The Equality Tribunal
Equal Status Acts 2000-2008
Dr. Paula Gilvarry & HSE West
File Reference: ES/2008/107
Date of Issue: 15th December 2011
Dr. Paula Gilvarry & HSE West
Equal Status Acts, 2000 -2008 - Direct discrimination, Section 3(1), Section 3(2)(g) - disability, 3 less favourable treatment - section 5(1), access to a service - medical criteria, Regulations S.I. 353/ 1994 - Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994 exemption under Section 14 - definition of an enactment , Interpretation Act 2005 - no jurisdiction
Delegation under Equal Status Acts, 2000-2008
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2008 on the 23rd September 2009. On the 12th April 2011, in accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, 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 Acts, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 18th May 2011. The Director of the Equality Tribunal sought a legal opinion from a Senior Counsel on the definition of an enactment and the application of Section 14(1)(a)(i) of the ES Acts to the complaint herein. The opinion was received and sent to both the complainant and respondent on the 14th November 2011.
1.1 The dispute concerns claims by the complainant that he was discriminated against by the above named respondent on the disability ground in terms of Sections 3(1)(a) and 3(2)(g) contrary to Section 5 of the Equal Status Act, 2000-2008 in relation to access to a service which is generally available to the public.
2. Summary of the Complainant's
2.1 The complainant suffers from Kyphosis and Psychosis and he also suffers from tremors and other medical conditions. As a result of the medical conditions he can only walk a short distance with assistance. His nephew is his carer. The complainant submitted that he needs a specially adapted car seat so that he can travel as a passenger in his nephew's car. The complainant's GP referred him to the HSE for consideration for a Primary Medical Certificate which is a requirement to make an application for a tax concession to adapt the car for a person with a disability. The benefit of the Primary Medical Certificate is that a person may qualify for a refund of tax concessions such as road tax, Vat or exise duty or other tax concessions on a new or second hand car. The complainant filled out an application form and together with a medical report from his GP and forwarded it to the HSE. On the 30th March 2009, the complainant attended by appointment Dr. Paula Gilvarry Senior Area Medical Officer of the HSE in Sligo. After a very short medical examination the complainant was informed by Dr Gilvarry that he did not qualify for a Primary Medical Certificate because of the very strict criteria which operated. The complainant's nephew submitted that he accompanied his uncle and that the complainant was not medically examined or asked to demonstrate any physical task. He said that Dr. Gilvarry told them that the complainant did not qualify because he was not in a wheelchair. He said that he accepts that the regulations provide very strict criteria for the assessment to qualify for a Primary Medical Certificate. He submitted that the HSE failed to consider the effects that a combination of a physical and mental illness have had on the complainant and that the criteria in the regulations does not prohibit the consideration of these effects.
3. Summary of the Respondent's Case.
3.1 The respondent denies that the complainant was discriminated against on the disability ground in relation to his application for a Primary Medical Certificate. Dr Gilvarry stated that the HSE is commissioned by the Revenue Commissioners to carry out a medical examination of applicants for the purposes of providing a Primary Medical Certificate under regulations provided for in the Finance Act of 1989. The Regulations S.I. 353/ 1994 - Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994, provide very strict medical assessment criteria. The Certificate certifies that a person is severely and permanently disabled for the purposes of the tax concession. The Regulations provides that a person is assessed as follows:
"For the purposes of section 92 (2) (a) of the Finance Act, 1989, the eligibility on medical grounds of disabled persons who are severely and permanently disabled shall be assessed by reference to any one or more of the following medical criteria:
( a ) persons who are wholly or almost wholly without the use of both legs;
( b ) persons wholly without the use of one of their legs and almost wholly without the use of the other leg such that they are severely restricted as to movement of their lower limbs;
( c ) persons without both hands or without both arms;
( d ) persons without one or both legs;
( e ) persons wholly or almost wholly without the use of both hands or arms and wholly or almost wholly without the use of one leg;
( f ) persons having the medical condition of dwarfism and who have serious difficulties of movement of the lower limbs."
3.2 The benefits of this Certificate are that an applicant may qualify for a refund of VRT, VAT and excise duty on a new or secondhand car and possibly other tax concessions in relation to the car. Dr. Gilvarry said she received an application from the complainant for the certificate and in the completed application his doctor stated that he was suffering from Kyphosis (severe curvature of the spine) and Psychosis and that he could only walk a short distance with assistance. Dr. Gilvarry stated that she had a medical appointment with the complainant on the 30th of March 2009 and that she observed him walking slowly and with a shuffle into her surgery. She said that she explained the criteria to qualify for a Primary Medical Certificate and advised the complainant that he did not fit any of the categories which would qualify him. Dr. Gilvarry said in evidence that a full medical examination of the complainant was not necessary. She said the complainant had ability to walk and effectively in order to comply with the criteria he would have to be unable to walk at all or be a full wheelchair user. The complainant has a right of appeal to an appeal's officer in the National Rehabilitation Board. Dr Gilvarry said that the appeal's officer has advised her on a number of occasions that the criteria in the regulations have to be strictly interpreted and her advice around cases where a person is not in a wheelchair or who has limited ability to walk is that a detailed medical examination is not necessary or appropriate because of the strict nature of the criteria. She wrote to the complainant confirming that he did not qualify because he did not fit into any of the categories in the above mentioned regulations. She also advised him of his right to appeal and his right to apply for other mobility services from the HSE.
3.3 The HSE submitted that the complainant's assessment for the Primary Medical Certificate was fair, reasonable and in accordance with the regulations for eligibility as determined by the Revenue Commissioners and the Department of Finance and that in any event Section 14(1)(a)(i) of the ES Acts applied and precluded me from investigating the complaint.
4. Conclusions of the Equality Officer
4.1 The matter referred for investigation was whether or not the complainant was discriminated against on the disability ground in relation to access to a service contrary the Equal Status Acts. In reaching my decision I have taken into account all the written submissions, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
3. -- (1) For the purposes of this Act, 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) (in this Act referred to as the ''discriminatory grounds)''
Section 3(2)(g) provides: "(g) that one is a person with a disability and the other either is not or is a person with a different disability (the ''disability ground''),
and 2(1) provides: "disability'' means --
(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;"
and Section 5(1) provides: "5. -- (1) 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".
4.2 Section 38A (1) provides that the burden of proof is:
" 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."
It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.3 I am satisfied that the complainant, who suffers from a number of medical problems including curvature of the spine which causes him difficulty in walking, has a disability and is covered by the Acts. The complainant submits that he was discriminated against on the disability ground when the respondent did not medically assess him as qualifying for a Primary Medical Certificate so that he could avail of a tax concession to adapt a car to suit his needs as a passenger with a disability. He further submits that the respondent has interpreted the regulations in a such a way that they have failed to take account of the effects that the combination of illnesses have had on him and that the regulations do not prohibit the consideration of these matters. He also submits that no proper medical examination was carried out to determine the level of his mobility.
4.4 The respondent denies that the complainant was discriminated against and submits that I am precluded by virtue of Section 14 of the ES Acts from considering the matter as the criteria for assessment are set out in a Regulation which is an enactment.
As stated above the complainant is covered by the broad definition of disability contained in section 2(1) of the ES Acts cited above. The medical assessment criteria by which the respondent assessed the complainant are much narrower definitions and they failed to take account of the mobility and psychological conditions from which the complainant suffers from. In order to qualify under the definitions the complainant would either have to be a wheelchair user or "be wholly or almost wholly without the use of both legs." I am satisfied therefore that the complainant was treated less favourably than another person with a different disability was treated or would have been treated in similar circumstances. I find therefore that the complainant has established a prima facie case of discriminatory treatment.
4.5 The next matter I have to decide on is whether Section 14(1)(a)(i) of the ES Acts applies.
I note that the medical assessment criteria to qualify for a tax consession either as a disabled driver or passenger is set down in regulation 3 of S.I. No. 353/1994 cited above and the the HSE is required under the Regulations to apply the criteria when carrying out a medical assessment for the tax concession. Section 14(1)(a) of the Equal Status Acts provides:
"Nothing in this Act shall be construed as prohibiting --
(a) the taking of any action that is required by or under --
(i) any enactment or order of a court,"
Under Section 2(1) of the Interpretation Act 2005 an "enactment" is defined as: "an Act or a statutory instrument or any portion of an Act or statutory instrument".
A "statutory instrument" means an order, regulation, rule, bye-law, warrant, licence, certificate, direction, notice, guideline or other like document made, issued, granted or otherwise created by or under an Act and references, in relation to a statutory instrument, to "made" or to "made under" include references to made, issued, granted or otherwise created by or under such instrument.
I note that in his commentary on Section 14(a) of the Equal Status Act 2000 in the Annotated Statutes for 2000 by TJ McIntyre (at page 8-28), he stated:
"Actions required by law: This exception covers actions which are required to be taken by or under statute, court order, European Union Law or International Convention. Two limitations must be noted in relation to its scope. In the first place, it is limited to actions which are required by the relevant laws. Consequently, it would not appear to apply where, for example, a statute authorises discriminatory treatment in a way which is permissive but not mandatory. Secondly, the exception as far as it relates to domestic law, is limited to actions required by or under "any enactment or order of a court". This wording makes it clear that the exception does not apply to discrimination provided for under administrative schemes or departmental circulars unless and insofar as these have statutory underpinning."
4.6 I note that the complainant's complaint of discrimination on the disability ground solely relates to the interpretation and application of the medical assessment criteria contained in the S. I. Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994 and not to any other matter outside of the Regulations. Taking into consideration the matters cited above, I am satisfied that the above cited Regulations are exempt from consideration by me pursuant to Section 14(1)(a)(i) of the ES Acts. The "action" by the respondent in applying the the medical criteria is required under a Statutory Instrument. It could be argued that the definition of the terms "enactment" and "statutory instrument" in the Interpretation Act 2005 are strictly speaking for the purposes of that Act. However, it is clear that the Interpretation Act also governs the interpretation and construction of Acts and by implication also governs the meaning of the term "enactment" contained in section 14(a)(i) of the ES Acts.
5.1 The application of the medical criteria set out in the SI of 1994 to the complainant's assessment for a Primary Medical Certificate is required under an enactment and therefore under Section 14(1)(a)(i) of the ES Acts it is not a prohibited act. Accordingly, I find I have no jurisdiction to make a finding of discrimination in relation to the complaint referred by the complainant.
15th December 2011