Complainant

Respondent

Anonymised Parties

Former Prisoner

Prison Service

Representatives

Self-Represented

Mr. Dylan West BL, instructed by the Chief State Solicitor’s Office

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00057871-001

24/07/2023

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

CA-00057871-002

24/07/2023

On 27th July 2023, the Complainant referred the present complaints to the Commission. Herein, he alleged that the Respondent discriminated against him on the grounds of disability and failed to provide him with reasonable accommodation that might allow him to avail of a service. By response, the Respondent denied these allegations on a substantive ground, stating that they made all reasonable efforts to provide for the Complainant’s care at the relevant time.

A hearing in relation to this matter was convened for, and finalised on, 1st April 2025. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submission in advance of the hearing. The Complainant gave evidence in support of his complaints while a member of the medical staff likewise clarified some points of fact on the part of the Respondent.

At the outset of the hearing, the parties agreed that the notification requirements of the Act had been complied with. The Complainant also confirmed that he was not, at any time, employed by the Respondent and that his complaint related to the Equal Status Act only. In circumstances whereby the decision below references the Complainant’s medical history, I have utilized by discretion to anonymise the decision in its published format.

By submission, the Respondent raised a preliminary point as to jurisdiction. Given the nature of the same, it will be considered following a summary of the relevant factual matrix.

By submission, the Complainant stated that Respondent both discriminated against him on the grounds of disability and failed to provide a reasonable accommodation that would allow him to access their services.

In this regard, the Complainant was a prisoner within Respondent’s system for a number of years. He stated that he suffered hearing loss and requires a hearing aid to hear at an effective level. The Complainant stated that he had numerous issues with the provision of a hearing assistance while in prison, which caused him an ongoing loss of hearing for a number of years. On 21st March 2020, the Complainant’s daughter brought him a hearing aid he had previously used, as the ones he entered prison with were not working. The prison reception team refused to accept the hearing aid from her, and the Complainant remained without any form of hearing assistance for some time.

On 20th January 2021, the Complainant’s hearing aid was sent off for repair. It was then sent to his daughter’s house on 12th January 2021. Thereafter, she sent it to Complainant through Respondent’s services via post. While the Respondent received the same shortly thereafter, it was not provided to Complainant for a significant period of time.

Complainant stated that he had almost three years and four months of  such “ad hoc” services for the basic human right of assisted hearing. He submitted that his disability was considered non-existent because it was invisible. He stated that this is untrue and that not only does his hearing loss affect him, but it affects others around him daily, including prison guards, other prisoners, and his family.

On 25th February 2022, the Complainant was fitted with new hearing aids based on old moulds and hearing tests. He stated that these were not correct for his severe hearing loss. He raised this with the prison nurse and joined the queue again to get the issue resolved. He stated that the nurse informed him that she would return the hearing aids to the store for repair. Again, the ongoing and persistent delays in the provision of this service caused the Complainant significant difficulty.

The Complainant stated that the current hearing aids he uses were provided to him on 13th 2022, by an external provider. He stated that his hearing aids have been continuously faulty or not working for a number of years, and he raised this issue numerous times with the internal prison staff. He continuously received a reply of “two weeks” regarding the resolution of the issue with the same never fully resolved.

The Respondent denied the allegations raised by the Complainant on both a procedural and a substantive basis.

In this regard, the Respondent stated that the Complainant was committed to Midlands Prison on 29th  January 2020. They submitted that they operate a prison healthcare system that provides primary medical care to all detainees. This system is responsible for the health and medical assessment of all new prisoners upon their committal, as well as the ongoing general medical care of prisoners. Doctors and nurses working in prison healthcare are the first point of contact for prisoners seeking medical treatment and provide services similar to those available to the general public by general practitioners. When required, the Respondent also provides referrals for specialist opinions. They stated that no inpatient care is provided within Irish prisons, and secondary care is provided by acute hospitals and other specialist services within the Irish healthcare service.

The Respondent submitted that the Complainant uses in-ear hearing aids and that, during his detention in Midlands Prison, he experienced a number of medical issues, including problems with his hearing aids. They provided a summary of the issues and the outcome of each. On 30th January 2020, the Complainant was seen by a general practitioner because one of his hearing aids was not working. He was then referred to an ear, nose, and throat doctor at University Hospital Galway. On 28th February 2020, the Complainant was again seen by a GP regarding the hearing aid issue and was awaiting his ENT appointment.

On 16th March 2020, the Complainant's daughter provided him with a new hearing aid. After it passed through the internal screening processes, it was given to the Complainant. On 14th July 2020, the Respondent asked an external body if they could assist with a pending audiology appointment. On 8th October 2020, the Complainant received an appointment for an audiology service provided by an external healthcare provider. This appointment was cancelled due to COVID restrictions.

On 6th January 2021, the health service requested that the Complainant's hearing aids be sent to them. A follow-up was also made regarding the cancelled external audiology appointment. On 14th January 2022, the Complainant was seen by audiology services in the local area. On 25th February 2022, the Complainant was again seen by audiology services, and on 8 March 2022, his hearing aid was sent out for repair.

Respondent stated that while these lists of appointments and services continued, the Complainant was seen on an almost monthly basis or there was some development regarding the provision of his hearing aid. They stated that while there were delays, these arose due to issues within the health system itself, particularly the COVID restrictions in place at the time. These difficulties affected all persons within the health service, not just those within Respondent's prison services.

During the hearing, the Respondent opened a medical report from the audiology services, which stated that Complainant would always struggle to hear in noisy environments and large groups, even while wearing his hearing aid. They stated that even with primary healthcare provided to the required standard, Complainant would always experience a certain level of hearing loss.

On 9th May 2023, upon receipt of the notification form, the chief nurse officer within the Respondent spoke with Complainant. During this meeting, the Complainant explained that his hearing aid issue was a longstanding one that predated his committal to prison. He confirmed that his hearing aids were working but needed to be adjusted. The chief nurse officer immediately arranged for the hearing aids to be sent to a third party audiology service. The hearing aids were returned to the Complainant on 15th May 2023.

Having regard to the foregoing, the Respondent submitted that they made extensive efforts to assist the Complainant when he reported issues with his hearing aid. They stated that at each step, the following actions were taken: the Complainant was given appropriate medication by prison healthcare staff; he was referred for appropriate specialist treatment by audiologists or ear, nose, and throat doctors; a review of his hearing aids by external specialists was engaged and when there were procedural delays by external specialists, the prison healthcare staff followed up. They denied any lapse or fault in Complainant's primary healthcare provided by Respondent.

In addition to the foregoing, the Respondent raised a preliminary objection that the complaint, as presented by Complainant, was not actionable under the present legislation. They stated that providing healthcare services to Complainant is not a “service” as defined in section 2 of the Act, but rather a controlling function of a state body, and is therefore exempt from the definition of a “service” under the Act.

Regarding the present case, the Complainant has alleged that the Respondent provided inadequate medical care to him whilst he was incarcerated within their service. As a consequence of the same, he submitted that he suffered ongoing poor hearing and distress arising from the same. By response, the Respondent denied this allegation on a factual basis, stating in circumstances whereby a prisoner requires specialised medical attention, they arrange for various appointments with external providers. In this respect, they submitted that they made such arrangements on an ongoing basis and that the Complainant was provided with adequate medical care in accordance with their obligations under the relevant code.

As part of their submission, the Respondent stated that the present complaint is misconceived, as they did not provide a service to the Complainant within the meaning of the Act. 

In this regard, Section 5(1) of the Act provides that,

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

Section 2 of the Act defines “service” as follows,

“…a service or facility of any nature which is available to the public generally or a section of the public…”.

In the matter of Donovan -v- Garda Donnellan DEC-S2001-011, the Equality Tribunal (as it was then), considered whether the investigative functions of on Garda Siochana fell within the definition of service as defined above. In this respect, the Equality Officer found that,

“I consider it is clear and plain from the wording of section 2(1) that the investigation and prosecution of crime are not services which are available to the public, or a section of it, within the meaning of service defined therein. It is my belief that these are State functions which are carried out by Gardai (and the Director of Public Prosecutions) on behalf of and for the benefit of the public and society as a whole. They are clearly not services which the public have access to in the way that other services clearly are, such as access to facilities for banking, leisure or travel.”

In so finding, the Equality Officer quoted the following statement made by the then Minister for Justice, Equality and Law Reform during the Dail debates relating to the Bill which gave rise to the impleaded Act on 15th December 1999,

“Not all actions of the State vis-avis members of the public can be regarded as services. There is a difference between controlling duties exercised by the State and services provided by the State. I am advised that immigration and citizenship matters, for example, are not services within the meaning of the Equal Status Bill but rather an expression of the State’s duty as a sovereign power to control who it admits to the State. Controlling duties in the areas of policing, defence, and prisons would likewise not be regarded as services. The service aspect of policing, immigration, defence and prisons will, however, come within the scope of the Bill. For example, while a decision to grant a visa would not be covered by the Equal Status Bill, the interaction between officials and the visa applicant and collateral services and facilities, such as access to buildings and information, would come within the scope of the legislation.

In the policing area, for example, while riot control or apprehending a criminal gang could not be regarded as services, information and assistance provided by gardai, including responding to reported crimes, would be regarded as services within the scope of the equal status legislation. Furthermore, the fact that a controlling duty of the State does not come within the scope of the legislation does not give carte blanche to officials to discriminate in the exercise of such duties. Discrimination or irrationality in the exercise of such controlling duties can be challenged in a High Court constitutional action or in judicial review proceedings”.  

Having regard to the foregoing, a distinction may be drawn between the exercise of controlling duties by state bodies, with the present Respondent being expressly listed as one such body, and the service, or public facing, aspect of such bodies. In consideration of the authorities listed above, it is apparent that the controlling duties i.e. service provided to the state, will not fall within the remit of the Act, while public duties, i.e. services provided to a section of the public, may do so.

This distinction is helpfully illustrated by two previous decisions of this forum relating to the present Respondent. In the matter of Ever Doherty -v- Irish Prison Service ADJ-00025458, the Complainant alleged that the Respondent failed to provide reasonable accommodation in relation to access to education and accommodation. In consideration of the authorities above, the Adjudicator found that these functions relate only to persons within the prison service and are not services provided to members of the public, such as visitors to the prison. In these circumstances, the Adjudicator found that these services related to controlling functions of the Respondent, and as such they were exempt from the Act.

This authority can be compared to that of A Complainant on behalf of his Son -v- The Irish Prison Service DEC-S2018-010. This complaint related to an alleged failure on the part of the Respondent to provide reasonable accommodation for a prisoner’s son, so as to allow for adequate visitation rights. In considering the authorities listed above, the Equality Officer found that visitation rights are a service provided to a section of the public by the Respondent, and as such they would be considered a ”service” within the meaning of Section 2.

Regarding the present matter, it is common case that the Respondent is charged with attendance to the primary healthcare needs of prisoners. In this regard, Article 33 of Statutory Instrument 252/2007, commonly known as the “Prison Rules”, provides that,

“Each prisoner shall be entitled, while in prison, to the provision of healthcare of a diagnostic, preventative, curative and rehabilitative nature (in these Rules referred to as “primary healthcare”) that is, at least, of the same or a similar standard as that available to persons outside of prison who are holders of a medical card.”

In this respect, the Respondent’s website lists its primary functions as part of the overall criminal justice system. Expressly listed amongst these functions is a requirement to “provide safe and secure custody with dignity of care for people committed to prison”. In this regard, the provision of primary healthcare can be seen as a controlling function of the Respondent, or a service that it provides to the state as part of the criminal justice system. Given that the Respondent provides no such service to any section of the public at large, the provision of primary healthcare cannot be deemed to be a service within meaning of Section 2. In these circumstances, there is no jurisdiction under the Act to investigate the allegation that the Respondent failed to make a reasonable accommodation within the meaning of Section 4.

Having regard to the foregoing, I find that Respondent did not discriminate against the Complainant within the meaning of the Act. 

CA-00057871-001 – Complaint under the Employment Equality Acts

I find that Respondent did not discriminate against the Complainant within the meaning of the Act. 

CA-00057871-002 – Complaint under the Equal Status Act

I find that Respondent did not discriminate or engage in prohibited behaviour against the Complainant within the meaning of the Act. 

Reasonable Accommodation, Public Service, Controlling Function