EQUAL STATUS ACTS
Decision No. DEC-S2012-035
Health Service Executive
File Reference: ES/2011/001
Date of Issue: 5th September, 2012
Equal Status Acts - Section 3(2)(h), Race - Exceptional Needs Payments - whether treatment of Irish applicants different - comparator
1. Delegation under the relevant legislation
1.1. On 17th December, 2010, Mr Gerard Byrne referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 17th November, 2011, in accordance with his powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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 ("the Acts"), on which date my investigation commenced.
1.2. A hearing of the complaint was held on 24th April, 2012. Further information was sought from the respondent and final correspondence in this respect was received on 12th June, 2012.
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the race ground contrary to the Equal Status Acts in terms of Sections 3(1)(a) and 3(2)(h) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent failed to provide him with exceptional needs assistance because he was Irish.
3. Summary of the Complainant's case
3.1. The complainant stated that he is unemployed and in receipt of illness benefit. He stated that he applied to the respondent for assistance with respect to a number of items of immediate need which he described. In particular, he stated that he required a new front door to his house, which he rented from the Local Authority. He stated that, in the first instance, he applied for assistance from the Local Authority with respect to a replacement door. He stated that it told him that it did not have the money to provide him with same. He stated that this was the context in which he had applied for assistance from the respondent as there was no other method of obtaining that assistance.
3.2. The complainant stated that he met with Mr. A from the Health Service Executive (H.S.E.) about the matter and that Mr A visited his home to inspect the door. He said that he told him that the door was in a serviceable condition and he could not approve a replacement door in that context, but that he would recommend assistance with respect to the replacement of a glass pane on that door. The complainant stated that he found this "humiliating". He stated that he did not take up the offer of replacement of the glass pane on the door in that context. He stated that Mr A was not a carpenter and did not have the qualifications to make an assessment as to whether the door was in a serviceable condition or not. He stated that he had since been able to repair the door with some assistance from a family member.
3.3. The complainant submitted that he would have received the assistance in question had he not been Irish. He made a number of submissions to the effect that, with respect to applications for assistance arising out of the same or similar circumstances, Irish nationals were being refused assistance while non-Irish nationals were being granted same. He stated that he had no difficulty with the granting of assistance to non-Irish nationals. His difficulty was that Irish people were not being granted that assistance and were not being treated equally in that respect.
3.4. The complainant stated that he did not have access to the information required to prove this was the case, and stated that is placing an undue burden upon him to require him to do so. In that respect, he said that he could only say that it was "known". In his submissions, he cited a number of instances when family, friends and/or acquaintances witnessed non-Irish people receiving assistance which they would not have received in the same or similar circumstances. He said that he was also able to cite occasions of which he was aware that non-Irish families received "envelopes" from the respondent. The people who witnessed these events were not present at the hearing.
3.5. However, the complainant was able to give accounts with respect to a number of such occasions which he witnessed himself. He stated that he had seen enough of such envelopes to know that they held money and an Irish person would not have received the assistance in question in the same or similar circumstances. He said that he did not know the names of the people concerned and did not have access to the relevant information to allow him to find out who they were. However he described their circumstances, like his, as being "poverty".
3.6. The complainant was able to give evidence with respect to a particular named non-Irish comparator ("the comparator"). He stated that he understood this person had been in receipt of assistance which he would not have received in the same or similar circumstances. He outlined the nature of that assistance. In particular, he stated that this person received assistance for a replacement door.
3.7. The complainant agreed that his wife had been provided with assistance by the respondent in order to purchase a new cooker. He stated, however, that this was irrelevant as his application should be considered in isolation from that of his wife given that they are two different people.
3.8. In short, the complainant submitted that he had a constitutional right as an Irish citizen to protection against poverty. He reiterated that he had no difficulty with the assistance that was being afforded to non-Irish nationals, except that Irish people were not being provided with the same level of assistance. In particular, he stated that he would have been provided with the assistance he sought had he been a non-Irish national.
4. Summary of the Respondent's case
4.1. Mr A gave evidence on behalf of the respondent with respect to the matters raised by the complainant. He stated that he met with the complainant and accepted his application for assistance. He agreed that, in the course of this conversation, the complainant had given his view that non-Irish nationals were receiving this assistance when he and his family were not.
4.2. Mr. A also gave an account of his visit to the complainant's home. In particular, he stated that he had found mould on part of the door and that the one of the glass panes was damaged but the door itself was in serviceable condition. He recalled that the complainant had expressed his displeasure with his decision in that respect. Nonetheless, he had written to the complainant to state that if he provided the respondent with an estimate for the repairs to the glass pane then it would agree to provide him with the assistance necessary to replace that pane, provided the estimate did not exceed a certain threshold.
4.3. Mr A stated that the assistance in question was provided under the Social Welfare Consolidation Acts and is termed Exceptional Needs Payment (ENP). While it is now being provided by the Department of Social Protection, at the time in question it was the respondent who was responsible for the provision of same. He outlined the criteria for approving such applications stating, in particular, that the application must be for assistance that is not available through any other state funding programme and that it is for an exceptional need.
4.4. Mr A denied that non-Irish persons were treated any differently than Irish persons with respect to the provision of ENP's. He stated that the comparator was provided with some assistance but not everything she was looking for and, at the request of the Tribunal, provided details of the assistance that was provided to her in that context. He also provided statistical information regarding applications for ENP's in the month in which the complainant applied, with a breakdown as to the success rate of Irish nationals and non-Irish nationals with respect to such applications.
4.5. The respondent stated that, in considering ENP's, consideration is given to the household income and not just that of the individual applying and outlined its rationale in that respect. In particular, it stated that it looked at the overall situation of the party applying and if, for example, their partner was working and earning income that way, this must be taken into account in considering whether there is an exceptional need. In that respect, it added that the application by the wife of the complainant for assistance for the purchase of a new cooker had been approved by it.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. It is quite clear that the complainant believes it to be the case that non-Irish nationals are being provided with assistance by the respondent (and other Government agencies) in situations where Irish persons are not being provided with the same assistance. I do not doubt that he is genuine in that belief. However, the burden of proof is with him to establish a prima facie case of discrimination in that respect.
5.3. The complainant gave a number of examples of the alleged discriminatory treatment. While he could describe the parties concerned in great detail, he was unable to provide the Tribunal with any information as to their particular circumstances. Nor was he able to identify them by name so that their circumstances could be investigated. Nonetheless, he relied upon conclusions drawn from his general experience in stating that he knew that the parties concerned were being provided with envelopes containing assistance of the type that was refused to him. The contents of the relevant envelopes cannot be known when those parties cannot be identified. In such circumstances, the complainant's claims as to the nature of the assistance being provided to them, or even whether they were actually provided with any assistance at all, are based on speculation. They are certainly not based on fact.
5.4. However, given that the complainant did not have access to the information necessary to give an overall context to his complaint, I requested certain sample information from the respondent. This information related to the ENP applications from both Irish and non-Irish persons at the time in question and whether these applications were granted or not. Having examined this information carefully, I am satisfied that it does not provide any evidence that the respondent treats Irish persons differently to non-Irish persons with respect to ENP applications.
5.5. The complainant did give one clear example of a comparator who, he stated, was provided with ENP assistance, and against whom a clear comparison in treatment can be drawn. In that respect, I also sought particular information relating to the application for ENP assistance by this person. I have examined this documentation and compared the treatment of the complainant with the treatment of the comparator in that context. I note, in the first instance, that, while the complainant's application was for a replacement door, he was granted assistance for repairs to that door. I note that the comparator was also granted assistance for repairs to a door. In that respect, the treatment of the parties concerned was the same.
5.6. The comparator was provided with more assistance than the complainant. However, it is clear that this was because she made more applications for that assistance than he did. In fact, it cannot be said that the complainant was refused an application for assistance as his application was granted in part. Furthermore, it is clear that the statutory and regulatory regime in place in that respect requires that the entire household income be taken into account in assessing ENP applications. In that context, it is also relevant to note that the application for assistance made by the complainant's wife was granted in its entirety.
5.7. Therefore, I am not satisfied that the complainant was treated less favourably than the comparator. He has failed to establish a prima facie case of discrimination in that context. As there is no other evidence of relevance to the Tribunal's investigation into the matter that has not already been considered in this decision, this complaint fails.
6.1. Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination of him by the respondent on the race ground in terms of Sections 3(1)(a), 3(2)(h) and Section 5(1) of the Equal Status Acts.
6.3. The complainant's case fails.
5th September, 2012