Complainant

Respondent

Anonymised Parties

A Complainant

A Department

Representatives

Self represented 

Emma Cassidy BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039417-001

28/08/2020

The Complainant applied for Disablement benefit in May 1981 following an occupational injury to his eye.  The conclusions of the medical referee at the time were that he was incapable of work which required vision and he had a permanent incapacity.  He received Disability benefit.  He contends that he tried to apply for Invalidity Pension at the time, but the Department did not open or leave open the Invalidity Pension application and when he applied again in 2002, the Department refused to link his application to the 1983 file.   The Complainant states that a few years later he discovered that a Garda had applied to the Department for a disability pension following an occupational injury which occurred in 1992.  In that case his application was kept open and processed in 2006, some fourteen years later.   The Complainant contends that this is a case of a comparator being treated differently and therefore the Complainant has been discriminated against.  The Complainant outlined various complaints he had in relation to the non-processing of his claim.    He referred to mistakes made by the Department, which were acknowledged.  Examples of the errors included the fact that at one point he was told he was not entitled to credits and that was corrected in 2014, and credits applied for 1994 – 2000.  The Complainant contends that the Department should have put him on the Disability or Invalidity Pension and by refusing to do so, discriminated against him.  He contends that the discriminatory action was ongoing – the latest being when he was informed by email on 20th August 2020 that the matter was closed.

The Respondent denies the totality of the allegations contained within the complaint form and in particular refutes any allegation that the Complainant was discriminated against as alleged or at all.

Factual Background

In May 1981 the Respondent (as it was in 1981) received a letter regarding disablement from the Complainant’s sister. Qualifying criteria at the time for “Disablement Benefit” required that an occupational injury must have occurred more than 6 months prior to any application. The Complainant therefore satisfied the criteria for Disablement Benefit and it was duly awarded in August 1981 and was backdated to March of that year. In October 1981 the rate of disablement benefit awarded was reviewed and increased

The practice in 1983 was to invite customers to apply for Invalidity Pension where they were in receipt of certain illness payments and may have had an entitlement to payment. Such cases were recorded on the Respondent’s IT system, irrespective of whether an application was received by the Respondent. There is no record that the Complainant submitted an application at that time and given the period of time that has elapsed since then, no paper records exist.

The Complainant submitted an application for Invalidity Pension in 2002. This application was refused on the basis that the Complainant did not meet the qualifying insurance condition as the Governing Contribution Year (GCY) condition was not satisfied. This criterion requires an applicant to have 48 paid or credited contributions in the year of application or in the previous year, i.e. 2002 or 2001.The Complainant did not have the required contributions. There is no record to indicate that the Complainant made any reference as part of this application to a prior application for Invalidity Pension in 1983. There is no record that the Complainant exercised his right to appeal the decision on the 2002 claim or queried the decision on this claim. No further communication from the Complainant arose on foot of this decision until mid 2010.

It should be noted that the Respondent did receive correspondence from the Complainant on a number of occasions between 1981 and 2001 regarding his Disablement Benefit claim yet there is no reference to any application for Invalidity Pension as part of any correspondence received.

In May 2010 the Complainant commenced a series of correspondence with the Respondent alleging that he had been unfairly deprived of Invalidity Pension in 1983 and/or that he was not satisfied with the doctor who conducted his disablement exam. At all times the complaints and any relevant appeals were investigated and determined accordingly. Over the course of the next years the Complainant raised the matter with the Ombudsman and in July 2010 the Ombudsman wrote to the Respondent advising that a complaint had been made by the Complainant in relation to the 1983 Invalidity Pension auto-generated claim.

Following a complaint made by the Complainant to the Secretary General of the Respondent in July 2012 about the 1983 Invalidity Pension auto-generated claim and alleged incorrect assessment of his level of disablement in 1981, a further investigation was undertaken by the Respondent. The result of the said investigation was communicated to the Complainant by way of letter from the Secretary General on 10 May 2012. The Secretary General highlights that notwithstanding the fact the Complainant was in receipt of other benefits between the years 1983 and 1985 he did not communicate once with the Respondent in respect of any matter, indeed the Complainant’s own documentation indicates same.

In September 2012 the Deputy Secretary General of the Respondent emailed the Complainant referring to the more than 20 FOI requests that had been made in the previous 2 years as well as the 6 complaints received from him since April that year. In the circumstances the Deputy Secretary General advised the Complainant that the Respondent “had done all that can be reasonably expected of it in relation to the history of your claims and has nothing to add”.

Between early 2014 until end 2016 the Complainant engaged with the Respondent again in relation to various matters most of which pertained to his 1983 claim. The Respondent dealt with all queries comprehensively and updated the Complainant’s record where additional information was provided. In fact, the Respondent afforded the Complainant significant benefit of the doubt in this regard where full information was not available.

In 2016 the Complainant enquired as to whether or not he could pay Voluntary Contributions and was advised that he could pay same for the period 1982 to 2016 and the cost of same was duly outlined. The Voluntary Contribution Section asked the Complainant if he wished to proceed with the payment and he advised that he would revert as soon as the Ombudsman got back to him.

Over the course of the following years until 2018, the Complainant has raised many queries, including a WRC complaint in 2016 that pertained to the same subject matter of within complaint, and the Respondent has endeavoured to assist and respond to him to the extent that it could. To be clear the Complainant has raised this matter with the Respondent, the Ombudsman, the Information Commission as well as the WRC previously.

Post WRC complaint

In October 2020 the Complainant enquired again as to whether or not he could pay Voluntary Contributions. The Respondent advised that due to a legislative change in 2017 from that date, it became possible to admit him as a voluntary contributor from when he last recorded a credited contribution in April 2000 until he reached pension age and outlined the cost of doing so. The Respondent is awaiting a response from the Complainant on this matter.

Preliminary Issues

The complaint is statute barred

The Complainant advises that his complaint “stems from an Occupational Accident I suffered on 22nd May 1980. The discrimination has taken place since that date and continues to the present day”. It is clear that the within complaint is statute barred for the purposes of section 21(6) of the Act where the complaint form was not received by the WRC until 28 August 2020. For the sake of clarity simply because the Complainant alleges that discrimination is ongoing does not make it so for the purposes of section 21(11) discussed below.

Throughout his complaint the Complainant persistently alleges discrimination arising in the early 1980s and it is from this date that he seeks relief. Indeed, the only reference to alleged discrimination on the grounds of sex pertains to an alleged incident that occurred at the Respondent’s offices where the Complainant alleges that an unnamed individual referred to him as a “big strong man”. Further, the only reference to age discrimination pertains to the Complainant’s belief that sometime in 1983 “A Civil Servant looked at my age and the looked at my application for Invalidity Pension. The official then said – 28 hmm. I’ll fob him off and save the Department a bundle of money.” Without prejudice to the fact that the Respondent denies all allegations of discrimination, be they based on actual alleged events or the Complainant’s unsupported assumptions, it is simply not tenable for the WRC to countenance complaints arising from allegations occurring almost 20 years prior to the commencement of the Act even if it could be shown that any impugned actions, which are denied, are ongoing for purposes of section 21(11).

To be clear any alleged acts of discrimination, including and in particular the refusal to award Invalidity Pension, that ground the complaint for breach of the Act occurred between 37 and 39 years ago. The jurisdiction enjoyed by the WRC is found at section 21(6) as follows:-

(6) (a) … a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Having regard to the foregoing, where the complaint form was received by the WRC on 28 August 2020 the reckonable period for adjudication is 28 February 2020 to 28 August 2020.

For the sake of completeness, the manner in which the complaint is presented is of clear importance in respect of any statutory time limit. Therefore, it is respectfully submitted that the WRC is confined to that which the Complainant seeks to refer as evidence of breaches of the Acts. This is a concept that has been investigated by the High Court in cases pertaining to breach of employment law legislation, which is of considerable relevance in circumstances where the same statutory time limits apply. Mr. Justice Hogan in HSE v McDermott [2014] IEHC 331 he noted that time runs not from the date of any particular contravention but rather from the date of the contravention “to which the complaint relates”. This complaint clearly relates to alleged acts of discrimination in the early 1980s.

Without prejudice to the foregoing and assertion that no discrimination occurred as alleged or at all, it is respectfully submitted that the Complainant’s failure to lodge any complaint of discrimination until 2020, 10 years after his most recent application for Invalidity Pension and 5 years after he was invited to do so again by the Respondent, particularly where he in fact lodged a complaint for same formally with the WRC in 2016 and then withdrew, it renders the within complaint as pleaded or otherwise statute barred.

Without prejudice to the foregoing, the Respondent is utterly prejudiced in defending allegations of discrimination commencing at the beginning of the 1980s and relies on the decision of Mr Justice McGovern in County Louth VEC v The Equality Tribunal [2009] IHEC 370 wherein the High Court held that:-

“… under the legislation it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say that complaints going back over a very lengthy period would have to be considered as an issue of prejudice might arise”.

The Respondent has repeatedly advised both the Complainant as well as other bodies, with whom the Complainant raised complaints pertaining to the 1983 auto-generated claim, that the Complainant’s file pertaining to his 1983 auto-generated claim no longer exists. Without labouring the matter further, it is evident that the Respondent is prejudiced in the defence of allegations going back 40 years where it does not have access to the relevant documentation nor to the individuals who could give evidence as to precisely why the 1983 auto-generated claim became dormant.

Res judicata

Without prejudice to the foregoing or any other arguments, As discussed above, the Complainant has raised the issue of the 1983 auto-generated claim many times over the years, in various contexts and with various bodies. Essentially the Complainant contends that he should have been awarded an Invalidity Pension on foot of the auto-generated claim made in 1983 and therefore it is his entitlement to same that is in issue. This matter has been the subject of investigation within the Respondent and outside the Respondent, including an investigation carried out by the Ombudsman in 2010 and the then Secretary General of the Respondent as recently as 2012, the Office of the Information Commissioner as well a complaint to the WRC in the 2016. Each time the Respondent informed the Complainant of the reason/reasons for its decision that he was not retrospectively entitled to Invalidity Pension from 1983. Therefore, the Complainant’s entitlement to Invalidity Pension from 1983 has been decided.

It is clear that the Complainant is not satisfied with the reasons provided by the Respondent but this does not make those reasons invalid, particularly vis à vis his legal entitlement to Invalidity Pension dating back to 1983. It is respectfully submitted that the WRC is not entitled to investigate a matter that has been previously determined nor does it have the jurisdiction to force the Respondent to award the benefit claimed. Moreover, it is simply not tenable for any Respondent to have to defend the same complaint continuously under different guises.

The complaint is not properly particularised and as such the Respondent’s defence is

Prejudiced and a fair hearing cannot result in the circumstances.

Without prejudice to the foregoing or any other arguments, across the totality of the Complainant’s complaints he consistently alleges that he has been discriminated against but has provided little or no detail. The example provided regarding sex discrimination refers to an alleged incident in 1983 where he has not named the alleged perpetrator. The example provided regarding age discrimination refers simply to a thought that the Complainant had. It is clear that the Respondent cannot respond to alleged events that may not even have occurred or if they did occur without knowing who was present especially since they occurred approximately 37 years ago.

In respect of the Complainant’s allegation of discrimination on the grounds of disability, again notwithstanding the fact that same is denied, the Complainant has again not properly particularised his complaint vis à vis the requirements of the Act. The Complainant only refers to a case of a Garda as an authority that he has been treated less favourably where the stated Garda was awarded a benefit and the Complainant was not. This example is also proffered as an authority for what the Complainant describes as “time lag” cases. For the sake of clarity, whilst once again the allegation of discrimination on the ground of disability is refuted, the Respondent is not familiar with the example upon which the Complainant wishes to rely. However, if the alleged Garda matter was a matter determined by the Respondent or the Social Welfare Appeals Office, it would have been determined pursuant to social welfare legislation and therefore is not an authority determined pursuant to Equal Status Acts regarding proper comparators or regarding the statutory time limit referred to above that applies to same.

The complaint is frivolous and vexatious

Without prejudice to the foregoing or any other arguments, having regard to the totality of the foregoing the adjudication officer is respectfully requested to dismiss the case pursuant to section 22(1) which states as follows:-

“(1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

The within complaint forms part of an ongoing plethora of complaints, appeals and requests for information made by the Complainant over the course of many years the basis for which being he simply will not accept the bona fide decisions of the Respondent, nor the other bodies whom have adjudicated upon his requests for information, his complaints and his appeals. In this regard the Adjudication Officer is respectfully requested to take note in particular of the aforementioned correspondence to the Complainant from the Secretary General, the Deputy Secretary General as well as the letters from the Information Commissioner dated 19 August 2014 and the most recent letter from the Information Commission dated 17 February 2021 both of which have determined that complaints made by the Complainant were vexatious 

In matter of Patrick Kelly v The Information Commissioner [2014] IEHC 479 it was stated at paragraph 99:-

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail. Where a person engages in a pattern of litigation (or applications as in the present instance) which not only come within those descriptions but can be said to be actuated by ill-will or bad faith, such conduct may properly be described as vexatious.”

It is submitted that the WRC is bound by the interpretation of “frivolous or vexatious” as it pertains to Irish law determined by the High Court, see the recent case of Eager v Minister for Employment Affairs and Social Welfare ADJ-00028241. In that regard, where the within matter can only be characterised as “futile, misconceived or bound to fail” having regard to all the circumstances, it is respectfully submitted that the Adjudication Officer determine the matter as such.

Therefore, it is respectfully submitted that the Complainant’s claims, in respect of the totality of the foregoing or in respect of one or more of the preliminary points, should fail automatically.

Discrimination

The Act defines discrimination the following terms at section 3:-

“(1) For the purposes of this Act discrimination shall be taken to occur —

( 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,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned..”

Section 38A deals with the burden of proof as follows:-

“(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.”

The foregoing provision obliges the Complainant to provide evidence from which it may be presumed that prohibited conduct occurred and having regard to the totality of the foregoing it is submitted that he has not and that he cannot do so. Notwithstanding the fact that the Complainant has not actually particularised his complaint in the context of requirements of the Act, no interpretation of the facts of this matter could give rise to even a prima facie case. This is because the Complainant was not treated any differently and/or less favourably to any service user at any time over the course of his 4 decades long interactions with the Respondent.

The requirement for an appropriate comparator is contained within section 3(2) and is a vital aspect of discrimination law. The Complainant must show that he was treated less favourably than someone else was or would have been in a comparable situation. In other words an Adjudication Officer decides that in similar circumstances, the same treatment was or would not have been encountered by a person who doesn’t share the complainant’s characteristic or status. The question must be asked, would another person with a different status to the complainant have experienced the same result in respect of the 1983 application? The answer is clearly yes because the only reason for the decision not to retrospectively award Invalidity Pension from 1983 arose where the claim was not progressed at the time (i.e. 1983) and had therefore been closed because it had become dormant by 2002.

It is respectfully submitted that it would not be appropriate nor time effective to engage in any further discussion on the matter in writing at this juncture where in light of the foregoing together with the fact that the Respondent is entirely prejudiced in defending matters occurring approximately 37 years ago notwithstanding the fact that same are not sufficiently detailed for the purpose of a proper response. 

Exemption

The Respondent asserts that at all times the Complainant was treated fairly and denies that any discrimination took place at all or as alleged. However as previously submitted, the Respondent is entirely prejudiced in the defence of these allegations where relevant documentation and/or personnel are no longer available due to the very lengthy passage of time. In the circumstances, without prejudice to the totality of the foregoing and for the sake of completeness the Respondent respectfully submits that at all times the Complainant’s impugned claim was managed and processed in accordance with Regulations S.I. No. 126 of 1963 Social Welfare (General Benefit) (Amendment) Regulations 1963 [Revoked by S.I. No. 142/2007 — Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007].

In the circumstances the Respondent relies on the exemption contained in section 14 of the Act.

Section 14 of the Act states:-

“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…”

It is well settled that statutory instruments come within the definition of enactment for the purposes of section 14 noted above, see Dowd v Minister for Finance DEC-S2011-061 and more generally section 2 of the Interpretation Act 2005. Therefore, notwithstanding the Respondent’s firm position that no discrimination took place, without prejudice, it is respectfully submitted that where the Respondent is obliged to consider all such applications against criteria set out in aforementioned statutory instrument(s) and where the now impugned decisions would have been made on that basis alone, the Respondent is entitled to the rely on the section 14 exemption accordingly, see Eager v Minister for Employment Affairs and Social Welfare ADJ-00028241.

Having regard to the totality of the foregoing it is respectfully submitted that the Complainant’s claims should fail in circumstances where:-

a. His complaints are statute barred;

b. His complaints are not stateable;

c. His complaints have not been particularised;

d. His complaints have already been determined;

e. His complaints are frivolous and vexatious;

f. He was not discriminated against on any of the impugned grounds;

g. He has not provided a proper comparator;

h. He has ignored the Respondent’s bona fide attempts to resolve his complaints;

i. He has refused to accept the legal constraints within which the Respondent is permitted to award the benefit the subject matter of these proceedings;

j. He has conflated what he considers to be an unsatisfactory outcome of a claim for a particular benefit with discrimination;

k. In the alternative, the Respondent is entitled to rely on the exemption in section 14 of the Act; and

l. The WRC has no power under the Act to force the Respondent to award Invalidity Pension in the manner so claimed or at all notwithstanding the fact that there would be no basis to do so in the within case.

For all of the aforementioned reasons the Respondent submits that the Complainant is not entitled to succeed and his complaints should be dismissed.

The Respondent raised a number of preliminary issues including that the Complainant’s complaints are statute barred, are not stateable, have not been particularised and have already been determined.  The Respondent also relies upon Section 38A dealing with the burden of proof and submits that the Complainant has not discharged this and in particular has not provided evidence from which it may be presumed that prohibited conduct occurred.  

The Respondent also submitted that it is entitled to rely on the exemption in section 14 of the Act.

Firstly, I am going to consider the exemption put forward under sections 14(1)(a) of the Equal Status Acts.  They are exemptions, in that the provisions of the Equal Status Acts do not apply in certain specific circumstances.

As I have decided that this claim falls under the exemptions granted in section 14(1)(a) of the Equal Status Acts the complaint cannot succeed and is not well founded.

Equal Status Acts, exemption.