Complainant

Respondent

Parties

Michael  Lane

Avantcard DAC  Avant Money

Representatives

  Self Represented

 John B O'Connor & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044348-001

25/05/2021

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant was self-represented and swore an Oath at the outset of the hearing.

The Respondent presented two witnesses, the Interim Head of Compliance and AML, David Caslin, who swore an affirmation and the Head of Credit Risk, Stephen Ryan, who also swore an affirmation.

Submissions and documentary evidence were exchanged in advance of the hearing. Both parties were availed of the opportunity to present their evidence and cross-examine the other side,

The Respondent raised a preliminary objection which I will address first.

The following is a summary only of the evidence before me.

Preliminary Objection

It was the Complainant’s evidence that he sent a letter dated 25 March 2021 which clearly set out his complaint and there was no doubt as to the meaning.

Substantive Case

The Complainant gave evidence that he was over 70 years of age.

It was the complainant’s evidence that the Respondent offers mortgage services to the public. Instead, it is done through an appointed Broker who he contacted on 25 March 2021. It was his evidence the Broker was very clear in their instruction from the Respondent that because he was over 70 years on the date of application he could not apply for the mortgage switching service.

The Complainant wrote to the Respondent on the same day by letter dated 25 March 2021. He received a reply by letter dated 13 April 2021. As he exhausted internal procedures he referred the matter to the Workplace Relations Commission for adjudication.

The Complainant made legal submissions noting that pursuant to Section 42 (2) of the Act expressly provides for an agent to be considered as an associated party for the purposes of the Act. The Respondent appointed the Broker as it does not sell its products directly to customers. It was the Complainant’s evidence that he sought the letter of appointment between the Respondent and the Broker but was refused despite his offer to have all commercially sensitive information reacted. He does not accept that the Respondent is a stranger to the communication between it and the Broker and the Complainant and the Broker.

In response to the Respondent’s submission that this case is fundamentally about him not receiving a loan is incorrect. It is the Complainant’s case that he was refused access to the service to apply for the mortgage. He stated that he was “not challenging the Respondent to grant or not grant a loan, that is a matter for the Respondent itself “. The Complainant accepted that age is a relevant factor in an overall assessment, but it should not be the sole disqualifying factor. He continued; “such an assessment was denied to me” on age alone.

The Complainant referred to the Respondent’s lending criteria stating there was a permitted exception to extend the term beyond an individual’s 70th birthday and therefore the policy allowed for a flexible approach. The Complainant repeated his complaint related to “access to the service”.

Responding to the Respondent’s submission that the steps taken must be taken in the fairest, less discriminatory way. It was submitted that the fairer way would have been for the Respondent to invite him to apply and be assessed for the service.

The Complainant referred to any reliance by the Respondent may have on the defence of assessment of risk set out in Section 5 (2) (d) of the Equal Status Act 2000  and noted the requirement to produce statistics. In this regard he relied on the Equality Tribunal decisions in Ross v Royal & Sun Alliance DEC 2003-016.

The Complainant also referred to the ECJ case of Félix Palacios de la Villa v Cortefiel Servicios SA, Case C-411/05 together with Keane v Kerry County Council (Dec -S2012-045) and Fahy v Ulster Bank DEC 2008-049.

The Complainant was cross-examined by the Respondent. Concerning the letter he sent in March 2021 to the Respondent , it was put to the Complainant that it was quite short and not in compliance with the legislation. The Complainant responded that “the Respondent was fully aware of the nature of the letter.” The Complainant did not accept that the letter was not in compliance with Section 21 of the Act stating, “I do not think so , the Respondent knew or ought to have reasonably known the recourse was to the WRC. It is not a corner shop. They ought to have known”. When continued to be questioned on this point, the Complainant asked why he was not invited to submit an application by the Head of Mortgage Operations or why that same person did not contact him to explain the letter, if there was any doubt.

He was questioned as to why he did not use the ES1 Form to which the Complainant responded that “he wasn’t aware” where to get the ES1 Form.

It was put to the Complainant that the Respondent that its letter of April 2021 did not really deal with his complaint to which the Complainant responded, “no it was very clear”.

The Complainant was asked if he had seen the age term of the policy to which he replied that he “did not get to the stage of me being allowed to apply for a mortgage”

The Respondent asked where the property was located as this was very relevant to the case. In reply to the Complainant stated, “this is not the place to conduct an assessment” but a complaint of age discrimination and this information could have been sought in March 2021. It was put to the Complainant that mortgages were not offered in rural locations.

It was put to the Complainant that other lenders have similar upper age limit policies to the Respondent to which the Complainant responded it was not relevant to this hearing.

The Respondent put the CCPC Consumer Protection Code in particular to where lenders have an upper age code to the Complainant. It was his evidence that he “readily agreed” that age was a factor but in this case, it was used as a disqualifying factor without assessment in this case.

The Complainant was asked about his attempts to mitigate his loss and it was put to him that he was under a duty to do so. The Complainant disagreed noting that this is not “a breach of contract” claim. It was the Complainant’s evidence that at the time of the application, the Respondent was offering an interest rate of 1.9% on their mortgages compared to the 4.75% interest rate the Complainant was paying. He had 6 years remaining on his current mortgage which amounted to €4,820.26 per annum which added up to €33,741 over the 6-year term. If he had not been discriminated against by the Respondent and being successful in his application he would have saved €16,840 in total over the remaining term of his mortgage.

In summing up his case, the Complainant stated that he does not find it acceptable that other providers have an upper age limit, but this is not an investigation of other banks. He stated that the banks should always conduct an individual assessment and while age can, and should properly feature, it should not be an exclusionary ground alone.

Preliminary Objection

The Respondent raised a preliminary objection on the basis the Complainant failed to comply with the mandatory notification requirement set out in Section 21 (2) (A) of the Equal Status Act 2000.

The Interim Head of Compliance and AML gave evidence that he worked with the company for nearly 20 years. The complaints function fell within his remit. He did not have any direct dealings with the Complainant’s letter of 25 March 2021, and it only came to his attention following notification of the complaint to the WRC.  When the letter did come to his attention he gave evidence that it did not comply with the requirements set out in the Equal Status Act and noted there was no ES1 Form. It was the witnesses’ evidence that there was no reference to the Equal  Status Act, no grounds of discrimination and no indication if unhappy the Complainant would refer the matter to the WRC. He did say that it was the norm for complaints to be referred to the Financial Ombudsman. It was his evidence that if the Complainant had indicated he was going to refer the matter to the WRC, it would have been fully investigated. Due to the noncompliance, it was the Interim Head of Compliance and AML’s evidence that the Respondent was denied the opportunity to respond to the complaint of March 2021.

Under questioning from the Complainant, the Interim Head of Compliance and AML again repeated that he had not seen the Complainant’s letter at the time. It was put to him that it was his view that a Complainant to the Financial Ombudsman was “less serious” than a complaint to the WRC to which he responded that he trusted his team to deal with and address all complaints. When asked if he would have handled the letter differently, the  witness responded that the letter “lacked detailed” and the Respondent “would have needed your complaint to be in compliance with the Act” and he would have “reached out to you directly if I had received the letter”. The witness stated he would have invited the Complainant to make an application to the Respondent after contacting one of its brokers as the Respondent’s policy “does allow for permitted exceptions” It was put to the witness if what he was saying was that the Complainant and Broker should have made an application. When asked why the Broker was not present at the hearing by the Complainant, the Respondent replied that the Complaint was against the Respondent only and they were not an agent they were an independent Broker. The witness was asked about the contractual relationship between the Respondent and the Broker to which he explained there is a Broker Manager who deals directly with Brokers through a channel. Asked if the Broker had been written to advise them that they were wrong in its approach, the witness believed that they had not been written to, but they did have a list of the Respondent’s criteria; age, loan amount, permitted exceptions etc. It was put to the witness that the Broker stated in an email they were unable to process the Complainant’s application as he had already reached the age of 70 years. Asked if the witness had written to the Broker to correct them on the policy to which he responded that this was the first time he had seen this email. The Complainant followed by asking if the witness had seen his submission to which the witness confirmed he had. It was then put to the witness that in that case, he knew the Complainant’s case.

The Respondent relied on Derek Blighe and Cork Builders Providers (ADJ-00032551) and Complainant and Public Health Organisation (ADJ-00028518).

Substantive Case

The Current Head of Audit Risk gave evidence of the Respondent’s history and products in the Irish mortgage market. He was asked if a property in Co Kerry would fall within the location policy to which he replied to it would not and this was due to the cautious approach taken by the Respondent.

The witness gave evidence of the Credit Risk Policy which had an upper age limit similar to most lenders of 70 years. He stated that it always had been the case that it was “around the normal age of retirement” and it was an important piece of the credit risk policy as it protected “the bank and the consumer”. It was his evidence of the reasons for this where pensions do not tend to keep up with inflation, there can be a change in circumstances due to medical issues, higher incidents of debt, higher mortality etc with facts like this requiring the bank to protect against loss. The witness referred to CSO data on this which was sent in after the hearing.

The witness was asked if such an upper age limit was common with the witness listing off several other mortgage providers with upper age limits. He also continued that the Central Bank had given guidance and confirming the Respondent was a regulated entity. Asked if the Consumer Protection Commission or the Central Bank had ever raised a concern about the upper age limit , the witness replied not to his knowledge.

Asked about the legitimate aim of the policy, the witness referred to the CSO data for 2020.

The witness was asked if the Respondent, aside from the Complainant’s complaint, had received any other complaint from a customer or applicant about the upper age limit to which he replied “no absolutely not.”

When asked if the Respondent issues mortgages for holiday homes, the witness confirmed it did not as they were only issuing mortgages for principle primary residences.

Asked if he was aware of an application or unsuccessful application from the Complainant he stated no application was ever made, and no decision was made in terms of an application from the Complainant.

Under cross-examination, it was put to the witness that he did not know where the property was located because the Respondent never received an application from the Complainant as he was “precluded” and “not given an opportunity to make the application”.

The Complainant  again referred to the Equality Tribunal in in Ross v Royal & Sun Alliance DEC 2003-016 where reasoned statistical data was relied upon and understood the importance of having an upper age limit because of loss.

In response to the reference to the Central Bank guidance , the Complainant put it to the witness that it has no rule on it and were in fact “quite neutral” on this point.

In response to questions the Complainant had on the relationship with the Broker, the witness stated the Broker was an intermediatory and its employees were not employees of the Respondent. He put it to him that he had sought a copy of the contract between the Respondent and the Broker which was refused.

Upon re-examination, the witness was asked about the letter of 25 March 2021 to which he said the Respondent was denied the opportunity to provide a satisfactory response. He confirmed the Respondent did not receive, consider or refuse a loan application on the grounds of the Complainant’s age.

Preliminary Point

It is the Respondent's submission that the Complainant did not satisfy the requirements of Section 21 of the Equal Status Act 2000 in notifying the Respondent in advance of the filing his complaint with the Workplace Relations Commission.

Section 21 sets out the steps when raising a complaint of discrimination.

(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.”

It was accepted that the Complainant did write to the Respondent by letter dated 25 March 2021. A reply was issued thereafter from the Respondent. It was accepted by the Complainant in his Complaint Form, dated 25 May 2021, that he did not use the ES1. Form. The Equality Tribunal were clear in Mongans v Clare County Council, DECS2008-39 that the ES.1 Form is not mandatory, and an ordinary letter will suffice.

The Act was amended to allow for further consideration of the notification of equal status complaints with Section 21. (3) (a) (2) of the Equal Status Act 2000 (as amended by the Civil Law (Miscellaneous Provisions) Act 2008). The amendment provides:

“(3)  (b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.”

The Equality Tribunal in O’Brien and McCarthy v Ruairí’s Bar, Tralee, DEC-S2007-039 explained the purpose of the notification requirement:

“The purpose of this notification is twofold. Firstly, it is designed to alert the respondent at an early stage to the nature of the allegation and the fact that a complaint is being considered against them and, secondly, it affords the respondent the opportunity of communicating directly with the complainant with a view to resolving the issue between themselves without recourse to the Equality Tribunal.”

Applying the legislative test to this case; by letter dated 25 March 2021 the Complainant wrote to the Respondent stating he recently “enquired” through a broker about “your mortgage switching service but was advised that you do not offer this product to individuals over age 70 years, and accordingly as I am over that age could not be considered”. He continues, “I regard this lending practice to be against & in breach of equality legislation”. The Complainant signs off with a request for a reply.

A reply was sent dated 16 April 2021 from the Head of Mortgage Operations which refers to the complaint and states; “We have now completed our complaints process therefore you may treat this letter as out final response to your complaint.” With the details of the Financial Services and Pensions Ombudsman details enclosed.

It was the Complainant’s evidence that following receipt of this letter he submitted his complaint to the Workplace Relations Commission which was received on 25 May 2021.

Considering the first element of the test as to the extent to which the Respondent is or is likely to be aware of the which the prohibited conduct occurred it is necessary to look at the words contained in the Complainant’s letter. Of particular note is the reference to his age, being over 70 years, and the specific reference albeit not its full title to a “breach of the equality legislation”. The letter is short but concise. Objectively , it is difficult to reason how a reader would not be alerted that there was at a minimum an equality issue by explicit reference to the equality legislation which is directly linked to the Complainant’s complaint around age. In coming to this conclusion, I have also given due regard to the Respondent’s business which is a highly regulated industry where professional staff undergo intensive and regular training. It is reasonable that the Respondent upon reading the letter should have been alerted to the fact this was a complaint relating to age discrimination.

It is noted there was no evidence presented from the Head of Mortgage Operations who signed the replying letter of 16 April 2021. Therefore, it is unknown as to his reasoning for issuing the letter he signed in April 2021.

In relation to the second limb of the test set out in Section 21 (3) (b), the Respondent did respond to the Complainant’s letter, stating the policy according to the Head of Mortgage Operation who signed the letter and offered the details of the Financial and Pensions Ombudsman if dissatisfied with the response. There was the evidence from the Respondent that it would have dealt with the matter differently.  He stated it would have been investigated by the Head of Compliance who usually deals with “material complaints”, the Complainant contacted with an attempt to address the complaint. It was put to the Respondent by the Complainant as to whether a complaint to the Ombudsman was considered less serious than a complaint to the WRC which was denied.

I find this evidence difficulty to accept from the Respondent particularly where the letter was signed by a very senior person in the Respondent’s business stating that he has reviewed the complaint and provided a reason for his answer, i.e.” While I appreciate and understand your comments it is normal practice in all Financial Institutions to have policies in place to cover the maximum term of a mortgage and the age limits that apply. Unfortunately, our policy does not extend to offering a mortgage to applicants over 70 years of age.”

The letter goes on to advise that the Respondent has completed its complaints process and refers the details of the Financial Services and Pension Ombudsman if the Complainant remained dissatisfied.

It is clear from the wording of this letter that it was a personalised letter as opposed to an auto generated letter. It states that it was passed to him, and he reviewed it. The writer of the letter did not appear to give evidence at the hearing and the letter can only be read in it plain and natural meaning.

In terms of the reference to the Ombudsman, I find it curious as why the Respondent would treat a complaint by a customer to the WRC so differently to a complaint to another statutory independent third party.

Finally, the line defence put forward by the Respondent at the hearing did not depart from the contents of the letter where there was a consistent approach taken by comparing the Respondent’s policy to that of other financial institutions.  The Respondent sought to defend this policy in terms by explaining the risks associated with lending to customers 70 years or older in the evidence given by Head of Credit Risk. In conclusion, for the Respondent did not suffer any prejudice in its ability to deal with the complaint that came before it in March 2021.

For completeness, there was no issue raised as regards the time limit by either party. After reviewing the documentation before me, it is clear that each step was taken within the prescribed time limits.

In conclusion, I am satisfied that the Respondent was notified of the Complainant’s complaint pursuant to Section 21 (3) (b).

Substantive Case

Evidence

There were numerous examples of hearsay evidence given at the hearing.  This evidence is simply inadmissible for the purposes of this decision.

The writer of the letter from the Respondent, dated 16 April 2021, was not present to give evidence before the WRC. While the Complainant did not contest the content of the letter which he received, any the evidence from the Interim Head of Compliance and AML as to the thought process of the Head of Mortgage Operations  while drafting or signing that letter cannot be considered.

It is further noted that there was no witness from the Broker was called by either party. However, I do accept that the Complainant was a direct party to the conversations and email with the Broker.

Further examples of inadmissible evidence are referred to below.

Age

Section 3 (1) provides: “For the purposes of this Act discrimination shall be taken to occur—

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B),] (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned, “

Section 3 (2) (f) of the Act states:

“3.—(1) For the purposes of this Act discrimination shall be taken to occur—

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(f) subject to subsection (3), that they are of different ages (the “age ground”)”

Burden of Proof

The burden of proof is set out in Section 38A of the Acts which provides:

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

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.”

The Complainant must first establish primary facts upon which the claim of discrimination is grounded before the burden of proof passes to the Respondent.

It was undisputed that the Complainant was over the age of 70 years of age and the Respondent offers a mortgage service to the public. There was no opposing evidence from the Respondent and therefore, accepted he made contacted the Broker who refused to allow him to make an application for the mortgage switching service offered by the Respondent because he was over 70 years on the date of application and therefore he was prevented from applying for the service.

It is necessary to address the position of the Broker and whether the Respondent is the correct party to this complaint. It was noted that the Complainant’s closing submission was his complaint related to the refusal by the Broker acting on behalf of the Respondent excluded him on age alone from applying for the mortgage switcher service. It was set out in the Respondent’s submission that it was a stranger to the communication between the Broker and the Complainant. There was evidence from both the Respondent’s witnesses that the Broker is an independent intermediatory, not an agent, engaged to sell the Respondent’s mortgage products where an application cannot be made directly to the Respondent. It was the evidence of the Interim Head of Compliance and AML that he believed the Broker did have a list of the Respondent’s criteria naming age as one of those. It was accepted by the current Head of Credit Risk in his evidence that the Respondent’s Credit Risk Policy had an upper age limit and went into detail as to why the age limit was 70 years of age. At no stage , did the Respondent deny that the Broker did not act following its instruction even after the Complainant explicitly questioned the two witnesses as to whether they had written to the Broker advising them their interpretation of the policy was incorrect after receipt of his complaint.  The Complainant gave evidence when he requested a copy of the contract between the Respondent and Broker that this was refused despite agreeing to accept a redacted version. Consequently, I find where there is no evidence to the contrary before me that the named Respondent is the correct party to this complaint before me. I do not find it acceptable that the Respondent seeks in its submission to wash its hands of the Broker in the circumstances where the only method of applying to the Respondent’s service is via designated Broker panel together with the fact no witness or evidence whatsoever was produced  by the Respondent from the Broker. This is in contrast to the Complainant who he, himself was a party to the conversations with the Broker and produced an undisputed email from the Broker addressed to the Complainant.

The next question is whether the Complainant was treated less favourably on the grounds of his age. 

The Respondent’s Credit Risk Mortgage Policy of 11 September 2020 states concerning age:

“Age – 18 at application and maximum at loan maturity 70 years (oldest applicant).”

Further detail states:

“Applicant Age – An applicant must be at least 18 years old at the date of the application. The Loan must be repaid before the oldest applicant’s 70th birthday” and further states in a highlighted box in the same section; “Permitted Exception – Lending may be approved past the oldest applicant’s 70th birthday, only in circumstances where repayment capacity can be proven, and this income is from an investment source (e.g. rental funds) rather than a lump sum from the primary pension.”

The Interim Head of Compliance and AML was asked, under cross-examination, when asked what he would have done differently if the March 2021 letter had been clearer to which he replied he would have reached out directly to the  Complainant. He said he would have encouraged the Complainant to make an application to the Respondent through one of its Brokers as “our policy does allow for permitted exceptions.”

Having carefully considered the evidence before me, I am satisfied that the Complainant has established a prima facia case of age discrimination by the Respondent where it has been accepted that there are permitted exceptions to the general policy that the loan must be repaid before the applicant’s 70th birthday.

I find the Complainant was denied the opportunity to make an application, setting out in detail and providing documentary proof of his financial position, for the Respondent to be in a position to make an individual assessment. He was not given the opportunity to be considered under the “permitted exception” by the Respondent which is clear from the responding letter of April 2021 from the Head of Mortgage Operations.

In terms of a defence , while Section 5 (2) (d) of the Act was not explicitly relied upon by the Respondent, it was implied in the evidence of the Head of Credit Risk and therefore, it is necessary to consider it.

“Section 5 (2) (d) of the Act provides:-

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—

(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,”

Unlike the parties evidence in Ross v Royal & Sun Alliance DEC 2003-016 no expert evidence or statistical or actuarial data obtained from a source on which it could be reasonably relied upon was presented in this case.

The Respondent sought to rely on the lending policies of other mortgage providers, i.e., Bank of Ireland, Permanent TSB, and Wexford Credit Union however, no evidence was presented from any of these lenders as to whether these are current policies. Similarly, there was a printout from Citizens Information regarding Local Authority Home Loans. References by both parties to Central Bank guidance and by the Respondent to Competition and Consumer Protection Commission were also made with no supporting documentation presented. It would be both procedural unfair and unreasonable to rely on this evidence for the purposes of Section 5 (2) (d).

The document referred to as the “CSO” statistics by the Current Head of Credit Risk was furnished after the hearing had closed. It is noted that the document received by the WRC is a mere printout of death figures but does not include any reference to the CSO whatsoever. Therefore, this cannot be reasonably relied upon as statistical evidence as required to satisfy Section 5 (2) (d).

Consequently, I find that the Complainant was treated less favourably by the Respondent on the grounds of his age by its refusal to allow him to make an application for its mortgage switching service.

Application to Anonymise

Following the Supreme Court decision in Zalewski v. Adjudication Officer & Ors [2021] IESC 24 was very clear that the default position was that cases must be heard in public. However, there is discretion to anonymise a decision where there are special circumstances. It was the Respondent’s application that this case discussed sensitive commercial data which would give the Respondent’s competitors an unfair advantage.

The Complainant did not have a view either way.

I do not accept the Respondent’s submission on the basis that there was no specific reference to what document or data the Respondent believes to be commercially sensitive particularly considering the attempt by the Respondent, itself, to rely on the purported lending policies from a number of its competitors. Therefore, I find a broad statement by the Respondent does not amount to a special circumstance for the matter to be anonymised and refuse the application.

I find that the Complainant was discriminated against on the grounds of his age and award him compensation in the sum of €8,420 representing 50% of what he would have saved in interest if he was permitted to submit his application and assessed successfully by the Respondent.

I further order that the Respondent undertakes training on equal status legislation for its Complaints Department including the relevant heads of department within 6 months of the date of this decision.. Furthermore, I order the Respondent to  write to all brokers on its panel to clarify the age policy and in particular the permitted exceptions also within 6 months of the date of this decision.