THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2011
Decision DEC – S2014 – 011
Mr Anthony Egan
Dublin City Council
File Reference: ES/2013/0072
Date of Issue: 14th August 2014
Keywords: Age – disability – erection of street furniture a “service” within the meaning of S. 2 of the Equal Status Acts - reasonable accommodation – S. 4(6) - allowing access to other services – duty of reasonable accommodation cannot give rise to unlawful conduct under other statutes.
1.1. The case concerns a claim by Mr Anthony Egan that Dublin City Council discriminated against him on the ground of age and disability contrary to Sections 3(2)(f) and (g) of the Equal Status Acts 2000 to 2011, in terms of failure to provide reasonable accommodation in connection with the provision of a public facility within the meaning of S. 2 of the Acts.
1.2. The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 1 July 2013. A submission was received from the complainant on 5 September 2013. A submission was received from the respondent on 15 October 2013. On 14 April 2014, in accordance with his powers under S. 25 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. On this date my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 18 June 2014. Additional evidence was requested from both parties at the hearing of the complaint, and received on 27 June 2014 and 4 July 2014, respectively. The last piece of correspondence relating to the complaint was received on 17 July 2014.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that he is a disabled person with a mobility impairment who relies on grocery deliveries from a major retailer directly to his home. He submits that bollards erected by the respondent in front of what he states is the main pedestrian and vehicular access to his apartment complex make it impossible for him to avail of this service, or to avail of another service of free grocery deliveries offered by the Irish Wheelchair Association.
2.2. The complainant further states that he was taken ill and nearly had to be hospitalised in December 2009. He submits that this would have meant he would have had to be stretchered nearly 100m through snow and ice in a time of very inclement weather. He submits that the thought of such a situation arising again is causing him considerable stress. He states that this is in contrast to the years 2007-2009, prior to the erection of the bollards, when he had access to grocery delivery and emergency medical services without problems. He further submits that the bollards present an obstacle for the fire brigade, too, and that this further endangers his health and safety.
2.3. He disputes the opinion of the respondent, expressed in correspondence to him prior to the making of the complaint, that the blocked-off entrance is a pedestrian entrance and that the main vehicular access to the development is via a gated ramp. He states that this gated ramp leads into the underground car park and is controlled by a key fob, which is only issued to owners of parking spaces. He strongly disputes the respondent’s assertion that the disputed entrance is for pedestrians only, and points out that it consists of two gates: a pedestrian gate and a 4m wide entrance which, in the complainant’s opinion, was designed for vehicles. He states that he himself once opened this gate to facilitate access of the Fire Brigade.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the entrance in question is accessible to vehicles, regardless of the fact that it was not identified as vehicular access on the original planning application. It also states that it would be unusual to construct an official vehicular access at a junction, although it accepts that it is used for that purpose.
3.2. With regard to the complainant’s complaint about fire safety regulations being breached, the respondent submits that on 22 July 2013, a fire brigade tender simulated an attempted vehicular access to the development. Subsequently it was agreed that one bollard should be relocated to allow full unrestricted access for a fire tender in the event of an emergency.
3.3. The respondent denies discriminating against the complainant with regard to his grocery deliveries, and states that if certain grocery providers are disinclined to use the access available for use by vehicles that is a matter for them.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against on the grounds of age and disability within the meaning of the Acts and whether the respondent failed to provide him with reasonable accommodation.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 38A of the Acts. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to him. 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.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. In terms of his complaint on the ground of age, the complainant stated that his date of birth is 26 April 1950.
4.5. I am not satisfied that the complainant has succeeded in establishing a prima facie case with regard to his complaint on the ground of age, since a younger person in a comparable situation, i.e. with a similar mobility impairment, would have been equally disadvantaged as the complainant.
4.6. In terms his disabilities, the complainant stated, and the respondent did not dispute, that he suffers from both Parkinsonian tremors and diabetes, and that he has ongoing serious foot problems arising from his diabetes, having been forced to undergo one partial amputation in one foot already. He is also suffering from foot ulcers and is on medical advice to stay off his feet as much as possible. The complainant walks with a cane. I am satisfied that these ongoing medical conditions mean that the complainant is a person with a disability within the meaning of the Acts, and that his mobility is impaired.
4.7. The complainant moved into the Steelworks apartment complex, a privately owned and managed complex in Dublin 1, in 2007. He stated in evidence that there are other residents with disabilities in the complex, including a woman who uses a motorised wheelchair. There are many tenants of the Catholic Housing Aid Society in the complex, and if the complainant experiences problems, he either brings them to the attention of the society administrators (even though he is not a tenant of theirs), or to the onsite caretaker, who is on site 5 days a week from Monday to Friday during normal working hours. A security guard is present at the complex from 6pm to 6am seven days a week. The complainant stated that he has no interaction with the complexes’ management company (i.e. the limited company formed by all owners as shareholders, which is tasked with the administration of the complex), and that when the difficulties which are subject to this complaint arose, he did not engage with them at all, but “complained straight to Dublin City Council”.
4.8. There was also considerable argument between the parties over potential access of emergency services such as the Fire Brigade, which I consider moot in the context of this claim since these concerns did not come to pass during the time the bollards were in place.
4.9. With regard to his grocery deliveries, the complainant stated that he mainly received those deliveries from Tesco, but also occasionally from Supervalu, who have an arrangement for free deliveries with the Irish Wheelchair Association, of which the complainant is a member. The delivery staff will phone the complainant when they have arrived at the vehicular entrance, he will go down in the lift and guide the delivery van into the complex and to his apartment. When the delivery happens at a time when the gates are closed, he will go down and open the gate with the access code all residents have for emergencies.
4.10. When the respondent installed the bollards which are at the core of this dispute, the complainant could not receive his grocery deliveries any longer. He stated in evidence that drivers advised him they could not drive their delivery vehicles around the bollards. The complainant further explained that the delivery drivers were instructed by the supermarket chains which employed them not to leave their vehicles unattended on the street in this part of Dublin 1.
4.11. This part of the complainant’s evidence was strongly disputed by the respondent. Mr L., area manager for the respondent, stated that on various dates when he visited the complex while the bollards were still in place, he saw various vans parked in the complex behind the access gates, and produced photographic evidence to support same. He therefore disputed that a delivery van as used by most supermarket chains would not be able to drive into the complex. However, the complainant submitted in response, and I accept, that those standard delivery vans used by the major supermarket chains are considerably larger, especially longer, and have a wider turning circle, than the vans photographed by Mr L., and I accept the complainant’s evidence that they could not enter the complex, or at least not without considerable risk to the vehicles which the drivers were not permitted to entertain by their respective employers. I therefore accept that the situation brought about by the installation of the bollards deprived the complainant of an important service that ameliorated the effects of his disability on his daily life, and disadvantaged him beyond mere inconvenience.
4.12. Furthermore, I note that the definition of “service” contained in S. 2 of the Equal Status Acts includes “a … facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes, access to and the use of any place.”
4.13. I am satisfied that this definition includes a public footpath, such as the one on which the respondent installed the bollards. I am further satisfied that the access rights thus granted must include, for persons with disabilities, access rights for those who provide services to them which are designed to ameliorate the impact of their disabilities. This is already well established in law with regard to service animals, such as guide dogs. Examples of decisions of this Tribunal addressing this point include DEC-S2001-020, Maughan v. The Glimmer Man, DEC-S2008-073 Moloney v. Park House Hotel and DEC-S2011-026, Fitzpatrick v. McCaul.
4.14. S. 4 of the Acts deals with reasonable accommodation, and states in S. 4(1) that
For the purposes of this Act, discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be unduly difficult for the person to avail himself or herself of the service.
4.15. S. 4(6) of the Acts further states that “ ‘providing’, in relation to special treatment or facilities to which subsection (1)refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly. [Emphasis added.]
4.16. I am therefore satisfied that potentially, a case could be made that an action like the installation of the bollards by the respondent could amount to a prima facie case of discrimination on the ground of disability within the meaning of the Acts, both pursuant the provisions of S. 3(1)(c) of the Acts, and S. 4 as outlined above, in terms of the duty of the respondent to provide reasonable accommodation by allowing a disabled resident in private housing to avail of a private service that is of significant importance to him in terms of the restrictions his disabilities impose on him. However, I am not satisfied that such a case exists here, for reasons I will detail in the following paragraphs.
4.17. It was the respondent’s evidence that according to the planning permission granted for the complex, the main vehicular access should be the entrance to the underground car park, and that the vehicle gate behind the public footpath, situated as it is directly on a corner of two streets, was for emergency vehicle use only. The respondent also gave evidence that the bollards would not have posed a problem for access to the fire brigade, since in case of emergency, the fire brigade would have removed them instantly with a sledge hammer.
4.18. Mr L., for the respondent, further gave evidence that the bollards were installed to prevent illegal parking on the public footpath, which had been a problem before. Mr L. gave extensive evidence how the restoration of the whole urban area around the complex was planned by a design firm, and how it was intended to restore the historic character of the area. He stated that no consultation with residents was undertaken, since the amelioration of the area was classified as road works, which under planning legislation does not need planning consent.
4.19. The respondent also stated that they had no official communications from the management company of the Steelworks complex on the issues raised by the complainant, or notification of other residents with disabilities being impacted by the effect the bollards had on accessibility. It was the respondent’s evidence, which I accept, that the complexes’ management company is their official line of communication on such matters.
4.20. With regard to whether the entrance to the underground car park is the main vehicular access to the complex, the complainant gave extensive evidence about the fob system which is in use for the underground car park, in which only owners of a car parking space, whether resident in the complex or not, can have access to the car park. While I accept the complainant’s evidence that the underground car park can, in practice, not be regarded as the main vehicular access to the complex for the deliveries of goods and services, I find that it is very much not within the respondent’s responsibility to decide how this access is organised. This is a matter for the complexes’ management company, with which the complainant, by his own evidence, had no interaction in this matter. I further accept the respondent’s evidence with regard to the planning permission for the complex, and that according to the planning permission, the disputed entrance is for emergency vehicles only. If a possible mistake has been made in terms of how the complex was originally planned and built, this is not the responsibility of the respondent, either. It cannot be the case that the obligation for reasonable accommodation under S. 4(6) of the Equal Status Acts gives rise to other unlawful conduct, like, in the case on hand, violation of the planning laws. In other words, a valid complaint of refusal of reasonable accommodation within the meaning of the Acts, as sketched out in paragraphs 4.12 to 4.16 above, could only arise where the planning permission clearly states that an area is an all-purpose vehicular entrance to private housing, and an entity like the respondent nevertheless insists on closing it off with bollards. In the case on hand, I am satisfied that the respondent was entitled to rely on the complexes’ planning permission and the planning laws. For all of these reasons, the complainant’s complaint cannot succeed.
4.21. I also wish to note that in purely practical terms, the respondent remedied the situation swiftly once a complaint with the Tribunal was lodged. The complainant’s complaint was received by the Tribunal on 1 July 2013, and three weeks later, after an inspection of the site, one bollard was removed. The remaining bollards were removed in November 2013, and the complainant confirmed in evidence that the problem is gone and that he is once again able to receive his deliveries.
5.1 Based on all of the foregoing, I find, pursuant to Section 25(4) of the Equal Status Acts, that Dublin City Council did not discriminate against Mr Anthony Egan on the ground of his disability, pursuant to Sections 3(1), 4 and 5(1) of the Acts. I also find that Dublin City Council did not discriminate against Mr Egan on the ground of his age.
14 August 2014