Complainant

Respondent

Parties

Aine  Wellard

Minister For Social Protection

Representatives

Ciaran Doherty BL instructed Stephen Kirwan of KOD Lyons Solicitors

Claire Hogan BL instructed by Aideen O’Brien of the CSSO

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00056663-001

11/05/2023

The Complainant is a visually impaired person who had been receipt of the blind pension for approximately 33 years. In 2019 she began to receive the disability allowance. On the 24th of August 2022 she moved to the non-contributory state pension as she had reached the age of 66.  Shortly after the Complainant moved to state pension the Department of Social Protection distributed a €500 disability grant as part of the cost of living crisis measures. The payment was not paid to anyone in receipt of the state pension but was paid to those in receipt of the disability allowance.

The Complainant has raised a complaint of age and disability discrimination in relation to her exclusion from the €500 disability grant.   

The Complainant was represented by Mr Ciaran Doherty BL. He made detailed written and oral submissions on her behalf.

The Complainant Aine Wellard gave evidence under oath.

She grew up in England and then went to Trinity College in 1981. She stayed in Dublin and lives in Dublin 2. She has worked part-time but has never been able to get a job.

She has no sight at all. She had TB meningitis at 6 and lost her sight then. She doesn’t remember her life before that. 

She finds that the accessibility of the city has deteriorated over time. Buses routes and stops have changed location and in many places roads are being levelled with the path.

She had been on blind pension her whole working life, she then moved to disability allowance in 2019. Her mother had died and left small inheritance. On the blind pension you could only have €20,000. The department sanctioned her move to the disability allowance to facilitate her taking the inheritance.  

The Complainant got a letter for the non-contributory state pension at the in July 2022. There were a number of forms that needed to be filled our she had to ring the department. There were no brail forms available. A person filled out the form for her over the phone which was not her preferred means of completing the task.

Shortly afterwards she heard that there was a disability support grant of €500. She didn’t understand why she wasn’t going to be included except for the fact that she was over 66. This payment was related to the energy crisis it would have been very helpful.

She felt discriminated against. If she had still been in receipt of the disability allowance she would have got it. She wrote to the department and had her local TD to do so as well.

There is a high cost to disability. She is required to use a lot of voice active assisted technology. Her microwave oven, central heating system and TV all work that way. This sort of specialised equipment is always a lot more expensive. For instance, she is reliant on her computer with specialised screen reading software. This software can cost around €1,000.  

There are extra costs associated with her age that relate to her disability. For instance, she cannot do her own DIY and must pay for tradespeople. Four to five years ago she could do her own front garden. She now needs to get someone to do it for her.

She feels sense of injustice in being denied the grant just because of her age.

Dr Robert Sinnott gave evidence under affirmation.

He assisted the Complainant with her advocacy and engagement with the Department on this issue.

The Department conflate the cost of disability and the cost of age. However, because of the reports available to them they are aware of the increased costs of aging and having a disability and how these factors compound costs. 

Ms Claire Hogan BL made oral and written submissions on behalf of the Respondent.

The Respondent wholly deny discriminating against the Complainant. While the one time €500 payment was not available to those in receipt of the state pension the state pension was on the whole more generous than the working age disability allowance.

 The Complainant’s payment under state pension was €34 higher than her payment under the disability allowance, which she was on before the age of 66. She was not being treated less favourably by being on the pension.  

The Respondent has raised a preliminary issue.

Section 14 1.a.i of the Equal Status Act provides that nothing in this Act shall be construed as prohibiting… the taking of any action that is required by or under… any enactment..

Ms Hogan outlined in submission that Section 210 and 2(1) of the Social Welfare Consolidation Act 2005 sets out that a person cannot receive a disability allowance after they reach the age of 66. As such the requirement for the Complainant to move to the state pension was related entirely to an enactment.  She further outlined that the Disability Support Grant was provided for by way of the Social Welfare (Disability Allowance, Blind Pension, Invalidity Pension) (Temporary Provisions) Regulations 2022, SI 598 of 2022. It was by virtue of these statutory regulations that the disability grant was not paid to those in receipt of the non-contributory state pension.

Mr Doherty has submitted that the Complainant is seeking to challenge the decision of the Minister to limit the payment of the €500 allowance to certain benefit groups and not those in receipt of the non-contributory state pension. That decision was ultimately made under Section 292 of the Social Welfare Acts which was permissive, in that it gave jurisdiction to the Minister to alter rates of payment. It did not direct her to only implement the rates as outlined earlier as such the above exclusion does not apply.

I disagree with this position. The Complainant cannot challenge the decision of the Minister in an abstract sense. She is claiming discrimination because she did not receive the €500 payment. She did not receive the payment because SI  598 of 2022 set out that she would not receive it. The alleged prohibited conduct resulted from the Department taking an action that was required by that enactment. The Complainant cannot go around Section 14.1.A by challenging the decision to make the enactment in the first place.

The complaint is not well founded.