A Student's Mother V A Local Authority
1.1 This dispute concerns a complaint by the mother of a third level student that she was discriminated against, contrary to the Equal Status Act 2000, by a Local Authority. The complainant maintains that she was discriminated against on the marital status ground in terms of sections 3(1) and 3(2)(b) of the Equal Status Act 2000 by receiving less favourable treatment in relation to a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 This dispute concerns a complaint by the mother that she was less favourably treated by a Local Authority, on the grounds of her marital status, when she was required to swear an affidavit in relation to her marital status and means when her son's application for a Higher Education Grant was being considered.
3. Summary of Respondent's Case
3.1 The respondents deny that they discriminate against anyone based on their marital status. They maintain that the treatment afforded the complainant was in keeping with the Guidelines supplied by the Department of Education in relation to the administration of the Higher Education Grant Scheme.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to myself, Brian O'Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
5 Matters for Consideration
5.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(b) of the Act specifies the marital status ground as one of the grounds covered by the Act. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public. In this particular instance, the complainant claims that she was discriminated against on the grounds of her marital status contrary to Sections 3(1), 3(2)(b) and 5(1) of the Equal Status Act, 2000 in the manner she was treated by the Local Authority at the time her son's application for a Higher Education Grant was being processed.
5.2 In cases such as this, the burden of proof lies with the complainant who is required to demonstrate that a prima facie case of discrimination exists. If established, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his or her actions were driven by factors which were non-discriminatory.
5.3 In considering the approach to be taken with regard to the shifting of the burden of proof, I have been guided by the manner in which this issue has been dealt with previously at High Court and Supreme Court level and I can see no obvious reason why the principle of shifting the burden of proof should be limited to employment discrimination or to the gender ground (see references in Collins, Dinnegan & McDonagh V Drogheda Lodge Pub DEC-S2002-097/100).
6 Conclusions of the Equality Officer
6.1 Prima facie caseAt the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (e.g. the marital status ground)
(b) Evidence of specific treatment by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not.
6.2 What constitutes "prima facie evidence' and how a "prima facie case" is established has been documented and considered in previous cases such as Sweeney v Equinox Nightclub DEC-S2002-031.
6.3 This complaint raises the issue as to whether the payment of a higher education grant is a "service" under the Equal Status Act 2000. Section 2 of the Act defines "service" as a service or facility of any nature which is available to the public generally or a section of the public and includes "facilities for banking, insurance, grants, loans, credit or financing". This point arose previously in Two Complainants v The Department of Education and Science (DEC-S2003-042/043) where the question of whether State services are covered by the Equal Status Act 2000 was considered. In that case, the Equality Officer found that the provision of a Higher Education Grant by the Department of Education was a "facility" as provided for under Section 2 of the Equal Status Act 2000. As the above case is very similar to the one under consideration, I am satisfied that the payment of Higher Education Grants by Local Authorities also comes under the provisions of the Equal Status Act 2000.
6.4 Another matter deserving consideration is the fact that it was the mother who lodged the complaint of discrimination in this case despite the fact that the grant was applied for in the son's name. This raises the question as the whether the applicant's mother is entitled to lodge a complaint under the Equal Status Act as the facility being provided (a grant) is being awarded to the son. On this point, I note that, while grants are normally paid to the students themselves, that it is the parents that are normally the ones to benefit financially from the payment or who are worse affected if an application is rejected as, in the absence of a grant, it falls on the parents to cover any shortfall in the cost of their child's education. For this reason, I am satisfied that any decision on a grant application has a similar impact on both students and parents and I am, therefore, satisfied that either are entitled to lodge a complaint under the Equal Status Act 2000 if they believe that they have been treated in a discriminatory manner.
6.5 With regard to (a) above, the complainant has satisfied me that she is single. In relation to (b), the respondents accept that the complainant was asked to swear an affidavit in connection with her son's grant application in a situation where other parents were not. To determine whether a prima facie case exists on the marital status ground, I must, therefore, consider whether the treatment afforded the complainant was less favourable than the treatment someone with a different marital status would have received, in similar circumstances.
6.6 In deliberating on the case, I note that the complainant, in claiming discrimination, has referred to the following occurrences where she feels that she was less favourably treated than someone of a different marital status would have been treated, in similar circumstances.
- Firstly, the complainant states that, having already informed the Local Authority by phone that she was not in receipt of any maintenance for her son, her son was still sent a letter asking her to swear an affidavit to this effect. The complainant maintains that this action constituted discrimination as it would appear that affidavits are not sought from people with a different marital status where a question has been raised about their means.
- Secondly, the complainant states that she was most unhappy with the tone of the letter her son received from the Local Authority asking her to swear an affidavit. Despite the fact that she had already informed the writer by phone that she was a single parent and that she was not receiving maintenance from her son's father, and she had also produced a copy of her son's birth cert with only herself as a named parent, she maintains that she was asked to provide information and answer questions designed for a Divorced/Separated parent.
In this regard, the complainant refers to the following extract from the letter her son received asking for an "Affidavit sworn before a Commissioner for Oaths by the parent with whom you are now residing, outlining the following details
(a) the date the separation occurred.
(b) the name of the parent with whom you normally reside
(c) the addresses at which both parties to the separation now reside, if known
(d) the arrangements which are now in place with regard to maintenance payments and also any other financial arrangements that exist.
(e) confirmation of any other sources of income i.e. social welfare payments, income from employment etc."
- Thirdly, the complainant claims that the Local Authority discriminated against her in deciding to address the letter in question, seeking sensitive information relating to her own personal situation, to her son rather than to herself, despite the Local Authority having previously phoned her directly to discuss the matter.
6.7 In response to the complainant's claims, the respondents have provided the following
- The practice of asking individuals to swear affidavits in situations where parents are living apart is in line with the policy outlined in the Department of Education's Notes which accompanied the Application Form for the 2002 Higher Education Grant Scheme.
It is not the standard practice of the Local Authority to ask individuals to swear affidavits in situations where parents are living together nor is it their standard practice to seek affidavits from individuals regarding any other form of income they may have, apart from maintenance payments.
- In relation to the letter sent seeking an affidavit, the Local Authority explained that it has designed a few "block paragraphs" which staff use in letters where affidavits are being sought from parents who are not living together. At the Hearing, the respondent acknowledged that the text in the letter sent in this case was not the most appropriate and explained that the letter had been prepared by an inexperienced member of staff.
The respondents also stated that, on foot of the mother's complaint, they have since carried out a review of their system with the result that staff are now much more mindful of the need to ensure that information of a sensitive nature is sought in a manner appropriate to the case under consideration and in a manner designed not to cause offence.
- With regard to the fact that the letter concerned was addressed to the student rather than his mother, the respondents said that this was in accordance with normal practice . They explained that the practice was for all correspondence to go to the applicant themselves. However, if information of a sensitive nature was required from a parent, the Local Authority would usually phone the parent concerned directly to establish the facts.
6.8 From my examination of the documentation supplied in relation to the Higher Education Grant Scheme itself, I have noted in particular the following:
- In the Local Authority's Notes dealing with the 2002 Higher Education Grant Scheme it states in Section 4.4.2:
"In the case of a candidate other than an independent mature student, the candidate's reckonable income shall be that of the candidate and of the candidates parents or guardians, except where the candidate's parents are divorced, legally separated or it is established to the satisfaction of the Local Authority that they are separated, in which case the candidate's reckonable income shall be that of the candidate and of the parent with whom the candidate resides. [ Note: See Section 7 of the accompanying Notes for criteria applied by the Local Authority in establishing separation.]
- In the Department of Education's Notes accompanying the Application Form for the 2002 Higher Education Grant Scheme, Section 7, which deals with Income from Maintenance Arrangements, it states:
"The criteria specified for the purpose of establishing marital separation are as follows
(1) Current deserted wives benefit book or
(2) Current lone parents allowance book or
(3) Maintenance agreement/order/divorce degree or
(4) An affidavit sworn before a Commissioner for Oaths/Peace Commissioner that he/she is separated."
- In Section 7 of the Application Form itself, applicants are required to provide details of income received by themselves or their parents from
"Maintenance Arrangements, Separation/Divorce Agreements, Settlements, Trusts,Covenants, Estates etc."
- On Page 10 of the Application Form, in all cases, the candidate and the candidate's parents/guardians are required to sign a Declaration as follows:
"I/We declare that the Reckonable Income for Grant Purposes amounts to £ (i.e. the amount entered in the summary on page 8) that it has been computed in accordance with the accompanying NOTES which I/We have read, and that no sources or amounts have been omitted. I/We declare that to the best of my/our knowledge and belief, all the information given in the form is true, complete and accurate in every particular. "
6.9 A fundamental requirement of any state-supported grant scheme is to ensure that payments are made to those who are genuinely entitled to them and, therefore, I consider that it is not only reasonable but necessary for a local authority or government agency to check an applicant's means. To me, the checking of means in such circumstances is not discriminatory and I do not consider that a candidate or his/her parents could reasonably object to the intrusion into privacy which is involved. The complainant in this case, though, has made the point that, when her own and her son's means were being assessed, she was treated less favourably than parents of a different marital status in being asked to complete an affidavit in relation to her means whereas non separated parents were simply asked to sign the grant application form confirming that all means had been declared.
6.10 With regard to the practice of asking some parents to swear affidavits (see 6.6 above), I note that the Department of Education's Notes state clearly that an "affidavit sworn before a Commissioner for Oaths/Peace Commissioner that he/she is separated" is one of the "criteria specified for the purpose of establishing marital separation". In view of the complexities that can arise in obtaining factual evidence to confirm that parents are not living together, I consider that the completion of an affidavit, confirming that parents are living apart, is an extremely valid and realistic way of ensuring that student grant applications are not delayed unnecessarily. However, there is nothing in the Department of Education's Notes, that I can see, that gives a Local Authority the power to utilise the opportunity afforded by such an affidavit to require a parent to provide additional information regarding maintenance arrangements, separation agreements or the current whereabouts of the other parent, which is the information that was sought in this case. Accordingly, I consider that the practice of asking for such additional information in the form of an affidavit goes beyond the purpose for which an affidavit is envisaged in the Department's Notes. For this reason, I have difficulty accepting the claim by the Local Authority that it was acting in full compliance with the Department of Education Guidelines in this case in seeking the additional information it sought from the mother in the form of an affidavit.
6.11 In considering this point further, I also note that the Application Form itself requires all applicants to disclose, not only details of maintenance arrangements, but also particulars of employment income, social welfare income, rental income, investment income, gifts and inheritance etc. In all cases, the applicant is required to provide details under each individual heading. Where no entry is made, the presumption is that there is nothing to declare. At the end of the Application Form, both the student and the parent(s) are required to sign and declare that "all the information given in this form is true, complete and accurate in every particular". The above requirement, therefore, applies to all applicants and parents yet it would appear that it is only parents that are not living together that are asked to reaffirm for the Local Authority, by way of affidavit, that the declaration they made on the application form with regard to income and means is accurate. Having to comply with this requirement thereby puts single or separated parents to additional trouble and expense. The fact that these individuals are asked to swear an affidavit, while others in a comparable situation are not, could also be construed as a suggestion that single or separated parents are somehow less honest orless trustworthy than married parents. When one considers that all parents have an incentive to cheat by omitting part of their income, I consider it to be discriminatory to ask some statuses to confirm their means by affidavit, but not others. On the basis of the above, I consider that there is clear evidence to suggest that, when applying for Higher Education Grants for their children, single parents and separated parents are treated less favourably than parents who are still living together, in that they are asked by the Local Authority to swear an affidavit in regard to their means and income whereas non-separated parents are not. Accordingly, I consider that this practice constitutes discrimination on the marital status ground contrary to the provisions of the Equal Status Act 2000.
6.12 In relation to the letter sent to the complainant's son, I can understand why the complainant may have felt upset that the request was made to her son rather than to herself. However, I am prepared to accept that, in this particular case, the Local Authority was simply following its normal practice whereby requests for further information are sent to the applicant themselves. Accordingly, I do not consider that this action by the Local Authority constituted a deliberate act of discrimination against the mother.
6.13 With regard to the content of the letter itself, I can understand the upset experienced by the complainant as the implication contained in the letter is that she is separated from her husband rather than being a single parent. In this regard, however, I note that the Local Authority has now acknowledged that the text of the letter was inappropriate and I am pleased to hear that, on foot of the mother's complaint, that staff have been made more aware of the need to ensure that information of a sensitive nature is sought in a manner that is designed not to cause offence and that letters are now being specifically tailored to the circumstances of each individual case.
6.14 Having considered the above points, I find that I am satisfied that the complainant did suffer discrimination on the marital status ground, particularly in being asked to provide details of her income and means by way of affidavit in a situation where non-separated parents are not required to do so. I, therefore, find that a prima facie case of discrimination on the marital status ground has been established by the complainant and that the respondents have failed to rebut the allegation. Accordingly, I find that the complainant was discriminated against by the Local Authority contrary to the provisions of the Equal Status Act 2000.
7.1 I find that a prima facie case of discrimination has been established by the complainant on the marital status ground in terms of sections 3(1) and 3(2)(b) of the Equal Status Act 2000 and that the respondent has failed to rebut the allegation.
7.2 In considering the level of redress to award, I am cognisant of the fact that the Local Authority has acknowledged that matters could have been handled better when dealing with the complainant and that new practices have now been put in place to avoid similar occurrences in the future.
7.3 As I have already indicated, I fully support the use of an affidavit to establish a person's marital status as a means of expediting the processing of grant applications. I am also fully in favour of the use of affidavits to verify a candidate's means, as long as the same practices apply "across the board". What I cannot condone, however, is the additional use currently being made of affidavits to "double-check" the declarations made by single parents or separated parents on grant application forms, in a situation where non-separated parents, who could just as easily have failed to disclose income of a different nature, are not asked to swear such affidavits. I would, therefore, suggest, that if the Local Authority wishes to continue utilising affidavits for the purpose of checking means, that, in order to avoid similar discriminatory allegation in the future, that they adopt a policy of seeking affidavits in all cases where an uncertainty exists with regard to a person's income or means and that they ensure that all future potential candidates are made aware of this revised policy.
7.4 As I have found that discrimination did occur in this case, I order that the
respondents pay the complainant the sum of €1000 for the hurt and humiliation suffered.
20 July 2004