Complainant

Respondent

Anonymised Parties

A Parent

A Government Department and Minister

Representatives

  Self-represented

Niall Fahy B.L., instructed by Joseph Dolan Chief State Solicitor's Office

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045634-001

11/08/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness on behalf of the respondent gave their evidence under affirmation.  The witnesses were cross examined by the other party.

The complaint revolves around issues that touch upon family law matters that were decided by the Courts ‘in camera’.  Additionally, the nature of the case and the names of the parties may lead to the identification of two minors.  The complainant looked for the hearing to be held in private and the resulting decision to be anonymised.  The respondent did not object to this submission.  Accordingly, under the provisions of Section 41(13) of the Workplace Relations Act as revised, I decided to hold the hearing in private and to anonymise my decision.

The complainant and his former spouse have custody of their two children on a 50:50 basis.  The complainant applied for the relevant child benefit payment to be paid out on a split basis.  He made his application in November 2020 and received notification of the decision to refuse to pay him child benefit on 15 February 2021.

The complainant sent his ES1 notification form to the respondent on 28 April 2022 and submitted his complaint on 11 August 2021.

The complainant submitted that the refusal to provide him with 50% of the child benefit payment amounts to discrimination on the basis of gender and family status.  The complainant submitted that there is clear reference on the respondent’s website to the provision of services and accordingly he submitted that he was denied services on a discriminatory basis.

The complainant submitted that he is aware that he was out of time for the submission of the Form ES1 but submitted that the delay arose due to his efforts to obtain legal assistance from a national body.  He approached the national body for assistance but submitted the complaint form when they did not revert to him in time.

The respondent submitted that the burden of proof rests upon the complainant to establish a denial of service on the basis of discrimination.  Initially, the burden is on the complainant is to show that he was entitled to the service in the first place.  For this he needs to show that the children are resident with him for at least 50% of the time

The respondent submitted that for a complaint to succeed prohibited conduct must have occurred.  The respondent indicated that Section 14(1)(a) of the Equal Status Act states that Nothing in this Act shall be construed as prohibiting the taking of any action that is required by or under any enactment or order of a court.  The respondent submitted that the Equal Status Act cannot render any enactment invalid. 

The respondent submitted that the decision to refuse the complainant a portion of the child benefit payable arises from the residency condition in Section 220(2) of the Social Welfare Act, 2005 as amended and interpreted in line with Statutory Instrument 142 of 2007 - Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007.  Accordingly, it falls within the exceptions outlined in Section 14(1)(a) of the Equal Status Act, 2000.  The respondent submitted the decision in ADJ-00030200 as precedent for contention that the complaint falls within the exceptions outlined in the Act.

The respondent submitted that the Department never gives split child benefit payments and that in such cases (which amount to less than 1%) a decision is taken in accordance with the appropriate legislation, which enjoys the presumption of constitutionality, as to how the situation shall be resolved.

The respondent submitted that the complainant did not exhaust all the remedies available to him in relation to this matter.

The respondent contended that the WRC does not have the appropriate authority to review legislation and submitted the case of ADJ 00035687 An Individual v A Health Care Provider as an authority in relation to the aspect of the complaint.

The complainant provided testimony and was cross examined on the nature of the residency agreement in place for his two children.  I am satisfied that the complainant has established, to my satisfaction, an entitlement to access a service such as to come within the ambit of the Equal Status Act, 2000.

As regards the timeframes for the lodgement of the ES1 form with the respondent, Section 21(2) and (3) of the Act are relevant:

(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

Having regard to the explanation provided by the complainant at the hearing for the late submission of the ES1 form to the respondent, I am satisfied that the explanation given by the complaint amounts to reasonable cause, such as to extend the time period to 4 months.  Accordingly, the complaint is properly before the Commission.

The respondent submitted that no prohibited conduct took place in that the consideration and decision of the issue of child benefit falls within the exceptions under Section 14 of the Act and submitted the decision ADJ-00030200 A complainant v A Department as precedent in this regard.

In that decision, the Adjudication Officer, Ms Cunningham, found as follows:

Section 14 (1) (a) of the Equal Status Acts 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 a 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).

As I have found that the complaint cannot be entertained as the exemption applies under section 14(1)(a)(i) of the Act, the further issues of the complaint being statute barred, res adjudicata and the burden of proof are not therefore examined in this decision.

I find that this claim falls within the exemption granted by section 14(1)(a) of the Acts. I find that the complaint in part, as it relates to the 2005 Disability Act is misconceived in the context of the provisions of Section 14 (1) of the Equal Status Act.

Having regard to the present case, I agree with Ms Cunningham’s findings wherein she states that “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”.

Furthermore, in the present case, I find that the complaint falls within the exemption granted by the provisions of Section 14(1)(a) of the Equal Status Act, 2000 and the complaint as it relates to the Social Welfare Acts of 2005 as amended and to Statutory Instrument 142 of 2007 is misconceived in the context of the provisions of Section 14(1) of the Equal Status Act, 2000

Having regard to all the written and oral submissions made in relation to this matter, my decision is that the complaint is misconceived in the context of the provision of Section 14(1) of the Equal Status Act, 2000

Equal Status Act – S14 exemptions - misconceived