Complainant

Respondent

Parties

Tracy  McDonnell

Department of Social Protection

Representatives

  Self Represented

Claire 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-00054221-001

16/12/2022

The Complainant submitted a complaint that she was discriminated in the assessment for an Exceptional needs payment because she was disabled (schizophasia) and because she was not married or had children.

The Complainant submitted a claim to the Respondent for the urgent (exceptional need) repair of her car which was denied by the Respondent. The Complainant also submitted a number of other requests for assistance.

The request was submitted in July 2022 and the Complainant informed the Respondent her claim was urgent. The Complainant followed up a number of times and was told there were a number of urgent claims being dealt with.

The Complainant was upset with the delay in putting the claim on the system and contacted the Ombudsman.

The Complainant alleged the damage caused to her by the decision to refuse the claim could have been foreseeable. The Complainant alleged the decision to refuse her claim for car repairs was intentional or reckless in nature and affected her ability to move around.

The Complainant alleged it is a very serious case of discrimination, defamation and false imprisonment by the State department.

The Complainant alleged the decision has had very significant health implications for her.

The Complainant alleged had she had to show the Designated Officers (Ms. Mulcahy) refusal letter to her community health nurse and it was very embarrassing.

The Complainant stated her case was a genuine case of hardship and did not understand why it was refused and queried what was an exceptional case.

The Complainant stated there were many times she had to go without food, medicine and medical appointments because she had no transport and could not afford a taxi and was relying on her car to do basic daily things and move around freely.

The Complainant alleged she became depressed at being made to feel worthless in the eyes of the Designated Officer and the State.

The Complainant alleged that it would have been a reasonable thing for the Designated Officer to do was to give her the market price for a car of the same year if the Designated Officer thought that passing the NCT would be a problem. This was never suggested or explored by the Designated Officer

The Complainant’s claim is one alleging discrimination on the grounds of disability, civil status and family status under the Equal Status Acts 2000-2018 (the “Equal Status Acts”) arising from the Respondent’s partial refusal to award her an Exceptional Needs Payment under section 201 of the Social Welfare Consolidation Act 2005 (the “SWCA 2005”). This section provides: “A designated person or Designated officer may, in any case where the designated person or Designated officer considers it reasonable, having regard to all the circumstances of the case, so to do, determine or decide that supplementary welfare allowance shall be paid to a person by way of a single payment to meet an exceptional need which is not necessarily unforeseen.”

The following is a chronology of the key events and the relevant correspondence between the Complainant and the Respondent. The Complainant, who was in receipt of disability allowance, made an application for an Exceptional Needs Payment, which was received in the Department’s Western Support HUB. The application sought assistance for car repairs, a fridge, home heating oil, an ESB bill, a dentist bill, a wardrobe and a mattress. The Complainant was interviewed over the phone by Ms. Mulcahy, Community Welfare Officer, in relation to the application. She was awarded €1850.00 in respect of all items except car repairs. Further information was sought in relation to the car repairs request and an email issued to the Complainant seeking a copy of the car repair bill. The Complainant was requested to submit a number of additional documents, including current motor tax, and current insurance discs and two further quotations for car repairs. She was also asked to complete a repeat application form and a second application was received from the Complainant, and several emails were sent by her around this time seeking updates on when her application would be processed.

A decision issued to the Complainant from Ms Mulcahy, the Designated Officer. The decision found that the application was refused for the following reasons: “1. quotation for car repairs exceeds the value of the car in 2020 therefore your car in not economical to repair – as only one quotation was received – l am unable to establish if the quote is value for money 2. your car has no NCT – and therefore should repairs be carried out this is not a guarantee that your car is roadworthy and will pass the NCT. 3. the insurance on your car expired Oct 2021 – by your own admission the car has not been on the road for at least 6 months – therefore the need is not considered sudden or exceptional. Insurance disc for vehicle XYZ  submitted implies that you have access to another vehicle”.

The decision was reviewed by a Review Officer, Ms. Susanna Maples, who confirmed the original decision of the Designated Officer. Ms. Maples caried out a second review when additional correspondence was brought to her attention. Ms. Maples could find no reason to overturn the original decision of 21/09.22.

The Department received an ES1 form dated 11/11/22 from the Complainant. On 13/12/22 the Department sent an ES2 response form and the Complainant then submitted a complaint form to the WRC. During May-Aug 2023 the Complainant submitted additional supporting documentation, medical evidence and legal material in support of her complaint.

The Respondent denies the refusal to the Complainant of the Exceptional Needs Payment in question amounts to discrimination under the Equal Status Acts and does not accept that there has been a breach of the Equal Status Acts as alleged, orat all.

Without prejudice to the foregoing, the Respondent relies on the following core arguments outlined below in support of its defence herein. (a) The Complainant’s case should be dismissed on grounds that is frivolous, vexatious and misconceived, and she has failed to establish a prima facie case of discrimination as required under the Equal Status Acts; (b) Without prejudice to the foregoing, should the Commission find that the Respondent has treated the Complainant less favourably than a comparator on discriminatory grounds (which is denied), any discrimination in the provision of a service is saved by the exception in Section 14(1)(a) of the Equal Status Acts.

Accordingly, it is contended that there is no basis to the complaints made against the Respondent and that the Adjudication Officer of the WRC assigned to this case should dismiss them in their entirety. Each of the foregoing grounds of opposition is addressed in turn below.

Additionally, the Respondent made four preliminary observations relating to this claim:

First, in her ES1 form, the Complainant details arguments relating to the specifics of her claim for car repairs which have no relevance to a claim of discrimination. For instance, she argues against the finding that her car was not economical to repair. The Complainant’s arguments in relation to these points must be disregarded.

Second, it was submitted that the WRC has no jurisdiction in respect of the Complainant’s allegations concerning personal injuries, and the medical evidence adduced must be disregarded.

Third, the WRC’s remit in this case is to investigate whether a breach of the Equal Status Acts has occurred. Insofar as the Complainant relies on additional causes of action such as an alleged breach of the constitutional right to fair procedures, alleged defamation, malfeasance in public office, or “breach of duty of care”, there is no scope for the WRC to investigate such allegations.

Fourth, the Complainant’s ES1 form references religious discrimination, as does material submitted in May 2023. However, she has not alleged religious discrimination in her complaint form. Accordingly, no complaint of religious discrimination is properly before the WRC. 

Under section 3(1) of the Equal Status Acts, discrimination is defined as occurring “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation” on one of the discriminatory grounds.

Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to her. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

The Complainant must therefore establish that she has been treated less favourably by the Minister than another person in comparable circumstances on the grounds of disability, family status and civil status, in order to raise a prima facie case of discrimination.

In Mitchell v Southern Healthboard [2001] ELR 201, the Labour Court considered the requirements for a prima facie case: “The first requirement… is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove onthe balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

In Graham Anthony & Company Ltd v Margetts EDA 038 the Labour Court further commented on the potential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established and stated as follows: “The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Equal Status Act is not sufficient in itself to establish a claim for discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

 In Arturs Valpeters v Melbury Development Limited EDA0917 (can be located in WRC database), the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows: “T]he Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts oncredible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

 In this case, the Complainant merely asserts, without any supporting evidence, that she was discriminated against. In section G of her complaint form she states she would have been treated more favourably if she did not have schizophrenia and or had dependent children and was married. She states that she would have been treated more favourably if she had children who needed to be driven to school and/or needed medical attention.

In section 4 of her ES1 form she mentions that she was asked by Ms Mulcahy whether she has any children. She states that she fails to understand what difference that makes to an application. She states (at page 3): “If I had children or did not have a disability or protection order then I believe wholeheartedly that I would not have been treated this way and my application would not have been refused.” The Complainant also states, “Most people have a negative view of schizophrenics”.

An Exceptional Needs Payment is a means tested payment. The Minister (in practice her officials) must, under section 201 of the SWCA 2005, determine, after “having regard to all the circumstances of the case”, that a person needs a payment to meet an “exceptional need.”

 The Designated Officer considering the Complainant’s application for an Exceptional Needs Payment followed the Department’s standard approach in investigating a means tested payment. The Designated Officer sought to confirm that the details provided by the Complainant in her application form for the purpose of securing monetary support were accurate in every respect. The Officer was fully entitled to have regard to household circumstances and the household profile in deciding on the appropriate Ievel of assistance and support. Articles 18, 19 and 23 (Part 5) of Statutory Instrument 412 of 2007 provide that every claimant shall furnish such certificates, documents, information, and evidence as may be required by a Designated Officer for the purpose of deciding the claim.

The reason that the Complainant’s application for an Exceptional Needs Payment was partially refused was that her application for monetary assistance to cover the cost of car repairs did not meet the statutory test set out in section 201 of the SWCA 2005. This decision did not involve any discrimination against the Complainant.  The Complainant’s assertions about discrimination are misconceived.

Section 22 of the Equal Status Acts provides for dismissal of claims as follows: “22.— The Director may dismiss a claim at any stage in the investigation if he or she is of opinion that the claim has been made in bad faith or is frivolous or vexatious, misconceived or relates to a trivial matter.”

The recent case of A Complainant v A Newspaper ADJ-00037560 decided on 17 January 2022, involved a similar bare assertion of discrimination without any supporting facts. The Complainant alleged that he was discriminated against by the Respondent on grounds of disability by its failure to publish a press release sent in by him and its failure to contact him regarding same. The Adjudication Officer noted the onus resting on the Complainant to establish that he was discriminated against on at least one of the stated grounds of discrimination. She specifically approved the recent Court of Appeal decision in Olumide Smith v Office of the Ombudsman and others [2022] IECA 99.

In Smith, it was found that the Appellant failed to adduce any evidence at all, never mind evidence sufficient to meet even the low threshold of a prima facie case of race discrimination, and that the Appellant’s claims amounted to no more than mere assertion. The Adjudication Officer quoted from para. 54 of Smith: “It is clear that the appellant has researched and fully understands the law and the legal principles applicable to the complaints that he has advanced under the Equal Status Acts. However, he resolutely refuses to accept that such complaints, in order to succeed, must be grounded on sufficient evidence to establish, in the first instance, a prima facie case of racial discrimination. It is difficult to avoid the conclusion that, faced with a decision that he does not like, or that is in some way adverse to his interests, the response of the appellant is invariably to accuse the decision-maker of racial discrimination. This is a wholly unacceptable abuse of process, is highly and gratuitously offensive to those against whom he levels such unsubstantiated complaints, and perhaps worst of all, is potentially undermining of the very processes put in place by the Oireachtas to root out discriminatory practices and to provide redress to those affected by such practices where they are truly warranted. This is so not least because of the very significant time required to be expended by various organs of the State in dealing with the appellant's spurious complaints.” 

 The Adjudication Officer in A Complainant v A Newspaper found that there were various similarities in respect of Smith and the claim she had to decide. She was satisfied that the claim was misconceived, and on that basis, dismissed the complaint in accordance with section 22 of the Equal Status Acts. It was submitted that this complaint falls into the same category. The Complainant has accused Department officials of discrimination without a scintilla of supporting evidence necessary to establish a prima facie case of discrimination.

 The case of Mrs S and her seven children v The Minister for Employment Affairs and Social Protection (DEC-S2019-001)  is of specific relevance to this case. It concerned a claim by the Complainants that they were discriminated against by the Respondent on the grounds of their race and membership of the Traveller Community in relation to the manner in which their application for an Exceptional Needs Payment for homelessness assistance was dealt with.  The Adjudication Officer who heard the case found that the Complainants failed to establish a prima facie case of discrimination. The Adjudication Officer’s observations are notable: “6.5 In considering this issue, I note that the provisions of Section 201 of the Social Welfare Consolidation Act, 2005 confers the power upon a Designatedofficer to grant a supplementary welfare allowance by way of a single payment to meet an exceptional need (i.e. by way of an Exceptional Needs Payment). It is clear that applications for such payments are considered on an individual basis and can only be granted in circumstances where the applicant satisfies the relevant criteria and requirements governing the Scheme under which the payments are administered. I heard cogent and compelling evidence from the Respondent’s witnesses regarding the manner in which applications for Exceptional Needs Payments are administered and I accept the Respondent’s evidence that uniform requirements in relation to the provision of a receipt in the specified format are applied to all applicants for an Exceptional Needs Payment, irrespective of their ethnicity or Traveller identity. 6.6 Having regard to the totality of the evidence adduced, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the Complainants were treated less favourably on the grounds of their Traveller identity and/or ethnic origins in relation to the manner in which the requirements to avail of an Exceptional Needs Payment were applied in the circumstances of the present case. Accordingly, I find that the Complainants have failed to establish a prima facie case of discrimination in relation to this complaint on the grounds of their membership of the Traveller community and/or ethnic origins.”

Similarly, the Minister submits that the Complainant received an individual and careful assessment of her case. She has not demonstrated that the administration of the Exceptional Needs Payment assessment in her case involved any discrimination.

Section 14(1)(a) of the Equal Status Acts excuses actions required under an enactment or court order, and provides, in relevant part: 10 “14.(1) 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, (ii) any act done or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or (iii) any convention or other instrument imposing an international obligation on the State,”

It has been clearly set out above in Section I that section 201 SWCA 2005 entitled the Minister to consider all of the personal circumstances of the Complainant in order to determine whether she was entitled to an Exceptional Needs Payment. The Department officials involved in her case were required to inquire into matters such as whether she had dependants. Thus, the conduct the Complainant complains of was “required by or under” an enactment, for the purposes of section 14(1)(a) of the Equal Status Acts.

In Seamus Eager v Minister for Employment Affairs and Social Protection ADJ[1]00028241 (Tab 6 of the Book of Authorities), decided on 14 June 2021, Mr Eager claimed age discrimination when his application for the PUP was rejected on 9 April 2020. The Adjudication Officer decided that the claim had no prospect of success, as it fell within the exemption granted by section 14(1)(a). The following passage is worth quoting in full: “I note that in his commentary on Section 14(a) of the Equal Status Act 2000 in the Annotated Statutes for 2000 by TJ McIntyre (at page 8-28), he stated: “Actions required by law: This exception covers actions which are required to be taken by or under statute, court order, European Union Law or International Convention. Two limitations must be noted in relation to its scope. In the first place, it is limited to actions which are required by the relevant laws. Consequently, it would not appear to apply where, for example, a statute authorises discriminatory treatment in a way which is permissive but not mandatory. Secondly, the exception as far as it relates to domestic law, is limited to actions required by or under “any enactment or order of a court”.This wording makes it clear that the exception does not apply to discrimination provided for under administrative schemes or departmental circulars unless and insofar as these have statutory underpinning.” In a legal opinion sought by the Equality Tribunal in relation to the construction of Section 14 (a) (i) in respect of another case the Senior Counsel’s opinion included: “[the complainant] has chosen to make a claim under the Act, rather than proceeding by way of judicial review. If he wishes to challenge an administrative decision that is ordinarily done by way of judicial review. If he wishes to assert that a statutory regime violates his personal rights as a citizen, it is open to him to so by constitutional challenge, whether by way of judicial review, or by plenary proceedings. Likewise, if he wishes to assert that the regulations contravene the European Directive, he can issue proceedings to assert that claim. What Section 14 (a) (i) makes clear is that he is not entitled to avail of the Equal Status Act 2000 for the purpose of impugning a statutory regime as one might do for example in a constitutional challenge.” 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).” The Adjudication Officer found that the claim had no prospect of success, and was “misconceived”, and he dismissed the claim in accordance with section 22(1) of the Equal Status Acts.

The Complainant’s case must also be dismissed for the reasons set out above, it is submitted on behalf of the Minister that the Complainant’s complaints should be rejected in their entirety. First, the Complainant’s claims are frivolous, vexatious and misconceived, as she asserts she was discriminated against on grounds of disability, civil status, and family status, but fails to provide any supporting evidence for these serious allegations. Second, the conduct complained of was required by an enactment, specifically section 201 SWCA 2005, and therefore it is not prohibited conduct under the Equal Status Acts, due to the exemption in section 14(1)(a) of these Acts. Each of these arguments is made without prejudice to the other, and each warrants dismissal of the claim on its own.

The Law;

3(1) 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,

4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

It is well-established law that the Complainant is required to present, in the first instance, facts from which it can be inferred that they were treated less favourably than another person, is, has been, or would be treated on the basis of one or more of the nine discriminatory grounds cited.  In Southern Healthboard v Mitchell the Labour Court stated:

“  The first requirement is that the Complainant must establish facts from which it may

be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.     It is only if those primary factors establish to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of  discrimination, that the onus shifts to the Respondent to prove that there is no  infringement of the principle of equal treatment.” 

 In the case of Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64 the Court stated:“This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts will vary from case to case and there is no closed categories of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Complainant submitted an ES1 form to the Respondent and this was replied to by the Respondent.

At the Hearing the Complainant queried, in her opening statement, information from the Respondent on how many car repairs had been authorised in the last 5 years, that there was no evidence of her incapability to pay her tax and insurance, that no repairs to the engine was needed and that were married people treated differently to single persons. She stated she needed 24 hour transport due to her disability and mental state. She felt demeaned and suffered emotional distress. She advised she submitted a Social Worker letter to support the situation. She suggested the Respondent had a duty of care and it neglected that duty and there was no reasonable accommodation for her circumstances. She queried why two quotes for the car repair were not sufficient and she could not afford another estimate. She stated she felt ignored by the Respondent and her complaint was not frivolous or misconceived. She advised she had medical evidence confirming her disability and medical status. She advised she felt she had addressed all the Designated Officers queries and alleged that they refused to engage with the Complainant once she submitted complaints to the Minister and the Ombudsman. She felt she clarified all the queries and was ignored. She alleged the Respondent had knowledge of her disability and she should not have been ignored.  She felt she was being disadvantaged by her lack of funds and could not afford a recovery truck to collect her car and bring it to another garage. She felt there was no reasonable accommodation for her circumstances. She advised she was under significant stress fort the last two years and this contributed to her type 2 diabetes. She advised a Consultant was preparing a medical assessment in a Cork Clinic. She advised before she was treated she was looking for part time work. She advised she was having bizarre thoughts due to her pain She advised she received 220 disability payment per week. She advised she could not travel to shops or a chemist easily.    She felt the Respondent should have offered her the value of a car as the same make and year as her car. She alleged her phone calls and emails were ignored. She alleged she suffered physical and emotional harm. She alleged her car had gone up in value by 67% due to Brexit. She advised it was more than mere presumption that her injuries were caused by the events and she had been in contact with PIAB as a result. She alleged there was no justification for refusing her request.

The Complainant was cross examined on her evidence by the Respondents Representative. It was put the Complainant that Sec 201 applied to her situation (means test) and the Complainant accepted this.  It was put to the Complainant that she was not automatically entitled to the exceptional needs payment and the Complainant replied there was no limit to the number of requests and she had exhausted all other opportunities. It was put to the Complainant that she did not satisfy the means test and the Complainant did not accept this

It was put to the Complainant that the support does not provide for all claims and the Complainant replied it was an individual case. The Respondent queried if the Complainant accepted they were entitled to enquire about dependants on the application form and that all details are required to be completed on the form. The Complainant responded if it says so.

The Complainant was asked did she agree she received 1850 Euros as an exceptional needs payment, approved by the Designated Officer on December 8th 2022 and the Complainant stated this was only a partial payment of her claim. The Complainant was informed the Designated Officer’s Supervisor in her review of the claim decided two quotes for the repair of the car were insufficient and did she agree her insurance and NCT for that car was out of date and the Complainant advised she had submitted old insurance for another car and the insurance had stopped in October 2021. She was asked how she bought the car and the Complainant advised she had borrowed from her brother. The Complainant was asked did she accept the Respondents reasons set out in their 21/9/2021 letter and tbe engine modifications were not a practical solution. The Complainant responded “no” .The Complainant was asked did she agree there was no refence to a disability or children in her letter and the Complainant replied “of course not”. The Complainant was asked did she believe her circumstances were reviewed prior to the issue of the second denial letter and she replied “No”. and that her additional documentation was not taken into consideration. The Complainant advised her insurance had expired and the car was off the road for 6 months.

The Complainant was asked did she agree Ms. Staples carried out a final review of the Designated Officers decisions and the Complainant did not believe either Ms. Stples carried out a full review and did not believe the Designated Officer carried out a full review also. The Complainant was asked was she aware she had the right to appeal the decision to a Court and she replied “yes  I was”. The Complainant was asked that any judicial review request against the decision would be 3 months out of time and the Complainant replied none taken and that it was a hypothetical scenario or situation. The Complainant was asked would she agree that an Applicant had ever applied with children for this type of payment and that not every person without a disability would receive this payment. The Complainant advised she could submit a hypothetical comparator and that this was a legal concept. The Complainant was asked did she agree that she had no legal claim for victimisation and that the claim was only for discrimination and the Complainant replied “I accept that.”

In their concluding submission the Respondent stated that the merits of the decision stood up to scrutiny, that the impact of Brexit on the value of the car was not valid, that a private issue (not being disclosed her for sensitivity reasons) was not critical to the assessment conducted and that the need for transport 24/7 was not proven and that these were not issues for the Adjudication Officer to consider. They argued that all the primary evidence put before the Designated Officers were not before me and that all remedies available to the Complainant about the Department decision had been exhausted. That the Judicial review process to appeal the decision was the appropriate forum and that the timeframe for that was out of time. The Department denied any personal allegation of bias against the Complainant and denied that any injuries or stress she may have suffered were personal and not related to the Department decision not to make an exceptional payment to repair or replace the Complainants car or give her the value as a lump sum. The Representative stated that any claim about malfeasance in public office or constitutional rights were not before the Adjudicator. The Representative advised that the ES1 form references religious discrimination but in the WRC form that issue was not ticked.

The Designated Officer, Ms Mulcahy, then gave evidence to the Hearing. Ms. Mulcahy was asked by the Respondent Representative did she make the decision on the exceptional needs payment and she replied “yes”. Ms Mulcahy was asked the explain the exceptional needs payment and advised any person can apply for it, that it is means tested and holistically reviewed and the decision is based on if the Designated Officer establishes there is a need for it. She was asked did she take regard of all the circumstance in  Sec 21 and she replied “yes”. She was asked why did she ask about children and she advised she is required to establish all of the housing composition irrespective of status, who is living there, and if there are children or not. She advised a partial payment was made in August 2022 and she was asked why she asked who else was living in the house and the Designated Officer advised she had to get an overall view of the situation and ensure value for money granted and if the need could be met some other way. The  Designated Officer was asked if the Complainant had children would she have got the payment and the Designated Officer replied that this was not relevant. The Designated Officer was asked if a person claiming the payment had children would they automatically get the payment and the answer was “absolutely not”. The Designated Office explained that she gave her reasons for not approving the payment by letter and they don’t just give point blank refusals but explain the reasons and in this case the car the Complainant wanted repaired was valued at 2000 Euros and the repairs estimate was 2600 Euros. She advised the car had no NCT and with this cost and with the insurance and car tax cost the money would not have got the car back on the road. She advised decisions are internally audited and approving this request did not make sense. Ms Mulcahy advised she thought about the claim and reflected on it before making her decision and her Supervisor had over view of the documents and that the documents are reviewed in Athlone to ensure they are correct. She advised she considered all the circumstances before making her decision.

Ms Mulcahy was cross examined by the Complainant. The Complainant put it to Ms. Mulcahy that it was because she had no children that she did not receive the payment. Ms Mulcahy stated this was not taken int account at any time.  It was put to Ms. Mulcahy was the disability and the fact they she was living in a rural area taken into account and Ms. Mulcahy replied she took everything into account. The Complainant was asked was she aware of the correspondence received about her and Ms. Mulcahy replied that any correspondence was received by Ms. Maples who was in a different location and unknow to Ms. Mulcahy at the time. Ms Mulcahy confirmed she received the Complainants letters of complaint though her Supervisor. Ms..Mulcahy advised she gave the Complainant the maximum she could give.

Ms. Mulcahy was then redirected by the Respondent Representative. She was asked what is meant by necessary and unforeseen. Ms. Mulcahy advised a claim can be lodged for up to 6 months. She advised she got the car value from the insurance certificate and in reply to the question about 2nd hand car values increasing due to Brexit Ms. Mulcahy replied she was not a Mechanic and did not know if prices had gone up as a result. Ms. Mulcahy advised that the amount claimed in exceptional needs is not always the full cost and everything needs to be taken into account i.e the additional costs if the payment is approved. Ms. Mulcahy was asked did she approve everyone who asks for car repairs and she advised some are approved and some not, based on the circumstances. Ms Mulcahy was asked why did she ask is there a bus service in the area and she stated she has to ask about alternative transport means.

Mr. Lawlor Assistant Principal Officer then gave evidence to the Hearing. He advised he looked after Kerry and Limerick and had managerial responsibility for social welfare. He advised he had a managerial role on the guidelines fo social welfare payment and had 18 staff reporting to him.

He advised the Exceptional Needs Payment is a one off payment based on exceptional or household payment needs and each case was looked at based on criteria and each case is individual. Mr. Lawlor was asked by the Respondent Representative was it fair to say the scheme is complex. Mr. Lawlor replied it is a discriminatory payment assessed on a case by case basis. The Representative advised 1850 Eoros was paid to the Complainant and what was the process. Mr. Lawlor advised each Applicant has the right of review of any decision by an Appeal Officer and if further information come to light it is reviewed again and ultimately an Applicant has the right to appeal any decision to the High Court. Mr. Lawlor was asked about the illustration on line about payments for car repairs and he advised this was just an illustration and you may not be entitled to it. Mr. Lawlor was asked about double payments and he advised there was a lot of stress on families at present and they were trying to alleviate their individual needs. Mr. Lawlor was cross examined by the Complainant and asked if he would confirm two quotes are sufficient. Mr. Lawlor replied. he discussed the Complainants case and only one quote was received in her case and she as advised not to take the car back on the road. The Complainant asked why was an alternative not offered and Mr. Lawlor replied they would only deal with the specific request.

The Complainant closed her case by stating her case was similar to the hypothetical case on the Department website and that the people on the website had no disability and were married. The Respondent closed their case stating that no prima faciecase had been established and the complaint was excluded by Sec 141A of the Social Welfare Act.

I note that the Complainant submitted a number of further letters and submissions to the WRC post the Hearing and these contributions cannot and have not been considered by the Adjudicator in my Decision as further post hearing submissions were not agreed by the parties at the Hearing.  

In assessing this complaint, while I have every sympathy for the Complainants situation, the complaint stands or falls on whether firstly, she had made out a prima facie case that she was discriminated against and if established, was she then discriminated against on the grounds of her disability and family status. The decision to refuse part of her claim for exceptional needs (approximately half the claim was paid) appears to have greatly upset the Complainant.  However, all the evidence put before me suggests that the decision was made totally impartially by Ms. Mulcahy and without any inference whatsoever of bias or discrimination against the Complainant. I find Ms Mulcahy applied her judgement fairly, approved half of the Complainants requests, did not show any bias or discrimination on any of the grounds alleged and had genuine,non discriminatory grounds, for seeking further information and evaluating and then refusing a payment for repairs to the Complainants car. This refusal was not based on the Complainants disability or family status. The decision was made on sound financial grounds on the basis of the economic cost to replace the car, the additional costs of putting the car on the road, the fact that the Complainant had only submitted one quote and had been able to operate without the car for some months.  The decision was supported by a Review Office and by her Manager. A Designated Officer is distributing public funds and is accountable for their reasonable distribution and subject to audit of those payments and decisions made must stand up to that scrutiny. The website example quoted by the Complainant of a family getting a payment for a car repair is not cause for alleging discrimination as it is only an illustration of what may be approved and the critical thing is each case is assessed on its individual merits. The justifications provided by the Complainant for that particular exceptional payment did not pass the legitimate analysis by the Designated Officer to approve that payment.  The Complainant had the right to seek a Court review of the decision but declined the opportunity to do so.

I decide that the Complainant has failed to establish any prima facie facts as per Michell v Southern Healthboard “facts from which it may be presumed that the principle of equal treatment has not been applied” and the Complainant has not established that prohibited conduct did occur and the burden of proof does not transfer to the Respondent.  I decide the Respondent did not engage in prohibited conduct under the Act.

The Complainant alleged at the Hearing that Ms Mulcahy perjured herself in her evidence but then withdrew this suggestion. In post Hearing correspondence to the WRC the Complainant again suggested Ms Mulcahy committed perjury. I have examined this claim and find there is no evidence whatsoever to support the claim that Ms Mulcahy committed perjury and dismiss this suggestion outright. Ms Mulcahy only sought, by seeking a further application, for the Complainant to get additional quotes, to the one supplied for the repair of her car. This was a reasonable request. I feel obliged to caution the Complainant against repeating this unfounded allegation. I find the Complainant has not established a prima facie case of unequal treatment on the grounds of her disability and family status and the Complainant has not been discriminated against.

There was a request from the Complainant to anonymise this decision but in light of the decision in Zalewski regarding open justice and the lack of “special circumstances” to justify this action I have declined this request. In the circumstances where a party to the Hearing has been accused of perjury, which has been dismissed outright, I believe they are entitled to the decision not being anonymized as a result of this allegation.

Discrimination