Equal Status Acts 2000 to 2011
A Minor (through his mother and next friend)
(Represented by Ms. Siobhán Phelan BL instructed by Mercy Law Resource Centre)
Dublin City Council
(Represented by Ms. Karen Denning BL instructed by Dublin City Council)
Case ref: ES/2010/0009
Issued: 5 September 2011
Equal Status Acts 2000 to 2004 - Discrimination - Failure to provide reasonable accommodation - Disability - Asperger syndrome - Harassment - Provision of Accommodation - Different treatment not discrimination for housing authorities, section 6(6)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. A minor referred a claim through his mother and next friend (hereafter "the complainant") to the Director of the Equality Tribunal under the Equal Status Acts on 20 January 2010. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, 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 on 19 April 2011. An oral hearing, as part of the investigation was held in Dublin on 13 June 2011. The respondent was notified of this complaint in accordance with the Acts on 20 November 2009. The complainant's name has been withheld due to his age.
2.1. The dispute concerns a complaint of unlawful discrimination, including a failure to provide reasonable accommodation, and harassment on the disability ground. The complainant submitted that Dublin City Council ("the respondent") discriminated against him, harassed him and failed to provide reasonable accommodation to him by not recognising the complainant's condition as a disability and by failing to transfer his family to more suitable accommodation. It was submitted that the complainant continues to reside in accommodation where he has been subjected to alleged threats, assaults and bullying.
3. Case for the complainant
3.1.1. The complainant is a tenant in a local authority accommodation supplied by the respondent. He is a twelve year old boy who has been diagnosed with Asperger syndrome in or about October 2005. On 24 September 2009, the complainant and his mother were refused transfer priority status on medical grounds. Prior to this, the family had been refused priority on exceptional social grounds. It was submitted that this was despite the fact that the family had been granted priority previously in circumstances that were not worse than those now prevailing.
3.1.2. The complainant and his mother have resided at their current address since June 2007. Previously, the family had lived elsewhere in the locality but due to difficulties with the then neighbours the family where given a transfer by the respondent to their current address. The current home is in a flat complex and it was submitted that the living conditions are not suitable for the complainant's needs arising from his disability. This is because it was stated that the complainant has difficulty coping with sensory data and therefore noise emanating from the neighbours and road traffic are distracting for the complainant. Also, the lack of a private yard means that the complainant cannot be let out to play without constant supervision as he copes poorly with traffic and it was submitted that as a person with Asperger syndrome, the complainant requires an enclosed yard where he can securely isolate when his environment becomes too much. Finally, it was submitted that the complainant has been subjected to constant bullying that is linked with the complainant's condition by local children in the flats.
3.1.3. The complainant's mother notified the respondent of the problems that she was having concerning other children living in the flat complex and expressed concern of the potential impact such circumstances would have on the complainant's mental state. She stated that the complainant has become increasingly aggressive and paranoid about other residents living in the flat complex. The complainant had displayed suicidal tendencies and had attempted to throw himself out of the bathroom window three times whilst screaming "Why are they treating me like this, I wish I was dead". A serious incident occurred on the night of 9th of August 2009 when a male visitor to the neighbour's flat attempted to hit the complainant and his mother with a hammer. This battery was prevented by the fortunate intervention of a third party but the complainant was threatened that he would be thrown over the balcony and the flat burned down.
3.1.4. It was submitted that following this incident the complainant left his home with his mother and they temporarily moved in with the complainant's maternal grandmother. On their return a couple of weeks later, the complainant and his mother were subjected to name calling abuse by their neighbours. The next day a named neighbour kicked on the complainant's door and threatened to kill the complainant and his mother. The complainant and his mother had to leave the flat escorted by members of the Gardai. The respondent was notified of this incident by a letter from a named Garda, dated 18 August 2009 where it was suggested to the respondent that it may be in the best interests if alternative accommodation be found for the complainant and his mother.
3.1.5. While it was acknowledged that the complainant's mother had previously made two applications for transfer and, on each occasion, was awarded priority under the exceptional social grounds scheme, the transfers provided by the respondent were always to a flat rather than to a house. The complainant's mother had sought a transfer soon after the move to their current address but she had been told that she would have to wait for a minimum of two years before being eligible for a transfer. It was submitted that the respondent made no reference to the complainant's needs nor acknowledged that the previous transfers had failed to accommodate the complainant's disability.
3.1.6. The complainant's mother reapplied for priority under the exceptional social grounds scheme and was refused same. She appealed this decision to a Social Welfare Officer and was informed that her appeal had been unsuccessful on 21 January 2009. In the interim the complainant's mother had received a letter from the respondent on 29 September 2009 where she was informed that given the persistent difficulties the complainant and his mother where having, a move to another locality in the area would be unlikely to solve the problem. It was submitted that it was clear from this letter that the respondent was failing to take into account the fact that the respondent had not at any stage accommodated the complainant's disability.
3.1.7. The complainant subsequently applied for priority on medical grounds. This was refused by letter dated 4 June 2009 whereby the complainant's mother was told that medical priority was only granted in exceptional medical circumstances and only where this relates to the applicant's housing conditions. This decision was appealed by the complainant's mother and, in a letter dated 3 September 2009 she was informed that her priority was more of a social problem.
3.1.8. Given the circumstances, the complainant and his mother moved back in with the complainant's grandmother. The living conditions at the grandmother's house are extremely overcrowded and both the grandmother and the complainant's aunt, suffer with mental health difficulties that are negatively affected by the stress and anxiety caused by the overcrowding and the circumstances that lead to it. The complainant and his mother now spend some of the week with his grandmother.
3.1.9. It was submitted that the respondent has failed to take the complainant's mental disability into account in making the decision that the complainant's family were not entitled to medical priority. In assessing some forms of disability as meriting medical priority, the respondents have discriminated against the first named complainant contrary to section and/or 5 and/or 6 of the Acts. Furthermore, it was submitted that the respondent has failed to provide the complainant with reasonable accommodation contrary to section 4 of the Acts. It was submitted that the effect of failing to prioritise their transfer constitutes harassment under the meaning of section 11(5) of the Acts in that it has a direct consequence of causing them to be subjected to unwanted conduct relating to the nature of the complainant's disability.
3.1.10. It was submitted that this failure to address the complainant's disability has had serious repercussions for the complainant who has displayed suicidal tendencies and the complainant's Child Psychiatrists have advised the respondent that the complainant is at risk of developing co-morbid mental illness. The reasonable accommodation required was identified by the complainant and communicated to the respondent by the complainant's Psychiatric doctor and social worker.
3.2. Legal Submission on behalf of the complainant
3.2.1. It was submitted that the definition of disability is a medical condition rather than a functional definition in that it focuses on the complaints suffered by the person alleging definition rather than how those complaints represent obstacles to that individual's availing of goods and services. DEC-S2007-049 and DEC-S2009-062 were submitted as authorities supporting the argument that Asperger Syndrome is a disability within the meaning of the Acts.
3.2.2. It was submitted that the combined effect of section 3(1)(a) and section 3(2)(g) of the Equal Status Act as amended by section 28 of the Equality Act 2004 provides that discrimination shall be taken to occur where a person with a disability is treated less favourably than another person with a different disability has, would be or is treated in similar circumstances. Dublin City Council v Grace Deans (Unreported, Hunt J, Dublin Circuit Court, 15 April 2008) was referred to as an authority in relation to the fact that section 6(6) of the Acts cannot be construed as exempting a housing authority from all applications of the equality legislation but that such authority is entitled to base its priorities and its housing plan on different treatment to persons based on family size, family status and other considerations set out in section 6(6). This approach has been followed by this Tribunal in Mr X and A Town Council (DEC-S2008-042).
4. Case for the respondent
4.1. The respondent manages approximately 27000 units of housing and has a further 20000 persons/families on a waiting list for housing. The respondent refuted any allegation that it discriminated against the complainant; failed to provide reasonable accommodation; and/or harassed or allowed the complainant and/or his mother to be harassed.
4.2. The respondent denied the complainant's claim that his application had not been assessed and submitted that all applications have been thoroughly assessed. Initially, the complainant's case was deemed to be a priority on exceptional social grounds. The matter was then referred to be assessed by the medical officer on foot of the respondent learning that his Child Psychologist had identified the complainant being at risk of developing co-morbid mental illness. The application has thus been assessed on both medical and exceptional social grounds and the fact that the complainant has Asperger syndrome has been taken into consideration.
4.3. The respondent submitted that it was accepted that Asperger syndrome is a disability within the meaning of the Acts. All applications from tenants requesting transfers are assessed thoroughly by the respondent in accordance with its policies relating to the matter. All factors relevant to the request are considered prior to a decision concerning a transfer is made. Consideration for medical priority transfers only arises whereby it is clear that the disability in question is of such nature that a transfer on medical grounds is justified. This means that such transfers are only considered where it is clear that there is an exceptional medical circumstance that relates to the applicant's housing condition and whereby a transfer could assist in the management of the condition. Thus the mere fact that a person has a disability within the broad meaning of these acts does not automatically merit an assessment for medical transfer.
4.4. The complainant's application for medical priority for a transfer was refused because the complainant had not related his medical condition to his current housing condition nor provided information from which it could be gleaned that the management of his condition would be helped by the change of housing. It was not established that a transfer would effectively address the on-going problems that complainant and his mother are experiencing.
4.5. The complainant's mother had indicated to the respondent that she would only consider a transfer to a house in the immediate area. While it was acknowledged that the complainant's mother is entitled to remain in the area of her choice it was noted that by remaining in the area many of the problems the complainant's mother referred to in this complaint would not be addressed. For example, the complainant would still be attending the same school where the children who allegedly bully the complainant also attend. The area is in an urban location and noise is inevitable in such locations. Also, it was submitted that a house that the complainant's mother had identified suitable for her son's needs is on a road with heavy traffic. It was submitted that such a location would be entirely inappropriate for a person who required constant supervision in relation to traffic.
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. Discriminatory treatment
5.2.1. It is clear that Asperger syndrome is a disability within the meaning of the Acts. This fact has been established in a number of decisions. I am satisfied that the parties were not in dispute in relation to this fact.
5.2.2. I find that the real question here is whether the complainant was discriminated against by the respondent because, as was alleged, the respondent would not accept that the complainant's condition warranted the complainant's transfer application being assessed as a medical priority. I note that it was submitted by the complainant that this is direct discrimination in that the respondent would have referred an application to be assessed if it belonged to a person with a different disability, i.e. a physical disability, and that a person with a physical disability would have been offered a transfer in similar circumstances. I accept this argument to some extent. I find that the respondent, for example, would not attempt to accommodate a person with no mobility in accommodation which is inaccessible to that person. I also accept that the respondent may consider a transfer on medical grounds for a person who acquires a disability or whose existing disability deteriorates and, as a result of this disability, becomes restricted in the way in which they can avail of their current accommodation. I am not satisfied, on the balance of the evidence provided, that the respondent would immediately assess all physical or other disabilities for a medical transfer. For example, I have been presented with no facts from which I can infer that a person with a minor physical disability would immediately be assessed for medical priority. I have found that in order for a transfer application to be assessed for medical priority, such an application must contain information supporting a medical need for such transfer and that such information must be clearly linked with the current housing conditions. Thus it is clear that a person with a certain type of disability will be given priority in situations where a person with a different disability would not so be treated.
5.2.3. I do not accept the complainant's submission that the medical priority was granted to the complainant in circumstances that were equal to those prevailing at the time of the first assessment. It is clear that the complainant's general practitioner, in a letter dated 30 June 2009, reported that the complainant was being bullied and that the complainant was 'seemingly parasuicidal'. Furthermore, in a letter dated 8 July 2009, a Consultant Child and Adolescent Psychiatrist stated that "I feel [the complainant] is quite sensitive and vulnerable and given the circumstances he is living in there is a risk of him developing co-morbid mental illness." It is clear from the respondent's direct evidence that it was this letter that prompted the respondent to refer the matter for medical priority assessment. I am therefore satisfied that the respondent did consider the complainant's disability in circumstances where medical facts support a possible deterioration of his condition and where it was suggested that a change in his housing conditions may be required. The consideration given did not however result in a transfer being granted to the complainant in the circumstances.
5.2.4. I am satisfied that section 6(6) of the Acts gives the respondent discretion - provided that such discretion is systematic and transparent - in the manner in which it manages its housing stock. This means that a local authority is entitled by law to manage its housing stock as efficiently as possible while allowing the respondent the discretion to treat some groups differently (emphasis mine) from others. This means that in certain circumstances there may be an onus on the local authority to adapt some of its policies when addressing different need arising from an existing or prospective tenant's family size, family status, marital status, disability, age or membership of the Traveller community. Furthermore, a local authority may, in accordance with section 6(6) develop and implement policies that provide for different treatment of people with different disabilities and thus differing needs. Section 6(6) allows, in my view, the implementation of a transfer policy based on a medical ground and accordingly the respondent is entitled to implement this policy with reference to the disability in question and an assessment of a benefit, if any, such a transfer would have on the disability. It is clear that different treatment is not to be construed as less favourable treatment; rather it is to be read to facilitate a housing authority to prioritise in favour of those categories of persons in circumstances that warrant such treatment (as was the case in Deans).
5.2.5. I am satisfied that the respondent has assessed the complainant's situation and has acknowledged and accepted that the complainant has a disability. I am satisfied that the treatment that the complainant has experienced in the circumstances of this case does not constitute less favourable treatment on the ground of his disability.
5.3. Reasonable accommodation
5.3.1. I accept the complainant's contention that disability within the meaning of section 2 of the Acts is a medical definition. The definition used in the statute functions to ensure that all people with disabilities are entitled to the protection of the equality legislation. This protection is in relation to less favourable treatment in a comparator situation. In addition, a person with a disability may also be entitled by law to special treatment or facilities. This is a positive action approach and it ought to be noted that in similar circumstances another person - with a different disability or with no disability - may not be entitled to such treatment or facilities. Any such special treatment or facility is subject to a 'nominal cost' exemption. Reasonable accommodation can thus take place in a manner that can be objectively be construed as different treatment and/or more favourable treatment. The legal onus to provide reasonable accommodation will only arise when the test set out in section 4(1) is fully met.
5.3.2. Failure to provide reasonable accommodation under these Acts refers to a situation where there is a refusal on behalf of the respondent to, in accordance with section 4(1) to "do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". It ought to be noted that this is a functional definition in that the obligation to provide reasonable accommodation arises only in circumstances where without such action it would be impossible or unduly difficult - because of a disability - for the complainant to avail of a service. For a reasonable accommodation requirement to arise it must be first demonstrated that without it, that is, without specific adjustment or treatment the complainant would find it impossible or unduly difficult to live in his current home.
5.3.3. It is clear that the complainant has no difficulties per se in relation to his current accommodation. All the difficulties relate to external matters be they noise, traffic, or alleged bullying by neighbourhood children. I am not satisfied, on the balance of evidence provided, that the complainant finds it impossible or unduly difficult to live in his current accommodation. It is clear that the complainant has lived and continues to live in it. While I note that it was submitted that the difficulties relating to the complainant's accommodation needs are linked with the complainant's condition I am not satisfied that the reasonable accommodation requirement as set out in the Acts actually applies to alleged problems that are outside the respondent's service provision or control. It ought to be accepted that traffic and noise are part and parcel of the environment when a person chooses to live in an urban area and the complainant's mother has made it very clear that she will not consider a transfer to a more peaceful environment. The matter of bullying is outside this Tribunal's jurisdiction and I have addressed the issue harassment and the necessity of having such claims investigated below. Therefore, having considered all the relevant facts and the nature of the evidence put forward in this case, I am satisfied that the complainant's condition does not necessitate the provision of reasonable accommodation.
5.4.1. I note that it was submitted by the complainant that the failure to prioritise a medical transfer constituted harassment within the meaning of the Acts. It ought to be noted that harassment is defined in section 11 of the Acts as "any unwanted conduct related to any of the discriminatory grounds" that has "the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Furthermore, such unwanted conduct may consist of "acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material". It is clear that the definition of harassment provided in the Acts combines thus both subjective and objective tests since the conduct must be both unwelcome to the recipient and reasonably capable of being regarded as 'offensive, humiliating or intimidating'.
5.4.2. Moreover, it is clear that in interpreting the language of the Acts that harassment is not mere discrimination, that is, less favourable treatment. Harassment cannot, in my interpretation of the Acts, be a plain omission or a failure to do something but refers to an overt act accompanied by symbols that are linked with meaning, such as images and words that can reasonably be regarded as offensive, humiliating or intimidating. Harassment that could be construed as taking place by omission must therefore be accompanied by a 'message' that links such an omission with the protected ground. Thus I do not find that a failure to prioritise the complainant, in the circumstances of this case, is sufficient to constitute conduct that can be construed as harassment within the meaning of the Acts.
5.4.3. I do note that the complainant's mother's written submission and oral evidence at the hearing referred to an intimidating environment surrounding the complainant's current accommodation. However, as the matter refers to alleged conduct concerning third parties who were not named or present at the hearing, I can only comment on the following. In most cases there is a clear onus on a complainant to report such conduct to the respondent as the law provides a defence for a provider of accommodation to establish that it took reasonably practicable steps to prevent harassment from taking place. With regard this onus, I note that the letters written by the complainant's mother to the respondent do refer to the difficulties she was having with her neighbours and that these letters repeat language that includes words that may be directly linked with a disability and could possibly be deemed 'offensive, hostile or humiliating'. I am therefore satisfied that the respondent was made aware that the complainant's mother was asserting that there was a problem. Furthermore, I also note that she referred this complaint to a named estate manager, an employee of the respondent. However, then, fearful of potential repercussions, she also asked the manager not to do anything about the issue. In such regrettable circumstances, I accept that a service provider is placed between a rock and a hard place in that they are aware that there may be a problem but are prohibited from taking action in relation to same. A service provider cannot investigate an allegation of harassment without including the alleged harasser in the investigation and principles of natural justice must be observed in respect of both alleged perpetrator and complainant at all stages of the procedure. Therefore, in the circumstances, the respondent cannot be held responsible for failing to investigate such conduct.
5.4.4. In relation to the alleged violent incidents reported by the complainant's mother. These are a matter for other investigative bodies with the relevant jurisdiction to deal with such matters.
In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. The complainant has established a prima facie case of less favourable treatment and harassment on the disability ground. The inference has successfully been rebutted by the respondent.
6.3. The complainant has failed to establish a prima facie case failure to provide reasonable accommodation.
5 September 2011