Complainant

Respondent

Parties

Adrian  Caulfield

Legal Aid Board

Representatives

  Self Represented

 Legal Aid Board 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-00045880-001

29/08/2021

The Complainant alleged he was discriminated against by denying him the provision of a legal service to litigate a claim under the Civil Legal Aid Act 1995 because of his disability and civil status.

The complaint was submitted in late 2021 and a first Hearing was scheduled, due to Covid, for November 2022. Due to the Complainants medical condition, verified by a Medical Consultant, he was unable to attend a hearing into the compliant until April 2024. At the Hearing the Complainant relied on his written submission and the Respondent also relied on their written submission and a Respondent Representative gave oral responses under affirmation to questions from the Complainant. At the end of the hearing the Complainant requested that the Adjudicator seek additional information/documents under Section 34 of the Act from the Respondent and the Complainant was given four weeks to submit the information he sought for consideration.  No request for the Adjudicator to seek information were supplied by the Complainant. The Adjudicator then wrote to the parties and advised that he would make his decision on the written submissions only (as allowed for under the Act) and the brief submissions at the hearing and advised the parties they would be granted a further hearing if requested within 42 days. A further hearing was not requested by either party within 42 days.

The Complainant relies on a disability allowance payment from the Department of Social Protection. He has been in receipt of this payment since 2016.

The Respondent, the Legal Aid Board, is a statutory body established under the Civil Legal Aid Act 1995 (“the 1995 Act”). The main functions of the Respondent are defined under Section 5(1)(3) of the 1995 Act, which states:

“(1) The principal function of the Board shall be to provide, within the Board's resources and subject to the other provisions of this Act, legal aid and advice in civil cases to persons who satisfy the requirements of this Act.

(3) The Board may perform any of its functions through any of its members or any member of its staff duly authorised by the Board in that behalf.”

The Complainant alleged that prohibited conduct, as defined by the ES Act, first occurred in 2010 with regards to an application for legal aid in a civil matter regarding personal injuries resulting from a trespass and assault.

The Complainant alleged that a second instance of alleged prohibited conduct occurred in 2019 with regard an application for legal advice and/or legal aid in another civil matter seeking damages for personal injuries.

The Complainant alleged that a third instance of alleged prohibited conduct occurred in 2020 with regard an application for legal advice and/or legal aid in a very complicated civil matter against a number of State agencies and persons in the State’s employ seeking damages for personal injuries, medical negligence and human rights abuse. This issue continued into 2021 when the application was finally not allowed.

The Complainant alleged that these continual refusals by the Respondent to provide adequate legal advice and/or legal aid establish a trend of discrimination (direct and indirect), harassment, discrimination based on a disability, and failing to provide reasonable accommodations under the civil status, family status, religion, disability, race, and victimisation grounds and seeks redress under Section 21 of the ES Act.

On the 24th of July 2021, the Complainant served his ES.1 compliant on the Respondent.

On the 11th of August 2021, the Respondent made its reply using the ES.2 form.

On the 29th of August 2021, the Complainant then submitted a complaint to the Workplace Relations Commission within time.

The Complainant set out that he understood that the onus is on the Complainant in the first instance to establish a prima facie case of alleged discrimination (direct and indirect), harassment, discrimination based on a disability, and failing to provide reasonable accommodations under the civil status, family status, religion, disability, race, and victimisation grounds.

The Complainant alleged that legal advice and/or legal aid was never granted because of the Complainants legal actions were against other state agencies and/or organisations in which the Government had a shareholding in at the time and as a result he suffered discrimination and victimisation. Whilst doing this, the Complainant alleged that the Respondent knew that the Complainant did not have the financial resources to engage the services of a private solicitor and barrister to seek restitution for damages and the gamble was that his claims would fall away over time.

The Complainant set out the requirement under the Act. For the Complainants complaint to succeed it is for the Complainant to establish facts of prohibited conduct referred to herein where the Complainant was “treated less favourably” than another person had been or would have been “in a comparable situation” which exists, existed but no longer exists, may exist in the future, or is imputed to the person concerned.

Or, where a person is associated to another person 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 similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Or, 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.

The Complainant set out the details of his issues with the Respondent in 2010 and 2018. In both cases the Complainant was denied the provision of a legal service by the Respondent to pursue personal injury/civil cases against third parties.

On the 3rd of May 2018, the Complainant was the victim of an assault and robbery while in Dublin. Whilst trying to obtain medical treatment at a particular Hospital the Complainant was arrested. The Complainant alleged that this was a malicious arrest. While in custody the Complainant alleged that he was the victim of further Garda ill-treatment and misconduct, in particular, the Complainant alleged he was not allowed to obtain medical treatment for his injuries and/or the member in charge at the Garda Station did not summons a doctor, or to cause a doctor to be summonsed, to treat the Complainants injuries and/or the Complainant’s request to be removed to a hospital to receive medical treatment was refused by the member in charge.

On the 14th of January 2020, the Complainant sought legal advice and/or legal aid with respect to the alleged Garda ill-treatment and misconduct.

In a letter dated the 20th of March 2020, the Respondent refused to grant legal advice and/or legal aid. In this letter the Respondent cited Sections 24(b) and 28(2)(c) and (e) of the 1995 Act as grounds for not granting legal advice and/or legal aid.

Section 24(b) states:

“Without prejudice to the other provisions of this Act a person shall not be granted legal aid or advice unless, in the opinion of the Board—

(b) a solicitor or barrister acting reasonably would be likely to advise him or her to obtain such services at his or her own expense.”

And Section 28(2)(c) and (e) state:

“(2) Subject to sections 24 and 29 and the other provisions of this section and to regulations (if any) made under section 37, the Board shall grant a legal aid certificate under this section to a person if, in the opinion of the Board—

(c) the applicant is reasonably likely to be successful in the proceedings, assuming that the facts put forward by him or her in relation to the proceedings are proved before the court or tribunal concerned,

(e) having regard to all the circumstances of the case (including the probable cost to the Board, measured against the likely benefit to the applicant) it is reasonable to grant it.”

The Complainant appealed this decision on the 4th of April 2020. On appeal, the Respondent upheld their decision to refuse legal advice and/or legal aid in a letter dated the 28th of April 2020.

The Complainant obtained new evidence to support his case and made a second application for legal advice and/or legal aid on the 9th of December 2020. This application was supported by a variety of new evidence. In a letter dated the 11th of June 2021, the Respondent once again refused to grant legal advice and/or legal aid after the Complainant provided substantial evidence with his second application. In this instance, the Respondent cited the non-existence of independent expert liability and causation reports, or medical expert reports to substantiate his claim and as such the Respondent was not of the opinion that the claim was sustainable. The Complainant appealed this decision. In a letter dated the 24th of June 2021 the Respondent made a final refusal to grant legal advice and/or legal aid and considered the matter closed.

In the most recent refusal to grant legal advice and/or legal aid, the Respondent relied on s.24(b) of the 1995 Act but failed to refer to s.24(a) which preceded it and any refusal to grant legal advice and/or aid should be taken in the full context of s.24. S.24(a) states:

“…a reasonably prudent person, whose means were such that the cost of seeking such services at his or her own expense, while representing a financial obstacle to him or her would not be such as to impose undue hardship upon him or her, would be likely to seek such services in such circumstances at his or her own expense” It is clear from the wording that the Act intended that if a person, who had the means to seek such legal services, would be likely to seek such services in similar circumstances.

Legal Advice is defined in s.25 as:

“…any oral or written advice given by a solicitor of the Board or by a solicitor or barrister engaged by the Board for that purpose under section 11—

(a) on the application of the law of the State to any particular circumstances which have arisen in relation to the person seeking the advice, and

(b) as to any steps which that person might appropriately take having regard to the application of the law of the State to those circumstances,

and includes any assistance given by such a solicitor or barrister, to any person in taking any such steps as are referred to in paragraph (b), whether by assisting a person in taking any such steps on his or her own behalf or taking any such steps (other than the institution or conduct, including defence, of civil proceedings) on the person's behalf.”

The criterion for obtaining legal advice is set out in s.26, which states:

“(1) Subject to sections 24 and 29 and to the other provisions of this section and to regulations (if any) made under section 37, the Board shall grant legal advice under this section to an applicant if, in the opinion of the Board, the applicant satisfies the criteria in respect of financial eligibility specified in section 29 and in such regulations (if any) as aforesaid.

(2) Subject to subsection (3), a person shall not qualify for legal advice in respect of—

(a) a criminal law matter unless the advice sought concerns the procedure by which legal aid may be obtained under the Criminal Justice (Legal Aid) Act, 1962 , in which case he or she shall qualify for such legal advice free of any contribution;

(b) the matters referred to in section 28 (9) (a);

(c) a matter concerning which the Board considers it would be possible for the person, without hardship, to obtain the appropriate advice without obtaining legal advice under this Act.

(3) Notwithstanding subsection (2) (and subject to the other provisions of this Act)—

(a) a person shall qualify for legal advice in respect of a conveyancing matter connected to a matter in which legal aid or advice has already been given, and

(b) a complainant in a prosecution for the offence of rape under the common law or under section 2 of the Criminal Law (Rape) Act, 1981 or of aggravated sexual assault under section 3 or of rape under section 4 of the Criminal Law (Rape) (Amendment) Act, 1990 , or of unlawful carnal knowledge under section 1 or 2 of the Criminal Law Amendment Act, 1935 , or of incest under section 1 or 2 of the Punishment of Incest Act, 1908 , shall qualify for legal advice free of any contribution.

(4) Where a person would qualify for legal advice, but for the fact that the advice sought concerns the application of the law of another State, such person shall be entitled to obtain such guidance or assistance in relation to the matter as the Board deems appropriate.

(5) Where a person obtains legal advice and subsequently obtains legal aid in connection with the same matter, the legal services provided will be deemed to be legal aid and all the conditions applying to legal aid, including the level of any contributions payable under section 29 by a person in receipt of legal aid, will apply, save that the level of any such contribution shall be reduced by any amount previously paid for legal advice in connection with such matter.

(6) The Board may require a person to whom it is granting legal advice to comply with such requirements as it reasonably considers expedient to enable it to satisfy itself that it is reasonable for the person to continue to receive legal advice.

(7) The Board may cease to grant legal advice under this section to a person where it considers that it is no longer reasonable for the person to continue to receive it and, in particular, where the person no longer satisfies the requirements in respect of financial eligibility specified in section 29 and in regulations under section 37.”

The Complainant stated he was denied the provision of the service primarily based on his disability and civil status and that he had insufficient funds to pursue the case himself and that his case had a reasonable ground of success.

The Respondent submitted a full legal submission on the complaint.

The Complainant contended that he was discriminated against by the Respondent on the grounds of civil status and/or disability. The Complainant in his notification to the Respondent dated 24th July 2021 claimed that he had suffered discrimination also on the grounds of race and religious belief. The Complainant then contended that the Respondent discriminated against him by harassing him, victimizing him, not providing him with reasonable accommodation due to his disability and in some other unspecified manner. The Complainant has offered no instance of discriminatory conduct on the part of any staff member of the Respondent that could amount to harassment or victimization and neither has he offered any instance of where reasonable accommodation on the grounds of disability was not afforded, or refused, to him. Furthermore, the Complainant offered no instance of how he was otherwise treated less favourably to any other person in a comparable situation.

The Respondent advised the Complainant had submitted ten separate applications for legal services between February 2010 and June 2021. Eight of the applications related to personal injury claims and two related alleged claims of medical negligence/Personal injury.

The Respondent denied that the provision  of a legal service was denied to the Complainant on any of the grounds submitted and submitted that the reason the service was denied was that there was no reasonable chance of success in pursuing the Complainants claim and this was in line with the provisions of the Civil Legal Aid Act 1995.

The Respondents denied all allegations of discrimination, harassment and victimisation as alleged by the Complainant and that the Complainant has failed to raise a prima facie case of discrimination, harrassment or victimisation and that the Respondent is not guilty of the alleged or any discrimination, harassment or victimisation as against the Complainant.

The Respondent, by letter to the WRC dated 21st September 2021, sought to have the

Section 3(1)(a) of the Equal Status Act, 2000 (as amended) provides that discrimination shall be taken to occur: “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”

 The various grounds of discrimination specified in section 3(2) of the Act and cover the grounds complained of by the Complainant.

Section 5(1) provides that a person shall not discriminate in the provision of a service, whether such provision is for consideration or otherwise.

Section 38A(1) provides that: 

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

Accordingly, section 38A(1) provides that it is for the Complainant to establish a prima facie case sufficient to raise a presumption of discrimination. Only once this has occurred does the burden shift to the Respondent to disprove the claim.

In Mitchell v Southern Health Board [2001] 12 ELR 201, the Labour Court set out (at 206) the process for determining when a Complainant has established a sufficient prima facie case such that the Respondent must meet the burden of disproving it, as follows:

“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, 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 these 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 was no infringement of the principle of equal treatment.” 

Accordingly, before the burden can shift to the Respondent to disprove the claim, an Adjudicator determining the matter must be satisfied that:

a. the Complainant has proven the primary facts upon which he/she relies in seeking to raise a presumption of discrimination, and

b. the proven primary facts are such as give rise to a presumption of discrimination.

I conclude that the only complaint within the scope of the Act relates to the last decision (June 24th 2021) of the Respondent and all other issues are statue barred as they occurred outside of six months from the date of referral of the complaint.

At the Hearing the Complainant relied on his written submission and asked Mr. Garret Searson, Managing Solicitor for the Respondent about his employment, which was nearly seven years and the areas he dealt with. Mr. Searson advised he dealt with all Courts including Tribunals, Refugee issues, High Court, Appeals Courts, Family law etc.  Mr. Searson was asked was there an average client for the Respondent and he advised there was not. Mr. Searson advised he had dealt with people on a whole range of issues and that once a claim fell within its merits criteria then it was dealt with by the Board.. He advised civil status and disability was not a relevant factor in the decision on the Complainants refusal of a service. He advised that if a person had a disability their case still had to have a reasonable chance of success to be taken on for legal aid. He stated they provide reasonable accommodation if required to a person with a disability. Mr Season confirmed to the Complainant that he had previously accepted for service cases of medical negligence, people with a disability, people on social welfare, civil cases and personal injury cases and confirmed these were mainly in the District and Circuit Courts. Mr. Searson denied the Complainants case was not taken on for any discriminatory reason.

The Complainant advised that in a letter dated the 11th of June 2021, the Respondent refused to grant legal advice and/or legal aid after the Complainant provided substantial evidence with his second application. In this instance, the Respondent cited the non-existence of independent expert liability and causation reports, or medical expert reports to substantiate his claim and as such the Respondent was not of the opinion that his claim was sustainable. The Complainant provided the Respondent 17 different documents to justify his appeal why he should be granted legal aid and the Respondent set out its grounds in reply for not allowing the request. It is not my function to go behind this decision but instead to determine if the Complainant had grounds to justify that the Respondents decision was a prohibited conduct based on grounds alleged by the Complainant.

During the course of the Hearing the Complainant briefly set the primary grounds which he alleged the discrimination was based but seemed to be attempting to establish a ground to base his complaint on by his line of questioning of Mr. Searson. He was vague regarding his disability and provided no medical evidence of same (but it was accepted he had a disability).. He based his claim on civil status in that he was single. He did not provide any details of a married, separated or divorced person which  received the service claimed. He did not introduce any comparators. The Complainant has not identified any fact as would indicate that the Respondent treated him differently on the basis of disability, family status or victimisation or any other ground for seeking relief under the Equal Status Act, and the basis on which the Complainant alleges that any such discrimination arose is entirely unclear. The mere fact that the Boards decision on the chances of success in his /medical negligence/ personal injuries/civil claim were not what he was hoping for does not amount to discrimination on the grounds set out by the Complainant. The Complainant has failed to establish a prima facie case such as would give rise to a presumption of discrimination and such as would shift the burden to the Respondent to disprove the claim. I conclude that the Respondent denied the Complainant the provision of a service in compliance with the provisions of the 28.C of 1995 Civil Legal Aid Act (that his complaint was not reasonably likely to succeed) and for no other reason.

I decide that no prohibited conduct has occurred and the complaint is not well founded.

Equal Status