Complainant

Respondent

Parties

Patrick  Wrenn

PTSB Bank Permanent TSB Bank

Representatives

  Self

Paul Hutchinson BL instructed by Permanent TSB Bank

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00034136-001

03/02/2020

The complainant claims he was discriminated against by the respondent in the provision of services on 08 August and 17 September 2019 by reason of his family status and by reason of disability.  He claims the respondent treated him unlawfully by discriminating against him and by failing to give reasonable accommodation for a disability.  The complainant is a full-time carer and has been since 2003.  In August 2019 he telephoned the respondent bank to submit a loan application.  The complainant, on his complainant form, asserts that an employee of the respondent advised him that the bank did not consider a carer’s allowance payment as being suitable for loan purposes as it is not a guaranteed payment.  He claims he was denied credit facilities solely as a result of his caring commitments. 

The complainant sent an ES1 notice to the respondent on 25 September 2019.  On the ES1 form the complainant claimed he was discriminated against by reason of his family status.  The details of the complaint on the ES1 form are that on 08 August 2019 the complainant was prevented from submitting a loan application on behalf of himself and his wife (who has a disability), on the grounds that the respondent’s credit policy does not consider his carer’s allowance payment as a primary source of income for credit assessment purposes because it is not a guaranteed or fixed income.  The complainant contends that other members of the public who might submit a loan application are not required to prove that their income is guaranteed.

The complainant submitted his complaint to the Workplace Relations Commission on 03 February 2020.

The respondent is a public limited company incorporated within the State.  It is licensed and regulated by the Central Bank of Ireland (CBI) as a bank.  Pursuant to its binding and express regulatory obligations, the respondent is required, by law, to assess suitability and affordability of loans to prospective customers who, like the complainant, have ‘consumer’ status. These obligations are in addition to the respondent’s commercial imperative to ensure uniform standards of affordability assessment across its loan book.  The respondent denies the claim of discrimination being made by the complainant.

The complainant has been a full-time carer for his wife since 2003.  On 08 August 2019 the complainant contacted his bank, the respondent, by telephone to submit a loan application.

The complainant, on his complaint form, asserts that the bank employee was willing to accept the application until he told him that their income consisted of the complainant’s carer’s allowance and his wife’s disability allowance payment.  The complainant claims he was told by the respondent’s employee that the bank did not consider a carer’s allowance payment as being suitable for loan purposes as it was not a guaranteed payment.  Further, it is claimed that the bank’s employee stated that the complainant was not the first person in receipt of carer’s allowance that he had to turn down.

The complainant compared the respondent’s policy with that of another bank where he had been approved for a loan in 2016, which bank did not place such restrictions on persons in receipt of a carer’s allowance.  The complainant contends that by insisting that the loan applicants should somehow be able to provide documents to “prove” that their income is guaranteed into the foreseeable future the respondent is placing an undue burden on them, which amounts to discrimination by association and indirect discrimination.  The complainant cited the decision in An Asylum Seeker v A Government Agency ADJ-00017832 in support of the claim of indirect discrimination.  The complainant claims that by placing a requirement on carers to produce documentation that verifies that their income is somehow guaranteed into the foreseeable future the respondent is precluding carers from being able to access credit facilities with this bank.

The complainant contends that the only relevant criteria that should be considered for a loan application is whether the applicants can afford the loan repayments together with their credit rating.  The complainant further contends that no person should be denied access to credit facilities solely as a result of their caring commitments and their reliance on a carer’s allowance payment.

The complainant contends that he did begin a loan application process by phone call on 08 August 2019.  However, it was the respondent’s unwillingness to consider his carer’s allowance payment as an acceptable source of income that prevented the progress of the loan application. 

The complainant notes that the extract from the respondent’s credit policy that was provided with the respondent’s submission permits consideration of a carer’s allowance payment for loan purposes, if accompanied by a primary salaried income.  However, this document makes no mention of payments such as a disability allowance.  The complainant contends that the omission of any reference to considering a disability allowance payment as forming an acceptable income source as part of a loan application amounts to a discriminatory act insofar as it excludes persons in receipt of a disability allowance payment from consideration for loan purposes.

The complainant submitted a complaint to the respondent and received a final reply by letter dated 17 September 2019.  The complainant notes this statement in the letter …Bank not being in a position to progress this loan application with you...” and claims it confirms that the complainant had made a loan application and a loan application process was initialised on 08 August 2019.

The complainant noted a newspaper article in 2013 referring to a media announcement issued by the respondent bank whereby it appeared that the bank would make credit facilities available to applicants with a poor credit history.  However, the bank would not consider a carer in receipt of a carer’s allowance as being suitable for a loan, even if they had saved regularly with the bank.

The complainant states that the complainant to the Workplace Relations Commission was not made after the phone conversation of 08 August 2019; rather it was submitted after his complaint to the respondent was investigated internally and the bank had issued a final response letter on 17 September 2019.  The complaint was submitted to the Workplace Relations Commission on 03 February 2020.

The complainant contends that the respondent’s lending policy is discriminatory because it makes no accommodation for considering the income of a person in receipt of a disability allowance, thereby denying a person who may be in receipt of a carer’s allowance from using their spouse or partner’s income as a supporting primary source of income for personal loan application purposes.

The complainant claims that if his loan application had been accepted and approved it would have resulted in a saving of over €20 per month in interest payments, or approximately €1,200 over the lifetime of a five-year loan period.

The complainant set out his complaint on the complaint form received by the Workplace Relations Commission on 03 February 2020.  The complainant provided further written submissions dated 27 April and 12 May 2021.

Supplemental Submission

In the submission of 27 April 2020, the complainant quoted from the respondent’s letter of 17 September 2019 and asserts that if the loan applicant is a full-time carer in receipt of carer’s allowance, then in order to qualify for loan approval, they would have to produce a document sating that their income was a guaranteed source of fixed income.  The complainant contends that no person could hope to produce a document from their employer stating that their income was guaranteed into the foreseeable future, as no employer could ever afford to issue such a blanket guarantee. 

The complainant contends that the respondents lending policy imposes requirements upon the person in receipt of carer’s allowance that they may find hard to satisfy.  This amounts to indirect discrimination.  The complainant contends that the respondent’s lending policy places an insurmountable impediment upon the carer that it does not seek to apply to other loan applicants.

The complainant stated that the loan application process did begin on 08 August 2019, but it was impeded by the respondent would not consider his carer’s allowance payment as being suitable for loan purposes.

The complainant noted that another bank did accept his carer’s allowance as an acceptable source of income and his later application to that bank was successful.

The complainant noted that his wife’s source of income is a disability allowance, which means that although his carer’s allowance payment could be subject to a means test, his wife’s source of income is unlikely to increase, therefore his carer’s allowance payment would be unlikely to decrease.

The complainant referred to an extract from the respondent’s credit policy, submitted as appendix 5 with the respondent’s outline submission.  The complainant re-stated the claim set out in the original complaint form.

The complainant noted the difference between disability allowance and disability benefit payments. The complainant’s wife is in receipt of disability allowance payments, which is a long-term payment.

Second Supplemental Submission

The complainant’s submission of 12 May 2020 addressed issues raised in the respondent’s outline submission.  The complainant rejected any suggestion that this complaint was motivated by a desire to revisit the previous complaint submitted in 2015/2016.  The complaint contends that the previous complaint related to a mortgage application and that there is a fundamental difference between a mortgage and a personal loan.  A mortgage application would require assessment of the applicant’s financial capacity to service a larger loan over a longer period and the applicant would also have to secure mortgage protection.  The loan application in August 2019 was for home improvement projects.  The complainant was approved for a loan by another bank in December 2019 for his home improvements.

The complainant refers to the audio recording of the telephone conversation of 08 August 2019.  The complainant contends that the respondent’s employee appears to be clear that the bank’s credit policy would prevent the consideration of his carer’s allowance income as being suitable for loan approval, unless supplemented by a full-time income from another source.

The complainant contends that the respondent’s employee statement “you are not the first person I’ve had to turn down” indicates that the respondent’s credit policy was the impeding factor that prevented his loan application from proceeding from the initial stage to a full loan application being submitted over the phone.

The complainant notes that the respondent’s credit policy makes no mention of or accommodation for persons in receipt of disability allowance payment.  Therefore, the policy would appear to exclude a person in receipt of disability allowance payment, such as his wife, from using their income to supplement a person in receipt of a carer’s allowance payment when submitting a personal loan application.  This omission places the carer who may be caring for his or her spouse or partner at a distinct financial disadvantage when compared to a carer who may be caring for a relative and who may be able to supplement their carer’s allowance payment with their spouse or partner’s primary full-time income when submitting a loan application to the respondent.

The complainant contends that failure to make accommodation for a loan applicant in receipt of carer’s allowance who is caring for a spouse or partner in receipt of a disability allowance payment is discrimination by association.  The complainant contends that a full-time carer’s income is as secure and stable as any other customer’s income the bank may deem suitable for loan approval.  The respondent’s credit policy imposed requirements the complainant would find it impossible to satisfy.

The respondent is a public limited company incorporated with the State and is licensed and regulated by the Central Bank of Ireland as a bank.  Pursuant to the binding and express regulatory obligations, the respondent is required, by law, to assess suitability and affordability of loans to prospective customers who, like the complainant, have “consumer” status.  These obligations are in addition to the respondent’s commercial imperative to ensure uniform standards of affordability assessment across its loan book.

The complainant claims to have been discriminated against by the respondent on the grounds of family status because he alleges, he was “prevented from submitting a loan application…on the grounds that PTSB Bank’s credit policy does not consider…Carer’s Allowance payment as a primary source of income for credit assessment purposes on the basis that it is not a guaranteed or fixed income” (Form ES1 submitted by the complainant, dated 25 September 2019).

On the complaint form submitted to the Workplace Relations Commission, on 03 February 2020, the complainant alleges discrimination in the provision of goods and services on the grounds of “family status”, “disability” and by a failure to “provide reasonable accommodation”.

The basis of the complainant’s allegation of having been treated less favourably than other is that he and his wife are customers of another bank which did not require them to “provide evidence that [his] carer’s allowance was “guaranteed” …” when he maintains a different loan application for a similar sum was obtained from this other bank.  The complainant further argues that other members of the public in employment would find it difficult to procure “such a guarantee” from their respective employers.  This requirement, in the complainant’s view, has placed an unnecessary impediment upon person in receipt of carer’s allowance.

The respondent denies the claim of discrimination being made by the complainant.

On 08 August 2019 the complainant contacted the respondent by way of the telephone banking facility “Open 24” and discussed the availability of loans and certain aspects of the respondent’s credit policy.  As the transcript of that phone conversation makes clear, the complainant did not submit a formal application for a loan.  The discussion about the respondent’s credit policy concerned the fact that certain social welfare payments are excluded as the primary source of income in the calculation of loan affordability, in this case the carer’s allowance.  The complainant was inquiring about the consideration which would be given to his carer’s allowance were he to apply for a loan from the respondent.

It should be noted that at the time of telephone inquiry the complainant was aware of the respondent’s credit policy as he and his wife had previously, and unsuccessfully, brought a complaint to the Workplace Relation Commission against the respondent on almost precisely the same grounds.

The respondent contends that an explanation of the relevant aspects of its credit policy in respect to direct questioning by the complainant does not amount to discrimination within the meaning of the Equal Status Act in circumstances where the respondent’s credit policy is of universal application to all loan applicants and to certain forms of social welfare payments and was not uniquely applied to the complainant.  Nor is it solely applied to persons in receipt of carer’s allowance as their primary source of income.

The complainant submitted a complaint by e-mail, dated 14 August 2019.  The respondent replied to the complaint by letter, dated 17 September 2019.  The respondent in its reply noted that the telephone call of 08 August 2019, was prior to an application being made and that a loan application did not progress.

The respondent set out the steps involved in a formal loan application as follows:

(a)   A formal application being completed by an applicant on a recorded telephone call on OPEN 24 or via an online application or by a customer completing an application within a branch of the respondent.

(b)   Once the application information is provided to the respondent, the application is scored on the respondent’s internal system.  Subject to the particular score ascribed to an application received, the application is either approved, declined or sent to the Retail Credit Centre for further review.  If a loan is declined, a decline letter issues to the customer; and

(c)    If a loan is approved, the customer is referred to either a branch or the respondent’s Internet Banking service to allow the application to be progressed.

The respondent provided a transcript of the telephone call of 08 August 2019 and the recording was played during the hearing.  The respondent states that during the telephone call the complainant discussed various personal loan options before broaching a discussion about the status of his carer’s allowance payment for the purposes of the respondent’s loan affordability calculus.  Then during the telephone call the complainant elected to escalate his dissatisfaction with the respondent’s credit policy to a formal complaint.

The respondent respectfully disagreed with the complainant’s account of the telephone call of 08 August 2019 as set out on the complaint form submitted to the Workplace Relations Commission.  The respondent asserts that the complainant did not discuss his wife’s disability allowance payment during the telephone call of 08 August 2019, as alleged on the complaint form submitted to the Workplace Relations Commission on 03 February 2020.

The respondent submitted that in circumstances where the complainant never actually applied for a loan it is not clear how the interaction between the complainant and the respondent, by the telephone call of 08 August 2019, could amount to a denial of goods or services.  The respondent’s loan application process was not invoked, and no decline letter was issued to the complainant. 

The respondent detailed the facts and decision in the previous complaint of discrimination in 2015.  The respondent expressed its view that the complainant was seeking to litigate the same or materially the same complaint against it as had already been determined.  The 2015 claim was dismissed.

The respondent stated that in addition to the commercial considerations which a lender is entitled to consider when formulating credit policy, the respondent is subject to a suite of binding, regulatory obligations which are relevant in the context of this complaint.  The Consumer Protection Code 2012 (CPC 2012) places a legal obligation on the respondent to assess suitability and affordability of credit products.  Chapter 5, Section 5.1 of the CPC 2012 outlines the information which should be gathered for the purpose of making the assessment and includes “employment status” and “income”.

The respondent in its submission set out the requirements contained in Section 5.16 and 5.17 of the CPC 2012.  Further, the respondent noted that the CPC 2012 code is issued by the Central Bank of Ireland and is binding upon regulated entities pursuant to the provision of Section 117(1) of the Central Bank Act, 1989.

The respondent submits that carer’s allowance constitutes “social assistance” within the meaning of Part 3 of the Social Welfare (Consolidation) Act 2005.  Section 181(2) of the 2005 Act provides that carer’s allowance is a means tested form of social assistance.  Other forms of social assistance include, inter alia, jobseeker’s allowance, farm assist, the non-contributory State pension and one-parent family payment.

The respondent’s credit policy is set by the Group Credit Committee and is approved by the Board of Directors.  The policy is subject to annual review and is a commercially sensitive document.  The respondent’s policy does not prevent carer’s allowance from being considered when loan applications are being assessed.  The policy provides that in the context of a joint application the receipt of carer’s allowance by one applicant may be considered when the other applicant is in receipt of a “primary salaried income”.  The respondent submits that this is a reasonable and proportionate condition.  The credit policy does not specifically disadvantage carer’s allowance but rather provides that it may be considered (subject to certain conditions) in assessing loan suitability in circumstances where other additional income and social welfare/assistance payments are not.  The policy applies conditionality to other forms of additional income when calculating loan affordability, including a cap on the maximum amount of overtime/bonus/commission income that will be considered.

The respondent submits that it cannot be said that the explanation of a generally applicable policy constitutes discrimination based on the complainant’s “family status” arising from his receipt of carer’s allowance as the primary source of income suggested by him as the proposed means of repaying the loan he enquired about.  The respondent referred to the decision of the Equality Tribunal in Murray v Irish Life and Permanent TSB DEC-S2010-004 whereby a claim of direct discrimination based on disability was rejected in circumstances where the respondent could demonstrate the review of a loan application occurred strictly within the terms of the respondent’s lending policy and without reference to the claimant’s disability.

The respondent contends that a claim of indirect discrimination should be supported by statistical data that demonstrates the respondent’s credit policy on proving additional income, despite being apparently neutral, indirectly discriminates against persons in receipt of carer’s allowance based on “family status” when compared to other forms of social assistance payments received by the public at large.  The complainant has not provided any such statistical data.  The respondent refers to the Department of Social Protection Annual Statistics Report (2019 – published in August 2020) which shows that carer’s allowance is 7th out of 15 State annual expenditure, with 84,028 recipients compared to 138,867 recipients of jobseeker’s allowance.  The respondent cited the decision of the Equality Tribunal in O’Keeffe v Irish Life & Permanent t/a Permanent TSB DEC-S2010-001 where a claim that the respondent’s credit policy was indirectly discriminatory, on gender grounds, to the greater proportion of women in temporary employment, was rejected due to the absence of evidence to support the claim.

The respondent submits the circumstances of this claim are not comparable to the circumstances of the decision in An Asylum Seeker v A Government Agency ADJ-00017832.  In that case the complainant had been asked to produce documentation that it was impossible for him to obtain.  In this case it cannot be said that the explanation of the respondent’s credit policy, on the telephone call on 08 August 2019, either directly or indirectly discriminated against the complainant.

Further or in the alternative, if (which is otherwise denied) the respondent’s credit policy could be said to be prima facie discriminatory, within the meaning of the Equal Status Act, the provisions of Section 5(2)(d) and/or Section 3(1)(c) (in the case of indirect discrimination) are applicable.  Specifically, the commercial imperative associated with the respondent having clear policies for the assessment of risk, coupled with the legally binding suite of regulatory obligations to ensure that the respondent properly and robustly assesses loan suitability and enforceability.

The respondent rejects any allegation that it is guilty of discriminating against the complainant based on the ground of “disability” and/or failure to make “reasonable accommodation”.  The factual background to this complaint, the telephone conversation of 08 August 2019, does not directly touch upon any disability of the complainant or his wife.  The conversation focussed on the application of the respondent’s credit policy to the complainant’s carer’s allowance as a primary source of income for loan repayment purposes.  There is nothing in the factual background to this complaint to suggest a loan was refused based on any disability.  Similarly, there is nothing in the factual background of this complaint that suggests the respondent failed to make “reasonable accommodation” to the complainant or his wife within the meaning of Section 4(1) of the Equal Status Act.

Conclusion

The complainant it appears is genuinely dissatisfied with the respondent’s credit policy.  He feels the policy ought to be changed to include carer’s allowance as a primary source of income for affordability purposes.

The respondent does not seek to diminish or deny the important role of carers generally, or of the complainant’s personal commitment as a carer to his wife.  However, the respondent is both entitled, and obliged, to have robust policies in relation to loan affordability and suitability which are not predicated upon a value judgement of the personal effort of carers, but rather based on generally applicable commercial considerations.  It is submitted that the respondent’s credit policy does not constitute discrimination within the meaning of the Equal Status Act.

Supplemental Submission

The respondent provided supplemental written submissions, in response to the complainant’s submission of 12 May 2021.  The respondent noted that the complainant had been afforded the opportunity to review the transcript and listen to the audio recording of the telephone conversation of 08 August 2019.  The respondent asserts that it is plain from the transcript and the audio recording that there is no direct mention by the complainant of his wife’s disability allowance and no discussion about same with the respondent’s employee.  Therefore, it is not factually accurate for the complainant to suggest otherwise and the contention that it should be implied from the phrase “joint income, my wife and mine” does not, by any objective standard, stand up to scrutiny and cannot form the factual basis of a disability-based complaint of discrimination as against the respondent.

The respondent contends it is a well-established principle that courts and tribunals do no resolve hypothetical controversies which do not arise from the facts of a given dispute.  The respondent cited the decision of the Supreme Court in Madigan v Attorney General [1986] ILRM 136 at page 160.  The respondent submitted that it would be unfair to expect it to answer a complaint which did not arise from the facts.

The respondent submitted that the complainant’s issue with the credit policy conflates disparity in treatment between persons based on sources of income with impermissible discrimination within the meaning of the Equal Status Acts.  The respondent’s credit policy could potentially operate differently depending on the individual circumstances of a borrower or joint borrower in receipt of carer’s allowance and/or depending on the individual circumstances of any income source from such person’s spouse or partner.  Therefore, it cannot be said that the treatment of carer’s allowance under the respondent’s credit policy per se amount to either direct discrimination, as it only focuses on income source, or indirect discrimination as it is the confluence of different factors in the complainant’s particular case that (based on what he submitted to the WRC) would render him unable to satisfy the respondent’s credit policy if he had proceeded to submit a loan application.  In addition, the complainant has not adduced statistical, or similar, evidence to support a claim of indirect discrimination.

The respondent contends it is a matter for each financial institution to assess their own regulatory obligations, their standardised risk profiles and the commercial terms under which they are prepared to offer loans to the marketplace.  Each institution prepares its credit policies as a matter of utmost commercial confidentiality and, by definition, no two credit policies with be identical.

The respondent noted that the complainant accepts that he made a previous complaint of discrimination and received a decision from the WRC on essentially the same grounds.  While the complainant suggests that the loan products in each case were different, this is akin to the complainant superimposing how own views in place of the commercial decision making of the respondent.

Conclusion

The respondent submits that the complainant’s sense of grievance about the respondent’s credit policy and carer’s allowance cannot constitute a well-founded claim under the Equal Status Acts.

The respondent objects to the complainant attempting to litigate a hypothetical dispute based on his wife’s disability allowance, as same clearly did not form part of the telephone discussion of 08 August 2019, which is the factual event at the heart of the complaint.

The complainant submitted a complaint form to the Workplace Relations Commission on 03 February 2020.  On the form he alleges he was discriminated against by the respondent on the grounds of family status, and disability.  The complainant alleges the respondent treated him unlawfully by discriminating against him in the provision of services and in failing to give him reasonable accommodation for a disability.  The dates the discrimination is alleged to have occurred are 08 August 2019 and 17 September 2019. 

On 08 August 2019 the complainant contacted the respondent by telephone to submit a loan application.  The complainant alleges he was advised by an employee of the respondent that the bank did not consider a carers allowance payment as being suitable for loan purposes as it was not a guaranteed payment.  The complainant subsequently made a complaint to the respondent and received a final replying letter dated 17 September 2019.

The complainant sent an ES1 Form to the respondent on 25 September 2019.  On the ES1 form the complainant alleges the respondent discriminated against him on the grounds of family status.  The discrimination alleged on the ES1 form is that the complainant was prevented from submitting a loan application, on behalf of himself and his wife, on the grounds that the respondent’s credit policy does not consider his carers allowance payment as a primary source of income for credit assessment purposes on the basis that it is not a guaranteed or fixed income.  The complainant’s wife suffers from a disability, and he has been her carer since 2003.  I note there is no reference to discrimination on the ground of disability on the ES1 form.

The respondent denies the claims of discrimination being made by the complainant.  The respondent is licensed and regulated by the Central Bank of Ireland as a bank.  The respondent must operate within express regulatory obligations and is required by law to assess suitability and affordability of loans to prospective customers who have ‘consumer’ status.

Legislation

Section 5 of the Equal Status Act, 2000 provides:

Disposal of goods and provision of services.

5.— (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

(2) Subject to subsections (4) and (4A), subsection (1) shall not apply in respect of—

(a) an activity referred to in section 7(2),

(b) a service related to a matter provided for under section 6, or a service offered to its members by a club in respect of which section 8 applies,

(c) differences in the treatment of persons on the gender ground in relation to services of an aesthetic, cosmetic or similar nature, where the services require physical contact between the service provider and the recipient,

(d) differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk (other than on the gender ground or in any other circumstances to which the Gender Goods and Services Directive is relevant) where the treatment—

(i) is effected by reference to—

(I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or

(II) other relevant underwriting or commercial factors, and

(ii) is reasonable having regard to the data or other relevant factors,

((da) … (l)) …

Service is defined in section 2 of the Act 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—

(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

The discriminatory grounds for the purposes of the Act are contained in section 3(2).

The questions to be decided are did the complainant make an application to the respondent bank for a loan and did the respondent discriminate against the complainant as alleged.

Oral Evidence

The Complainant

The complainant, Mr Wrenn, stated that he tried to make an application to the respondent for a personal loan.  The respondent bank declined his application based on its credit policy.  The complainant then made a complaint to the respondent.  He received a final response by letter of 17 September 2019.  The complainant noted that he did not make a complaint to the Workplace Relations Commission until after he received the reply from the respondent to his complaint.

The complainant stated that in carrying out its investigation of his complaint it was open to the respondent bank to seek further information from him.  The complainant was already a customer of the respondent bank, and it would have been aware of his income and credit history.

The complainant stated he is a full-time carer for his wife, who suffers from a disability.  He is in receipt of carers allowance payment and his wife is in receipt of disability allowance payment.  He stated that the respondent’s credit policy does not regard carers allowance payment as an acceptable primary source of income for a loan.  If, however his wife was in employment then they could apply for a loan as carers allowance would be considered if supplemented by a primary salaried income.  The complainant stated that his application was declined because of the bank’s policy on acceptable income, which is discriminatory.

Cross Examination

In reply to questions the complainant restated he did not make a complaint to the Workplace Relations Commission based only on the telephone conversation of 08 August 201.  Only after he had received a final response to his complaint, by letter of 17 September 2019, did he submit a complaint to the Workplace Relations Commission. 

The complainant acknowledged he had discussed the respondent’s credit policy and that he informed the agent that he wished to make a complaint.  It was put to the complainant that he did not refer to his wife’s disability allowance during the telephone call.  The complainant stated that he was making this complaint based on indirect discrimination.  Further, he stated that he did not mention his wife’s income because his application was rejected before he could get to mention her income.

The complainant acknowledged that he had made a previous complaint about the same respondent bank and its credit policy.  He stated that the previous complaint concerned a mortgage application, and this application was for a personal loan.  The complainant stated a mortgage application, and a personal loan application relate to different types of loan.  Clarifications on the respondent’s credit policy had not been available to him earlier but on this complaint the bank had responded with a final letter.  The complainant confirmed he was aware of the credit policy applied by the respondent to mortgage applications and that carers allowance was not accepted for a mortgage.  However, he stated he hoped the policy would be different for a smaller personal loan.

It was put to the complainant that the case now being advanced was different to that on the ES1 form.  The ES1 form only refers to discrimination on the ground of family status.  The complainant form submitted to the Workplace Relations Commission includes family status and disability.  The complainant contended his application was rejected before he got to discuss his wife’s income.  The complainant acknowledged that not all people with a disability receive a disability allowance.  The complainant acknowledged that some forms of social assistance are accepted for loan purposes, and some are not.  He acknowledged that carers allowance is accepted when supported by a full-time income.  However, he pointed out the policy does not make a specific reference to a disability allowance.  He stated the restriction applied to him and his wife was discriminatory.

The complainant acknowledged that the respondent was under a regulatory obligation to properly assess risk.  The complainant stated the assessment should be based on the applicant’s ability to repay the loan and their credit rating.  The complainant acknowledged that there must be a list of what is and is not acceptable and it must be consistent across all branches of the bank.

The complainant acknowledged that different banks have different credit policies.  He stated his complaint was about the respondent because its policy is discriminatory.  The complainant stated that he could not fulfil the respondent’s requirements because of his wife’s disability.

The Head of Acquisitions, Strategy and Underwriting.

Mr Livingston described his role with the respondent bank.  In his role he has oversight of the respondent’s credit policy.  He described the operation of the OPEN 24 hours telephone service.  Loan applications may be made by telephone, or online or personally in a branch of the bank.  When the loan application is processed it is credit scored.  Then the application may be approved or declined or referred for further consideration.

Mr Livingston stated the credit policy is set out by the respondent’s Group Credit Committee and approved by the Board of Directors.  The approach of the Board is the same for all customers, the policy is underpinned by the applicant’s ability to repay the loan for which they have applied.  In addition, the respondent must lend appropriately.  So, the credit policy is a commercially sensitive document.

Mr Livingston stated that he had the authority to made exceptions to the policy having reviewed all aspects of an application.  Not all income is treated in the same way, for example income such as a fixed salary is treated differently to overtime payments that are not fixed.  Also, not all types of social welfare payments are treated in the same way.  The respondent was open to considering carers allowance if there is a primary income, but another allowance, such as jobseekers, would not be accepted as a long-term payment.  Primary income is assessed over a period, for example the period in a job, a probation period would not be accepted.  The assessment looks at the current position and the likely future position.  The credit policy requires an assessment of the end-to-end credit risk.  He could not comment on the credit policy of other banks, but he was aware of at least one bank that does not accept carers allowance at all for loan purposes.

Cross Examination

In response to a question about a news article published in 2013 about the respondent offering loans to people with poor credit ratings Mr Livingston stated he could not comment as he only joined the respondent in 2017.  He could only comment on the current credit policy. 

Mr Livingston stated the respondent does not discriminate against people because of a disability.  He stated the complainant had not made an application, there was no credit score arising from the telephone call of 08 August 2019 and disability had not been discussed during that call.  Mr Livingston acknowledged that in the complainant’s circumstances the policy would require an exception to be made, which he could have considered if an application had been made.  However, no application was made during the telephone call.

The complainant referred to the agent’s statement that he was not the first person he had to turn down because of carers allowance not being accepted.  Mr Livingston noted that carers allowance is not accepted as a primary source of income.

 In reply to a question about the legislation applying equally to all banks, but different credit policies being applied by different banks Mr Livingston stated that each bank has a different approach and must produce their own credit policy, each policy is formed on many grounds.

The complainant asked why his formal complaint had not progressed to Mr Livingston’s department for assessment.  Mr Livingston stated that he was responsible for credit policy and assessment of loan applications but not for complaints.  The complainant stated that his complaint was an opportunity for the bank to reconsider his loan application.  Mr Livingston stated that no application had been made but there can be consideration given to exceptions to the policy when an application is received.

Audio Recording

The audio recording of the telephone call of 08 August 2019 was played.  I listened carefully to the recording and noted the following:

The conversation began with the complainant stating he was a customer of the bank and asking for clarification on the cost of repayments required on a home improvement loan of €25,000 over five years.  The rates of repayment and time periods for a loan were discussed. 

The complainant was asked if he wanted to go through an application and he did not answer yes or no.  Rather he replied, “I can go through an application if you like; you are going to say what’s your income”. 

The complainant disclosed that he was a full-time carer, that he was in receipt of carers allowance and that he had a joint income with his wife.  The agent indicated that carers allowance is not accepted unless with a primary income.  The complainant posed questions about the different credit policies of different banks concerning the type of income deemed acceptable for a loan.  The agent explained that each individual bank has its own credit policy. 

The complainant asked the agent to speak with his manager and ask someone to send him a letter stating the respondent’s policy.  The agent replied he could not send out the policy.  The complainant asked for a letter stating that carers allowance is not considered for a loan unless there is another income.

The agent asked if the complainant wished to make a formal complaint.  The complainant indicated he did wish to make a formal complaint.  The agent indicated he had spoken with Compliance, Risk and Control section and while the bank generally did not take complaints about its processes and policies, they had agreed to take this complaint.  There followed a short discussion about the policy on carers allowance.  The agent indicated this was not his first complaint about this issue and the complainant was not the first person he had turned down over this.  Further, he indicated the Complaints Team would respond to the complaint and try to find some sort of resolution.  The agent then took all the details required for the complainant.

Finding

I have considered carefully the audio recording and the transcript, and I am satisfied that the complainant was asked if he wanted to go through with an application for a loan.  The complainant, in response, indicated he could go through an application “if you like”, before raising the question of income.  Later in the conversation the complainant was asked if he wanted to make a formal complainant and he indicated he did.  The agent checked with Compliance about taking a complaint and clearly stated that while the respondent did not generally take complaints about its processes and policies it had agreed to take this complaint. 

I am satisfied that the complainant did not apply for a loan during the telephone conversation of 08 August 2019.  I am also satisfied that the complainant did not mention disability or say that his wife’s income was a disability allowance during that telephone call.  Further, I am satisfied that the complainant commenced a formal complaint about the credit policy of the respondent during that telephone call. 

The response to the complainant’s formal complaint is contained in the letter of 17 September 2019.  It is clear from that letter that the respondent was dealing with a complaint about its policy and not a loan application.  Regrettably, the letter went on to state the bank was not in a position to progress this loan application with you.  That sentence could give rise to confusion about whether an application for a loan had been made but, considering all the evidence I am satisfied that an application had not been made.  The letter goes on to state the respondent’s policy is based on principles of consumer ability to sustain repayments aligned to appropriate lending facilities. 

While the letter is a response to a complaint about the respondent’s credit policy it is in my opinion less helpful than it might have been.  Mr Livingston in his evidence outlined the loan application process and the stated that after an application is given a credit score it is either approved, declined or referred for further consideration.  He also stated that, taking account of all the circumstances of the applicant, some exceptions can be made.  The response to the complaint would have been mor helpful had it set out this position and invited the complainant to make an application if he so wished.

Having considered carefully the written submissions and the oral evidence I am satisfied that the respondent is required by law to assess suitability and affordability of loans to prospective customers who have the status of consumer.  The Consumer Protection Code 2012 as section 5.17 states:

“A regulated entity must ensure that any product or service offered to a consume is suitable to that consumer, having regard to the facts disclosed by the consumer and other relevant facts about that consumer of which the regulated entity is aware …” 

I am satisfied that the respondents credit policy does not prevent carers allowance from being considered when loan applications are being assessed.  The policy provides that carers allowance may be considered, subject to certain conditions, in assessing loan suitability in circumstances where other forms of additional income and social welfare / assistance payment are not considered.

As the complainant did not make an application for a loan the respondent did not assess his suitability for a loan.  The complainant made an enquiry about a loan and made a complaint about the respondent’s credit policy.  An application for a loan was not declined on family status or disability grounds because there was no loan application.  The Equal Status Act prohibits discrimination in the disposal of goods and the provision of services, including banking services.  I am satisfied that as the respondent did not decline an application for a loan from the complainant it did not discriminate against the complainant on the grounds of family status or disability.

The complainant cited the case of An Asylum Seeker v A Government Agency ADJ-00017832 in support of a claim of indirect discrimination.  Indirect discrimination occurs where a person or group of people are treated less favourably because of, an apparently neutral, requirement that they cannot meet.  The complainant did not present any supporting statistical data for the claim of indirect discrimination.  I find the complainant was not discriminated against directly or indirectly.

The complainant has not established he was the subject of discriminatory treatment on the grounds of family status and disability.  I find the respondent did not engage in conduct prohibited by the Act.

CA-00034136

Complaint submitted under section 21 of the Equal Status Act, 2000.

I have considered carefully the submissions and evidence presented and I am satisfied that the complainant did not apply for a loan during the telephone conversation of 08 August 2019.  I am also satisfied that the complainant did not mention disability or say that his wife’s income was a disability allowance during that telephone call.  Further, I am satisfied that the complainant commenced a formal complaint about the credit policy of the respondent during that telephone call. 

As the complainant did not make an application for a loan the respondent did not assess his suitability for a loan.  The complainant made an enquiry about a loan and made a complaint about the respondent’s credit policy.  An application for a loan was not declined on family status or disability grounds because there was no loan application. The Equal Status Act prohibits discrimination in the disposal of goods and the provision of services, including banking services.  I am satisfied that as the respondent did not decline an application for a loan from the complainant it did not discriminate against the complainant on the grounds of family status or disability.

I am satisfied that the respondent did not discriminate against the complainant on the grounds of family status or disability.

I find the respondent did not engage in conduct prohibited by the Act.

Family Status

Disability