Complainant

Respondent

Parties

Bryan  Hogan

Department of the Environment, Climate and Communications

Representatives

Sarah Hogan

Act

Complaint Reference No.

Date of Receipt

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

CA-00055027-001

03/01/2023

The complainant referred a complaint to the Workplace Relations Commission on 3 January 2023. 

A respondent named to the complaint was the “Department of Environment, Climate, Communications and Transport”.

In the Form ES.1 attached to the complaint received, the complainant selected discrimination on grounds of disability and failure to provide him with reasonable accommodation as the unlawful treatment the subject of the notification.  The complaint detail provided was “multiple incidents in 2022”. 

The less favourable treatment of the complainant was expressed to include the following:-

“ESRI Research published September 2021 states “People with disabilities are more than twice as likely to experience poverty and deprivation as those without disabilities.” …

Yet, the DECCT Scheme for SEAI puts people with disabilities at a disadvantage.  The schemes for people without a disability i.e. wealthy people are much more comprehensive.

…”

The request for other information section of the Form ES.1 included a question about reasonable accommodations for retrofitting the homes of people eligible for the Warmer Homes Scheme.

The Minister for the Environment, Climate and Communications sets the policy underpinning the energy efficiency schemes which are administered by Sustainable Energy Authority of Ireland (“SEAI”), including the eligibility and general terms and conditions for the Warmer Homes scheme.

The Warmer Homes scheme is a free energy upgrades scheme, targeted at households deemed to be more at risk of energy poverty, due to lower incomes and/or disabilities and caring responsibilities.  The scheme is designed to be available to those most in need of the support.  SEAI manage all elements of these upgrade projects and the homeowner is not required to engage their own contractor. 

The Minister and the Department of the Environment, Climate and Communications are satisfied that the scheme terms and conditions are applied consistently to all applications. 

In referring his complaint to the Workplace Relations Commission, the complainant stated that it is one complaint, three respondents. 

Where there is more than one respondent named in a complaint received, the Commission’s practice and procedure is to allocate a unique reference number for each respondent. 

The relevant respondent to this complaint is the Department of the Environment, Climate and Communications having regard to the Form ES.1 content and the information provided by that body in response to the notification of the complaint against it.

In response to the notification of this complaint, information in relation to the Warmer Homes scheme was provided on behalf of the respondent and it was also submitted that the information contained in the complaint did not contain sufficient detail to enable a meaningful assessment of the case. 

On exchange of the respondent’s correspondence with the complainant, the complainant’s response of 19 May 2023 was “You can tell the Department to talk to [named individual] in SEAI.”

There followed a communication of 31 May 2023 from the complainant’s representative which presented options for resolution of this case.  I note from this communication that the representative refers to herself as the applicant in relation to the home upgrade project and the property owner.  It is apparent from this communication that the complaint concerns modifications for a home upgrade project.  The options mooted by the representative for resolution of the case are expressed to be regarding her case and reference “getting the best outcome for myself as the applicant”.

In general terms, the Equal Status Acts 2000-2015 (the “Acts”) prohibit discrimination in the disposal of goods and provision of services.

Section 3(1) of the Acts provides that 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,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

The discriminatory grounds in section 3(2) of the Acts include disability.

Section 4 of the Acts includes as discrimination a refusal or failure by a service provider to reasonably accommodate the needs of a person with a disability by providing special treatment or facilities.

Section 22 of the Acts provides that the Director General of the Workplace Relations Commission “may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.”

Birmingham J in considering strike out applications in O’N -v- McD & ors [2013] IEHC 135 stated as follows:

“…the words “frivolous” and “vexatious” are terms of art, they are legal terms and they are not used in a pejorative sense. They merely mean that the plaintiff has no reasonable chance of succeeding and that, because there is no reasonable chance of success, it is frivolous to bring the case. By the same token it imposes a hardship on the defendant if he has to expend time, effort and money in defending an action which cannot succeed and that is regarded as vexatious…”

The jurisdiction to dismiss a case under section 22 of the Acts is concerned with ensuring that the right to refer a case to the Commission is not abused and that a respondent is not required to defend proceedings which are frivolous, vexatious or misconceived.

The person entitled, or having locus standi, to pursue a case under the Acts is a person who claims that prohibited conduct has been directed against him or her.  A respondent is a person alleged by a complainant to have engaged in prohibited conduct.

The subject matter of this complaint concerns works and accommodations available under a home energy upgrades scheme managed by SEAI, a body under the aegis of the respondent.  Qualifying homeowners in receipt of certain welfare benefits may be eligible to receive home upgrades under the relevant scheme.  

Having regard to a submission received on behalf of the complainant, the complainant’s representative is the qualifying homeowner and applicant under the scheme. 

The complainant asserted that the scheme puts people with disabilities at a disadvantage however this does not give him the right to seek redress under the Acts.  The complainant was not the applicant for, or recipient of a service under the scheme. 

I therefore find that the complainant does not have locus standi to pursue this case against the respondent and that the case against the respondent is frivolous, vexatious or misconceived.

In the circumstances I am dismissing this claim in accordance with section 22 of the Acts.

For the reasons set out above, my decision is to dismiss this claim in accordance with section 22 of the Equal Status Acts 2000-2015.  

Equal Status Acts – Discrimination – Disability - Section 21 – Locus standi – Right to seek redress