EQUAL STATUS ACTS
(represented by David Sheehan & Co. Solicitors)
The Department of Social Protection
(represented by Ms. Sarah-Jane Hillery B.L.
on the instructions of the Chief State Solicitor’s Office)
File References: et-159384-es-15
Date of Issue: 26th October, 2018
1.1 This case concerns a complaint by the Complainant that she was discriminated against by the Respondent on the grounds of disability and race in terms of sections 3(1) and 3(2)(g) and 3(2)(h) of the Equal Status Acts and contrary to section 5(1) of the Equal Status Acts in relation to the Respondent’s decision to disallow the payment of Disability Allowance to her.
2.1 The Complainant made a complaint under the Equal Status Acts to the Director of the Equality Tribunal on 10th September, 2015. In accordance with her powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 3rd September, 2018to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. A written submission was received from the Complainant on 31st December, 2015 and from the Respondent on 7th March, 2016. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 4th September, 2018. Final correspondence from the parties following the hearing was received on 18th September, 2018.
2.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
3. Summary of the Complainant's case
3.1 The Complainant is originally from Belarus and has been residing in Ireland since 2005. The Complainant was in receipt of Disability Allowance from the Respondent. The Complainant claims that the payment of her Disability Allowance was withdrawn by the Respondent from 9th July, 2014 to 13th March, 2015 without any prior warning or notification.
3.2 The Complainant accepts that she notified the Respondent on 28th July, 2014 that she would be leaving the country to visit her mother in Belarus who was ill at that juncture. However, the Complainant contends that this letter was intended to seek permission from the Respondent to leave the country and she did not actually leave for Belarus until 10 October, 2014. The Complainant stayed in Belarus for a number of weeks and subsequently spent a period of time in Latvia and did not receive payment of her Disability Allowance during this period. The Complainant contends that she was not aware that Disability Allowance is not payable to applicants who reside outside of the State. The Complainant accepts that she subsequently received payment in arrears of her Disability Allowance following an investigation by the Respondent to establish the periods that she had spent outside of the State. However, the Complainant contends that she did not receive payment in respect of all of the arrears in her Disability Allowance that were due to her.
3.3 The Complainant claims that the Respondent’s decision to disallow her Disability Allowance and the manner in which she was treated in relation to this matter amounted to discrimination on the grounds of disability and race contrary to the Equal Status Acts.
4. Summary of the Respondent’s case
4.1 The Respondent submits that eligibility for Disability Allowance is governed by legislation namely the Social Welfare Consolidation Act 2015 (as amended). It is a statutorily appointed Deciding Officer who decides all questions in relation to a person’s eligibility for Disability Allowance. In arriving at their decision the Deciding Officer will review all evidence available to them and their decisions can be appealed to the independent Social Welfare Appeals Office. Disability Allowance is only payable to an applicant outside of the state for 2/3 weeks during any 12-month period. Periods longer than this result in the suspension of payment until the date of return of the applicant to this jurisdiction.
4.2 The Respondent submits that the Complainant was in receipt of Disability Allowance and notified the Department on 28th July, 2014 that she would be leaving the country to visit her mother, who was ill, in Belarus. The Disability Allowance Section received a telephone call on behalf of the Complainant (with her authorisation) on 31st July, 2014 to confirm that she would be leaving the country. The Complainant was granted two weeks payment of the Disability Allowance while abroad and her payment was subsequently suspended on the basis that she was outside of the State. The Complainant raised this matter with the Respondent and an investigation was conducted which resulted in her Disability Allowance being reinstated with effect from 13 March, 2015. The Complainant’s Disability Allowance was disallowed for the following periods as the conditions for entitlement were not met:
- 5th November, 2014 to 12th November, 2014
- 10 December, 2014 to 6th January, 2015
- 14 January, 2015 to 10 February, 2015
4.3 The Respondent submits that the Complainant’s received payment in arrears of her Disability Allowance for the periods that she was actually resident in the country following the conclusion of the investigation.
4.4 The Respondent submits that the reason the Complainant’s Disability Allowance was disallowed during the relevant periods was due to the fact that she did not satisfy the requirements as laid out in statute for payment of such allowance. The Respondent denies that the Complainant was subjected to discrimination on the grounds of her disability or race in relation to the disallowance of her Disability Allowance.
Jurisdictional Issue – Time Limits
5.1 The Respondent raised a preliminary objection in relation to the jurisdiction of the Director General of the WRC to investigate the instant complaint on the grounds that it does not comply with the relevant time limits provided for in Section 21 of the Acts. Section 21 of the Equal Status Acts make provision for the relevant time limits for the notification and referral of complaints by a person who intends to seek redress under the Acts in relation to an alleged incident(s) of prohibited conduct.
5.2 Section 21(2)(a) of the Acts provides that before seeking redress under the Acts, a Complainant shall “…within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence”, notify the Respondent in writing of the nature of the allegations and of the Complainant’s intention, if not satisfied with the response, to seek redress under the Acts. Section (3)(a) provides that this may be extended for reasonable cause up to a period of four months or exceptionally, the notification requirement may be dispensed with where fair and reasonable. Section 21(6) then requires a complaint to be brought within six months “…from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.”
5.3 The Respondent contends that the alleged act of discrimination in the instant case i.e. the date of the disallowance of the Complainant’s Disability Allowance occurred on 12th August, 2014. The Respondent submits that payment of Disability Allowance to the Complainant was disallowed on this date after she notified the Department that she would be leaving the State to visit her mother in Belarus. The Respondent submits that the Complainant subsequently raised a complaint with the Department in relation to this matter and as a result it was necessary to carry out an investigation to ascertain whether or not she was actually resident in the State during the periods in respect of which payment of her Disability Allowance had been stopped. The Respondent submits that it was established following this investigation that the Complainant had been resident in the State for certain periods during the material time in question and consequently, she received payment in arrears of any outstanding Disability Allowance entitlements. The Respondent accepts that the final payment of arrears took place on 13th March, 2015 but disputes the Complainant’s contention that the alleged discrimination was ongoing until that date.
5.4 The Respondent contends that the Complainant failed to comply with the relevant notification requirements set out in Section 21(2) of the Acts prior to the referral of the complaint to the WRC on 10th September, 2015. The Respondent further contends that there are no exceptional circumstances in the instant case which would justify a direction that the notification requirements should not apply in accordance with the provisions of Section 21(3)(a)(ii) of the Acts.
5.5 The Complainant contends that the payment of her Disability Allowance was disallowed after she had notified the Respondent on 28th July, 2014 of her intention to travel to Belarus to visit her mother. The Complainant claims that payment of her Disability Allowance was subsequently disallowed from 28th July, 2014 to 13th March, 2015 and she contends that the alleged act of discrimination was ongoing throughout the duration of that period. The Complainant contends that the last such occurrence of the alleged discrimination took place on 13th March, 2015. The Complainant further contends that she notified the Respondent of her intention to seek redress under the Acts in relation to the alleged discrimination on 1st July, 2015.
5.6 In considering this matter, I note that the Respondent has contended that the Complainant failed to submit a valid notification of her intention to seek redress in relation to the alleged discrimination in this case which complied with the requirements set out in Section 21(2)(a) of the Acts. Therefore, the question as to whether or not the Complainant has complied with the relevant time limits in respect of notification does not fall for consideration unless she can establish that the actual written notification which she contends was sent to the Respondent satisfied the requirements set out in Section 21(2)(a)(i) and (ii) of the Acts. In order to satisfy the aforementioned requirements, the Complainant must establish that the written notification of her complaint set out the following details:
“(i) the nature of the allegation, and
(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act.”
In considering this issue, I note that it is indicated on the Complaint Referral Form (ES3) that notification was sent to the Respondent on 1st July, 2015. However, I find that the Complainant has failed to provide any evidence to establish that notification was sent in writing to the Respondent on 1st July, 2015 which would satisfy the requirements set out in Section 21(2)(a) of the Acts. The Complainant also submitted a number of letters in evidence that she sent to the Respondent on 30th June, 2015, 14th July, 2015 and 19th August, 2015 in relation to the disallowance of her Disability Allowance which she contends satisfy the notification requirements set out under Section 21 of the Acts.
5.7 I have carefully examined the contents of these letters and I find that they do not satisfy the notification requirements for the purposes of Section 21(2)(a)(i) and (ii) of the Acts. In the circumstances, I find that the Complainant has failed to establish that she complied with the notification requirements provided for under Section 21(2)(a) of the Acts in relation to this complaint.
5.8 In such circumstances, the only recourse open to the Complainant is to seek a direction that the notification requirements should be dispensed with in accordance with the provisions of Section 21(3)(a)(ii) of the Acts. This provision provides that the Director General may “exceptionally, where satisfied that it is fair and reasonable in the circumstances of the case to do so direct that subsection (2) shall not apply in relation to the complainant”. I n order to grant a direction under this provision, I must be satisfied that the case is an exceptional one and that it is fair and reasonable to dispense with the notification requirements made by the Acts. In coming to that decision, I am required by section 21(3)(b) to take into account the extent to which the Respondent is or is likely to be aware of the circumstances and the extent of any risk of prejudice to the Respondent's ability to deal adequately with the complaint.
5.9 Having regard to the totality of the evidence adduced, I find that I cannot justify dispensing with the notification requirement in the circumstances of the instant case. I am satisfied that the Complainant has not established that there were exceptional circumstances that both justify and explain the delay in notifying the Respondent of the alleged discrimination. I am satisfied that the circumstances surrounding the serving of notification on the Respondent do not amount to ‘exceptional’ circumstances. I am, therefore, not empowered under the Acts to dispense with the notification requirement. Furthermore, I am satisfied that the notification requirements set out in Section 21(2) of the Acts, were not complied with, and accordingly, I find that I do not have jurisdiction to investigate the within complaint.
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts. I find that the Complainant has failed to comply with the notification requirements set out in Section 21 of the Acts. Accordingly, I find that I do not have jurisdiction to investigate the instant complaint.
Equality Officer/Adjudication Officer
26th October, 2018