ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00033616

Parties:

Complaint:

Date of Adjudication Hearing:  24/08/2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred under Section 25 of the Equal Status Acts 2000-2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 2nd June 2021.  Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  I heard this complaint by remote hearing on 24th August 2022 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020. The Complainant was self-represented whilst the Respondent was represented by the Chief State Solicitors Office.  Members of staff from the Respondent were present to clarify any matters arising.  Legal submissions and a booklet of documentation was furnished on behalf of the Respondent. 

The changes to hearing procedure provided by the Workplace Relations (Miscellaneous Provisions) Act 2021 to meet the Supreme Court’s requirements in Zalewski 2021 IESC 24 were outlined to the Parties.  Section 12 of the Workplace Relations (Miscellaneous Provisions) Act 2021 amended Section 25 of the Equal Status Acts to require hearings to be held in public in the absence of special circumstances.  Section 30(1) of the Equal Status Acts provides that every such decision shall be published on the internet in such form and manner as the Director considers appropriate.  Given the sensitivity around the Complainant’s disability, I direct that any information that might identify the Complainant should not be published.  It was confirmed with the Parties that the Respondent’s name would not be anonymised given that it would not be possible to do so whilst retaining context. 

There were no facts in conflict between the Parties requiring evidence to be taken on oath, and the matters in issue were entirely of a legal nature.  The Respondent raised a preliminary objection to the pursuit of this complaint to the WRC under the Equal Status Act 2000 (as amended) [‘the Act’] on the basis that the action taken subject to this complaint was properly taken under statute and consequently is excluded under Section 14(1)(a)(i).  The Complainant confirmed that she understood this provision which was explained to her in lay terms, but wished to proceed nonetheless.  All of the evidence, documentation and submissions proffered by both Parties have been fully considered.

Background:

The Complainant has a disability and contends that she was discriminated against by the Respondent in the manner in which her Disability Allowance has been assessed on the grounds of disability, civil status and family status pursuant to the Equal Status Act 2000 (as amended).  The Respondent raised a preliminary objection to the pursuit of this complaint on the basis that the action taken subject to this complaint was properly taken under statute and consequently is excluded under Section 14(1)(a)(i) of the Act.  It further maintains that a review of her means for Disability Allowance in 2021 was carried out entirely correctly and in accordance with the applicable legislative provisions.

Preliminary Objection:

Summary of Respondent’s Case:

Factual Background

This complaint arises in respect of the Complainant’s entitlement to Disability Allowance, a means-tested social welfare payment and the manner in which it has been assessed by the Respondent, the Department of Social Protection.  An applicant for Disability Allowance must meet certain medical criteria and satisfy the means test laid down in the Social Welfare legislation.  Specifically, in relation to the Complainant’s case she was diagnosed with Hypermobility Syndrome.  She applied for Disability Allowance and satisfied the necessary means provisions and accordingly, was granted Disability Allowance on 7th January 2015.  On 3rd February 2021, she contacted the Respondent to inform them that her daughter (who was continuing in full time education) was turning 18 years of age.  She also queried why her Disability Allowance was at the rate of €193 per week rather than €203 which she believed she was entitled.  It was subsequently confirmed that her husband had returned to full-time employment in 2018 and accordingly, a full review of the Complainant’s entitlement to Disability Allowance was carried out by the Respondent in February/March 2021. 

By letter dated 16th February 2021, the Complainant submitted her husband’s payslip and in accordance with the appropriate legislative requirements, the re-calculation of what she was entitled to was based upon a comprehensive assessment of her husband’s income.  The calculations were based on his gross earnings, less PRSI, superannuation and pension levies.  When the various deductions were made it was deemed that her husband’s weekly income should be assessed in the sum of €529.61.  Again, in accordance with the legislative requirements, the Complainant’s means were then assessed on the basis of 60% of her husband’s weekly income, being €317.77.  The full amount of Disability Allowance available to the Complainant in circumstances where she was deemed not to have any means would have been €382.70.  Therefore, when her means of €317.77 was deducted from the full entitlement, she was eligible for Disability Allowance in the sum of €65.20.  A letter from the Deciding Officer issued to the Complainant on 18th March 2021 outlining her new rate of payment with effect from 24th March 2021.  It also confirmed that no retrospective action would be taken, even though it had been established that her husband had been in full-time employment for in excess of two years at that stage.  The Complainant was also informed of her entitlement to appeal this decision to the independent Social Welfare Appeals Office.  An Assistant Principal in attendance at the hearing clarified any issues arising and confirmed that regardless of an applicant’s living situation, assessment of their means incorporates a wide range of income sources.

It was noted that despite submitting an ES1 Form to the WRC on 26th March 2021, the Complainant proceeded to appeal the decision of the Deciding Officer to the Social Welfare Appeals Office on 24th May 2021.  In accordance with the legislation, the Appeals Officer is obliged to consider an appeal independently of the Department of Social Protection.  For the purposes of the appeal, the Appeals Officer is also required to obtain a submission from the Deciding Officer.  In respect of the Complainant’s appeal, that submission was received by the Appeals Officer on 27th September 2021. 

In his decision dated 15th November 2021, the Appeals Officer sets out the objectives of the appeal as follows: “the question at issue is whether the appellant’s means were correctly assessed for the purposes of Disability Allowance.”  In a comprehensive summary of the Complainant’s submission, the Appeals Officer recorded in his decision the various changes that had occurred to the Complainant’s Disability Allowance entitlement as a result of the review carried out by the Respondent in February/March 2021.  He also detailed the Complainant’s medical condition and the costs associated with the on-going medical treatment that she required.  Importantly for the purposes of the complaint herein, the Appeals Officer recounted in detail the alleged discrimination that the Complainant believes she had experienced as a result of the legislative system that has been applied to her Disability Allowance assessment.  He quoted from her submission as follows: “surely one can see that an independent disability recipient has more bills than one living at home.”  Having comprehensively considered all aspects of her appeal, the Appeals Officer concluded as follows: “I note the appellants submission and her perception of differentiation on how the means are assessed, and also the financial outgoings in respect of her ailment.  However, there is no provision in the governing legislation for such outgoings to be factored into the means test.  The issues around means-testing and household composition are provided for in the governing legislation.  In relation to any issue of the constitutionality of the law applied, I note that a law passed by the Oireachtas is presumed to be constitutional until it is proven not to be and in applying the legislation in the appellant’s appeal the Appeals Officer is obliged to act on the presumption that the legislation is constitutional.  My decision has been made in accordance with social welfare legislation and I have no discretion in these matters.”  On this basis the Complainant’s appeal was rejected.  The Appeals Officer was in attendance at the hearing and confirmed his findings above and any issues arising.

It remained open to the Complainant, in accordance with Section 317 of the Social Welfare Consolidation Act 2005 (as amended), to seek a revision of an assessment by an Appeals Officer in circumstances where the original decision is deemed erroneous in light of new evidence which has come available.  She also had the option, under Section 318 of the 2005 Act, of appealing the Appeals Officer’s decision to the Chief Appeals Officer but did not pursue either course.

Legal Submissions

At the outset, Counsel on behalf of the Respondent acknowledged the Complainant’s difficult circumstances.  It was confirmed that whilst the Respondent is primarily raising a preliminary objection as to the Complainant’s entitlement to pursue her complaint under the Equal Status Act 2000 (as amended), it also maintains that the review of her means for Disability Allowance in 2021 was carried out entirely correctly and in accordance with the applicable legislative provisions.  

Specifically, it was submitted that the WRC does not have jurisdiction to consider a complaint of this nature.  In essence the Complainant’s complaint amounts to a challenge against Sections 209 to 212 of the Social Welfare Consolidation Act 2005 (as amended), Schedule 3 Part 2 of the same Act and Articles 137 to 140 and Chapter 6 Miscellaneous Provisions for the Assessment of Means Articles 141-158 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (as amended), which govern the manner in which Disability Allowance is assessed and approved.  It is the Respondent’s position that the review of the Complainant’s means for Disability Allowance in February/March 2021 (and the subsequent appeal of the review) and consequent reduction of same, were carried out entirely correctly and in compliance with the aforesaid legislative provisions.  

It is noted that for the purposes of this complaint, the Complainant does not take issue with the way that her revised Disability Allowance entitlement has been calculated.  Instead, her complaint is against the legislative system which governs the assessment of Disability Allowance, which she believes is inherently discriminatory, and by implication unlawful and contrary to the provisions of the Constitution.  In her Workplace Relations Complaint form, and in the hand-written letter which initiated her complaint, she specifically compares the entitlement of a single person living in their parents’ home with that of a married recipient whose spouse is independently earning an income.  She makes the point that the individual living with their parents is entitled to the full amount of Disability Allowance no matter what their parents’ means, whereas a married person’s spousal income must be taken account of when calculating their appropriate rate of Disability Allowance.  Accordingly, she states: “This to me is complete discrimination of people with disabilities as we are not being treated fairly compared to all our peers that find themselves on disability allowance.”  She also enclosed references to Article 41 of the Constitution which concerns the rights of the family.  Following this reference, she states: "I do hope you can make me understand as to why the family unit is being so unfairly discriminated against, in regards to disability allowance rates and regulations as the marital family unit is so enshrined in constitutional law in Ireland."  While the Respondent strongly opposes any claim that the Complainant has been discriminated against as alleged and maintains that the review of her means for Disability Allowance was entirely in line with the appropriate legislation, it is respectfully submitted that the action of the Respondent is exempt from the application of the Equal Status Act 2000 (as amended) pursuant to Section 14(1)(a)(i) of the Act.

The Respondent, as with all Government Departments is obliged to carry out its functions in strict compliance with any legislation that applies.  It is also the case that any such legislation has an automatic presumption of constitutionality.  Section 14(1)(a)(i) of the Equal Status Act 2000 (as amended) provides as follows: “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,...”  Accordingly, if the Complainant wishes to challenge the lawfulness of a legislative system of decision-making, she cannot do so by making a complaint to the WRC under the 2000 Act.  Instead, she must proceed by way of a Judicial Review application, or an associated plenary application before the High Court.

The issue of the application of Section 14(1)(a)(i) of the 2000 Act (as amended) was considered in Seamus Eager -v- Minister for Employment Affairs and Social Protection,ADJ-00028241.  This case concerned a challenge to emergency legislative provisions introduced to facilitate the provision of the Pandemic Unemployment Payment (PUP).  The complainant who was aged 66 was not eligible for the payment and, therefore alleged that the legislation was discriminatory on the grounds of age.  In defending the complaint, the Respondent therein relied upon Section 14(1)(a)(i) of the 2000 Act.  The Adjudication Officer accepted that a complaint under the Equal Status Act 2000 (as amended) could not be used as a mechanism for challenging legislation as follows: “In a legal opinion sought by the Equality Tribunal in relation to the construction of Section 1(a)(i) in respect of another case the Senior Counsel’s opinion included: “[the complainant] has chosen to make a claim under the Act, rather than proceeding by way of judicial review.  If he wishes to challenge an administrative decision that is ordinarily done by way of judicial review.  If he wishes to assert that a statutory regime violates his personal rights as a citizen, it is open to him to so by constitutional challenge, whether by way of judicial review, or by plenary proceedings.  Likewise, if he wishes to assert that the regulations contravene the European Directive, he can issue proceedings to assert that claim.  What Section 14(1)(a)(i) makes clear is that he is not entitled to avail of the Equal Status Act 2000 for the purpose of impugning a statutory regime as one might do for example in a constitutional challenge.””

In A Complainant -v- A Department, ADJ-00030200, the issue under consideration concerned an application for Invalidity Pension.  Again, in that case the Respondent pleaded Section 14(1(a)(i) of the 2000 Act on the basis that the application had been appropriately assessed in accordance with the applicable statutory instruments.  The Adjudication Officer found as follows: “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.  Section 14(1)(a) of the Equal Status Act provides: “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,…”  Section 2 of the Interpretation Act 2005 defines an “enactment” as “an Act or statutory instrument or any portion of an Act or statutory instrument.”  Statutory Instruments S.I. 142/2007 and previously S.I. 126/1963 are the enactments by which the Minister makes regulations governing the pension sought by the Complainant.  Section 14(1)(a)(i) makes clear that the Complainant is not entitled to avail of the Equal Status Act 2000 for the purpose of overturning a decision made under statutory regime.  I conclude that the Complainant’s application for an Invalidity Pension was considered by the respondent in accordance with the criteria as contained in the statutory instruments, which were established on a statutory basis and therefore falls within the exemption granted under Section 14(1)(a)(i).”  In G -v- Minister for Social Protection [2015] IEHC 419, O’Malley J. specifically addressed a scenario whereby the Equal Status Act was being used to challenge an existing statute.  She found that: “However, it is not open to a court to hold that the respondent is derelict, either in not legislating or in not creating a scheme in this instance, without holding that the policy choices embodied in the primary legislation are legally deficient.  The appellant has argued that the Act envisages an order of compensation if discrimination is established, even if the respondent has no legal power to remove or ameliorate the discrimination complained of by way of making a non-statutory payment.  Again, 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, whether by this court, or by the Equality Tribunal acting as the body primarily charged with dealing with complaints under the Act.”

Accordingly, by way of preliminary objection and for the reasons set out above, it is respectfully submitted that the Complainant, who is claiming that she has been discriminated against on the basis of the application of the legislative provisions governing the application of Disability Allowance to her circumstances, cannot pursue her complaint as the Respondent is exempt from the application of the Equal Status Act 2000 (as amended) pursuant to Section 14(1)(a)(i) of the Act. 

Summary of Complainant’s Case:

The Complainant confirmed that she wished to pursue her complaint pursuant to the Equal Status Act 2000 (as amended), that she was discriminated against by the Respondent in the manner in which her Disability Allowance was assessed on the grounds of disability, civil status and family status.  She outlined how after a gradual decline in her mobility eventually forcing her to cease her employment, she had been diagnosed with Hypermobility Syndrome in 2013.  This is an extremely painful condition causing joints to dislocate in various locations on a regular basis, leading to other medical issues including gastritis, postural hypertension, fatigue and anxiety.  She requires constant physiotherapy and pain medication to manage her condition which she has to pay for privately.  She also required specialist aids and adaptations to her house which she had to pay for herself as there were no grants available.  She was just short of the number of PRSI contributions required for Disability Benefit or the Invalidity Pension so she applied for Disability Allowance, a means-tested social welfare payment.  This was refused in 2013 as the nature of the disability was not understood and she did not appeal owing to related difficulties.  She reapplied for Disability Allowance in 2015, and was refused again but this time successfully appealed and received a backdated payment.

Following the Complainant’s diagnosis, in order to maintain a stable income for the family, her husband who had been working part-time obtained a Specialist Degree, and gained full-time employment in the area in 2018.  Due to the fact that their daughter who was in full-time education had turned 18, she had to submit a college letter to the Department of Social Protection.  At the same time, she queried why her rate of Disability Allowance had reduced slightly.  The Respondent undertook a further means test resulting in her Disability Allowance being reduced to €64.20.  She appealed this decision, submitting that her husband pays for the mortgage, college fees for their daughter and household bills.  She was dependent on her payment solely for treatment including weekly physiotherapy required to manage her condition.  She had been unable to source regular physiotherapy on the public system.  Her appeal was unsuccessful on the basis set out above.

Whilst the Complainant accepts that the Respondent has correctly calculated her current entitlement to Disability Allowance in accordance with the current applicable statutory provisions, she maintains that the current system is unfair and discriminatory.  For instance, if she was living at home with her parents, she could claim her full Disability Allowance regardless of their income.  However, because she is married, her means are assessed based upon her husband’s income.  This is despite the fact that she lives independently and has more bills than a person living at home with their parents.  She contends that although she is also a financial contributor to her household, the Respondent requires her to live solely off her husband’s income.  As noted above, she submits that this constitutes inherent discrimination of people with disabilities “as we are not being treated fairly compared to all our peers that find themselves on Disability Allowance”.  At the hearing, she stated: “I am a provider in this home.  We have a mortgage…  I have a disability.  It’s my husband’s responsibility to fund my disability on a medium wage?  Is that not discriminatory in nature?”  She further submits that this also constitutes less favourable treatment than her non-married peers with a disability.  Accordingly, she submitted an ES1 Form to the Department of Social Protection in respect of which there was a response in terms of the Respondent’s position herein.  Not satisfied with the Respondent’s response, the Complainant referred this complaint to the WRC.

In support of her position, the Complainant submitted that the assessment for Disability Allowance in Ireland differs from other OECD countries where a larger disregard is applied to household income and persons with disabilities residing with their parents are means tested based upon their parents’ income.  Additionally, most of their medical needs are free once need has been determined.  Other research has found that means-tested payments push persons with disabilities into poverty.  She also cited from the Constitution asserting that the current legislation is unconstitutional. 

Subsequent to the submission of this complaint, the Complainant has been able to return to work on a CE Scheme for 19 hours a week and is paid €230 per week.  As a consequence, the remaining Disability Allowance payment was automatically stopped.  It was confirmed that she is likely to acquire the requisite number of contributions for an Invalidity Pension should that be required. 

The Complainant confirmed that she is seeking a change in the legislation in relation to the assessment of means for social welfare payments for persons for disabilities.  She also sought compensation for the discrimination she contends she has suffered.  Although she acknowledged that the subject-matter of her complaint constituted the taking of an action required by or under any enactment and as such, was excluded by Section 14(1)(a)(i) of the Equal Status Act 2000 (as amended) and apologised for “wasting the WRC’s time”, she persisted with this complaint.

Findings and Conclusions:

By way of summary, the Complainant has a disability and contends that she was discriminated against by the Respondent in the manner in which her Disability Allowance has been assessed on the grounds of disability, civil status and family status under the Equal Status Act 2000 (as amended).  Specifically, from 2015 she was in receipt of Disability Allowance, a means-tested social welfare payment administered by the Department of Social Protection, the Respondent herein.  When she submitted a requisite letter from her daughter’s college upon turning 18 and queried a reduction in 2021, her entitlement was reviewed by the Respondent.  It came to light that her husband’s income had increased since 2018 and upon reassessment of her means, her Disability Allowance was reduced to €65.20 per week.  Subsequently, the Complainant has returned to the workplace on a CE Scheme and her Disability Allowance has ceased accordingly.  It is noted that the Respondent has not sought repayment of the overpayment made to the Complainant between 2018 to 2021.

The Complainant does not take issue with the correctness of the calculation of her entitlement to Disability Allowance as being in accordance with the current applicable statutory provisions.  However, she maintains that the current system of means-testing is unfair and discriminatory.  In particular, she maintains that the practice of the assessment of her entitlement to Disability Allowance based upon her husband’s income is discriminatory.  This is despite the fact that she lives independently, has significant bills necessitated by her disability and is a contributor to the family household in her own right.  She makes the point that if she was living at home with her parents, she could claim her full Disability Allowance regardless of their income.  She submits that this constitutes inherent discrimination of people with disabilities and in her own particular case where she is married, constitutes discrimination on the grounds of disability, marital status and civil status. 

The Respondent raised a preliminary objection to the pursuit of this complaint to the WRC under the Equal Status Act 2000 (as amended) on the basis that the action taken subject to this complaint was properly taken under statute and consequently is excluded under Section 14(1)(a)(i) of the Act.  Specifically, it is submitted that the WRC does not have jurisdiction where this complaint effectively amounts to a challenge against Sections 209 to 212 of the Social Welfare Consolidation Act 2005 (as amended), Schedule 3 Part 2 of the same Act and Articles 137 to 140 and Chapter 6 Miscellaneous Provisions for the Assessment of Means Articles 141-158 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (as amended), governing the assessment of Disability Allowance.  It is further maintained that the Complainant’s means for Disability Allowance was carried out entirely correctly and in accordance with the applicable legislative provisions.  

Section 14 of the Equal Status Acts provides for certain measures or activities not prohibited under the Equal Status Act 2000 (as amended) and thus falling outside the scope of the WRC’s jurisdiction.  As raised by way of preliminary objection, Section 14(1)(a)(i) provides: “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,…”  Section 2 of the Interpretation Act 2005 defines an “enactment” as “an Act or statutory instrument or any portion of an Act or statutory instrument.”  Sections 209 to 212 of the Social Welfare Consolidation Act 2005 (as amended), Schedule 3 Part 2 of the same Act and Articles 137 to 140 and Chapter 6 Miscellaneous Provisions for the Assessment of Means Articles 141-158 of the Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (as amended) sought to be challenged herein are enactments as defined.  There is no issue in the instant case that the Complainant’s Disability Allowance has been correctly assessed in accordance with this legislation.  The Complainant is seeking a change in the legislation as to the manner in which Disability Allowance is assessed.  The Complainant presented as an impressive witness who has had to overcome significant adversity owing to her chronic and painful disability.  Whilst I have great empathy with her position and the challenges she has and continues to face, I am bound by the parameters of the legislation and specifically Section 14(1)(a)(i) in this case.  Accordingly, I am satisfied that this complaint cannot be investigated under the Equal Status Act 2000 (as amended).

Decision:

Section 25 of the Equal Status Acts 2000-2015 requires that I make a decision in relation to the complaint.  As this complaint falls under 14(1)(a)(i) of the Equal Status Act 2000 (as amended), I find that it is “misconceived” within the meaning of Section 22(1) and accordingly, dismiss same.

Dated:   18-08-2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Preliminary objection under Section 14(1)(a)(i) of the Equal Status Act 2000 (as amended) – subject-matter of complaint constitutes taking of action under an enactment - “misconceived” complaint dismissed under Section 22(1) of the