The Equality Tribunal
Equal Status Acts 2000 to 2011
Complainant A and Complainant B
through their next friend and father
(Represented by Eugene F. Collins Solicitors)
Case refs: ES/2011/0010 and 0011
Issued: 20 February 2012
Equal Status Acts 2000 to 2008- Disability- Failure to Provide Reasonable Accommodation - Provision of good and services - Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Complainant A and Complainant B (hereafter "the complainants") referred a claim through their next-friend and father to the Director of the Equality Tribunal under the Equal Status Acts on 24 January 2011. The respondent was notified of this complaint in accordance with the Acts on 10 September 2010. The Director exercising his powers under the Acts 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 17 November 2011. An oral hearing, as part of the investigation was held in Dublin on 1 February 2011.
2.1. The dispute concerns complaints of unlawful discrimination on the disability ground. The complainants submitted that Caledonian Life ("the respondent") discriminated against them, including a failure to provide the complainants with reasonable accommodation, on the disability ground by not providing Life Assurance cover to the complainants from November 2008 to 27 July 2010 and by refusing to accept any further applications for Life Assurance for the complainants.
3. Case for the complainants
3.1. The complainants are twin brothers aged over 21 years. Both Complainant A and Complainant B were diagnosed with autism spectrum disorder when they were about 2 and half years of age. The complainants' application for life assurance, submitted on their behalf by their mother, was refused because of the complainants' medical condition.
3.2. The complainants' next friend had only found out about the refusal to grant the insurance through a third party. The broker that the complainants' wife had dealt with initially had omitted to inform the complainants' parents that the respondent had refused to grant insurance cover to either complainant.
3.3. It was submitted that the respondent omitted to provide reasonable accommodation by not seeking more updated information about the complainants. It was submitted that complainant A and B were seen as the same people despite the fact that they are two distinct human beings. The respondent made assumptions about the complainants and their capacity to enter into a contract.
3.4. It was submitted that the complainants have been able to open bank accounts, get passports, medical cards, social welfare payments, sky television, etc. Also, the complainants' grandmother was able to take out policies for the complainants when they were 3 years of age and there was no need for the complainants then to enter into a contract.
3.5. The complainants refute the medical evidence used to justify the refusal to grant life cover to persons with autism.
4. Case for the respondent
4.1. The respondent is a provider of insurance. The complainants had sought to avail of convertible term assurance. In the event of the death of such policyholder the sum assured will be paid to a beneficiary. Convertible term assurance provides life cover at a fixed rate of payments for a fixed period of time (term). The policy holder has a "conversion option", which he or she can exercise at any time during the term of the policy.
4.2. It was submitted that an application for Convertible Life Assurance for both Complainant A and Complainant B was received by the respondent on or about 17 November 2008. The application forms were signed by the complainants' mother. The respondent sought private medical reports to assess the complainants' disclosed medical condition. On receipt of this, the respondent came to the conclusion that the disclosed condition would be classified as severe. The respondent wrote to the complainants' parents informing them that it was unable to provide life assurance for the complainants.
4.3. On 19 June 2009 the complainants' next friend submitted a complaint to the respondent. The matter was revisited by the respondent but the decision to refuse to provide cover was upheld. It was submitted that the respondent had referred the matter to its Reassurer who had also refused to grant cover on the grounds that the mortality rate for persons with autism is three times higher than for the standard group. The decision not to grant cover was communicated on 23 June 2009.
4.4. It was submitted that the complaint is out of time pursuant to section 21(6). The final response in this matter was submitted to the complainants' next friend on 23 June 2009. Subsequently the complainants' next friend referred a claim to the Financial Services Ombudsman. A finding against the complainants' next friend was issued from that office on 22 June 2010. The complainant lodged his notice with the respondent on 12 October 2010, some 14 months after the final response.
4.5. Without prejudice to the foregoing, the respondent relied on section 16(2)(b) of these Acts as justification for the refusal to provide the cover requested. In making this decision the complainant relied on the complainants own medical records.
4.6. Without prejudice to the foregoing the respondent relied on section 5(2)(d) of these Acts as justification for the refusal to provide the cover requested. In making this decision the respondent relied on the complainants own medical records indicating the presence of severe autism and episodes of self-injurious behaviour (more so in relation to complainant A).
4.7. It was submitted that the respondent had offered to insure the life of the complainants' father and mother instead of the complainants and writing the policy in trust for the benefit of the complainants. This offer has been rejected. It was submitted that the complainants' next friend and mother have not sought to explore this alternative option.
4.8. The respondent acknowledged that the manner in which the broker had dealt or omitted to communicate the respondent's refusal to grant the insurance was regrettable and unnecessary. For this unnecessary discourtesy the respondent apologised to the complainant's next friend and assured him that it would not happen again.
4.9. The respondent relied on Mr A v A Life Assurance Company DEC-S2011-008. It was submitted that the respondent refusal to grant cover was made following the consideration of a number of factors including the type of insurance sought and the level of cover sought. The respondent is entitled to take commercial and underwriting facts into account when making such decisions.
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. Firstly, the preliminary issue of time limits. I am satisfied, having heard the full facts of this case, that while it is clear that the actual decision to refuse the cover in the summer of 2009 is clearly out of time, it is clear that the respondent is relying in its defence on an on-going policy concerning its life assurance policies. This policy relates to the requirement that the person who is insured by such policy must have a capacity to enter into such contract. It is clear that the existence of this policy means that the complainants - should they seek the cover again in the future and their medical condition remains the same - would not have cover provided to them. I am therefore satisfied that I have jurisdiction to investigate this complaint in relation to this policy only. That is I will be investigating whether the complainant had objective reasons to assert that the complainants, individually, lacked the capacity to enter into such contract.
5.3. The parties agreed to the facts of this case. It was accepted that Autism is a disability within the meaning of the Acts and the respondent does not deny that the action complained of occurred.
5.4. I am satisfied that the respondent had relied on medical evidence submitted by the complainants' general practitioner. Consent for this had been provided in the application forms (by the complainants' mother). I am satisfied that these reports were used to determine that both Complainant A and Complainant B lack the capacity to understand the nature of the contract and the intricacies of life insurance and therefore the respondent found that it cannot enter into such a contract with them. Section 16(2) states that: "treating a person differently does not constitute discrimination where the person --
(a) not applicable here
(b) is incapable of entering into an enforceable contract or of giving an informed consent and for that reason the treatment is reasonable in the particular case.
It became clear at the hearing that the complainants' next friend had not fully known the extent of the records that the respondent had sought and received. It is clear that the medical evidence provided was not as old as the complainants' next friend had been assumed. The records indicate that in 2005 that both complainant A and B: "suffer from severe learning disability and Autism". The records, on headed paper, have been signed by a Consultant Child and Adolescent Psychiatrist. The same doctor had made the initial diagnosis when the complainants were young children. While it is clear that the assessment relied upon here had not been carried out specifically for the purposes of assessing whether the complainants have the capacity to enter in to a contract, it is clear that the respondent is entitled to draw the conclusion that the disclosed condition is severe.
5.5. It is also important to note that the complainants' next friend evaluated his son's developmental age to be somewhere between 9-12 years of age. While I appreciate that the complainants' next friend may not be an expert on the autism spectrum disorder universally, it is clear to me that he is an expert when it comes to his own sons. He also submitted that the complainants are both non-verbal and cannot write. I am satisfied that the complainants' parents had communicated these facts to the respondent in a letter dated 19 June 2009.
5.6. In the circumstances of this case it is not clear how the issue of reasonable accommodation could arise. While the complainants' next friend submitted that the respondent ought to have obtained more medical reports supporting their decision that the complainants are not able to enter into said contracts it is clear from the existing medical evidence that such an assessment could not provide any alternative solution.
5.7. I am satisfied that respondent views the nature of the contract required here as such that it must be satisfied that the person entering into this contract is giving informed consent about the bargain that s/he is entering into. The respondent is entitled to hold this opinion. I am satisfied that the respondent's treatment of the complainants has been reasonable in the circumstances of this case.
In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. Complainant A and Complainant B have established a prima facie case of less favourable treatment on the disability ground. The inference has successfully been rebutted by the respondent.
6.3. Complainant A and Complainant B have failed to establish a prima facie case failure to provide reasonable accommodation.
20 February 2012