Complainant

Respondent

Parties

Jaroslaw  Sutowicz

Department of Employment Affairs and Social Protection

Complainant

Respondent

Anonymised Parties

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Representatives

  In person

Jennifer Murphy B.L. instructed by Jennifer Murray Solicitor, Office of Chief State Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032487-001

26/11/2019

This complaint is that the Complainant was discriminated against by the Respondent because his application for social welfare benefits was refused whereas his ex-wife and other comparators, who were in the same circumstances as the Complainant, did receive these benefits.

The Complainant gave evidence under oath, with the assistance of a Polish-speaking interpreter, who affirmed.

Having established that the Adjudicator jurisdiction is limited to investigating alleged discriminatory acts that occurred within 6 months prior to the issue of this complaint and as confined to the content of the ES1 form (dated 21 October 2021) the Complainant’s evidence was as follows:

1.       The act of discrimination occurred on 26 August 2019 at the offices of the Respondent in Letterkenny

2.       The Complainant went into the Respondent office to apply for job seekers allowance, child benefit and one parent family payment.

3.       He had been refused social welfare benefits by the Respondent on previous occasions.

4.       On 26 August 2019, the Respondent staff considered his details on file and the updated evidence that he provided on the day and informed him that his application for social welfare for job seekers allowance, child benefit and one family payment were ineligible because, based on the information that they had - with respect to the Complainant’s means and other information -  he was not eligible.

5.       The Complainant objected to this. He did not deny that he was not eligible under the legislative criteria however his ex-wife was in receipt of these social welfare benefits and she had the same financial circumstances as he had. The criteria needed to be construed to give effect to the equal parenting responsibilities that they had.

6.       Allowing his ex-wife to receive these social welfare benefits, whereas he was refused was discrimination based on sex and family status.

7.       The prohibited grounds that he seeks to rely on are sex (that he is male) and family status (that he is a single)

8.       His comparator for sex-based discrimination is his ex-wife.

9.       His comparators for discrimination on grounds of family status are two neighbours of his, who are in receipt of these benefits although their family status are, as he is, separated from former spouses/ partners.

10.   While he accepts that he is ineligible, on a means tested basis, for job seekers allowance and child benefit under the primary legislation, he does not accept that he is ineligible for the one parent family benefit and yet he was also refused this.

11.   Section 172 of the Social Welfare Consolidation Act 2005 states that he is eligible because he meets the description of “a separated spouse” in subsection (c) of that section.

12.   The Complainant cites Superior Court and CJEU authorities to contend that the limiting words in section 172 of “who has at least one qualified child normally residing with that person” should include him, if his ex-wife is entitled because the time that they have custody over their children is nearly equal. The Complainant by way of a Court order has only 13 hours less custody hours of their children per week than his ex-wife. This 13 hours difference is minimal and he contends that their children normally reside with him just as much as they normally reside with her and section 172 should be construed accordingly.

13.   The failure to treat the Complainant equally to his ex-wife - to receive a one parent family benefit - should not be solely determined by the fact that she has minimally more custody time than he has. The Supreme Court has decided that these provisions need to be construed in a way that the co-parenting responsibilities are reflected in the social welfare benefits that are provided.

14.   The Complainant accepts that he is not relying on any Supreme Court authority on the statutory construction of section 172 of the 2005 SWCA specifically. Rather he relies on the authorities to support his argument that unless he is entitled to receive the same social welfare benefits as his ex-wife receives, he is being adversely treated by the Respondent.  

15.   Alternatively, the Complainant seeks that, given that questions of interpretation of European laws arise, these should be referred to the CJEU to decide who is correct and, relying on Minister for Justice and the Commissioner of An Garda Siochana v. Workplace Relations Commission, he requested the Adjudicator to refer a question to the CJEU.

16.   Also the day before the Adjudication hearing the Complainant wrote to the WRC requesting that documentation on his chosen comparators be provided to him by the Respondent however during the hearing he did not make that request to the Adjudicator.

The representative of the Respondent addressed the Adjudicator as follows:

1.       No prima facie case of discrimination has been discharged by the Complainant. He has failed to prove facts from which discrimination may be found.

2.       The Complainant has not provided a proper comparator for either prohibited ground. While the complaint form ticked all the prohibited grounds, the Complainant clarified at the Adjudication hearing that his complaint was proceeding on grounds of sex and family status only.

3.       The Complainant accepts that he does not meet the statutory eligibility (based on a means test) for job seekers and child benefit.

4.       His complaint then proceeded on the basis that the act of discrimination was that his application for one parent family benefit had been denied.

5.       The comparators that he relies upon in respect of discrimination on family status, are the same as him, ie they are separated persons. In this respect they are inappropriate comparators.

6.       The comparator that he relies on in respect of discrimination on grounds of gender, is his ex-wife received the one parent family benefit, whereas he did not. However he has not provided any evidence that his ex-wife is in receipt of one parent family benefit.

7.       Even if he had provided proof that she received this payment, the complainant cannot point to any other evidence of his ex-wife’s means or circumstances to prove like with like. This benefit is like all benefits based on a means test.

8.       The Complainant’s statutory construction approach has been to consider section 172 of the 2005 SWCA but fails to apply the ordinary meaning of the full section. The qualifying words being “who has at least one qualified child normally residing with that person.” Neither has he applied the other limiting words in SI 142/2007 which gives effect to section 172. Rather he simply argues that he is a separated spouse and he should be treated the same as his ex-wife and to make this argument he relies on Supreme Court authorities that do not concern the interpretation of section 172 of the SWCA and he cites CJEU authorities that likewise are not relevant to his argument, other than to say that gender based or family status based discrimination is prohibited, the generality of which the Respondent does not disagree with.

9.       Section 14 (1) (a) of the Equal Status Acts states that nothing in the Act shall be construed as prohibiting – (a) the taking of any action that is required by or under – (i) any enactment of order of a court.

10.   Even though the Complainant has conceded that he was not eligible for Job Seekers Allowance or Child Benefit based on his means, to comprehensively meet his complaint the Respondent stated in their submissions as follows:

(a)    Child benefit in accordance with section 220 of the 205 SWCA 2005 and SI 142/2007 is normally paid to the mother unless the children reside with their father, in which case, the benefit is paid to the father. In this case the children predominantly reside with their mother, which is not in dispute.

(b)    Job-seekers Allowance is means tested and the means that the Complainant provided to the Respondent meant that he was not eligible. Job-seekers benefit is an alternative benefit for which a certain minimum level of PRSI contributions need to be made before a person is eligible. The Complainant did not meet either test.

(c)     For a person to be eligible for a One parent family benefit, which is payable to one parent,  the child must reside with the parent and the parent must have the main care and charge of the child (section 128 (1) of SI 142/2007.

11.   The Respondent contends that in circumstances where the Complainant that he does not meet the eligibility criteria for either Job-seekers or Child benefit, with respect to the last alleged adverse treatment (denial of one parent family benefit) he does not meet that criteria either.

12.   The SWCA 2005 and SI 142/2007 enactments do not permit the Respondent to grant the Complainant the benefits that he sought, because he is not eligible. He is not the parent with whom the children reside with or the parent who has the main care and charge of them. That responsibility lies with the Complainant’s ex-wife, the mother of the children, who the Complainant accepts has custody of the children 13 hours more per week than he does.

13.   The Complainant cannot contend, in support of an equality complaint, that his ex-wife is not eligible for the benefits (without providing any evidence that she is not eligible) and then contend that if she is receiving then benefits, that he should be allowed receive them also in circumstances where he accepts that he does not meet the statutory criteria.

14.   The Respondent submits that the complaint is exempt under section 14 (1) (a) of the Equal Status Acts and may not succeed.

15.   Alternatively the Respondent submits that the claims should fail because they are frivolous and vexatious and an order should be made to that effect.

16.   Alternatively the Respondent submits that a finding should be made that the Complainant has failed to prove facts from which a finding of discrimination may be made.

Having heard the evidence from the Complainant I make the following findings of fact:

1.       The Complainant conceded at the Adjudication that on 26 August 2019 he was not eligible under 2005 Social Welfare Consolidation Act for either Job Seekers Allowance or Child Benefit, based on the means testing criteria.

2.       At the Adjudication the Complainant narrowed his allegation of adverse treatment to be the refusal by the Respondent to provide him with the One-Parent family benefit.

3.       The Complainant contends that on 26 August 2019 he was informed by Respondent staff that he was not eligible for the One-parent family benefit.

4.       His complaint is that he should have been treated as eligible and the Respondent’s interpretation of the criteria was incorrect. He contends that he should have been treated in the same way his ex-wife was, who did receive the benefit.

5.       The Complainant did not provide evidence, other than an assertion that his ex-wife received the One-parent benefit, a fact which in my view is fatal to this complaint (see point below.)

6.       However even if the Complainant had proven that his ex-wife did receive the benefit at the material time, the statutory construction as advocated by the Complainant of section 172 of SWCA 2005 (within which the entitlement to the One-parent family benefit is set out) was a selective exercise. He only considered the words “separated spouse” but failed to apply any of the other limiting criteria within section 172 (the parent must have a child normally residing with him)  or within section 128 (1) of statutory instrument SI 142/2007 (the child must be resident with that parent and the parent must have the main care and charge of the child.)

7.       I am satisfied that based on the Complainant’s own description of his circumstances, whereby the custody of their children was, at the material time, 13 hours per week less for the Complainant than it was for his ex-wife, that the Respondent actions on 26 August 2019 constituted a proper consideration of the eligibility criteria set out in section 172 of SWCA 2005 and section 128 (a) of SI 142/2007. This was an exercise that the Respondent staff were obliged to conduct. It was their job to do so.

8.       Section 14 (1) (a) (i) provides an exemption to a Respondent when Equal Status complaints are pursued. If the action that is complained of, arises on foot of compliance with an enactment or court order, no discrimination can be found.

9.       A Complainant is not entitled to avail of the Equal Status Act 2000 for the purpose of overturning a decision made under a statutory regime.

10.   On these grounds I am satisfied that this complaint is exempt under section 14 (1) (a) of the Equal Status Acts and that the Respondent’s actions on 26 August 2019 were not prohibited.  

11.   Were I not persuaded of the above, in the alternative, I would find that because the Complainant’s chosen comparator for the complaint of discrimination on family status grounds, are unidentified separated persons and, as the Complainant is also a separated person, his complaint on this ground has not been proven.

12.   With respect to his gender-based discrimination complaint, as the Complainant’s comparator is his ex-wife and he is unable to prove she was in receipt of the One Parent Family benefit, his complaint on this ground also has not been proven.

13.   In conclusion I am satisfied that the complaint is exempt under section 14 (1) of the Equal Status Acts and in the alternative,  I find that the Complainant has not proven facts from which discrimination (either on the ground of gender or family status – these being the only grounds that proceeded at the Adjudication) may be found.

14.   Lastly as no application has been made by the Complainant to identify how or which national provisions are contrary to EU law, dis-application does not arise and, as no question of law to refer to CJEU has been identified to me, I do not intend to do so.

15.   The Complainant’s request, received by the WRC on the day before the Adjudication hearing, was that the Respondent be required to furnish discovery of third party social welfare applicants was not raised as a preliminary application to the Adjudicator in advance of the hearing. As it was not raised as a preliminary matter and as the Complainant proceeded with his complaint I am satisfied that this request was not proceeded with and the Respondent was not given an opportunity to respond to the request.

I am satisfied that the Complainant was not discriminated against by the Respondent.

Having regard to the written and oral submissions made by both parties I find that the complaint is exempt under Section 14 (1) of the Equal Status Act or in the alternative the Complainant was not discriminated against by the Respondent.