Complainant

Respondent

Anonymised parties

Complainant

Public  Body

Representatives

Self-represented 

Self-represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00027276-001

20/03/2019

In 2018, the complainant applied to the Public Body and attended the appointment in Dublin on the 11th October 2018. This involved the complainant travelling a great distance to Dublin, leaving his home in the south-west at 4.30am. He said that he was treated in an undignified way and ‘put in his place’ by the Public Body.

The complainant said that the outcome letter of the 18th December 2018 shunned him in a dismissive way. He described the criteria applied by the Public Body to be vile and causing ‘enforced idleness’.

The complainant had been assessed for a Primary Medical Certificate in March 2018, and then appealed to the Public Body. He was discriminated against on grounds of disability and victimised in the manner his appeal was heard and in the way he was treated at the appeal.

In the 2018, the Public Body outlined that they were very sorry that the complainant’s appeal was unsuccessful. They outlined that the Public  Body understood the complainant’s frustration given his long day on the day of assessment. The Acting Chair outlined that it was applying the criteria set out in the Regulations: that the applicant has a severe disability and fall within one of the strict criteria laid out in the Regulations. The Acting Chair said that the complainant did not meet one of the criteria. It advised the complainant of his option to refer the matter to the Ombudsman. In submissions, the respondent relied on section 14 of the Equal Status Act and referred to previous Equality decisions where this was invoked.

The complaint relates to the complainant’s application for a Primary Medical Certificate per the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994. The Regulations were in place at the time of the complainant’s unsuccessful appeal.

The Regulations then in place set out the following criteria:

‘(a) persons who are wholly or almost wholly without the use of both legs;

(b) persons wholly without the use of one of their legs and almost wholly without the use of the other leg such that they are severely restricted as to movement of their lower limbs;

(c) persons without both hands or without both arms;

(d) persons without one or both legs;

(e) persons wholly or almost wholly without the use of both hands or arms and wholly or almost wholly without the use of one leg;

(f) persons having the medical condition of dwarfism and who have serious difficulties of movement of the lower limbs.’

In Reeves v Disabled Drivers Board of Appeal [2020] IESC 31, the Supreme Court held that the Regulations were underinclusive and excluded people who had severe and permanent disabilities from its scope. The Supreme Court held that setting out the criteria in the Regulations, rather than the underpinning statute (the Finance Act 1989) did not comply with the principles and policies test. The Finance Act 2020 inserted the above criteria into the Finance Act 1989, thereby addressing the immediate issue identified by the Supreme Court in Reeves.

It should also be noted that the litigation arising in respect of the 1994 Regulations followed the discontinuation of other transport supports for people with disabilities, the Mobility Allowance and the motorised transport grant. These schemes had an administrative, rather than a statutory footing.

This is the background to the assessment of the within complaint. The complaint should be assessed according to the 1994 Regulations then in place. Taking the complainant’s evidence at its height, I find that he cannot establish a breach of the Equal Status Act.

I appreciate that this was frustrating for the complainant. Given the constraints of the legislation, there was little the Public Body could do than to deliver the bad news. Section 14 of the Equal Status Act provides that an act arising from an enactment cannot constitute a contravention of the Act. Previous decisions arising from the Public Body have applied section 14 to the deliberations and outcome of an appeal (see O’Dowd v Minister for Finance (DEC-S2011-061). I must reach the same conclusion in this case.

CA-00027276-001

I decide that the respondent did not discriminate against the complainant on grounds of disability as section 14(1) of the Equal Status Act applies.

Equal Status Act / section 14