appellant. The statutory requirements do differentiate between nationals of the European Union, European Economic Area or Switzerland and nationals from other areas. It is this distinction which lies at the centre of the Appellant’s case.

100. Despite the Appellant’s assertion that this is a claim of discrimination under the Equal

Status Acts and not a challenge to the 2006 Regulations this assertion is not borne out by

the Appellants arguments which go to the principles and policies underpinning the

statutory framework. These arguments cannot be advanced in a claim of discrimination

under the Equal Status Acts.

101. In this regard the Court notes the decision of O’Malley J. in the High Court case of G. v.

the Department of Social Protection [2015] 4 IR 167 and in the matter of Section 14 (1)

(a) of the Equal Status Acts, O’Malley J. stated that the Equal Status Acts could not

override the terms of another statutory scheme in the following terms: -

“Since both are Acts of the Oireachtas, embodying policy choices made by the

legislature, it is not open to a court to make a finding of unlawfulness in one on the

basis of the policy of the other. . . . that raises the problem of whether the Equal

Status Act can be relied upon in this fashion, to find that there is discrimination

contrary to that Act embodied in another Act. In my view it cannot”.

102. The Court finds that the actions of the Respondent as they relate to the Appellant are

required by legislative enactment and cannot be the subject of an adverse finding

pursuant to the Equal Status Acts. The Court therefore agrees with the Respondent that

the complaint under the Equal Status Acts made herein is misconceived as to what is in

issue, which is the meaning and effect of the statutory enactments and not the individual

treatment of the Appellant by the Respondent.

103. Accordingly, the court refuses the appeal and answers the points of law raised in this

appeal as follows: -

i. The Court finds that the Circuit Court did not err in law in its interpretation of the

Road Traffic (Licensing of Drivers) Regulations 2006 (As amended), more

particularly;

(a) The Circuit Court did not err in law in concluding that the said regulations

imposed “requirement to provide evidence of residency entitlement in

Ireland”.

(b) The Circuit Court did not err in law in its interpretation of the concept of

residence for the purposes of the Regulations including by adapting expressly

or by implication an interpretation of the concept of “normal residence” that

is contrary to its plain meaning and contrary to EU law.

ii. The Circuit Court did not err in law in its interpretation of the Equal Status Acts

2000-2015 more particularly:

iii. (a) The Circuit Court did not err in law in its conclusion that the conduct of the

Respondent did not discriminate against the Appellant on ground of race.

I find most helpful the distinction that the learned Judge makes at para 102 The Court therefore agrees with the Respondent that

the complaint under the Equal Status Acts made herein is misconceived as to what is in

issue, which is the meaning and effect of the statutory enactments and not the individual

treatment of the Appellant by the Respondent.

The complainant has not made out a prima facie case of prohibited conduct as defined under the Equal Status Act as what is in issue is the meaning and effect of the statutory enactments and not the treatment of the Appellant by the Respondent.

That is not a service as defined under Equal Status Act rather it a requirement of the Social Welfare Act that such as assessment is made; therefore, it cannot be said that assessment by a Social Welfare official relating to Social Welfare benefit entitlement equates to individual treatment in the provision of a service.

In addition, I am also minded of the fact that the application provided for an internal appeal of the first decision. That appeal process correctly applied the law as provided for underthe European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) to enter and reside in the State or is deemed under those Regulations to be lawfully resident in the State.

For these reasons I find that the complainant has not made out a prima facie case of prohibited conduct as the officials engaged in the assessment of her application were not engaged in a service as defined under the Act:

“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—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

Judy Walsh in the Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 states:

“Equivalent UK provisions have been subject to fairly extensive interpretation(McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.

I find that the respondent has not engaged in prohibited conduct by treating the complainant less favourably than an Irish Citizen on the ground of race and civil status as the matter complained of was not a service as defined under the Act nor has the complainant made out a prima facie case as required under the Act; as what was in issue was the meaning and statutory effect of the statutory enactments and not the treatment of the Appellant by the Respondent. The complaint is misconceived. I dismiss the complaint.

The complainant has not made out a prima facie case of prohibited conduct as defined under the Equal Status Act as what is in issue is the meaning and effect of the statutory enactments and not the treatment of the Appellant by the Respondent.

That is not a service as defined under Equal Status Act rather it a requirement of the Social Welfare Act that such as assessment is made; therefore, it cannot be said that assessment by a Social Welfare official relating to Social Welfare benefit entitlement equates to individual treatment in the provision of a service.

In addition, I am also minded of the fact that the application provided for an internal appeal of the first decision. That appeal process correctly applied the law as provided for underthe European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) to enter and reside in the State or is deemed under those Regulations to be lawfully resident in the State. On appeal her full benefits as provided under law were correctly assessed and provided to her to include arrears.

For these reasons I find that the complainant has not made out a prima facie case of prohibited conduct as the officials engaged in the assessment of her application were not engaged in a service as defined under the Act:

“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—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

Judy Walsh in the Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 states:

“Equivalent UK provisions have been subject to fairly extensive interpretation(McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.

I find that the respondent has not engaged in prohibited conduct by treating the complainant less favourably than an Irish Citizen on the ground of race as the matter complained of was not a service as defined under the Equal Status Act nor has the complainant made out a prima facie case as required under the Act; as what was in issue was the meaning and statutory effect of the statutory enactments and not the treatment of the Appellant by the Respondent. The complaint is misconceived. I dismiss the complaint as the complainant was not discriminated against.

I find that the respondent had not engaged in prohibited conduct by treating the complainant less favourably than an Irish Citizen on the ground of civil status as the matter complained of was not a service as defined under the Equal Status Act nor has the complainant made out a prima facie case as required under the Act; as what was in issue was the meaning and statutory effect of the statutory enactments and not the treatment of the Appellant by the Respondent. The complaint is misconceived. I dismiss the complaint as the complainant was not discriminated against.

Service; Misconceived; Prima Facie