ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050937
Parties:
| Complainant | Respondent |
Parties | Amit Chawla | Department Of Social Protection Disability Allowance Section |
Representatives | Self-represented | Mark Rodgers BL instructed by Joseph Dolan Chief State Solicitor's Office |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00062376-001 WITHDRAWN | 15/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00062376-002 WITHDRAWN | 15/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00062376-003 | 15/03/2024 |
Date of Adjudication Hearing: 29/08/2024, 12/03/2025 and 08/05/2025
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
In accordance with section 79 of the Employment Equality Acts, 1998 as amended and section 25 of the Equal Status Act, 2000 as amendedfollowing the referral of the complaints to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.
At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are held in public and, in most cases, decisions are no longer anonymised. The parties are named in the heading of the decision. For ease of reference, the generic terms of ‘Complainant’ and ‘Respondent’ are used throughout the text and the Respondent’s employees are referred to by their job titles.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation and the legal perils of perjury were explained to all that gave evidence. All participants who gave evidence were sworn in. Both parties were offered the opportunity to cross-examine the evidence.
I have received written submissions from the Respondent. I have received voluminous submissions, numerous appendices and exhibits, and written supplemental objections and counterarguments to the Respondents’ submissions from the Complainant. I have taken the time to carefully review all the submissions and the evidence both written and oral. Much of the evidence was in dispute between the parties. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings.
I am required to set out ‘such evidential material which is fundamentally relevant to the decision’ per MacMenamin J. in Nano Nagle School v Daly [2019] IESC 63
Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute. In reaching my decisions I have taken into consideration of all written and verbal submissions of the parties and I have had full regard to the evidence adduced in the course of the proceedings.
The Complainant was self-represented. He was accompanied by his wife, Ms Neeru Khurana.
The Respondent was represented by Mr Mark Rodgers BL who was instructed by Mr Joseph Dolan, Chief State Solicitor's Office.
The following attended on behalf of the Respondent:
Mr Brendan Lawton, Principal Officer; Mr Ronan Harney, Principal Officer; Ms Mary Fisher, Social Welfare Inspector; Mr Denis Riordan, retired Social Welfare Inspector; Mr Ciaran O’Craobhach, Social Welfare Inspector Area Manager; Mr Donal Stephenson, the Disability Allowance Section; and Ms Linda Farrell, the Disability Allowance Section.
At the adjudication hearing the Complainant withdrew the following claims:
CA-00062376-001 pursuant to section 77 of the Employment Equality Act, 1998
CA-00062376-002 pursuant to section 77 of the Employment Equality Act, 1998
Additional correspondence was received from the Respondent, on the Adjudication Officer’s request, on 8 May 2025.
Background:
The Complainant referred his claims to the Director General of the WRC on 15 March 2024 alleging that he was discriminated against and that he did not receive equal pay pursuant to the Employment Equality Act, 1998. He also referred a claim pursuant to the Equal Status Act, 2000 alleging that he was discriminated against by the Respondent on the grounds of gender, age, civil status, disability, family status, race, sexual orientation and religion. He alleged that the Respondent discriminated against him in the following manner: in harassing him, sexually harassing him, dismissing the Complainant because he opposed discrimination, and victimising him. The date of the first incident of discrimination was stated as 19 September 2023, the most recent date of the alleged discrimination was stated as 6 February 2024. ES1 form was sent to the Respondent on 22 January 2024.
At the adjudication hearing, the Complainant withdrew both claims pursuant to the Employment Equality Act, 1998, as amended.
The Respondent rejects the claims.
At the adjudication hearing on 29 August 2024, the Respondent made an application that the mater be dismissed by way of preliminary decision. On 26 February 2025, the following was issued to the parties on behalf of the Adjudication Officer.
“I have reviewed the written submissions of the parties regarding the WRC jurisdiction to hear the substantive matter and whether the complaint was brought within the prescribed time limit.
I note the Respondent’s reliance on, inter alia, Fogarty v Employment Appeals Tribunal DEC-S2009-087 which concerns a complaint of alleged discrimination on the grounds of disability as against the EAT in respect of the alleged failure to provide reasonable accommodation in the context of the EAT hearing. The Equality Officer held at paragraph 4.7 of her decision that some of the functions of the EAT are services within the meaning of the Equal Status Act being those outside the decision-making functions. She determined that the reception and the processing of complaints and organising and hearing of complaints is a service or facility within the meaning of the Act.
It is my view that, without hearing the matter in full, it would be impossible for me to ascertain which alleged acts of discrimination, if any, fall within the scope of the Act.
With regard to the time limits, I note the Respondent’s assertion that the Complainant’s claim relates to conduct alleged to have “primarily occurred on 19 September 2023” and, by application of section 21(2)(a) of the Act, the notifying of the Respondent in writing of the nature of the claim and the Complainant’s intention to seek redress under the Act on 22 January 2024 would deem the claim to be out of time.
In that regard I note that the Complainant appears to suggest that the discrimination was recurring and continuing over a period and “first came to the attention on 19/9/2023”.
It is my view that, without hearing the matter in full, it would be impossible for me to ascertain when the alleged acts of discrimination occurred and whether the notification of 22 January 2024 did comply with the requirements of section 21 of the Act.
Having carefully considered the matter; I wish to inform you that the parties will be given an opportunity to briefly discuss their supplemental submissions at the outset of the hearing on 12 March 2025 prior to proceeding to the hearing of the substantive matter.”
|
Summary of Complainant’s Case:
Submission of 15 March 2024 The Complainant submits that he was discriminated against, harassed, intimidated, humiliated and victimised on an ongoing basis on the grounds of race, religion, disability, age, marital status, sexual orientation, gender, nationality, ethnicity and colour. He alleges that he was sexually harassed and racially profiled. The Complainant submits that he was discriminated by a Social Welfare Inspector (‘SWI’) at his home on 19 September 2023 and that the SWI continued to harass and victimise him even after a complaint was made. The Complainant submits that when he made complaints about this behaviour, he was further discriminated, harassed and intimidated, threatened by the Manager of Social Welfare Inspectors. Further complaints to more senior officials resulted in the escalation of discrimination, harassment, intimidation, humiliation, and victimisation. The Complainant submits that, since then another SWI began a string of discrimination, harassment and victimisation by repeatedly turning up at his door and demanding access to attend his home. The Complainant submits that no response has been received to his complaints or formal ES1 complaint filed on 22 January 2024. As the last resort he forwarded his complaint to the Ombudsman which stated that it cannot examine complaints until the Respondent has responded to complaints. Background The Complainant submits that he is an Irish citizen born and habitually resident in Ireland married to an Indian national for over 14 years. They reside together, and she is the Complainant’s dependant. The Complainant submits that he has a physical disability and a long-term illness. His spouse is over 60 years of age and suffers from severe arthritis. The Complainant has been in receipt of Disability Allowance (‘DA’) since 29 May 2013 along with an Increase for a Qualified Adult (‘IQA’). The Complainant submits that the Respondent’s decisions to suspend payments (his wife's IQA) was made under incorrect legislation on 25 October 2023. The Respondent failed to reinstate the IQA payment as directed by the Social Welfare Appeals Officer (‘SWAO’) from date of its suspension 31 October 2023. This failure to reinstate led to the Complainant’s basic DA to be suspended/withheld without any valid reason, information or decision made. The Complainant submits that his complaint under the Equal Status Act (‘ESA’) was met with direct retaliation, and his DA payment was withheld without any justification. This left him and his wife without any of the payments they were entitled to. The Complainant submits that discrimination, harassment and intimidation continue with ongoing victimisation by Social Welfare Inspectors demanding access to his family home. The Complainant submits that he received threats that failure to retract his complaint would result in his social welfare claims being affected and the result was that payments were withheld. The Complainant submits that he made every effort to comply with all genuine requests of the Respondent. Each attempt to resolve was met with retaliatory behaviour at each level of authority of the Respondent organisation. The Complainant submits that he made requests that while complaints are pending that the Respondent’s officials do not attempt any unnecessary contact with him or his wife. The request resulted in direct retaliation with continuing and escalated harassment and victimisation including demands of access and attend his family home. The Complainant submits that he has suffered loss of income by payments being withheld/wrongfully suspended. He submits that he had to seek medical attention for anxiety, mental stress, depression as a result of the mistreatment by the Respondent. Addendum dated 8 August 2024 to the Complainant’s initial claim In the 16-page document, the Complainant largely reiterated his complaints as detailed in his previous correspondence. The Complainant alleged that the Respondent withheld his DA and Fuel Allowance without any valid reason. The Complainant again asserted that the Respondent knowingly followed incorrect procedures and did not comply with the request of the SWAO when directed. The Complainant stated that on 16 May 2024 Mr Brendan Lawton of the Respondent hand-delivered an undated letter demanding entry to the Complainant’s home. The Complainant contacted the Respondent seeking an explanation or reasons for further demand to enter his home given that the matter was with the WRC. The Complainant made further allegation that on 19 September 2023, the SWI moved freely about the home without any authorisation or permission. He allegedly gained access to a bedroom and all private areas of the home and went thumbing through religious items and the Complainant’s wife’s personal items including drawers of undergarments. The Complainant acknowledged that the SWI was known to him from previous interactions in June 2016. The Complainant made a number of assertions regarding his Freedom of Information request, which are outside the remit of this investigation. The Complainant made a submission regarding the handling of his HAP / rent supplement and the Respondent’s overpayment decision against the Complainant for the period of his imprisonment. The Complainant alleged that the Respondent has not given him benefit of doubt and demanded the repayment of debt which, in his view, was as a result of the Respondent’s error. The Complainant alleged that there was continued bombardment of SWIs demanding unlawful entry to his home and that he was threatened to retract his complaint.
Submission of 2 September 2024 On 2 September 2024, the Complainant furnished a “Counter-arguments to the Respondent’s submissions - Objections to prejudicial submissions of the Respondent.” The Complainant alleged that the Respondent’s submission is misleading and misrepresented. He asserted that it relies on false information within the ES2. He further alleged that a possible theft of identity is evident within records. Finally, the Complainant asserted that the Respondent did not attempt to engage or arrive at a settlement with the Complainant, despite multiple requests and attempts from the Complainant. The Complainant asserted in his submission that the complaint does not relate to performance of the SWIs of duties imposed under section 250 of the Social Welfare Consolidation Act 2005 (‘SWCA’). The complaint relates to the non-statutory use of powers of SWIs and the Respondent’s incorrect procedures. The Complainant asserted that section 250 of the SWCA 2005 is not relevant to the matter or is not being in any way challenged. The matters before the WRC do not relate to section 250 or the duties of the SWIs laid out in the SWCA. The complaint relates to discrimination on the grounds of race, religion, disability, age, marital status, sexual orientation, harassment and victimisation. The Complainant submitted that section 14(a)(i) of the Equal Status Act is not relevant here in its entirety. The Complainant does not bring any challenge to exemptions of the Act by the taking of any action that is required by or under any enactment or order of a court. The exemption in section 14(1) is limited to actions which are required by the relevant law. It does not therefore apply where, for example, a statute allows for the possibility of different treatment but does not require it. This means that where a decision maker has discretion in relation to a decision and is not obligated to make it in a particular way, the exemption does not apply as the discriminatory treatment is not “required by law”. The Complainant submits that the Respondent in this case cannot enjoy the benefit of section 14 (a)(i) of the Equal Status Act by claiming exemption. The harassment is evident within documentary evidence. The regular turning up and demanding entry to the Complainant’s private home under the guise to repeatedly interview the Complainant and further victimise his dependant. This complaint is not related to the decision or the appeal. The within matter is of discrimination, harassment and victimisation. While the Complainant had attempted to comply with all requests and correct procedures open to him, the Respondent only further harassed and victimised the Complainant while the decision referred was under appeal. The successful appeal was met yet with further victimisation and a further suspension of the DA without any decision or information, where no appeal procedure of other mechanism was available to the Complainant despite the recent assessment decided in favour of the Complainant, as recent as 16 August 2023. Furthermore, the SWI had concluded his investigation in October 2023 as per the Respondents' evidence. Therefore, the subsequent harassment and victimisation by SWIs and other officials turning up at the private home, with repeated demands to gain unlawful entry, was contrary to the duties imposed on SWIs under section 250 of the Act of 2005. As per the parameters of the ESA, the public bodies are governed by the Act as providers of goods and / or services. The Complainant, as a customer of the service provider exhausted all avenues to resolve matters with the customer service section of the public body. Complaints have been made to customerservice@welfare.ie, the service provider's customer service section. No question thus arises that the Respondent is a service provider as per the Acts. The service provider having a customer service section has a duty of care and the compliance to engage in fair procedure to eliminate discrimination, harassment and victimisation. Section 5(1) of the ESA prohibits against discrimination in the provisions of goods and services. The Respondent's charter and correspondence regarding the Complainant has outlined him as a customer, therefore the Respondent must be the service provided either as a private or public body as covered under the Act. The judgement cited by the Respondent is irrelevant and unrelated to the matters within. The judgement relates to assessment of or procedures of assessment of a Disability Allowance claim as the Complainant’s DA claim had already been assessed in 2013 and awarded in 2014 by upholding his Appeal. Similarly, the Complainant’s DA claim was assessed a decision reached to reinstate the payment dated 18 January 2023, along with its components i.e. the IQA and Fuel Allowance as entitled. Therefore, the assessment and procedures thereof are irrelevant so far as a decision had been made in favour of the Complainant. Therefore, the purpose and duty of the SWI’s visit of 19 September 2023 does not satisfy any purpose and duty of the SWI’s investigation after the conclusion of the assessment and the final decision of the deciding officer documented on 16 August 2023 to reinstate the DA claim and its components. The Complainant submits that the Department of Social Protection customer charter states: “Quality customer service is a key priority for the department. Our Customer Charter sets out the level of service customers can expect when dealing with us. Our Customer Action Plan sets out a range of measures that will improve quality customer service across the department, to be implemented during the lifetime of the plan ‘’. Further, it is submitted that the Complainant is not in any way challenging the procedures of assessment of the Disability Allowance claim. Regardless, the assessment was carried out and decided in favour of the Complainant on 18 January 2023. The question thus arises as to the duty and purpose of the SWI on 19 September 2023. The Complainant submits that evidence of discriminatory remarks is found within the reports of the SWI who moved freely about the private home. There is no statutory power of entry. If a customer does not wish to allow an Inspector to enter their private home, they may be requested by the Inspector to make themselves available for interview at an alternative agreed location (The Minister for Social Protection parliamentary questions written answer 9 December 2021). At no point was the Complainant or his dependant requested officially to make themselves available for interview at any Social Welfare premises as the investigation of the SWI had concluded on 19 September 2023. The Complainant on receipt of an invitation to attend interview made himself available and notified the SWI in writing of his availability to attend the SWI’s office on 15 September 2023 as requested. The Complainant relies on a document he obtained through an FOI request which was created on 25 January 2024 at 16.30 and stated: ‘’Subject: FW Complaint: Disability Allowance Not received Urgent Importance: High ‘’ ‘’Can you ensure 8622814 IQA and DA is unstopped. Once an AO decision is made it must be implemented. The IQA was not awarded after the AO decision. It was referred to SWI and was then stopped following the SWI report. The customer has submitted a complaint and an Equal Status Act Complaint. He has been in with various TD’s over the last few days. Can you confirm once unstopped and put back into payment. Give me a call if you wish to discuss ‘’. The Complainant submits that this record was further ignored, and discrimination, harassment and victimisation continued by SWIs and officials. The Respondent refused or failed to engage in its own complaints and customer service process and procedure, including refusal and failure to engage when a complaint was made to the Ombudsman. Submission of 27 September 2024 On 27 September 2024, the Complainant furnished a submission on “The matters of Jurisdiction and the application of section 21(2)(a) of the Equal status Acts 2000” as follows. The preliminary matter of jurisdiction is outlined in Fogarty V Employment Appeals Tribunal (DEC-S2009-087) where the Equality Officer gave consideration to the respondent’s submissions to have the matter dismissed on the very basis of jurisdiction. However, the prima facie of discrimination and prohibited conduct has been established in the complaint and supporting evidence. Thus, the jurisdiction of the matter lies within the remit of the WRC. The Complainant submits that the term “service” extends to provisions of services provided by the State. ‘’It is clear the wording of section 2(1) that the services and facilities which are covered by the section have to be available to the public generally or a section of the public. It is also clear that the facilities mentioned in section 2(1)(b) is not an exhaustive list of matters covered by the Act.’’ Furthermore, services provided by the State (such as the Health Service Executive, local authorities, and so on) are covered by the Act. It is also submitted that the Complainant is not in any way attempting to challenge legislation, enactment or order of Court. Beaty V Rents Tribunal [2006] 2 I.R. 191 held that a body established by statute exercising statutory adjudicative duties in the public interest enjoyed an immunity from an action in ordinary negligence provided it was acting within its jurisdiction in a bona fide manner. In so far as determination of the Complainant’s entitlements to social welfare are concerned the matter has been concluded and determined on 16 August 2023. The prohibited conduct within the meaning of the Equal Status Act 2000 was instigated on 19 September 2023 going forward only after the adjudicative functions of the Respondent had concluded no later than 12 September 2023. Therefore, the Respondent cannot enjoy an immunity granted in Beaty V Rents Tribunal. Furthermore, the Respondent refused to engage with the Ombudsman process. The Respondent attempts to rely on an immunity and refer to other remedies open to the Complainant. However, when the complaints procedures and the last remedy available to the Complainant was utilised, the Respondent refused to engage. Therefore, any immunity which may have been granted in Beaty V Rent Tribunal [2006] 2 I.R. 191, cannot be enjoyed by the Respondent as it has not acted ‘’in ordinary negligence provided it was acting within its jurisdiction in a bona fide manner.’’ Furthermore, the Respondents appear to rely on alternative remedies including judicial review. There is no decision, enactment or order of court currently concluded against the Complainant to seek redress under judicial review. Thus, the administrative functions of the Respondent fall within the remit of the Equal Status Acts. The prohibited conduct is not of adjudicative functions. On the contrary the Respondent retaliated and held contempt to the Appeals Officer decision of 24 November 2023 only on basis of prohibited conduct and to racially profile the Complainant which became evident in documentary evidence released by the Respondent on or after 11 December 2023. The Respondents have not shown any enactment or order of court, under which they acted to withhold the non-payment unlawfully on more than 2 occasions. Furthermore, the wrongdoing recorded on 25 January 2024 which came to the attention of the Complainant only after end of March 2024 constitute victimisation. The Complainant submits that despite the ES1 dated 22 January 2024 the Respondents directly retaliated by non-payment of the Complainant’s DA and Fuel Allowance on the week following receipt of the ES1. ES1 was not responded to the Complainant prior to coming before WRC on 15 March 2024 or the matter being put up for adjudication on 5 April 2024. The Complainant submits that it was a further delay tactic so that the Complainant would be time-barred from bringing the complaint before the WRC within 6-month period. The Complainant submits that the first notification of a complaint of harassment was made on 13 November 2023 in writing. However, this complaint was met with direct retaliation of further discrimination by way of phone call from senior member of staff. The matter had escalated on each attempt to resolve it. Timeline of events 19 September 2023 at 11am - Mr Riordan SWI turned up at the private family home of the Complainant, demanded and gained entry to the private home without identification as required by SWI - Operational Guidelines. He did not produce any certificate of appointment and falsely cited powers not vested in him to demand unlawful and unauthorised entry. The Complainant submits that the SWI engaged in prohibited conduct including the desecration of the Complainant’s home and made remarks about the Complainant’s race, religion, ethnicity, disability, marital status and sexual orientation. The Complainant further submits that the SWI sexually harassed and racially profiled the Complainant. The Complainant submits that the SWI was informed and shown the decision of 12 September 2023 to which he remarked “So if you had a decision then what am I doing here?’’ The Complainant submits that the visit took place contrary to section 1.2 of the Guidelines without production of certificate of appointment; section 1.3 - the purpose and intent of the visit or subsequent visits was not made clear; section 1.4 - no communication related to the unauthorised visit conducted by a forceful manner on 19 September 2023 to demand and gain entry to the private home or subsequent recurrences. The Complainant submits that the SWI, without requesting permission, roamed freely and searched intimate areas of the private home including personal and religious items contrary to section 4.3 of the guidelines. Furthermore, the reports of the SWI have been compiled contrary to section 5.1.2 (to not be the judge of his own cause) contrary to section 5.1.4 (reports should never contain direct instructions to a deciding officer). Finally, the reports should be in conjunction with section 5.2.3 - customers or their legal representatives may be entitled to see reports which are written about them. For this reason, care should be taken to avoid making any derogatory references or comments about customers in reports. However, this does not preclude the Inspector from expressing an opinion. The reports of the SWI were made available to the Complainant on 22 December 2023 and no earlier than 11 December 2023 where the title of at least one report has been changed on at least one occasion in bid to hide its true identity or authenticity. The reports are documentary evidence of the ongoing harassment or victimisation towards the Complainant rooted in discrimination and less favourable treatment towards the Complainant. The reports came to the Complainant’s attention only on 22 December 2023 released by the Respondent no sooner than 11 December 2023. Therefore, the matters within in their entirety come within the application of section 21(2)(a) of the Equal Status Acts 2000 i.e. that the recurrence and pattern of repeated prohibited conduct is evident from that pattern which has not ceased towards the Complainant. From its instigation or at least its first coming to the Complainants' attention on 19 September 2023. Thus, there is no question to the application of the ES1 within the 2-month time frame where there are repeated occurrences of the same prohibited behaviour. 18 October 2023- Mr Riordan SWI returned to the private home to further discriminate, harass and victimise to instil fear in the Complainant. Follow up from the occurrence of 19 September 2023. Multiple complaints were made to Disability Allowance Section Longford under whose authority the SWI stated he was acting under. There appears to be record of only the complaint of 3 November 2023 made to the supervisor at the Section. The Complainant submits that he advised of the conduct of the SWI. He also made clear that there was no unwillingness to engage with the Respondent. However, following the occurrence of 19 September 2023 officials would not be entertained at the Complainant’s home. Shall the need arise, the Complainant offered to make himself available at any of the Respondent’s offices. A record of this particular statement appears on Respondent’s record only short of the details of the complaint. 13 November 2023, 11 am - Mr Riordan SWI again turned up at the private home to instil fear in the presence of the Complainant. The Complainant asserts that the SWI discriminated against, harassed, victimised and racially profiled the Complainant by acting unauthorised by pushing a hand typed note through the door without letterhead, signature or a stamp. This was in retaliation for the telephone complaint on 3 November 2023. 13 November 2023 – the Complainant made a complaint to the Respondent. 14 November 2023 – a call from Mr O’Craobhach SWI Office Manager. The Complainant submits that the Manager threatened him and requested to retract the complaint. 14 November 2023 – the Complainant made a complaint through the customer complaints procedure about an ongoing recurrence of prohibited conduct and requesting an explanation of the SWI returning to the private home despite complaints made to senior members of staff. 16 November 2023, 11 am - Mr Riordan SWI returned to the private home of the Complainant. He engaged in prohibited, unauthorised and unlawful demand to enter the private home. The Respondent further engaged in prohibited behaviour of racially and abusive nature. 21 November 2023 - a letter was received by post from Mr Riordan SWI demanding to attend the Complainant’s home on 16 November 2023. The letter was posted on or after 16 November 2023. 24 November 2023 - the Manager of SWIs Mr O’Crabhach dismissed the complaint. He stated that the letter without letterhead, signature or stamp bearing the name of Mr Riordan SWI hand-delivered on 13 November 2023 was in fact posted using the postal service. It was another bid to racially profile the Complainant and it was a further insult to the Complainant’s Irishness by suggesting that he was not aware of the Irish postal system or its working. 11 December 2023 at 11 am - Ms Fisher SWI turned up at the home of the Complainant. She identified herself as SWI. However, showed no identification, certificate of appointment or authorisation to support her identity or authorisation for such demand. On refusal she engaged in prohibited conduct and violent behaviour. 18 December 2023 at 11am - Ms Fisher again turned up at the private home in the same unauthorised manner stated she is an SWI. However, she produced no identification while demanding entry to the home. There was no new request for any information, or for the Complainant to present at any of the Respondent’s offices. 9 January 2024 - Ms Fisher SWI again turned up at the private home stated her designation as a SWI. However, still produced no identification or authorisation or warrant authorising entry to the home. When the demands were refused, she again became violent and engaged in prohibited conduct. Ms Fisher hand-delivered a letter that she would return on 15 January 2024. 15 January 2024 - Ms Fisher SWI again turned up at the private home. She stated she was a SWI, however, produced no identification as on previous visits. Further demanded entry to the private home. Stated her authority again as repeated previously of powers to enter a private home. 22 December 2023 and no sooner than 11 December 2023 - documentary evidence would come to the attention of the Complainant by way of at least two SWI’s reports. The SWI’s reports compiled by Mr Riordan SWI recorded discrimination created to cause harassment, alarm, intimidation and victimise the Complainant. The Respondent directed cessation of the IQA. The decision is not at challenged here. However, discriminatory allegation was made about the Complainant's marriage and his marital status. The direction to cease the IQA given by a person not authorised to give such a direction is contrary to section 5.1.4 of the SWI - operational Guidelines, Code of Practice. The Respondent took issue with the marriage certificate of the Complainant which it already had on record. 16 August 2023 – the Respondent changed the method of the Complainant’s DA payment to force him to attend at the local post office despite the Respondent being notified of the Complainant’s disability. The Respondent discriminated against the Complainant by not returning the payment method to the previously bank transfer method. The Complainant’s medical records were sent to the Respondent including a letter from the Complainant’s GP outlining the need to have the payment returned to the bank transfer method citing his low mobility. The Minister for Social Protection stated on 27 September 2023 that if the Complainant could provide medical evidence for the need to have the payment provided to post office this would be reviewed. The payment was returned to bank transfer. However, again on 23 November 2023 the Respondents discriminated against the Complainant after all measures had been met to have the payment returned to bank transfer. The Respondent again issued a letter to change the payment method to a post office not taking into account the recent GP letter. On attending the post office, it was discovered there was no payment made available for the Complainant. 25 October 2023 - the Respondent made a wrongful decision on foot of unauthorised direction of Mr Riordan SWI to cease the IQA payment contrary to his powers of section 5.1.4 of the SWI - Operational Guidelines. The decision made under incorrect legislation, the Respondent could not specify the subsection relevant in this instance. The Respondent may claim an ordinary negligence of the decision which was overturned by the SWAO. The SWAO was satisfied the decision was had no basis and was made under incorrect legislation section 241 of the SWCA. The appeal was upheld on 24 November 2023. The Respondent withheld the information of the decision from the Complainant. The Respondent in this instance may have enjoyed the benefit of ordinary negligence. However, it is evident from the pattern of behaviour that the Respondent was in contempt of the SWAO’s decision. Not by ordinary negligence or intentional negligence but on the basis of discrimination, harassment, humiliation, victimisation, unlawful and prohibited conduct towards the Complainant and his dependant. The decision alone may have relied on negligence or error, however the racial profiling within the reports of the SWI are evident of the ongoing prohibited conduct towards the Complainant. Furthermore, when directed by the SWAO, the decision was not complied with. Had the decision not been complied with due to error or administrative function or error, it may have been intentionally negligent at best. Thus, allowing still for benefit of doubt or error, by the repeated turning up at the door, the Respondents continued to harass and victimise simply due to racial profile of the Complainant. Even still, the benefit of error may have been granted to the Respondent. However, on 1 November 2023 and 8 November 2023, the Complainant did not receive his winter fuel allowance payment as he was entitled to. When contacted the relevant section, he was informed the payment had been paid along with his DA. The question thus arises what happened to that entitled payment on 1 November 2023 and 8 November 2023 without any authorisation or decision to deduct the amount. The non-payment is evident from the bank transfer of amount as received. The Respondent has not attempted to rectify this. However, subsequent unauthorised deductions have taken place since off and on without explanation or authorised decision or any other adjudicative factor or decision. Furthermore, the ES1 complaint was made on 22 January 2024 to the Respondent. The week following the receipt of the ES1 complaint, the Respondent retaliated by not reinstating the IQA payment as directed by the appeals officer (to reinstate the suspended payment from 29/10/2023). The Complainant’s DA and fuel allowance were also withheld. The Complainant submits that the discrimination, harassment, victimisation and racial profiling first occurred on 19 September 2023. However, it was not an isolated incident of prohibited conduct, but long and ongoing recurrence of prohibited conduct The Complainant submits that the Respondent refused to engage with its own complaint procedure, which provides that typically a complaint must be responded to within 15 days. Shall a complaint not be responded to or the response being unfavourable, a complaint might be made to the Ombudsman. Mr Lawton, Control Unit Officer, on behalf of the Respondent stated he would investigate the complaints of 7 February 2024. However, there has been no further response to date. The Complainant referred the matter to the Ombudsman but the Respondent did not engage. Therefore, the Respondent cannot enjoy immunity as in Beaty V Rent Tribunal or object to the application of section 21(2)(a) of the ESA as any delay in the issuing of the ES1 has been solely to the hurdles or the Respondent’s refusal to engage and continue the prohibited conduct towards the Complainant. Only on exhausting all other avenues the ES1 was issued and subsequently the complaint was brought to the WRC on 15 March 2024. It is evident the Respondents has attempted delay tactics when the Complainant has made every attempt to resolve issues. Therefore, by stating that the 19 September 2023 occurrence is beyond the 2-month time limit the Respondent is simply attempting not to face the ongoing matters where there is an administrative admission of the contempt and non-implementation of an adjudicative decision. There was intentional misconduct where further mistreatment has continued. Therefore, Respondent's objections to the jurisdiction and application of section 21(2)(a) for the purpose of the ES1 is baseless and unfounded. The Complainant has come before the WRC to seek redress for the prohibited conduct that was reoccurring and is ongoing. Submission of 29 April 2025 On 29 April 2025, the Complainant wrote to the WRC stating that he “feels the need, although not requested, to file supplementary submissions in order to raise objections.” The 27 pages document largely repeated the Complainant’s previous lengthy submissions. The Complainant reiterated that discrimination, harassment and victimisation are ongoing since 19 September 2023. As the 19 September 2023 occurrence is not an isolated incident it is, therefore, within the time limits prescribed by the Act. The Complainant was not awarded any reasonable accommodation and made himself available for the interview initially scheduled for the Respondents' offices. The Complainant again referred to a report of 2016 and 2023. He asserted that, as they were made available to him on 11 December 2024 and were received on 22 December 2023 therefore, they are within the time limits. The Complainant submitted that the interview scheduled for 15 September 2023 at the Respondent’s offices was cancelled by Mr Riordan SWI by phone on 14 September 2023 to be rescheduled. No rescheduling took place until 19 September 2023. The letter to Mr Riordan stated clearly the Complainants' availability for the interview on scheduled date and venue. There was no report produced on 19 September 2023 by Mr Riordan only for the means reporting form which was evidently completed by Mr Riordan SWI at a much later date after the complainant signed the document on 19 September 2023. This only became apparent when the form was received by the Complainant at a later date. No other report was produced to the Complainant on 19 September 2023 by Mr Riordan SWI. During a telephone call from the Manager of SWI office, the Manager intimidated and threatened the Complainant. The Complainant has filed a complaint regards this phone call to the complaints section on the same day. No reply was received to any complaints. On 16 November 2023, Mr Riordan SWI turned up at the Complainant’s home. As his investigation concluded on 18 October 2023, the reason for his visit is unclear. A letter of 16 November 2023 was then received. An email from Mr O’Craobhach, the Manager was a response to multiple complaints made to the complaints section of the Respondent. As the manager had previously threatened the Complainant by phone, a complaint had been made. The same person dismissed the complaints and could not account for the actions complained of. Thus, the response was simply to further intimidate the Complainant. The Complainant contacted the Disability Allowance Section regarding the suspension of his entitlements. However, the Respondent simply ignored the Complainant and chose to act in a prohibited manner to cause harassment and victimise the Complainant by withholding his claims in part or in full without reason or cause. On multiple dates, the SWIs have attended the private home in a bid to gain entry, which is a chain of harassment and victimisation. Particularly where there appears to be no ongoing investigation, bar the investigation that claims to be concluded on 18 October 2023. To knock at someone's door may not be discriminatory, to attempt to do so under false pretences of legislation not permitting such invasion is certainly prohibited conduct. Which had been repeatedly continuing for several months from 19 September 2023. The Respondent never requested the Complainant to attend any offices. Therefore, it is apparent that the need to attend the private family home was one to cause distress, mental anguish, anxiety, and invade the private home of the Complainant. The Complainant submit that his complaint is within time limits. The ES1 complaint is a chronological order of occurrences and incidents, actions taken by the Respondents stemming from 19 September 2023. Documents came to the Complainant’s attention in late December 2023. As the timeframe of the written evidence coming to the attention of the complainant is well within the timeframe of the 2-month complaint period for bringing the equal status complaints and the documents are merely a continuation of the discrimination of 19 September 2023, therefore it can be ascertained the discriminatory conduct has continued since 19 September 2023. The Respondents claims an administrative error. However had any administrative error occurred, the Respondents would not have repeatedly harassed and victimised the Complainant and his spouse with letters, phone calls and other attempts to continue to discriminate against the Complainant. The Complainant received the ES2 response dated 22 April 2024 on 2 May 2023. An administrative error may have been notified to the Complainant. However, further attempts by the Complainant to engage with the Respondent did not provide any information or attempt to rely on any administrative error. The eligibility of the Complainant was established in January 2023 by the Disability Allowance section where the payment was made in full. Only since the incidents of 19 September 2023 has the Complainant been mistreated. Finally, the Complainant is not seeking to challenge any order of court. In fact, on the contrary, the Respondents acted completely outside the powers or legislation and was in contempt of an order of court when the Complainant’s DA was suspended rather than the IQA reinstated as directed by the appeals decision in favour of the Complainant. There has been no established reason for a claim already in payment to be assessed. The Complainant does not refute the need of routine enquiry. However, the actions of the Respondent are not ones of routine enquiry. And from the 19 September 2023 there has been discriminatory actions, actions outside of legislation and repeated and ongoing harassment and victimisation. The Respondent's claim that each incident or occurrence is an individual occurrence is baseless, each incident is in fact related to the occurrences of 19 September 2023. The Complainant submits that the investigation documents i.e. reports and the means testing forms submitted on 18 October 2023 by the SWI are in fact false. The Complainant was mistreated not only in words but actions when his marriage was questioned as being one of convenience. The Complainant and his spouse have been married since 2010 and are living together as husband and wife since. Summary of direct evidence and cross-examination of the Complainant At the adjudication hearing on 29 August 2024, the Complainant asserted that he was not aware of the complaint process under the Equal Status Act, 2000 and only became aware of same when he contacted the Citizens Information Bureau in December 2023. The Complainant stated that the Respondent provides service and that he is not challenging an enactment, legalisation or court order. The Complainant agreed that, as per the time limits prescribed by Act only events falling in the cognisable period can be considered. However, he did not wish to apply for an extension of the two months’ time limits as, he asserted, the conduct was ongoing from 19 September 2023 onward. Therefore, all incidents from 19 September 2023 onwards fall within the cognisable period. The Complainant was asked by the Adjudication Officer to particularise his claim. The Complainant stated that 19 September 2023 was the start date of a repeated pattern of behaviour. The Complainant said that the behaviour of the SWI was discriminatory. He also alleged that the subsequent report was discriminatory on the grounds of race and his civil status as it contained a note stating that on 19 September 2023 he was asked by the SWI if his marriage was a marriage of convenience, which he denied. The Complainant further stated that the SWI’s report of 24 June 2016 referenced that he was alone at home at the time of the visit. He alleged that it was “finger pointing” at his marriage. The Complainant said that he made a complaint on the same day but felt that his complaint was not listened to. The Complainant said that he received a telephone call on 14 November 2023 from Mr O’Craobhach SWI Office Manager who threatened him. The Complainant stated that the letter dated 16 November 2023, which was hand-delivered on 21 or 22 November 2023 constituted discrimination on the grounds of race as it was received post 16 November 2023. The Complainant further said that the SWI visited him at home on 16 November 2023. The Complainant further stated that a letter dated 8 November 2023 from the SWI requesting him to complete a form in relation to his spouse and provide requested documentation to the SWI constitutes discrimination on the grounds of race. He said that he was already in receipt of social welfare payments and was not sure why would he be asked again to provide any details/ documentation. The Complainant gave evidence that on 24 November 2023 he received correspondence from Mr O’Craobhach regarding his complaint and it constituted race discrimination. The Complainant said that he had already made a complaint about Mr O’Craobhach on 14 or 15 November 2023. The Complainant said that he did not receive a reply to his email on 29 November 2023. The Complainant further said that on 4 December 2023, Ms Fisher SWI knocked on the door of his home and tried to deliver a letter to him. He said that it was discriminatory. The Complainant said that on 11 December 2023, Ms Fisher SWI wanted to visit him at his home and he refused her permissions to enter. He said that this attempt was discriminatory on the grounds of race and civil status. He said that he furnished all documents on 19 September 2023 and, therefore, there was nothing she needed. The Complainant said that on 18 December 2023 Ms Fisher SWI attended at his home and he again refused her request to enter. He said that it was discriminatory on the grounds of race and civil status. The Complainant said that there were no reasons for these visits and he made it clear on 3 November 2023 that he was happy to make himself and his wife available to any meetings. He said that the visit show that the legitimacy of his marriage was questioned. The Complainant said that on 9 January 2024, M Fisher SWI again attempted to visit him, he said that he did not receive the letter that was exhibited by the Respondent in that regard. He refused entry. He said that the Respondent was informed that he did not want inspectors at home. The Complainants aid that this was discriminatory on the grounds of race and civil status. The Complainant said that on 10 January 2024 Ms Fisher SWI attempted to visit him again and he refused her request to enter. He said that there was no legitimate request for him to attend the office. He said that it was discriminatory on the grounds of race and civil status. The Complainant said that on 11 January 2024, a letter was hand-delivered to his home requesting him to complete a form regarding the IQA. He said that it constituted discrimination on the grounds of race and civil status. The Complainant said that he sent his ES1 form on 22 January 2024. The following week his DA was suspended. The Complainant said that it was discrimination on “all grounds”. The Complainant said that he contacted the Respondent on 24 January 2024 inquiring about the suspended payment. The Complainant agreed that the payment was reinstated on 25 January 2024, after he made contact with the Respondent. The Complainant said that there were no further incidents of discrimination. The Complainant said that he wrote to the Respondent on 25 January 2025. The Complainant said that the SWI’s reports show discrimination on “all grounds”. He also said that there were questions asked about his sexual orientation, which were discriminatory. In his evidence, the Complainant alleged that the Respondent did not provide him with reasonable accommodation in the context of the interview that was originally scheduled in the Respondent’s offices. The Complainant alleged that he emailed the Respondent on 14 or 15 September 2023 inquiring if there was a lift in the offices. He said that he never got a response. He said that he received a telephone call from Mr Riordan SWI suggesting rescheduling of the interview. He mentioned that there could be a lift in the building. The Complainant said that the SWI then turned up unannounced at his home. The Complainant said that he did not know what the intention of the Respondent in the context of the cancellation and rescheduling was and, therefore, it was a failure to accommodate him. Following a recess, the Complainant requested to give further evidence regarding the alleged discrimination. The Complainant said that the change of his allowance payment method from a bank transfer to a payment in the post office was discriminatory. The Complainant conceded that his allowance was never sent to a post office but a letter in that regard issued, and this was, in his view, discrimination. The Complainant referred to his email to the Respondent dated 6 June 2023. In the email he stated that he attended the Respondent’s office and was refused access to a CWO. He requested that an appointment be made for him. After his wife gave evidence, the Complainant requested to be permitted to add further evidence. He said that in November 2023 his fuel allowance was suspended. He said that he made a complaint, and it was re-instated. The Complainant alleged that this constitutes discrimination on the grounds of race, civil status and disability. In cross-examination, it was put to the Complainant that the interview of 19 September 2023 was conducted fairly. The Complainant said that it was not, that an interview was cancelled and then the unannounced visit happened where irrelevant questions were asked. The Complainant disagreed that the questions of the SWI were relevant in discharge of his function. The Complainant was referred to the SWI’s report of a visit to the Complainant’s home. It was put to the Complainant that he said that there was no interview on 18 October 2023. The Complainant could not remember the dates. The Complainant confirmed that he made several complaints and received a telephone call from the SWIs Manager on 14 November 2023. He then made a complaint about the telephone call which he found rude and discriminatory. The Complainant confirmed that when the SWI arrived on 16 November 2023, the Complainant refused his request to enter. The Complainant said that he told the Respondent that he did not want home visits. It was put to the Complainant that the SWI was conducting his duties. Regarding the letter dated 16 November 2023, it was put to the Complainant that it was sent in discharge of the SWI’s function. The Complainant replied that the investigation concluded on 18 October 2023, therefore, there was no need for further visits. If there was a reason, he could have attended the office. It was put to the Complainant that the Respondent is obliged to continue with its investigation. With regard to the letter of 24 November 2023, the Complainant said that the fact that the letter had no stamp and was delivered to his letter box was intimidating. The Complainant was asked about the email of 29 November 2023 he referred to. He said that it might have been one of the complaints he had brought to the Respondent, he could not recall. He said that the email was not replied to. It was put to the Complainant that a failure to reply was not an act of discrimination. He disagreed. It was put to the Complainant that the visit on 4 December 2023 was another attempt to get in contact with him. The Respondent’s position was that it was in exercise of the SWI’s function. The Complainant argued that they had no authority to enter. Similarly, the Complainant said that the attempted visit on 11 December 2023 was harassment. He reiterated that his position was that it was all discrimination on all grounds. Regarding the attempted visits on 11 December 2023 and 9 January 2024, the Complainant again asserted that the Respondent was not fulfilling its duties under the legislation, that there was no need for the visits. The Complainant was asked by the Adjudication Officer to clarify what occurred on 6 February 2024, the most recent date of discrimination as per his WRC complaint referral form. He could not recall. Summary of direct evidence and cross-examination of Ms Neeru Khurana, the Complainant’s wife Ms Khurana stated that she married the Complainant on 27 January 2010, and the civil registration of the marriage took place on 2 February 2010. Ms Khurana said that when the Complainant was incarcerated, she contacted the Respondent but did not get any help. She said that she emailed her PPS number and the marriage cert, but nobody took her seriously. She said that the Complainant as in prison for 15 months and the Respondent did not help her. Ms Khurana said that she was totally dependent on her husband for all expenses. She became scared, the Respondent did not take her seriously. She said that she was asked of her marriage was a marriage of convenience. Ms Khurana said that she is scared to stay in Ireland now. Ms Khurana said that on 9 January 2024 she opened the door after someone had knocked. There was one person, a female, outside the door. The female said she was a SWI. Ms Khurana said that she asked to see her ID. As she did not show her one, Ms Khurana did not let her in. Ms Khurana said that she had no other communication with the Respondent. When prompted by the Adjudication Officer, Ms Khurana confirmed that she was present in the house only on one occasion when a SWI visited, on 9 January 2024. In cross-examination, it was put to Ms Khurana said that she never opened the door on 9 January 2024 and the Respondent had never had any interaction with her. Ms Khurana said that she opened the door once and the female outside the door had no ID. Ms Khurana said that she was there on another occasion but did not open the door, she could not remember the date. |
Summary of Respondent’s Case:
Respondent’s submissions of 14 August 2024 Preliminary Objection The Respondent raised a preliminary issue as to jurisdiction which, it is asserted, is sufficient to warrant the dismissal of the within claim. In so far as any underlying factual disputes are concerned, the Respondent relies on the contents of the ES2 form completed on its behalf together with any evidence that may be offered. The Respondent submits that, from a review of both the ES1 submitted by the Complainant and, more specifically, his complaint form, it is clear that his complaints relate to the performance by Social Welfare Inspectors (‘SWI’) of duties imposed upon them by statute under section 250 of the Social Welfare Consolidation Act 2005. Section 250 provides for the appointment of Social Welfare Inspectors and sets out the duties incumbent upon and the powers vested in them in furtherance of the performance of those duties. The Complainant also appears to have made a complaint to the Ombudsman in respect of these matters. It is further submitted in this regard that the Ombudsman is the appropriate forum for any grievances which the complainant may wish to raise regarding the subject matter of this complaint rather than this forum. Moreover, in so far as the merits of any decision may be challenged, internal appeal mechanisms are available to the Complainant (which he has already availed of in this case, to his benefit). Strictly without prejudice to the above The Complainant (based on his complaint form) states that he has been discriminated against on gender, civil status, family status, sexual orientation, religion, age, disability and race by, in effect, saying others have received the social welfare payments which he says are the same as the ones he is entitled to. His complaint also appears to centre on the alleged conduct of an interview carried out by a SWI on 19 September 2023 under section 250 of the Act and subsequent attempts by Social Welfare Inspectors to try and interview him in the context of their duties under section 250. His complaint also appears to identify his challenge as being to a decision of 25 October 2023 saying incorrect legislation had been relied upon and that the ongoing attempts to interview him are attempts at discrimination, harassment and intimidation. Case Law and Legislation The Respondent submits that, at all times, the SWI was engaged in carrying out his duties and functions mandated under section 250(2) which provides that every SWI shall investigate and report on any claim for or in respect of benefit and any question arising on or in relation to that benefit which may be referred to them by his or her Department. Thus, the complaint is not one which this tribunal has jurisdiction to consider on account of section 14(a)(i) of the Equal Status Act 2000, which exempts from claims under the Act of 2000, the taking of any action that is required by or under any enactment or order of a court. In A Complainant v A Department (ADJ-00030200), it was held that a complainant was not entitled to avail of the Equal Status Act 2000 for the purpose of overturning a decision made under a statutory regime and that in the particular circumstances of that case, the complainant’s application for an invalidity pension was considered by the respondent in accordance with the criteria as contained in the statutory instruments, which were established on a statutory basis, and therefore fell within the exemption granted under section 14(1)(a)(i). Similarly, in Da Rocha Campos v Department of Social Protection (DEC-S2016-007), a claim under the Equal Status Act 2000 in respect a refusal to allocate child benefit was excluded from consideration under the Equal Status Act 2000 by virtue of section 14(1)(a)(i) of the Act. As here, the complainant had been able to appeal the decision successfully using the appeal procedures open to him. Of further relevance is the decision in An Applicant for Disability Allowance v Department for Social Protection (ADJ-00033616). In that case, the respondent raised a preliminary objection to the pursuit of the complaint to the WRC under the Equal Status Act 2000 on the basis that the action taken subject to this complaint was properly taken under statute and consequently is excluded under section 14(1)(a)(i) of the Act. While it was admittedly made clear that the complainant in that case had accepted the correctness of the decision made against her, the adjudicator nevertheless concluded that they were bound by the parameters of the legislation and specifically section 14(1)(a)(i) in this case. Accordingly, they were satisfied that the complaint was not one for the Equal Status Act. Lastly, the claim may be also outside the parameters of the section in that they do not involve the provision of a service. The prohibition against discrimination in section 5(1) of the Equal Status Act 2000 includes a prohibition against discrimination in respect of the provision of services. The concept of a “service” is defined in section 2 of the Act as meaning a service or facility of any nature which is available to the public generally or a section of the public and then lists, in a non-exhaustive manner, a number of examples of activities that are said to come within its ambit. In Iakovenko v Department of Employment Affairs and Social Protection (ADJ-00029844), it was held that the assessment by a social welfare official relating to social welfare benefit entitlement did not equate to individual treatment in the provision of a service. This was by virtue of the fact the provisions of the Equal Status Act 2000 applied only in so far as the provision of service or facility to the public is available. For all of these reasons, it is submitted that the Workplace Relations Commission has no jurisdiction to consider the within matter both on account of the definition of service within the Act and, more specifically, on the grounds that the actions complained relation to statutory duties imposed on Social Welfare Inspector under section 250 of the Act of 2005 Submission of 20 September 2024 On 20 September 2024, the Respondent furnished a supplemental as follows. These supplemental submissions are made in respect of two discrete issues. The first concerns the question of jurisdiction in light of the decisions in Beatty v Rent Tribunal [2005] IESC 66; [2006] 2 I.R. 191 and Fogarty v Employment Appeals Tribunal (DEC-S2009- 087). The second concerns the application of section 21 of the Equal Status Act 2000. In Beatty v Rent Tribunal [2005] IEC 66; [2006] 2 I.R. 191, the Supreme Court held that the Rent Tribunal, as a body established by statute exercising statutory adjudicative duties in the public interest, enjoyed an immunity from an action in ordinary negligence provided it was acting within its jurisdiction in a bona fide manner. The Tribunal, in performing a role akin to an arbitrator, made decisions which were judicial in character and which would be compromised by the existence of a general duty of care when performing its duties. In arriving at this decision, the Supreme Court emphasised the availability of alternative remedies open to an individual aggrieved by one of its decisions (for example, judicial review). Likewise, in Fogarty v Employment Appeals Tribunal (DEC-S2009-087), the Equality Tribunal declined to a hear a complaint made against the handling of a hearing by the Employment Appeals Tribunal on the grounds that the Tribunal was not performing a “service” available to the public or a section of the public within the meaning of the Equal Status Act 2000. While the Equality Officer was prepared to accept that some of the Employment Appeals Tribunal’s functions could come within the meaning of a “service” as to be covered by the Equal Status Act, not all would. In doing so, a distinction was drawn between the administrative functions of the Employment Appeals Tribunal and its adjudicative or decision-making functions. Functions of the former kind might come within the remit of the Equal Status Act whereas functions of the latter kind would not. Therefore, the complainant’s claims against the respondent in respect of its decision-making were found to be misconceived. In its decision in Fogarty, the Tribunal referred to the decision in Donovan v Donnellan (DEC-S2001-011). In that case, the complainant made a complaint under the Equal Status Act 2000 that he had been discriminated against by the Gardaí under section 5(1) on the grounds that he had been prosecuted for incidents relating to wandering horses on the grounds that he was a Traveller while others, who were not, had not been. The respondent, a Garda, objected to the investigation of the complaint by the Equality Tribunal on the grounds that it was outside the scope of the Act since the investigation and prosecution of crime by the Gardaí were not “services” within the meaning of section 2 of the legislation. In agreeing with the respondent that the complaint was outside the scope of the Act, the Equality Officer held that while certain aspects of the activities of a member of An Garda Síochána towards the public might be construed as “services” for the purposes of the Equal Status Act, it was clear that the investigation and prosecution of crime could not. In this complaint, in so far as the Complainant takes issue with the determination of his social welfare entitlements, it is clear that such claims are beyond the jurisdiction of this forum as the Department of Social Protection (the Respondent) was engaging in determinations for which the Complainant has alternative remedies and which do not constitute the provision of a “service” within the meaning of the Equal Status Act. Turning to the second issue, section 21(2)(a) of the Equal Status Act 2000 provides that before an individual can seek redress under the Equal Status Act, he or she must first within 2 months of the conduct prohibited by the Act 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 allegation and the complainant’s intention to seek redress under the Act. Under section 21(3)(a), that 2-month time limit can be extended for a further 2 months or disapplied. However, the disapplication must be exceptional. Typically, notification is submitted by the completion of a form known as an ES1 form. In these proceedings, it is common case that the Complainant’s ES1 form was not submitted until 22 January 2024. In those circumstances, in so far as the Complainant’s claim relates to conduct alleged to have primarily occurred on 19 September 2023, that claim is out of time by virtue of the operation of section 21(2)(a) of the Act. Even if an application for an extension to four months had been applied for, the claim would remain out of time. While the notification required by section 21 does not necessarily have to be in the form of an ES1, it must nevertheless meet the requirements of section 21(2) i.e. notify the Respondent of the allegations made against it and the Complainant’s intention to seek redress under the Act. Neither the email of 13 November 2023 nor the email of 16 November 2023 which the Complainant points to in this regard contain the information required by section 21. Therefore, this aspect of the Complainant’s claim, is out of time. One recent example of a decision in this context is that of Murray v Reilly (ADJ-00045999) and it is submitted that a likewise finding should be made here. The other conduct complained of by the Complainant beyond 19 September 2023 is misconceived for the reasons set out above in respect of the submissions made in conjunction with the discussion of the decisions in Beatty v Rent Tribunal [2005] IESC 66; [2006] 2 I.R. 191 and Fogarty v Employment Appeals Tribunal (DEC-S2009-087), above Supplemental submission of 25 April 2025 These supplemental submissions deal with each of the alleged acts of prohibited conduct identified by the Complainant in the evidence offered on his behalf, and assess whether or not this forum has jurisdiction to deal with those issues or whether or not, even if capable of being heard by this forum, the Complainant has offered sufficient evidence of the prohibited conduct complained of. In support of his claims, the Complainant gave evidence that he was subject to discriminatory conduct which he said occurred on a number of individual dates. Each date identified by the Complainant, beginning on 19 September 2023, will be addressed in turn. The alleged acts of prohibited conduct identified by the Complainant 19 September 2023 The Complainant gave evidence that on this date, he was interviewed at his home by Mr Riordan, Social Welfare Inspector, during the course of which interview he alleges that he was asked questions that he considered discriminatory. For the avoidance of doubt, the Respondent disputes entirely the allegations made about Mr Riordan during this visit. At a later stage in his evidence, the Complainant gave further evidence that he had not been afforded reasonable accommodation in respect of the manner in which the interview took place. The basis given for this was that that the Respondent was not able to facilitate the interview taking place at one of the Respondent’s offices on the grounds that it did not have a lift, which he required the use of, for a spinal condition which he suffered from. He stated that he had been told that the interview would be rescheduled. The Complainant suggested that he had not been reasonably accommodated by not having interview take place at the Respondent’s office and by having the interview take place at his home instead. 18 October 2023 The Complainant gave evidence that the production of a report on this date of Mr Riordan’s visit on 19 September 2023 was discriminatory on the grounds of civil status and race. However, when pressed, it was clear that the complaints related back to questions that he alleged were asked of him on 19 September 2023. 11 November 2023 The Complainant gave evidence that he had indicated that he was happy to attend an interview at an office and that he had tried on two other dates to attend. He did not allege that he was discriminated against on this date but suggested that the fact that the Respondent chose instead to call to his home was discriminatory behaviour. 14 November 2023 The Complainant gave evidence that on this date a phone call was received by the Complainant. 16 November 2023 The Complainant gave evidence that on this date, Mr Riordan SWI turned up at his home looking to enter. 21 November 2023 The Complainant gave evidence that on this date, he received a letter from Mr Riordan which letter had informed the Complainant that he would attend the Complainant’s home on 16 November 2023. The Complainant gave evidence that he considered this harassment as the letter was posted post 16 November 2023. 24 November 2023 The Complainant gave evidence that on this date, he received an email from Mr O’Craobhach of the Respondent. He gave evidence that he was intimidated by the receipt of the email and that he was racially intimidated by its receipt. The email itself was a response a complaint made by the Complainant about the hand delivery of a letter to his door. 29 November 2023 The Complainant gave evidence that on this date a failure to receive a reply to an email constituted a prohibited act. The email consisted of a request to the Respondent’s office in Longford about the manner in which allowances were to be paid to him. 4 December 2023 The Complainant gave evidence that on this date, Ms Fisher SWI knocked on the door of his property and attempted to deliver a letter to him. He stated that these actions were discriminatory on the grounds of race and civil status 11 December 2023 The Complainant gave evidence that on this date, a Social Welfare Inspector attempted to enter his home to which he refused permission. He stated that these actions were discriminatory on the grounds of race and civil status. 18 December 2023 The Complainant gave evidence that on this date, Mr Riordan attempted to enter his home to which he refused permission. He stated that these actions were discriminatory on the grounds of race and civil status on the grounds that he did not believe the Respondent had any reason to continue to investigate him and that the only possible inference from this was that he was being discriminated against. He further said that on 3 November 2023, he had previously informed the Respondent that he could attend a meeting at the Respondent’s offices if needs be. He appears to have done this by telephone call to a member of staff at an office of the Respondent in Longford. 9 January 2024 The complainant had evidence given on his behalf that on this date, Ms Fisher SWI attempted to call on him unannounced. He stated that these actions were discriminatory on the grounds of race. The Complainant’s wife said that she opened the door to Ms Fisher on this occasion. However, that is disputed by the Respondent. In any event, the sum total of the conduct is that an attempt was made to contact the Complainant and no more. 10 January 2024 The Complainant gave evidence that on this date, Ms Fisher SWI attempted to call on him unannounced. He stated that these actions were discriminatory on the grounds of race and claimed that she had no power to enter. He confirmed that Ms Fisher did not enter on this date. 11 January 2024 The Complainant gave evidence that on this date, a letter was hand delivered to his home, the contents of which invited him to complete a new form. He said that this constituted discrimination on the basis of race and marital status. 24 January 2024 The Complainant’s ES1 form was submitted on 22 January 2024. On the 24 January 2024, his disability allowance was suspended. That allowance was reinstated. The Complainant gave evidence of his belief that both the decision to suspend and then reinstate the allowance was made in response to the submission of his ES1. Submissions Complaint out of time The above dates are the dates on which the Complainant said that the conduct prohibited by the Equal Status Act occurred. As previously submitted, section 21(2)(a) of the Equal Status Act 2000 provides that before an individual can seek redress under the Equal Status Act, he or she must first within 2 months after the conducted prohibited by the Act 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 allegation and the complaint’s intention to seek redress under the Act. Under section 21(3)(a), that 2-month time limit can be extended for a further 2 months or disapplied. However, the disapplication must be exceptional. Typically, notification is submitted by the completion of a form known as an ES1 form. In these proceedings, it is common case that the Complainant’s ES1 form was not submitted until 22 January 2024. In those circumstances, in so far as the Complainant’s claim relates to conduct alleged to have occurred on 19 September 2023, that claim is out of time by virtue of the operation of section 21(2)(a) of the Act. Even if an application for an extension to four months had been applied for, the claim would remain out of time. The only other identified date on the ES1 form is 11 December 2023. On that date, the Complainant alleges that a Social Welfare Inspector sought to attend his home. That action cannot constituted prohibited conduct and therefore the time limit contained in section 21(2)(a) which states that “where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence” cannot apply so that the incident of 19 September 2023 could be said to be within time. None of the dates identified subsequent to 19 September 2023 amount to prohibited conduct. This is also true of any the other dates in October 2023 to January 2024 identified in the oral evidence offered on behalf of the Complainant which all relate to the receipt of phone calls, letters and attempts to contact the Complainant. None of these amounts to prohibited conduct and so cannot be relied upon to bring the interview of 19 September 2023 within time. Specifically, in respect of the Complainant’s evidence recited above, over the period August 2023 to January 2024, the Respondent reviewed the Complainant’s entitlement to Disability Allowance (and IQA in respect of his wife). The delay in reinstating the payment in respect of the Complainant’s wife as a Qualified Adult (Increase for Qualified Adult (IQA)) on his claim for Disability Allowance following his successful appeal to the Social Welfare Appeals Office (SWAO) was explained in the Respondent’s ES2 form and was simply due to an administrative oversight and was not prohibited conduct. On 11 and 18 December 2023 and 9 and 15 January 2024 a different SWI sought to interview the Complainant and his wife with respect to his Disability Allowance claim. However, the Complainant did not respond to the SWI’s attempts to contact him and attend interview or to arrange an alternative mutually agreeable date and time for interview. Therefore, as the SWI was unable to interview the Complainant and his wife and his whereabouts were unknown, the SWI reported to the Disability Allowance Section that she was unable to take further action as he and his wife were unavailable for interview. Where a customer’s whereabouts are unknown and the address provided by them is unconfirmed, it is the Respondent’s usual practice to suspend the customer’s claim. That is what occurred in the Complainant’s case and the Respondent thus suspended the Complainant’s Disability Allowance on 18 January 2024. There was no connection between the suspension of the Complainant’s claim and the receipt by the Respondent of his ES1 form on 22 January 2024 which was subsequent to the suspension and there was no prohibited conduct. The Complainant contacted Disability Allowance section on 25 January 2024 querying the suspension of his claim and payment of the IQA on foot of his successful SWAO appeal. Once the Complainant had made contact with the section and confirmed his whereabouts, the Complainant’s Disability Allowance was reinstated on 26 January 2024 and payment resumed on 31 January 2024 (including arrears). In addition, and at the same time, the administrative error in relation to the implementation of the SWAO appeal decision allowing the Complainant’s appeal in respect of IQA was rectified and the IQA reinstated and the arrears of IQA were paid. This was not prohibited conduct. The Complainant also gave evidence that a report of a prior visit on 24 June 2016 was also discriminatory. This too is clearly out of time. He also attempted to refer to an incident that he said occurred on 6 June 2023. On that date the Complainant had sent an email to the Respondent asking for an appointment to attend an Intreo office. This too is out of time. Nor is either incident saved by the time limit contained in section 21(2)(a) which states that “where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence” for the same reasons. Jurisdiction to deal with complaint Separately, having now heard the evidence of the Complainant, it is submitted that, even if uncontroverted (but for the avoidance of any doubt, if necessary, the Respondent will give evidence refuting the complainant’s allegations), the within complaints must be dismissed for three further reasons. First, as previously submitted, the actions complained of are matters for which the complainant has alternatives remedies (as exemplified by the discussions in the previous submissions in Beatty v Rent Tribunal [2005] IEC 66; [2006] 2 I.R. 191) and furthermore, they do not come within the concept of a service as discussed in Fogarty v Employment Appeals Tribunal (DEC-S2009-087) and Donovan v Donnellan (DEC-S2001-011). Second, it is clear from the evidence of the Complainant that his complaints relate to the performance by Social Welfare Inspectors of duties imposed upon them by statute under section 250 of the Social Welfare Consolidation Act 2005. The functions of a Social Welfare Inspector under section 250 include to investigate and report on any claim for a social welfare payment and involves gathering relevant information and documents in relation to the claimant and his or her means and circumstances, interviewing the claimant where the SWI considers it appropriate, and preparing a report for the deciding officer who will make the decision in respect of the particular claim. A deciding officer shall have regard to the report but is not bound by it. It is a matter for the deciding officer to decide whether or not a claimant satisfies the qualifying criteria for Disability Allowance. Finally, as noted previously, decisions in respect of eligibility or entitlement to a social welfare payment are decided by deciding officers in accordance with the relevant provisions of the Social Welfare Consolidation Act 2005 and regulations made thereunder and, in particular with respect to Disability Allowance and IQA, section 210 (and section 211) of the Act and Article 7 of SI 142 of 2007. As submitted in the first set of submissions delivered on behalf of the Respondent, the complaints are not ones which this tribunal has jurisdiction to consider on account of section 14(1)(a)(i) of the Equal Status Act 2000, which exempts from claims under the Act of 2000, the taking of any action that is required by or under any enactment or order of a court. No prima facie case established Thirdly, and finally, and again even if the Complainant’s evidence was uncontroverted, none of it establishes a prima facie case in his favour. The Complainant has not been able to identify any evidence to the effect that he was treated less favourably than anyone else, still less that he was treated less favourably than anyone else on account of race or civil status. In those circumstances, he has not adequately discharged the evidential burden on him to provide sufficient evidence to establish a prima facie case of discrimination by the Respondent as referred in section 38A(1) of the Act of 2000, which says that: “38A.—(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.” There is an onus on a complainant to provide evidence from which it may be presumed that conducted prohibited by the Act has occurred so as to establish a prima facie case against the respondent. It is only once that has been done that section 38A imposes a reverse burden of proof on the respondent who will then have to disprove that that the conduct is not prohibited. Here, however, no such facts at all which would lead to the raising of the presumption have been referred to by the Complainant. In those circumstances, he has failed to discharge the preliminary evidential obligation imposed on him to establish a prima facie case. In particular, he has failed to show to the requisite standard that his treatment was less favourable than treatment that was or would have been afforded to another person in similar circumstances. As the Labour Court said in in Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64, in the context of an equivalent provision (section 85A) of the Employment Equality Act 1998, at page 68: “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.” Likewise, what has been submitted here is no more than mere speculation or assertion. In this context, in Bula v Commissioner of An Garda Síochána (ADJ-00006593), the Workplace Relations Commission found complaints by a member of public concerning the actions of a garda in prosecuting an offence had (in addition to being held to be outside the scope of the Act of 2000) failed to discharge this evidential burden. A similar finding ought to be made here. At a number of points in his evidence, the Complainant asserted his belief that he was the victim of discriminatory treatment without providing any evidence of same. Nor was he able to identify any comparators against which he claimed to have been treated less favourably. In respect of a number the incidents identified by him which related to attempts to contact him, the Complainant’s evidence was no more than speculation. For the avoidance of doubt, it is submitted that the same principles apply to the allegations made in relation to the manner in which the interview of 19 September 2023 was conducted. Nor has any prima facie case been made out about a failure to afford the complainant reasonable accommodation. ES2 Form dated 23 February 2024 On 25 April 2024, the Respondent’s representative wrote to the WRC informing that despite repeated attempts to deliver the ES2 form to the Complainant by registered post and follow up phone calls from the Respondent, these attempts have not succeeded. The Respondent provided a copy of An Post notification stating that the correspondence was “not called for”. Therefore, the Respondent sent the ES2 form including the responses from the Respondent to the queries that the Complainant had for the Respondent directly to the WRC, for onwards transmission by email to the Complainant. In the ES2 form, the Respondent stated as follows. On 16 August 2023, Disability Allowance (‘DA’) Section received notification from the Irish Prison Service (’IPS’) that Mr Chawla was incarcerated from 15 October 2021 to 12 January 2023. This was the first notification from the Irish Prison Service of Mr Chawla's incarceration. A review was instigated on Mr Chawla's DA claim on 16 August 2023 based on this notification from IPS. As part of this review, Mr Chawla's claim was referred to a Social Welfare Inspector (‘SWI’) to establish if Mr Chawla's Qualified Adult was still resident with him. Mr Chawla's is in receipt of DA effective from 29 May 2013 at the full basic rate and full rate in respect of an Increase for Qualified Adult Neeru Khurana. The SWI completed their investigation and returned a report to DA section on 19 October 2023. Mr Chawla was notified of the decision by a Deciding Officer (DO) on 25 October 2023, that he no longer qualified for an Increase in Qualified Adult allowance in respect of Neeru Khurana from 31 October 2023. The reason for this decision was because Mr Chawla's Qualified Adult Neeru Khurana had not attended an interview with the SWI as requested. Mr Chawla was advised that if he considered the decision to be incorrect it was open to him to supply any further documentary evidence that thought was relevant to the case within 21 days and the decision would be reviewed by a Deciding Officer. Mr Chawla was given the right to request a review and/or appeal. Mr Chawla appealed the decision to the Social Welfare Appeals Office (‘SWAO’). The SWAO decision was to allow Mr Chawla's appeal because the Respondent had not proved that Mr Chawla had been asked to make his wife available to them for the purpose of establishing that he remained entitled to an increase for a qualified adult dependent and that an incorrect legislative basis had been cited for his revised entitlement. Mr Chawla was notified of the outcome of the appeal by letter dated 24 November 2023. The decision of the SWAO was received by the DA section on 24 November 2023. However, due to an administration error the Qualified Adult payment remained suspended. This has since been rectified and returned to payment on 26 January 2024. Arrears of payment have issued.
Separately, on 16 August 2023, correspondence letter issued to Mr Chawla advising that the basis on which the payment was made during the period 20 October 2021 to 17 January 2023 was being investigated. The information available to the Deciding Officer (‘DO’) is that Mr Chawla was incarcerated from 15 October 2021 to 12 January 2023. Under section 210(1)(ba) and 210(1)(bb) of the Social Welfare consolidation Act 2005, as amended a person does not meet the qualifying criteria for DA if their restriction in undertaking employment is not solely due to their medical condition and they are not available to take up employment. On 12 September 2023, a follow-on natural justice letter was issued to Mr Chawla advising as he did not meet the qualifying criteria and had received payment from 20 October 2021 to 17 January 2023, an overpayment of €25,946.40 had been assessed against him. Mr Chawla appealed this decision to the SWAO. On 16 November 2023, the SWAO upheld the decision regarding the overpayment and a letter issued to Mr Chawla advising him of the outcome of his appeal. The SWI report was returned to the DA Section on 15 January 2024. It noted that three registered letters and one hand delivered letter were sent to the customer at his registered address to request an interview with the customer and his spouse. One of the registered letters was not received (9 January 2024) as there was no answer at the address, but 4 void visits were paid to the address on the day of each interview, the 11 and 18 December, 9 January and the 15 January, a notification was posted through the door on each call out. The Complainant did not respond to the letters or notification by phone by phone or email to state that he would not be available for interview. Disability Allowance is a weekly allowance paid to people with a specified disability who are aged 16 or over and under the age of 66. This disability must be expected to last for at least one year and the allowance is subject to a medical assessment, a means test and Habitual Residency conditions. The payment is subject to periodic review on all three conditions. The eligibility criteria for DA as set out in section 210 SWCA. The SWAO decision in respect of the IQA was not implemented due to an error on behalf of the Deciding Officer. It is common practice if there is question over the customers entitlement for an investigation to be carried out. A spouse/civil partner/cohabitant of a customer on a means-tested payment is regarded as being wholly or mainly maintained by that customer where two conditions apply — they are one of a couple (as defined in the Act) and live together as generally understood in terms of an ongoing personal relationship i.e. the relationship is intact and the individuals are mutually committed. Articles 7(2) and 7(6) of S.l. 142/2007 refer. Any income, from any source, is assessed as part of the means assessment for the family payment. A family rate of payment applies to Jobseeker's Allowance (JA), Disability Allowance (DA) and Farm Assist (FA). The scheme-specific operational guidelines for guidance on the calculation of a family rate and Schedule 3 of the 2005 Act and article 7 of SI 142 of 2007 refer. A SWI is often used in cases to ascertain the relevant information quickly and to expedite the decision. When a scheme-owner assigns an investigation, a SWI will review all the available relevant information on a customer. A SWI will then decide where and when to interview the customer e.g. at the customer's stated residence or in the office; notified or un-notified etc. Following the interview, a SWI will make any follow-up enquiries arising from the interview; await any requested documents/information from the customer. When a SWI is satisfied that they have sufficient detail to finalise their report they will complete the means reporting form and assign the investigation to the relevant Deciding Officer for their decision. All the supporting documentation is scanned to IT system. The appointment and duties of Social Welfare Inspectors are provided for in Section 250 SWCA. These outline the requirement for a claimant to give an inspector information and any documents that s/he may require for the purposes of an investigation.
Where a SWI provides a report, a DO shall have regard to that report in deciding the question in respect of which the report was sought. It is not the case that a DO is bound by the SWI report. It is a matter for the DO to decide whether or not an applicant satisfies the qualifying conditions for DA and for any IQA payable. Where an appeal is allowed, the DA section strive to implement that decision within three weeks of the return of the customers file and Appeals Office decision to the DA office. Where an appeal is disallowed the Appeals Officer's decision is normally final and conclusive but may be appealed to the High Court on any question of law. However, it may be subject to review under specific provisions of the SWCA in the following circumstances: · under Section 317, by an Appeals Officer where new facts or evidence which are relevant to the original decision are brought to notice since the appeal decision was given, or · under Section 318, by the Chief Appeals Officer where it is considered that the decision was wrong by reason of a mistake in relation to the law or the facts. In making a request for a Section 317 review of an appeal decision, new evidence must be enclosed, or, if a Section 318 review by the Chief Appeals Officer is being sought, the appellant must give specific reasons why they believe a mistake has been made regarding the law or the facts. It is also open to the customer to re-apply for Disability Allowance. The Respondent regrets the administrative error, as a result of which the IQA in respect of the Complainant’s wife was not immediately put into payment. However, as soon as this error was brought to the Respondent’s attention this was rectified and the arrears paid, in accordance with the decision of SWAO. The decision was received by the DA section on 24 November 2023. The Qualified Adult payment remained suspended due to an administrative error, and this has since been rectified and returned to payment on 26 January 2024. Arrears of payment have issued. The Respondent does not consider that the Complainant was treated unfairly. The Respondent has an obligation to ensure that social welfare payments are paid in accordance with the underpinning legislation. When carrying out the investigation of the Complainant’s social welfare payment, the SWI assigned was concerned that despite requests, he had not met the Complainant’s wife. Whilst the SWAO decided that the IQA should be reinstated, the reason that your appeal was allowed was because the Department had not proven to the Appeals Officer's satisfaction that the Complainant’s wife had been asked to attend for interview. The Respondent's obligation to ensure that the Complainant is entitled to the IQA in respect of your Disability Allowance payment remains. It is for this reason that the Respondent has made efforts to contact the Complainant and his wife for the purpose of ensuring the Complainant’s ongoing entitlement to the IQA. Summary of direct evidence and cross-examination of Mr Riordan, retired Social Welfare Inspector Mr Riordan gave evidence that he worked for the Respondent for 45 years, with 40 years in INTREO offices around Dublin. He served as an Information Officer and Training Officer for new recruits which required broad knowledge of all schemes. Mr Riordan explained that his role was to ensure that the correct individual received the appropriate payments in a timely manner. Prior to the Covid-19 pandemic, this primarily involved conducting home visits. However, following the onset of the pandemic, the nature of the work shifted to being predominantly desk-based. Mr Riordan stated that his role involved gathering all relevant and necessary information. This included visiting the individual, assessing their condition, and subsequently preparing a report with a recommendation for the Deciding Officer. He clarified that he was not responsible for the decision making. Mr Riordan clarified that a SWI is authorised to enter a person’s residence, provided that permission has been granted by the occupant. Under section 250 of the Act, Mr Riordan said, SWIs are authorised to interview individuals in relation to their claims and ongoing payments. He stated that he would only enter a person's home with their explicit permission. He would typically send a notification of an interview in advance. At the time of a visit he would present his credentials. Mr Riordan said that he had previously visited the Complainant in response to a query from the Rent Allowance Section concerning an advertisement placed by the Complainant for a room available for rent in the property where he resided. Regarding the visit on 19 September 2023, Mr Riordan said that he was asked to investigate the household composition. He sent a letter to the Complainant with a standard request to produce ID, utility bill, ID of a spouse/partner, banks statement, and payslips if working. Mr Riordan said that he received an email from the Complainant inquiring about a lift as the Complainant indicated that he had reduced mobility. Mr Riordan said that he informed the Complainant that he would call in to him on Tuesday morning at 10-11am. The Complainant was happy with that. The Complainant then sent another email thanking Mr Riordan for his understanding. Mr Riordan said that the desk visit was postponed because the Complainant emailed about his reduced mobility. It was agreed that Mr Riordan would call in on 19 September 2023. The Complainant’s email of 13 September 2023 was produced. It stated: “Hi Dennis. Thanks for your call. Thanks a lot for offering to come around for the interview, I really would appreciate that – Hope its not too much bother. Like I said I’m at home except for Medical appointment so feel free to drop around when suits – just drop me a quick line. Again Hope its not too much bother for you. Really appreciate it. Thanks again. Amit” Mr Riordan said that he arrived at the Complainant’s home and showed his ID. The Complainant said to him that there was no need for ID, “you are Denis I met in 2016”. The Complainant knew Mr Riordan. Mr Riordan said that they had business like but friendly meeting. The Complainant had all the paperwork. Mr Riordan said that it was a straightforward interview. He asked the Complainant who lived in the house. He wanted to meet the Complainant’s wife. However, he was told that the Complainant’s wife was not available due to a medical appointment. Mr Riordan said that the Complainant’s wife rang during his visit and he said that he would wait for her. However, the Complainant said that she was gone shopping. Mr Riordan said that he told the Complainant that he would be working in the vicinity and asked to call him when she was back home. Mr Riordan said that he asked if he could take the documents to make copies and the Complainant told him that he could keep them as they were all copies. Mr Riordan stated that there was no animosity whatsoever. The Complainant recalled that they had previously met in 2016 and voluntarily shared information about an unannounced visit by unidentified individuals who presented a search warrant, questioned him about his religion and beliefs, and seized his IT equipment. Mr Riordan clarified that he had no interest in, nor did he ask any questions regarding, the Complainant’s religion. Mr Riordan said that the Complainant did not ring him that afternoon. Mr Riordan said that all he needed was to see the Complainant’s wife, her ID, and banks statements; it was a straightforward request. He waited some three weeks and wrote to the Complainant again asking to see his wife. He did not hear from the Complainant and got concerned about the Complainant’s wife whereabouts. Mr Riordan said that he did ask where the Complainant wife was. He said that he is entitled to ask if a marriage is a marriage of convenience. Mr Riordan said that at that stage he issued a recommendation that perhaps the IQA should be stopped until a SWI meets the Complainant’s wife. Mr Riordan said that he made no further attempt to visit. He visited the Complainant on two occasions, in 2016 and on 19 September 2023. He then wrote to the Complainant asking for the wife to present herself with her ID and bank statements. He wanted to ensure that the wife was a resident in the house. Mr Riordan explained that another SWI visited the Complainant’s residence. In light of the communications being received by the Disability Allowance Section, he felt it was appropriate to step back from direct involvement. He assisted the other Inspector by driving her to the location, as she was unfamiliar with the address, but remained at a distance to avoid further aggravating the Complainant. Mr Riordan said that he did not make a decision regarding the allowance, it was the Deciding Officer’s role. He has done his job, waited for the Complainant to get in touch, then he issued his report. He gave the Complainant plenty of time to come back to him. (At that point the Complainant requested an adjournment of the hearing to prepare his cross-examination. He said that he was unsure as to the exact details such as dates. The request was declined. A recess was granted and the Complainant proceeded with cross-examination thereafter). The Complainant asked Mr Riordan to clarify the legal basis for his visit. Mr Riordan explained that it was section 250 of the Act. He confirmed that he would never enter a residence without an invitation. Regarding his ID, Mr Riordan explained that he had it in his hand when the Complainant said, “you are Denis I met in 2016, come on in”. The Complainant agreed that they there could have been previous occasions when they had met. Mr Riordan reiterated that they discussed his planned visit on 19 September 2023 on the phone after the Complainant’s email of 13 September 2023. The Complainant then sent an email on 13 September 2023 at 3.39pm with his thanks for offering to call to his house. The Complainant asked Mr Riordan if he had a copy of a paper that asked him to check the composition of his household. Mr Riordan said that he did not. The Complainant referred to a letter inviting him to an interview on 15 September 2023 and asked if there is a reason for the following line being underlined: “If separated, details if court order/ maintenance agreement, and address of partner” Mr Riordan said that there was no specific reason, it was the last point on the list. Mr Riordan clarified that it was not an issue of marriage of convenience or otherwise. He was entitled to ask questions as part of his role. The central issue concerning the IQA was whether the dependent individual resided with the Complainant, and he was not satisfied that this was the case. The Complainant said that the DA and IQA were awarded in May 2013 and the Respondent had the relevant documents. He wanted to know why to ask if the marriage was a marriage of convenience. Mr Riordan said that the wife was not present, he was entitled to ask this question and the Complainant answered. There was nothing sinister about it. It was put to Mr Riordan that in his letter he did not ask for the Complainant’s wife to be present. Mr Riordan agreed. He said that he asked to see her on the day, she was not there, hence the letter requesting her to present herself. The Complainant questioned the validity of the 2016 report. Mr Riordan said that he mentioned the 2016 report in his 2023 report and, therefore, a copy was forwarded to the Deciding Officer with the 2023 report. The Complainant questioned the validity of the letter from Mr O’Riordan. The witness replied that he put it through the internal post. The Complainant asked some questions about the appeal process. Mr Riordan said that he did not know that there was an appeal, it was not within his role. Summary of direct evidence and cross-examination of Mr O’Craobhach, Social Welfare Inspector Area Manager Mr O’Craobhach outlined his career with the Respondent and his significant experience in the Control Section of the Respondent. Mr O’Craobhach said that he had known nothing about the Complainant prior to his complaint which was referred to him for investigation and a reply. Mr O’Craobhach said that after receiving a complaint, he goes through the whole history of the individual to see their interactions with the Respondent. He then speaks with the complainant to find out more. He said that during the telephone call on 14 November 2023 the Complainant was very specific, he talked about the delivery of the letter. Mr O’Craobhach said that he then spoke with the SWI and the Service Officer responsible for the post. All letters sent from the office come to the Service Officer. Each Intreo office has a franking machine and each letter is franked. However, on occasion it happens that a letter going through the franking machine’s conveyor belt misses the stamp. Mr O’Craobhach said that the Complainant’s recollection of the call is inaccurate. He stated that he had contacted the Complainant by phone, introduced himself, and explained the purpose of the call. He also mentioned that he had spoken with both the SWI and the Service Officer. According to him, the Complainant responded in a very aggressive manner and was unwilling to engage in the conversation. Mr O’Craobhach stated that he advised the Complainant it would be more appropriate to communicate in writing, and subsequently ended the call, which lasted 3 minutes and 17 seconds. He then issued a letter to the Complainant and noted that he likely would have sent the letter regardless. Mr O’Craobhach stated that social welfare payments are not automatic entitlements. The Respondent is responsible for assessing and periodically reassessing an individual's eligibility. Mr O’Craobhach said that he has been a civil servant for 40 years. He had no issue with the Complainant and he had no prior knowledge of him. He thought that maybe the Complainant had an issue with Inspector Riordan and for that reason he decided to re-assign the case to Inspector Fisher. Mr O’Craobhach said that he was aware that there were questions about the Complainant’s wife’s whereabouts. He was also aware that the Complainant unsuccessfully appealed the decision regarding HAP. He was also aware of the IQA appeal. However, he had no involvement in these. Mr O’Craobhach explained that it is standard practice to continue fact-finding even while an appeal is ongoing. Although an appeal may ultimately be successful, investigations may still proceed to ensure the accuracy of payments and eligibility. He noted that administrative errors can occur, and in some cases, individuals may have received payments to which they were not entitled. SWIs are authorised to initiate investigations at any time, and there are no prescribed time limits for conducting such reviews. He emphasised that the Complainant had been in receipt of the allowance since 2013 and firmly stated that there was absolutely no discrimination or harassment involved. In cross-examination, the Complainant put it to Mr O’Craobhach that he felt that he was not willing to listen to him. The witness said that he is a manager, but he is also an Inspector. He tried to investigate the matter to reach a conclusion. He said he rang the Complainant to try to explain that the SWIs tried to call to his house but would not enter if he did not give them permission. If there is any change in one’s circumstances, the Respondent must be notified. If the Respondent is not informed, and a change in circumstances comes to its attention, it needs to be investigated. The onus is on the SWIs to compile a report, so the Deciding Officer is able to make a decision. It was put to Mr O’Craobhach that the investigation concluded on 18 October 2023. The witness said that the SWI made it clear that he wanted to see the Complainant’s wife. He offered to call back to see her, he then sent a letter. The SWI informed the Complainant verbally and in writing that he wanted to meet her, it was an official request. The Complainant asked some questions other areas of the Respondent’s organisation. Mr O‘Craobhach clarified that he would not know exactly as he did not work there.
Summary of direct evidence and cross-examination of Mr Stephenson, Higher Executive Officer in the Disability Allowance Section Mr Stephenson outlined his 28 years career. He said that he works in the Disability Allowance Support Section dealing, amongst others, with complaints, DA arrears, DA appeals. Mr Stephenson said that, once an Appeals Officer issues a decision, it is typically expected to be implemented within approximately three weeks. In the Complainant’s case, however, there was a delay in processing the IQA. Mr Stephenson said that the DA was suspended on 18 January 2024 following a report of 15 January 2024. The SWI tried to visit the Complainant but was unable to meet him. The payment was reinstated on 24 January 2024 after the Complainant contacted the Respondent. On foot of his call, the Deciding Officer was happy to restore the payment pending further inquiries. Mr Stephenson said that the payment was suspended on 18 January 2024 and not after 22 January 2024, as alleged by the Complainant. Mr Stephenson said that there were difficulties with meeting the Complainant and the SWI did not meet his wife. There was a new referral from the Deciding Officer on 28 November 2023 and the SWIs made attempts to make contact. The main reason was to establish whether the qualified adult was a resident in the State and in the Complainant’s house. In accordance with sections 301 and 324 of the Social Welfare Consolidation Act 2005, the Respondent has the authority to review any payment at any time, particularly where new evidence, a change in circumstances, or an error in law or fact has come to light. In cross-examination, Mr Stephenson reiterated that the delay in the in the implementation of the SWAO’s decision was an administrative error. He said that due to the volume of applications, an error can occur. He clarified that the Respondent’s aim is to support individuals who are in need of assistance, particularly people with disabilities. For that reason, the Complainant’s DA was unsuspended pending review. Mr Stephenson said that it is a standard practice to suspend a long-term payment until a claimant contacts the Respondent. On the basis of the SWI’s report who unsuccessfully attempted the Complainant, the payment was suspended. Mr Stephenson said that the DA Support Section does not direct SWIs as to how to do their job. Equally, the SWAO is independent.
|
Findings and Conclusions:
This matter was heard over three days. The Complainant withdrew his two claims pursuant to the Employment Equality Acts. In the ES1 form issued to the Respondent on 22 January 2024, the Complainant alleged that the Respondent treated him unlawfully by discriminating against him, harassing him, sexually harassing him, and victimising him. The Complainant listed the following grounds for the alleged prohibited conduct: civil status, sexual orientation, religion, disability, race. In the said form, the Complainant alleged that he was discriminated against, harassed and that the unfair treatment led to a wrongful suspension of IQA allowance. He said that he was victimised for making a complaint. In the WRC complaint referral form, the Complainant alleged that the Respondent discriminated against him on the grounds of gender, civil status, family status, sexual orientation, religion, age, disability, race, and the housing assistance. At the adjudication hearing, it was clarified by the Complainant that the claims he was pursuing were as follows: discrimination on the grounds of civil status, sexual orientation, religion, disability, and race; harassment; sexual harassment; and victimisation. I have carefully considered the details of the Complainant’s lengthy submissions and associated evidence. Given the somewhat disjointed format of these submissions, the Complainant was prompted by the Adjudication Officer to particularise his claim. Upon his clarification, it appears that the Complainant’s allegations are centred around the following events: · A Social Welfare Inspector’s visit on 19 September 2023 · Subsequent visits of the Social Welfare Inspectors. · Suspension of the Increase for a Qualified Adult allowance (‘IQA’) on 25 October 2023. · Suspension of the Disability Allowance (‘DA’) on 18 January 2024. · Alleged retaliatory behaviour after complaints made to more senior officials of the Respondent. More specifically the Complainant referred to a telephone call on 14 November 2023 and an email of 24 November 2023 from Mr O’Craobhach. At the adjudication hearing (day three), the Complainant also alleged that: · The Respondent discriminated against him by attempting to change the method of payment of his DA from a bank transfer to a Post Office payment in September 2023. · The Respondent discriminated against him when his fuel allowance was suspended on an unspecified date in November 2023. · The Respondent failed to provide him with reasonable accommodation in the context of his scheduled appointment on 15 September 2023. · The reports issued by a Social Welfare Inspector of 24 June 2016 and 18 October 2023 were discriminatory and, as they only came to the Complainant’s attention on 22 December 2023, they fall in the cognisable period.
The Respondent has raised the following preliminary points to this complaint. 1. The matters complained of do not come within the definition of “service” within the Act and the Complainant has alternative avenues to seek remedies. In that regard, the Respondent relies on Beatty v Rent Tribunal [2005] IEC 66; [2006] 2 I.R. 191; Fogarty v Employment Tribunal DEC-S2009-087; Donovan v Donellan DEC-S2001-011. 2. Time limits - the Respondent asserts that the Complainant’s claim is centred around the events of 19 September 2023. As the ES1 form was served on 22 January 2024, the Respondent asserts that this complaint was out of time. The Respondent rejects the substantive claim and asserts that the Complainant has not established a prima facie case of discrimination. The Respondent further submits that by operation of section 14(1)(a)(i) where an action is mandated by statute, it may not be found to be discriminatory. At the outset of the first day of the hearing, it was explained to the parties that any alleged acts of discrimination the Complainant referred to in his correspondence that allegedly occurred post the referral of this claim to the Director General of the WRC would not be considered. The Complainant wrote to the WRC on 21 August 2024 in this regard and was informed that should he wish to make a new complaint, he would need to register the complaint by filling in a new complaint form. Furthermore, as the Complainant repeatedly referred to his wife as a “joint complainant”, he was informed that his wife is not a party to the claim. The relevant law Section 3 Discrimination (general). 3(1) For the purposes of this Act discrimination shall be taken to occur— (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B),(in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, (2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are: (a) that one is male and the other is female (the “gender ground”), (b) that they are of different civil status (the “civil status ground”), (c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”), (d) that they are of different sexual orientation (the “sexual orientation ground”), (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”), (f) subject to subsection (3), that they are of different ages (the “age ground”), (g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”), (h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”), (i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”), (j) that one— (i) has in good faith applied for any determination or redress provided for in Part II or III, (ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act, (iii) has given evidence in any criminal proceedings under this Act, (iv) has opposed by lawful means an act which is unlawful under this Act, or (v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the “victimisation ground”). Section 5 Disposal of goods and provision of services provides as follows 5(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public. The Act in section 2 provides the following definition of “service” “service” means a service or 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— (a) access to and the use of any place, (b) facilities for— (i) banking, insurance, grants, loans, credit or financing, (ii) entertainment, recreation or refreshment, (iii) cultural activities, or (iv) transport or travel, (c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and (d) a professional or trade service, but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies; Sexual and other harassment. 11(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim— (a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person, (b) is the proposed or actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation, or (c) is a student at, has applied for admission to or avails or seeks to avail himself or herself of any service offered by, any educational establishment (within the meaning of section 7) at which the person is in a position of authority. (2) A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place. (3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member. (4) A person’s rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person. (5) (a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. (b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. At section 14 the Act states: 14(1) Nothing in this Act shall be construed as prohibiting— (a) the taking of any action that is required by or under— (i) any enactment or order of a court, (ii) any act done or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or (iii) any convention or other instrument imposing an international obligation on the State Burden of proof 38A(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary. The test for what constitutes a presumption of discrimination has been set out in several decisions of the Labour Court, in particular, in Southern Health Board v Teresa Mitchell [2001] E.L.R. 201 and Valpeters v Melbury Developments Limited [2010] 21 E.L.R. 64. In the latter case, in considering a similar burden of proof under the Employment Equality Acts, the Labour Court stated that: “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.” In Hallinan v Moy Valley Resources DEC-S2008-25, the Equality Officer held that, in order to establish a prima facie case of discrimination, the following must be established: 1. The complainant must establish that he is covered by the relevant protected ground; 2. That the incident(s) complained of actually occurred; 3. The treatment constitutes less favourable treatment within the meaning of the Act (than was or would be afforded to a person not covered by the relevant ground (a comparator) in similar circumstances. There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient in itself to establish a claim of discrimination that the Complainant falls within one of the discriminatory grounds laid down under the Act. Other facts must be adduced from which it may be inferred on the balance of probabilities that an act of discrimination has occurred. In the case of Olumide Smith v The Office of the Ombudsman [2020] IEHC 51, Simmons J. stated that, “The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C-415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.” Section 38A(1) requires the Complainant to establish, in the first instance, facts upon which he 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. Comparator The Complainant must show that he has been treated less favourably than another person is, has been or would be treated in a comparable situation on the relevant grounds. In this case, the Complainant did not offer a comparator. I will address the Respondent’s preliminary objections first. Definition of “service” With regard to the Respondent’s assertion that the matters complained of do not come within the definition of “service” within the Act and the Complainant has alternative avenues to seek remedies, the Equal Status Act (‘ESA’) does not refer specifically to social protection. Section 2(1) provides that the services and facilities which are covered by the section have to be available to the public generally or a section of the public. It is clear that the facilities mentioned in section 2(1)(b) is not an exhaustive list of matters covered by the Act. Therefore, I am required to examine the functions of the Respondent to determine whether they can be regarded as a service or facility within the meaning of section 2(1) which are available to the public or a section of the public. I note a much referenced and what I determine a leading commentary in relation to this issue, was addressed in Judy Walsh's book, The Equal Status Acts 2000-2011, 2012, Blackhall Publishing, at page 43 where she states: "Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that 'services' were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country's non-discrimination legislation. " The seminal case that dealt with the definition of “service” is Donovan v Donnellan DEC-S2001-011 which was relied upon by the Respondent. The Equality Officer held as follows: “Having examined the wording of section 2(1) it is clear to me that the services which are covered by it are services which are available to the public or a section of it. A number of examples of such services are mentioned in the Act but it does not purport to be an exhaustive list. While State services are not specifically mentioned as being covered they are not specifically excluded either and I believe it is clear that certain services provided by the State are available to the public and are covered by the Act, e.g. social welfare services, health services, etc.” “The issue in this case is whether the investigation and prosecution of crime are services which are available to the public. I consider that clearly certain aspects of the service provided by the Gardai may be services within the meaning defined in the Act e.g. a Garda witnessing a passport application, giving directions or taking a complaint. If a Garda did not provide these services to an applicant who was covered by one of the grounds covered by the Act then clearly it could be within the jurisdiction of the Director of Equality Investigations to investigate a complaint under section 21 of the Act arising from any such refusal.” It was held further that: “It is my view that the drafting of the legislation succeeded in excluding from the scope of the Act the controlling duties of the Garda Siochana, including those of the investigation and prosecution of crime, while at the same time legislating that the service aspects of policing come within its scope.” I note the decision in Fogarty v Employment Appeals Tribunal DEC-S2009 -087 where at paragraph 4.7 of the decision, the Equality Officer found that some functions of the Employment Appeals Tribunal are services within the meaning of the Equal Status Act being those outside of the decision-making function. She determined that the reception and processing of complaints and organising and hearing of complaints is a service or facility within the meaning of the Act. At paragraph 4.8 of the decision the Equality Officer found that: " the adjudication and decision making function of the respondent under the Unfair Dismissals Acts is not a "service" or “facility" which is available to the public. The respondent is exercising a quasi judicial decision making function which is not subject to the terms of the Equal Status Acts. Therefore I find that any aspect of this complaint which refers to the decision making function of the respondent is misconceived.” The Equality Officer limited the application of the ESA to the administrative matters of organising and hearing of the appeal and no further. The decision maker in this case in the context of the Disability Allowance, Fuel Allowance and the Increase for Qualified Adult is not a quasi-judicial decision maker. However, they are implementing the requirements of a specific statute, in this case the requirement under the Social Welfare Consolidation Act 2005. This obligation requires that the administrator must decide regarding the eligibility of the applicant based on the relevant statutory provisions. In McQuaid v. Department of Social Protection, DEC-S2014-015 the Equality Officer found that: “I am satisfied that access to the Job Bridge scheme constitutes a service within the meaning of section 2 of the Equal Status Acts. I note that that the list of services in section 2 is not a comprehensive list but simply indicates the Acts potential areas of application.” The Equality Officer in McQuaid relied on Mrs X (on behalf of her daughter, Ms. Y) v The Minister for Social and Family Affairs DEC-S2009-039 where it was held that: “the financial assistance given under the Disability Allowance benefit can be described as a grant in the ordinary meaning of that word which is available to a section of the public. I am also of the view that the Free Travel Scheme constitutes a facility that is made available to a section of the public by the respondent which enables the recipients to access public transportation services free of charge. I therefore find that both the payment of Disability Allowance and the Free Travel Scheme constitute a service within the meaning of section 2 of the Equal Status Acts.” The Equality Officer also relied on Walczak v Minister for Social Protection DEC-S2012-011 which found that an application for jobseeker's benefit/jobseeker's allowance fell within the definition of “service”. In Mr A v Community Welfare Service, Department of Social Protection DEC-S2013-010, a claim of discrimination was upheld in the context of the provision of rent supplement. The payment of allowances for persons with disabilities, namely Disability Allowance and the Free Travel Scheme were also considered ‘services’ in Mrs X (on behalf of her daughter, Ms Y) v The Minister for Social and Family Affairs, DEC-S2009-039. I further note that in G v Department of Social Protection [2015] IEHC 419, it was accepted by the respondent that it does provide a service within the meaning of the Act. O'Malley J was of the opinion that the respondent administers both statutory benefits and allowances and non-statutory payment schemes, all of which “must be administered according to generally applicable principles of public law”. In the view of the Court “they would have to be regarded as services to the public within the meaning of the Act.” (para 133). I conclude that social welfare payments, including but not limited to Disability Allowance, fuel allowance, and the Increase for Qualified Adult as well as any administrative actions or procedures undertaken in the determination of eligibility and the administration of such payments, fall within the ambit of the Act. Time limits The second matter raised by the Respondent related to the prescribed time limits. The Respondent asserts that the Complainant’s claim is centred around the events of 19 September 2023. As the ES1 form was served on 22 January 2024, the Respondent asserts that this complaint was out of time. Section 21 of the ESA provides as follows: 21(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission. (1A) If the grounds for such a claim as is referred to in subsection (1) arise— (a) on the gender ground, or (b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant, then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commission under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law). (2) Before seeking redress under this section the complainant— (a) shall, within 2 months after the prohibited conducted 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— (i) the nature of the allegation, (ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act, and (b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commissionor, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions. (6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 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. (b) On application by a complainant the [Director of the Workplace Relations Commissionor, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly. The Equal Status Act 2000, as amended, requires a complainant to comply with two separate time limits. The first, at section 21(2), provides that a complainant must, within two months of the date on which the prohibited conduct is alleged to have occurred, notify the respondent in writing and inform them of his or her intention to seek redress. Section 21(3)(a) provides that, for reasonable cause, the WRC may extend the two-month time limit to four months, or exceptionally, may disregard the time limit requirement. The second time limit is set out at section 21(6) of the Act, and this provides that a complaint of discrimination may not be considered by an Adjudication Officer if it is referred to the WRC more than six months after the most recent incident of discrimination. For reasonable cause, this time limit may be extended to 12 months. Notification of the Respondent ES1 Section 21(2) provides that a complainant must, within 2 months of the date on which the prohibited conduct is alleged to have occurred, notify the respondent in writing and inform them of his or her intention to seek redress. I note Ms Judy Walsh, in Equal Status Acts 2000-2011 Discrimination in the Provision of Goods and Services (Blackhall Publishing, 2012) states as follows: “The notification must be sent within two months of the alleged discriminatory event and must state the name of the allegation and the complainant’s intention to seek redress under the Acts if not satisfied by any reply received. Both of these criteria are essential.” I further note the Equality Tribunal in O’Brien and McCarthy v Ruairi’s Bar, Tralee DEC-S2007-039 explained the purpose of the notification requirement as follows: “The purpose of this notification is twofold. Firstly, it is designed to alert the respondent at an early stage to the nature of the allegation and the fact that a complaint is being considered against them and, secondly, it affords the respondent the opportunity of communicating directly with the complainant with a view to resolving the issue between themselves without recourse to the Equality Tribunal.” The Complainant notified the Respondent of his allegation by an ES1 form dated 22 January 2024. Therefore, the notification can only relate to any alleged incident of discrimination that occurred in the period from 23 November 2023 to 22 January 2024. At the adjudication hearing the matter of time limits was discussed in detail. The Complainant agreed that the Act provides for two months’ time limit and, therefore, only events going back to November 2023 could be considered. He did not apply for an extension of time limit as he asserted that the prohibited conduct is ongoing. Allowing for the fact that relevant case law relating to equality matters have been made by employment tribunals, decisions determined by the Labour Court are cited in equal status cases. The Labour Court in Hurley v County Cork VEC EDA 1124 said that occurrences outside the time limit could only be considered if the last act relied upon was within the time limits and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum. In the matter of Dunnes Stores v Breda Mulholland EDA 179 the Labour Court stated as follows, “It is settled law that for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of the complaint.” Submission of the complaint to the WRC The Complainant referred his claim to the Director General of the WRC on 15 March 2024. In accordance with the provisions of section 21(6)(b), the alleged discriminatory treatment to which the complaint form relates is required to have occurred during the preceding 6 months – i.e. on or from 16 September 2023 to 15 March 2024. For reasonable cause this time limit can be extended to 12 months. There was no extension sought. As outlined above, I will begin by examining the alleged acts of discrimination that fall within the two-month period from the ES1 notification. Should the Complainant succeed in establishing a prima facie case of discrimination, the burden of proof will then shift to the Respondent to rebut the presumption of discrimination. In this context, the Respondent’s reliance on section 14(1)(a)(i)—which provides that actions mandated by statute may not be deemed discriminatory—will be taken into consideration. From the Complainant’s submissions and evidence, it appears that the Complainant relies upon the following which he submits constitute discriminatory treatment which occurred within the cognisable period: · The decision to suspend the Complainant’s fuel allowance on an unspecified date in November 2023. · 23 November 2023 – the Respondent’ took measure to change the payment of the Complainant’s entitlements to a Post Office. · 24 November 2023 – an email from Mr O’Craobhach, Manager in response to the Complainant’s complaint about the letter hand-delivered to his door and what the Complainant deemed as irrelevant questions asked during an interview on 16 September 2023. · 29 November 2023 – a failure to reply to the Complainant’s email regarding the manner in which the Complainant’s allowances were paid. · 4 December 2023 – a SWI’s attempted visit to hand-deliver correspondence from the SWI dated 4 December 2023 informing of an interview to be held on 11 December 2023. · 11 December 2023 - a SWI’s attempted visit and the correspondence from the SWI dated 11 December 2023 informing of an interview to be held on 18 December 2023. · 18 December 2023 - a SWI’s attempt to visit the Complainant in his home. · 22 December 2023 – the Complainant alleges that the contents of the Report dated 24 June 2016 and 18 October 2023 were discriminatory and, as they only came to the Complainant’s attention on 22 December 2023, they fall in the cognisable period. · 9 January 2024 – a SWI’s attempted visit. · 10 January 2024 - correspondence from a SWI dated 10 January 2024 informing of an interview to be held on 15 January 2024. · 11 January 2024 – a hand-delivered letter inviting the Complainant to complete a form. · 18 January 2024 – suspension of his DA; the Complainant alleged that the suspension constitutes victimisation for his submitting of the ES1 form.
In my investigation of this complaint, I must first establish if any of the above incidents amount to discriminatory treatment. If I make a finding of discriminatory treatment, I am then empowered to investigate further alleged acts which fall outside the cognisable period. Alternatively, if I do not make a finding of a discriminatory treatment regarding any of the above incidents, I have no jurisdiction to investigate other acts as relied upon by the Complainant. For clarity, the Complainant in his evidence referred to different grounds at different stages of his evidence in, what appears, quite a random manner. However, he also made a sweeping allegation that he was discriminated against on “all grounds”. Consequently, I will review the alleged acts of discrimination in the context of each of the grounds referenced to by the Complainant, namely gender, civil status, family status, sexual orientation, religion, age, disability, race, the housing assistance, and victimisation. I will also consider whether the Complainant was subjected to harassment and/or sexual harassment. · The decision to suspend the Complainant’s fuel allowance on an unspecified date in November 2023. The Complainant asserted that he was not challenging “The taking of any action that is required by or under - (i) Any enactment or order of a court…”. He emphasised that the claim is one of discrimination and the treatment by the Respondent’s officials when his entitlement to fuel allowance was suspended. The Complainant has not made out a prima facie case of prohibited conduct as defined under the Equal Status Act and, therefore, the burden of proof does not shift to the Respondent. Even if it was assumed that the suspension occurred in the cognisable period, the Complainant has failed to provide any evidence either oral or written to establish facts from which an inference of discrimination can be drawn. He did not provide any evidence to show that he was treated less favourably than another person is, has been or would be treated in a comparable situation on any of the protected grounds. The Complainant has failed to adduce any credible evidence to show that, on the balance of probabilities, he was subjected to discrimination on any of the grounds and/or that he was subject to harassment and/or sexual harassment but rather has essentially relied upon supposition and assertion, unsupported by evidence. As the Complainant has failed to establish a prima facie case, the burden of proof does not shift to the Respondent to rebut. · 23 November 2023 – the Respondent took measures to change the payment of the Complainant’s entitlements to a Post Office. The Complainant asserted that he was not challenging “The taking of any action that is required by or under - (i) Any enactment or order of a court…”. He emphasised that the nature of the claim relates specifically to alleged discriminatory treatment by officials of the Respondent. The Complainant submitted that he received correspondence from the Respondent informing him that his entitlements would be redirected to his local post office rather than into his bank account. He referred to a previous letter dated 29 August 2023, which explained that the change in payment method was introduced as a control measure, with payments to be made via Social Services Card at his nominated post office. The Complainant confirmed that the measure, in fact, was never introduced and he received the payment into his bank account. The Respondent’s letter of 23 November 2023 which was provided by the Complainant shows that decision was an administrative decision made by the Deciding Officer in accordance with their statutory function pursuant to section 300 of the Social Welfare Consolidation Act, 2005. Upon review, I conclude that the Complainant has not made out a prima facie case of prohibited conduct as defined under the Equal Status Act. The Complainant has failed to provide any evidence either oral or written to establish facts from which an inference of discrimination can be drawn. The Complainant has not demonstrated that he was treated less favourably than another person in a comparable situation on any of the protected grounds, nor has he provided evidence of harassment or sexual harassment. The claim appears to rely primarily on assertion and supposition, unsupported by factual evidence. As the Complainant has failed to establish a prima facie case, the burden of proof does not shift to the Respondent to rebut. · 24 November 2023 – an email from Mr O’Craobhach, Manager in response to the Complainant’s complaint about the letter hand delivered to his door and what the Complainant deemed as irrelevant questions asked during an interview on 16 September 2023. The Complainant asserted that the email was discriminatory, in his evidence he suggested that it was on the ground of his race. He also suggested that the email constituted harassment. There was no dispute that the Complainant made a complaint to the Respondent on 13 November 2023. The complaint was delegated to Mr O’Craobhach, SWI Manager for investigation. The Manager rang the Complainant on 14 November 2023 and issued an outcome email on 24 November 2023. I have reviewed the email in question. It is clear that the email addressed the Complainant’s complaint of 13 November 2013. I am unable to discern any discriminatory element in the correspondence in question. The Complainant did not provide any further detail and did not offer a comparator to explain what he believed he was treated less favourably than another person is, has been or would be treated in a comparable situation. I find that the Complainant has failed to adduce any credible evidence to show that, on the balance of probabilities, he was treated less favourably than another person is, has been or would be treated in a comparable situation on any of the protected grounds and/or that he was subject to harassment and/or sexual harassment but rather has essentially relied upon supposition and assertion, unsupported by evidence. As the Complainant has failed to establish a prima facie case, the burden of proof does not shift to the Respondent to rebut. · 29 November 2023 – a failure to reply to the Complainant’s email regarding the manner in which the Complainant’s allowances were paid. The Complainant did not provide any further detail and did not offer a comparator to explain why he believed he was treated less favourably than another person is, has been or would be treated in a comparable situation. I find that the Complainant has failed to adduce any credible evidence to show that, on the balance of probabilities, he was treated less favourably than another person is, has been or would be treated in a comparable situation on any of the protected grounds and/or that he was subject to harassment and/or sexual harassment but rather has essentially relied upon supposition and assertion, unsupported by evidence. As the Complainant has failed to establish a prima facie case, the burden of proof does not shift to the Respondent to rebut.
· 4 December 2023 - a SWI’s attempted visit to hand-deliver correspondence from the SWI dated 4 December 2023 informing of an interview to be held on 11 December 2023. · 11 December 2023 - a SWI’s attempted visit and the correspondence from the SWI dated 11 December 2023 informing of an interview to be held on 18 December 2023. · 18 December 2023 - a SWI’s attempt to visit the Complainant in his home. · 9 January 2024 – a SWI’s attempted visit. · 10 January 2024 - correspondence from a SWI dated 10 January 2024 informing of an interview to be held on 15 January 2024. · 11 January 2024 – a hand-delivered letter inviting the Complainant to complete a form.
The Complainant asserted that he was not challenging “The taking of any action that is required by or under - (i) Any enactment or order of a court… He emphasised that the claim is one of discrimination and the treatment by the Respondent’s officials and not the appointment and duties of the Social Welfare Inspectors under section 250 of the SWCA. The Complainant alleges that the attempts by the SWIs to contact him by post, by hand-delivered letters and the attempts to meet him and his spouse constitute discrimination on the grounds of his race and civil status. In relation to the letter of 11 January 2024, the Complainant also asserted that it constituted harassment. The role of a Social Welfare Inspector derives from section 250 of the Social Welfare Consolidation Act and includes, inter alia, to investigate and report on claims for or in respect of benefit and any question arising on or in relation to that benefit to ensure compliance with the relevant laws. As part of their role, they conduct interviews and carry out home visits with permission. It appears that home visits may be used to verify the information provided by the customer such as their stated residence and household composition. The Complainant appears to be under misapprehension that once his allowances were granted, they are not subject to review. He has repeatedly stated that his allowances were granted in 2013 and 2023, and he expressed confusion regarding the rationale for reassessment. This understanding is incorrect and does not reflect the operational principles of the social welfare system. The social welfare system is a State financial support designated to assist individuals who might need help due to various life circumstances. As such, eligibility and entitlement to benefits are contingent upon personal circumstances, which may change over time. These changes can affect both the level of support provided and continued eligibility. Recipients of social welfare payments are obliged to notify the Respondent of any changes in their circumstances. Nonetheless, this does not always occur. In the Complainant’s case, the Respondent had not been informed of any change in circumstances by the Complainant. It was only on 16 August 2023 that the Respondent was notified by the Irish Prison Service that the Complainant had been incarcerated from 15 October 2021 to 12 January 2023. This notification prompted a review of the Complainant’s circumstances and entitlements. Following the review, an overpayment of €25,946.40 was assessed against the Complainant. As part of this process, the Respondent also sought to determine whether the Qualified Adult—namely, the Complainant’s spouse, in respect of whom an IQA was being paid—resided with him. The Complainant appeared to take exception to the investigation. The Respondent is responsible for the administration of public funds intended to support individuals in genuine need of financial assistance. In fulfilling this mandate, the Respondent has a duty to ensure that such funds are disbursed appropriately and in accordance with established eligibility criteria. The role of Social Welfare Inspectors is critical in this regard, and their efforts to carry out the necessary checks and verifications should be commended. These checks are essential to maintaining the integrity of the social welfare system and ensuring that public resources are directed to those who are rightfully entitled to them. Under the relevant legislative framework, the Complainant is obliged to provide the SWI with any information or documentation reasonably required for the purposes of an investigation. Had the Complainant cooperated fully with these requests, the need for repeated visits could have been avoided. In my view, the Complainant’s failure to engage constructively with the process significantly contributed to the protracted and unnecessary nature of the investigation. I find that the Complainant did not offer any evidence to support his assertions that he was treated less favourably than another person who does not have the protected characteristic is, has been or would be treated in a comparable situation on any of the protected grounds and/or that he was subject to harassment and/or sexual harassment but rather has essentially relied upon supposition and assertion, unsupported by evidence. As the Complainant has failed to establish a prima facie case, the burden of proof does not shift to the Respondent to rebut. · 22 December 2023 – the Complainant alleges that the contents of the Reports dated 24 June 2016 and 18 October 2023 was discriminatory. The Complainant asserted that he only became aware of the report on 22 December 2023 and, therefore, they should be considered as falling within the prescribed time limits. The Complainant asserts that the reports made reference to his religion and that the SWI noted that a question was asked whether the Complainant’s marriage was a marriage of convenience. In his evidence the Complainant alleged that it was discriminatory on the grounds of his civil status. He later stated that it was, in fact, discrimination on all grounds. The reports reflect what had occurred during the SWI’s visit to the Complainant in June 2016 and September 2023. In his evidence the Complainant confirmed that he took exception to the questions asked at the interviews. Therefore, on his own evidence, if a discriminatory act did occur during the visits as alleged by the Complainant, it occurred on the days in question. Even if it was accepted that the above reports came to the Complainant’s attention in the cognisable period and, therefore, should, be considered as falling within the prescribed time limits, the Complainant did not offer any evidence to support his assertions that he was treated less favourably than another person who does not have the protected characteristic is, has been or would be treated in a comparable situation on any of the protected grounds and/or that he was subject to harassment and/or sexual harassment but rather has essentially relied upon supposition and assertion, unsupported by evidence. As the Complainant has failed to establish a prima facie case, the burden of proof does not shift to the Respondent to rebut. · 18 January 2024 – suspension of his DA; the Complainant alleged that the suspension constitutes victimisation for his submitting of the ES1 form. It was not disputed that the Complainant’s Disability Allowance was suspended on 18 January 2024 due to the Respondent being unaware of the Complainant’s whereabouts. It was also accepted that the Complainant’s ES1 form was issued on 22 January 2024. As the decision to suspend the DA preceded the Complainant’s submission of his complaint, it could not have been made in retaliation for raising the issue. I, therefore, find that the Complainant has not established that he was discriminated against by the Respondent on the victimisation ground. As the Complainant has failed to establish a prima facie case, the burden of proof does not shift to the Respondent to rebut.
Reasonable accommodation The link between discrimination and the failure to provide reasonable accommodation for a person with a disability is clearly set out at Section 4(1) of the Act: (1) 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 impossible or unduly difficult for the person to avail himself or herself of the service. Subsection (6)(b) tells us that a “service provider” is, (b) the person responsible for providing a service in respect of which section 5(1) applies. The Complainant alleged that he was not provided with reasonable accommodation in September 2023. The Complainant gave evidence that he received a letter scheduling an appointment in the Respondent’s offices on 15 September 2023. He alleged that he queried by email of 13 September 2023 if there was a lift in the building and received no reply. The Complainant alleged that the SWI turned up unannounced at his home on 19 September 2023. The Complainant conceded the email of 13 September 2023 exhibited by the Respondent was sent by him to the SWI. In the email the Complainant stated: “Thanks for your call. Thanks a lot for offering to come around for the interview, I really would appreciate that – Hope its not too much bother. Like I said I’m at home except for Medical appointment so feel free to drop around when suits – just drop me a quick line. Again Hope its not too much bother for you. Really appreciate it. Thanks again. Amit” I note that the alleged failure to provide reasonable accommodation relates to events that occurred between 13 and 19 September 2023 at the latest and, therefore, fall outside the cognisable period. Conclusion Having carefully considered all submissions and evidence presented, I find that the Complainant has not discharged the burden of proof required to establish facts from which an inference of discrimination could be drawn regarding his complaint that the Respondent discriminated against him on the grounds of gender, civil status, family status, sexual orientation, religion, age, disability, and/or race. I further find that the Respondent did not victimise the Complainant. I further find that the Respondent did not harass and/or sexually harass the Complainant. Finally, I find that the Respondent did not fail to provide the Complainant with reasonable accommodation in respect of the Complainant’s disability. |
Decision:
Section 25 of the Equal Status Acts, 2000 as amended requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I declare this complaint to be not well founded. I decide that the Complainant has not established a prima facie case of discrimination by the Respondent on any of the alleged grounds, including gender, civil status, family status, sexual orientation, religion, age, disability, and/or race. I further decide that the Respondent did not victimise the Complainant. I further decide that the Respondent did not harass and/or sexually harass the Complainant. Finally, I decide that the Respondent did not fail to provide the Complainant with reasonable accommodation in respect of the Complainant’s disability. |
Dated: 30-09-2025
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
Social welfare – definition of service – time limits - |