Complainant

Respondent

Parties

Diana  Walsh

The Minister for Social Protection

Representatives

  Self-Represented

Ms C. Hogan BL instructed by the  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-00046921-001

01/11/2021

The issue in contention concerned an Equal Status Act, 2000, compliant that the Complainant was discriminated against on the Age grounds by the Minister for Social Protection by the non-payment of the PUP Covid Special Payment to her on reaching her 66th  birthday.

The Complainant represented herself and made an Oral Testimony supported by copy correspondence with the Minister and the Department.

The Complainant was laid off from her work in March 2020 due to the Covid pandemic. Her former employer ceased trading shortly afterwards. She received the PUP payment until her 66th Birthday on the 11th April 2020. After that date she was informed by the Department of SP that she was now ineligible for the PUP scheme as it was limited to persons below 66 years of age.

This was gross Discrimination on the Age Grounds.

The Department/Minister’s position was that Persons over 66 years of age were entitled to the Old Age Pension and could not at the same time be in receipt of the PUP payment.

The Complainant pointed to what she felt were anomalies in the Department position in particular the situation where an employee could benefit from the Wage Subsidy Scheme and still receive the Old Age Pension.

The Minister was represented by Ms C Hogan BL. She was supported by Ms H and Ms D, Departmental Officials. A detailed Written submission was presented.

In essence the Minister’s position was that the operation of the PUP scheme was governed by statue. Initially this was the Social Welfare Consolidation Act, 2005 and latterly by the Social Welfare (Covid- 19) (Amendment ) Act 2020.

The Respondent submitted that in response to the global emergency caused by Covid-19 it was necessary for the State to put in place emergency measures aimed at supporting the public. The PUP was introduced by the Respondent as a time-limited, emergency income support measure to meet the dramatic surge in unemployment, designed to ensure eligible claimants were paid as quickly as possible. The emergency payment was introduced to support persons of working age between 18 and up to 66 years old who had lost their employment due to the pandemic and where they were not being paid by their employer. To qualify for the PUP a person must be between the ages of 18 and 66 and in employment on or after 13 March 2020. This is consistent with other Social Protection income supports paid to working age persons.

The Respondent submitted that in response to the global emergency caused by Covid-19 it was necessary for the State to put in place emergency measures aimed at supporting the public. The PUP was introduced by the Respondent as a time-limited, emergency income support measure to meet the dramatic surge in unemployment, designed to ensure eligible claimants were paid as quickly as possible. The emergency payment was introduced to support persons of working age between 18 and up to 66 years old who had lost their employment due to the pandemic and where they were not being paid by their employer. To qualify for the PUP a person must be between the ages of 18 and 66 and in employment on or after 13 March 2020. This is consistent with other Social Protection income supports paid to working age persons.

The primary State income support in respect of people who are aged 66 or over is the State Pension.

In bringing in the PUP the Respondent relied on the provisions of Section 202 0f the Social Welfare Consolidation Act 2005 (the 2005 Act), which provides for the grant of Supplementary Welfare Allowance in cases of urgency. On 16 March 2020 the Respondent issued internal departmental circular No. 16/20 with instructions and information for staff regarding the new Jobseeker’s Emergency Payments. The circular stated.

“This is an emergency payment for anyone aged between 18 and 66 who becomes unemployed due to the Covid Pandemic”.

There were various updates, but the age of eligibility remained the same. The initial information to the public set out the qualifying conditions, including the age limitations to those aged between 18 and 66.

The Respondent submitted that the PUP was consistent with jobseeker’s payments, and the eligibility criteria were aligned with the other schemes, including the age criteria, as set out in the 2005 Act.

Section 202 of the 2005 Act permitted a rapid response to the crisis but it was intended for short term, urgent needs payments. The PUP scheme was placed on a discrete statutory footing by the Social Welfare (Covid-19) (Amendment) Act 2020, which came into effect on 5 August 2020. Section 68L sets out the age eligibility, which remained the same as when the scheme was established in March 2020.

People aged 66 and over have pension entitlements and are not required to demonstrate an employment related contingency to receive their pension. Someone in receipt of the contributory pension can earn an income and retain that pension. Those aged under 66 do not have entitlement to a State pension, and so, when faced with a loss of employment, have a need for State support.

The Respondent submits the Complainant had become eligible for the Contributory Widows Pension since the death of her husband and furthermore the Old Age State Pension from her birthday in April 2020 and therefore had no entitlement to the PUP. This is not discriminatory but based on the eligibility criteria which was set out in the 2005 Act at the time of the Complainant’s application for the payment.

In these circumstances the Respondent submits the Complainant is unable to establish a prima facie case of discrimination.

The Respondent further relied on the following provisions in the Equal Status Act, 2000 Section 14 , in submitting no discrimination has taken place:

Section 14(1)(a) states: “Nothing in this Act shall be construed as prohibiting-

(a)    The taking of any action that is required by or under … any enactment or order of a court.”

The Respondent cited O’Malley J in the High Court Case of G v The Department of Social Protection [2015] IEHC 419, who stated the Equal Status Act could not override the terms of another statutory scheme. The PUP was a statutory scheme.

·       Section 14(1)(b) states: “Nothing in this Act shall be construed as prohibiting-

(b)    Preferential treatment or the taking of positive measures which are bona fide intended to-

(i)      Promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons, or

(ii) cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs.”

The Respondent submits the PUP answered special needs at the time it was instigated.

Section 5(2)(h) states:

“Subject to subsections (4) and (4A), subsection (1) [which is the prohibition on discrimination in the provision of service] shall not apply in respect of-

(h) differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purposes of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests.”

The Respondent submitted the difference in treatment on age grounds which the PUP scheme involves is for the bona fide purpose of promoting the special interests of those who have lost their employment due to the pandemic.

Accordingly, the complaint cannot succeed as it is excluded by Section 14 of the Equal Status Act,2000

The Respondent cited at length from ADJ-00028241 – Seamus Eager v Minister for Employment Affairs and Social Protection. The facts of the Eager case were almost identical with the current case.

In that case the Adjudication officer deliberated at length on the Legislative position and the impact of Sections 14 and Section 5 of the Equal Status Act on the complaint.

He deemed

“When the PUP was initially set up the Respondent relied on the provisions of Section 202 of the Social Welfare Consolidation Act 2005 (the 2005 Act), which provides for the grant of Supplementary Welfare Allowance in cases of urgency. The Respondent submits the PUP is consistent with jobseeker’s payments, and the eligibility criteria were aligned with the other schemes. Including the age criteria, as set out in the 2005 Act.

When it was realised, the emergency was continuing the PUP scheme was placed on a discrete statutory footing by the Social Welfare (Covid-19) (Amendment) Act 2020, which came into effect on 5 August 2020. Section 68L sets out the age eligibility, which remained the same as when the scheme was established in March 2020.

It is clear that the PUP was set up on a statutory basis and later consolidated into discreet legislation. The age criteria for the PUP were consistent with those already established on a statutory basis for the Jobseekers’ schemes.

I conclude that the Complainant’s application for PUP was considered by the Respondent in accordance with those criteria, which were established on a statutory basis and therefore falls within the exemption granted under section 14(1)(a)”

.

Relying on the precedent established by Adj-00028241 (quoted above) and the overall strength of their Arguments based on Section 14 of the Equal Status Act,2000 the Respondent argued that the  complaint has no proper basis and has to be dismissed.

The Oral Testimony of the Complainant was heartfelt and most genuine. She was a widow who had experienced severe financial difficulties following the death of her husband. She had been very reliant on her earned income from her former employer. The PUP payment was intended to replace this employer income. Other forms of employer support, such as the Wage Subsidy Scheme, were not possible as the former employer, a well-known Commercial name, had ceased trading in Ireland.

However, the Adjudicator has to have regard to the legal and statutory provisions governing the PUP scheme. It was set up under the Social Welfare (Covid-19) (Amendment) Act 2020.

As such it falls under the exemptions granted in Section 14 (1)(a) of the Equal Status Act,2000.

Accordingly, the complaint can have no proper Legal basis and has to be seen as Not Properly Founded.

The Complaint under the Equal Status Act, 2000 has to fail.

PUP Payment, Exemptions under Section 14 of the ES Act ,2000.