Complainant

Respondent

Anonymised Parties

A Social Housing Applicant

A Local Authority

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046435-001

29/09/2021

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

CA-00046435-002

17/09/2021

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

CA-00049309-001

23/03/2022

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

CA-00049310-001

23/03/2022

The Complainant states that the Respondent has failed both to take account of her disability in the offers of social housing made to her and has not afforded her reasonable accommodation by failing to facilitate adaptations in the offers of housing that have been made. In addition, it was asserted that she was discriminated against and victimised when she was removed from the Respondent’s medical priority list.

The Complainant stated that she has a severe form of epilepsy known as juvenile myoclonic epilepsy. As part of her condition, she experiences regular seizures, some of which are severe in nature and others of which are milder in effect. She regularly experiences absence seizures and myoclonic seizures. Less frequently, she experiences tonic-clonic seizures, sometimes referred to as grand mal seizures. When she experiences more severe seizures, these can have the effect of causing her to lose consciousness, and to lose her balance. On previous occasions, she has suffered injuries as a result of losing consciousness and falling during a seizure. Along with regular seizures, she experiences chronic fatigue and migraines. After she experiences a tonic-clonic seizure, she requires someone to stay with her and provide her with care.

The Complainant has been on the Respondent’s housing list since in or about 2014. In mid-2020, she became homeless following an extended stay in hospital and has been living in homeless accommodation since then. On 25 November 2020, the Respondent approved the Complainant for medical priority on the housing list in the provision of social housing supports.

After being approved for medical priority, the Complainant was offered a number of properties. The first offer, property #1, was made on 8 January 2021 and was subsequently withdrawn on 9 February 2021, on the basis that the property contained a bath, rather than a shower, and it would “not be possible” to install a level access shower. The Complainant queried why said adaptation could not be made but it was indicated that no such adaptation would be possible. The second offer, property #2, was made on 3 March 2021 and was ultimately refused by the Complainant, on the basis that the property was not suitable. Specifically, she noted that the small and cramped size of the house meant that it would not be safe for her to reside there.

On 19 April 2021, Epilepsy Ireland wrote to the Respondent on behalf of the Complainant, explaining the specific accommodation needs applying to a person with epilepsy, and offered to provide an Epilepsy Awareness talk with the staff of the Respondent so that any questions about epilepsy specific needs could be answered. The letter noted: Regarding a suitable home for a person with Epilepsy, it would ideally [have] a walk in shower or with a very low step, at least a shower large enough to accommodate a plastic stool /chair to minimise injury should a seizure happen while showering. It doesn’t have to be a wet room. (…) The accommodation will need to be quiet (not near a busy road) so not to interfere with sleep and will need to be at ground level or have a lift – again due to risk of seizure on the stairs. Sufficient space in the home is necessary to avoid clutter and risk of entrapment with seizures. [The Complainant] will need to be very close to public transport and amenities as someone like [the Complainant] whose epilepsy is not controlled will unfortunately never drive.”

On 10 May 2021, an Occupational Therapist Report was completed in order to identify the precise nature of the Complainant’s accommodation needs. In particular, it was noted that, often, “seizure-related accidents can occur in the home environment”. With that in mind, the report made a number of recommendations, including having access to a shower cubicle rather than a bath. It was noted that the Complainant does not require a “fully adapted wetroom” but that “constricted shower space” should be avoided. The other recommendations included: a. Avoiding clutter and ensuring that there is room in the accommodation for the Complainant to “fall safely”. b. Ensuring space around a bed, rather than placing a bed against a wall or a radiator, as “space around the bedside will limit the risk of injury”. c. Minimise trip hazards in the home environment and include radiator covers to reduce “injury and burns” in the event that the Complainant fell against a radiator during a seizure. The Occupational Therapist also noted that the Complainant “reports increased fatigue associated with long distance journeys for community access” and recommended a central location with access to public transport.

On 15 July 2021, a Senior Social Worker, wrote to the Respondent on behalf of her treating hospital, noting that the Complainant was experiencing deterioration in her clinical condition, as well as depression, arising from her homelessness. The Social Worker also confirmed that as per the OT Report, the recommendations from Epilepsy Ireland, and recommendations from her medical consultant, that the Complainant does not require a “fully adapted wet room” but rather a shower which is not constricted, and which would have a level access tray, rather than a lip which would serve as an obstacle and cause water to collect, creating injury and drowning hazards in case that the Complainant lost consciousness in the shower.

Further properties were offered on 7 May 2021, for property #3, and on 16 August 2021 an offer was made for property #4. In all cases, the Complainant rejected the accommodation as she did not consider it to be safe or suitable for a person with her specific disability and medical conditions, having regard to the recommendations of her medical team, of the OT and of Epilepsy Ireland.

On 24 September 2021, the Respondent informed the Complainant that she was to be removed from the medical priority list, as she had not accepted the offer of accommodation at property #4 and would be placed on the standard housing waiting list, along with the Respondent’s special adaptation list.

Following the removal of the Complainant from the medical priority list, her housing needs were reassessed as requiring two-bedroom accommodation, rather than single bedroom accommodation. Two more recent offers, properties #5 and #6, have been made to the Complainant, which also have been refused on the grounds that they were not suitable.

An application was made by the Complainant for social housing support which was received by the Respondent on 19 August 2014. In Part 7 of the application form, the Complainant described her medical condition and requested a ground floor level apartment with a shower as her preference. The application included a letter from Beaumont Hospital dated 12 August 2014. The Complainant’s report was initially provided to the Independent Medical Adjudicator on 4 January 2019 and following this review a Staff Officer in the Respondent wrote to the Complainant on 8 January 2019 requesting additional information in relation to her epilepsy condition. The file was again reviewed by the Medical Adjudicator in March 2019.

On 14 March 2019, the Respondent wrote to the Complainant and referred to the medical evidence provided in support of her housing application and requested a consultant’s report supporting the suitability of independent living. The Complainant responded to this request on 15 March 2019 and a further letter was sent by the Respondent on 27 March 2019 seeking a consultant’s report and Occupational Therapy report. On 7 June 2019, a letter was sent to the Complainant advising her that her file had been reviewed by the Respondent’s Medical Adjudicator and that her application was not being considered for overall priority “at this time” and noting her place on her preferred areas of choice.

On 8 July 2020, the Complainant’s medical consultant advised that the Complainant would need a level access shower. There was no reference to public transport being required. The Respondent stated that they were bound by the medical evidence that was submitted with the application. The Complainant was subsequently assigned medical priority by Chief Executive Order dated 25 November 2020 and was advised on 8 December 2020 that applicants who are awarded overall priority status would be contacted when accommodation suitable to their need become available but applicants who are awarded overall medical priority on medical grounds and refuse one offer accommodation suitable to their need are removed from the overall priority list. The letter also noted that an offer may be made in any area.

Since January 2021, the Respondent has made a total of six offers of accommodation to the Complainant. Specifically, on 8 January 2021, an offer of accommodation was made on property #1. At the time the offer was made, the Complainant was on the Respondent’s Overall Priority List. On 18 January 2021, the Complainant viewed the property but highlighted that it needed a level access shower as there was currently a bath. She referred to the letter from her medical consultant of June 2020 and expressed an interest in viewing the property again. While the Respondent initially advised the Complainant that the bath could be removed and a level access shower could be fitted, it was subsequently explained that the Respondent could not facilitate a level access shower and therefore the property was withdrawn. However, the email also stated that efforts would continue to identify a suitable property for the Complainant’s needs.

On 3 March 2021, an offer of accommodation was made for a one bed house (property #2) On 12 March 2021, the Complainant emailed the Respondent to plan to view the property but expressed a concern about the property being so far out of town. Although the Complainant visited the property on 24 March 2021, she subsequently refused the offer via email on the basis that she considered the property to be substandard and not suitable for her medical needs. This email did not refer to any issues in respect of public transport.

On 6 April 2021, the Complainant emailed the Respondent and asked her to formally withdraw the offer of accommodation at property #2 and requested that she be removed from one of the areas in the local authority. On 19 April 2021, a representative of Epilepsy Ireland wrote to the Respondent and stated that a person with epilepsy should ideally have a walk-in shower and be very close to public transport. The Respondent asserted that this letter was submitted based on information provided by the Complainant rather than on a review of the properties that were offered by them. The Respondent also highlighted that the witness from Epilepsy Ireland confirmed in evidence that she was not a medical practitioner and did not view or inspect any of the properties offered to the Complainant. The Respondent also highlighted that the witness confirmed in evidence that that her correspondence represented the “ideal” or optimal position.

On 7 May 2021, an offer of accommodation was made for a one bed apartment (property #3) but that was rejected by the Complainant on the basis that the location was not acceptable. This had a level access shower, was a new build and was on a bus route and another route which had railway links.

On 16 August 2021, an offer of accommodation was made for property #4 which had been refurbished and where a level-access shower was specifically installed. A kitchen was also installed as part of refurbishment works. That was considered by the Complainant to be unsuitable for her medical needs and at too much of a distance from her preferred location. The Complainant emailed the Respondent on 14 September 2021 and made several complaints in respect of property #4, including the size of the property and access to public transport.

The Council subsequently contacted the Complainant on 24 September 2021 and notified her that she was to be removed from the medical priority list and that she would revert to the standard list. On 27 September 2021, the Complainant’s medical consultant prepared a further letter in support of the Complainant and stated that ideally, she would have a two-bedroom house with kitchen and shower facilities.

On 25 January 2022, an offer of accommodation was made for a one-bedroom property, property #5, which is located close to the Complainant’s GP. A further offer of a two-bedroom property, property #6, was made on 16 March 2022 following further medical evidence. This was a ground floor unit with a level access shower. Both of these offers were rejected by the Complainant on the grounds of their distance from the city centre although she did not view the properties.

CA-00046435-001 and CA-00046435-002:

The Legislation

Discrimination is defined at section 3 as occurring:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation which exists

and the discriminatory ground is defined in the Act at section 3(2)(g)

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

Section 4 of the Act also states: -

“4.(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination. 

(4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

The Burden of Proof

At section 38(A) the burden of proof that the Complainant is required to establish is:

38A. — (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

Both Adjudication Officers and Equality Officers in complaints made under the Equal Status Act have drawn on the Labour Court decision in Mitchell v Southern Health Board [2001] ELR 201 to explain what constitutes presumed prohibited conduct, also referred to as a prima facie case, stating that :

“a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

Establishing a prima facie case of discrimination

While it was not disputed that the Complainant had a disability, the Complainant must also, to establish a prima facie case of demonstration, demonstrate in the first instance that a person without disability would have been treated differently and more favourably or a person with a different disability would have been treated differently or more favourably. In addition, she must demonstrate that the Respondent failed to provide reasonable accommodation for her by not altering the structure of property #1 to install a shower and by not offering her another suitable property appropriate to her needs.

In deciding whether the Respondent failed to provide reasonable accommodation for the Complainant, I note that in the Supreme Court Judgement of Kim Cahill v Minister for Education and Science 2017 IESC 29, it was stated that the Equal Status Act should be treated as being “remedial social legislation” aimed at levelling the playing field and allowing the Court to “adopt a broad generous purposive approach, in order to identify and give effect to the plain intention of the Oireachtas”.

It was further stated that the limits of reasonable accommodation:

“requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

McMenamin J continued: -

The Act is

“intended to be a statute “to promote equality”, to “prohibit types of discrimination”, and to provide mechanisms for the investigation of, and “remedying”, certain acts of discrimination, and other lawful activities.

It is further noted by McMenamin that there should be adoption of

“a broad generous, purposive approach, in order to identify and give effect to the plain intention of the Oireachtas. (See Dodd on Statutory Interpretation in Ireland 2008, Tottel para. 6.52; Bank of Ireland v. Purcell [1989] I.R. 327; Gooden v. St. Otteran’s Hospital [2005] 3 I.R. 617, and High Court judgment in G v. Department of Social Protection [2015] 7 JIC 074, of O’Malley J.).

This approach, however, as pointed out in G v. Department of Social Protection [2015] 7 JIC 074

“is not to elevate any of the provisions into an “all but constitutional level”, nor can the interpretation go beyond the scope of the Act, as set out in the long title. “ 

McMenamin also notes a UK case of Roads v. Central Trains [2004] EWCA Civ. 1541, Sedley LJ and mentions that the policy of the U.K. Act, was not a

“minimalist policy of simply ensuring that some access is available to the disabled: it is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.” (para. 30).

As outlined by the then House of Lords in Archibald v. Fife Council [2004] UKHL 32 the duty is to “take such steps as it is reasonable, in all the circumstances of the case”.

In the matter of Kim Cahill V Department of Education and Science, 2017 IESC 29, McMenamin J stated that,

“The Circuit Court and High Court dealt with s.4(1) as a question of “reasonable accommodation”. That is not the test set by the words of the section. In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

McMenamin J went on to state that, 

“The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element…but, second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient. These are objective tests.”

In assessing whether the Complainant was discriminated against due to the Respondent’s failure to afford her reasonable accommodation in terms of the properties offered to her, I note in the first instance that her medical consultant stated on 8 July 2020 both that any accommodation provided to the Complainant should be on the lower ground floor and that she would need a level access shower. Specifically, the letter of 8 July 2020 from the consultant stated inter alia that she needed “housing in a bungalow or lower ground accommodation (risk of falling downstairs and sustaining injury as a result of her seizures) [Complainant] would need access to level shower facilities” In assessing the feasibility of adapting property #1, which would have involved replacing the existing bath with a level access shower, I noted the compelling direct evidence of the building sub-contractor who advised the Respondent that such a change was not feasible. Specifically, he stated in evidence that replacing the bath with a level access shower would have required reducing the height of the pre-cast concrete floor to accommodate the shower's drainage pipe. He pointed out that this reduction in floor height could potentially cause structural damage to both the first property and the apartment below, consequently raising the likelihood of leaks.

I also noted that all of the other five properties offered to the Complainant had the appropriate showers installed but that these were turned down largely on the grounds of their location. While the Complainant stated in her direct evidence that there were other factors in addition to the location of property #2 which made her decide not to accept it, namely that it presented a number of fall risks, I am satisfied on the basis of the evidence presented in cross-examination that the operative reason for her decision to refuse it was because there was no direct bus route to the city centre within a comfortable walking distance of the property. This view is also supported by the Complainant’s email of 17 May 2021 to the Respondent which states that location is “critical” to her.  

While I accept that the Complainant would have had greater difficulty in walking long distances given the nature of her disability, I also note, crucially, that there were never any stipulations in the advice from her medical consultant of 8 July 2020 about how close she needed to be to public transport. In addition, I note that although the report from the Occupational Therapist of 10 May 2021, issued prior to property #3 having been offered to her, stated that the Complainant “reports increased fatigue associated with long distance journeys for community access” there was, surprisingly, no guidance in the report regarding either what a long journey was, how close she should be to public transport or what amount of walking she was capable of. In the absence of any such medical guidance and having heard the evidence about how close the properties were to public transport, I find that the geographical locations of all the properties offered to the Complainant were reasonable, although I recognise that she may often have had to change her bus or use a different mode of public transport mid journey to reach her desired destination.

I also find that the Respondent’s decision to rely on the report from the Complainant's medical consultant dated 8 July 2020, which outlined a necessity for a level access shower as cited above, was reasonable. The Respondent’s position in this regard was clearly and unequivocally outlined in a reply of 9 June 2021 to an email from the Complainant of 17 May 2021 and stated that her (the Complainant’s) “email outlines your personal needs and opinions regarding showering facilities, however the Council must be guided by medical opinion in this regard. Prof [Name of medical consultant’s] letter of July 2020, clearly outlines your requirement for ground floor accommodation with level access showering. Until the Council receives medical opinion that differs from what is on your file, the Allocations section will continue to search for ground floor accommodation with level access showering in and out of your area of preference”. This crystal clear and unambiguous correspondence from the Respondent makes it difficult to understand why the Complainant did not communicate further with her medical consultant and request an updated letter confirming that a shower with “a low profile shower tray” would have sufficed, as she suggested in her email to the Respondent on 17 May 2021, and as her Social Worker had stated in her letter to the Respondent on 15 July 2021, wherein she stated that the shower ”should be level or with a very low step”, which she said the report from the Occupational Therapist had stipulated.

It should be noted that the above letter from the Social Worker appears to conflict somewhat with the report provided by the Occupational Therapist on 10 May 2021. The reason for this is that the Occupational Therapist's report did not explicitly state that a shower with a low step would be adequate. Specifically, the Occupational Therapist asserted that the Complainant “doesn't need a fully adapted wet room but should avoid a cramped shower space." Given the ambiguity in the Occupational Therapist's report and the assertion made by both the Complainant and the Social Worker that a shower with a very low step would suffice, a clear and unequivocal explanation from her medical consultant regarding her specific shower requirements, as highlighted above, would have been very useful. In the absence of such clarification however, it was reasonable for the Respondent to rely on the on the stipulations in the letter of 8 July 2020.

While I acknowledge that the Complainant’s medical consultant did send a letter to the Respondent on her behalf on September 27, 2021, this letter did not explicitly modify his original stance, as conveyed in the letter dated 8 July 2020, regarding the necessity of a level access shower. Specifically, he expressed his support for the Complainant's "application for social housing, preferably in a two-bedroom house with kitchen and shower facilities." As the medical advice regarding the requirement for a level access shower therefore remained unclear or unchanged, depending on one’s perspective, in the 27 September 2021 correspondence, it was reasonable for the Respondent to rely on the stipulations outlined in the letter from 8 July 2020.

In deciding whether the Complainant was treated differently or less favourably than someone without a disability or with a different disability, I disagree with her claim that the Respondent only considered properties with level access showers because of her disability, resulting in a decreased pool of available options for her. Specifically, I find that her assertion in this regard is contradicted by the fact that property #1, as stated earlier, did not contain such a shower, and that a level access shower was not installed in property #4 until just before it was offered to her.

Considering all of the foregoing, I find that the Complainant has not established a prima facie case of discrimination and that the Respondent has met its obligation to provide her with reasonable accommodation contrary to Section 4 of the Act.

Removal of the Complainant from the Medical Priority List

Discrimination

CA-00049309-001:

The Complainant stated that her removal from the Medical Priority List, following the refusal of an unsuitable offer of accommodation, is discriminatory within the meaning of the Equal Status Acts, and was carried out in the absence of a valid policy providing for removal from the medical priority list. Specifically, it was asserted that to remove a person with disabilities from the medical priority list because of refusal of an unreasonable offer of unsuitable accommodation would not comply with the Respondent’s obligations as a local authority, under the Equal Status Acts or otherwise.

I have outlined above that the properties offered by the Respondent to the Complainant, except for one, constituted reasonable offers of housing accommodation, and were in accordance with the advice provided by her medical consultant. I have also highlighted that I accept the evidence of the Respondent’s witness that the one property that did not have a level access shower could not have been adapted to include a shower. Given the reasonable conduct of the Respondent in relation to the offers of accommodation made to the Complainant, I find that she was not discriminated against in the decision to remove her from the medical priority list.  

CA-00049310-010

Victimisation

Section 3(2)(j) of the Equal Status Act [2000-2018] provides that discrimination on the victimisation ground shall be taken to have occurred where a person is treated less favourably than another because he/she:

“(i) has in good faith applied for any determination or redress provided for in part 11 or 111,

(ii)has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act,or

(v) has given notice of an intention to take any of the action specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”)”

I find that the Complainant has not demonstrated that she was victimised within the meaning of Section 3(2)(j) of the Act following any action on her part as specified in the foregoing subsections (i) – (v).

CA-00046435-001 and CA-00046435-002:

I find that the Respondent has not engaged in prohibited conduct.

CA-00049309-001:

I find that the Respondent has not engaged in prohibited conduct.

CA-00049310-001

I find that the Respondent has not engaged in prohibited conduct.