Case Number: DEC-S2012-011- Full Case Report. Equality Tribunal

• Court: Equality Tribunal
• Date: 01 March 2012
• Docket Number: DEC-S2012-011- Full Case Report

The Equality Tribunal

Decision
DEC-S2012-011

Parties

Waldemar Walczak

v.

Minister for Social Protection
(Represented by Cathy Maguire BL instructed by Chief State Solicitor's Office)

File Reference: ES/2010/0112
Date of Issue: 23rd March 2012

Key words
Equal Status Act, 2000 - 2008, Direct discrimination, Section 3(1) - less favourable treatment, Race - 3(2)(h) - provision of a service, Section 5(1), no prima facie case.

Delegation under Equal Status Acts, 2000-2008

The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2008 on the 9th of December 2010. On the 3rd of October 2011 in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts. On this date my investigation commenced. A submission was received from the complainant on the 9th of December 2010 and from the respondent on the 16th May 2011. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 27th October 2011. The final correspondence was received from the respondent on the 14th March 2012.

1. Dispute

1.1. The dispute concerns a claim by the complainant that he was discriminated against on the race ground in relation to the services provided by his local social welfare office. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a) and 3(2)(h) of the Equal Status and contrary to Section 5(1) of that Act.

2 Complainant's Case

2.1. The complainant, a Polish national, referred a complaint to the Equality Tribunal claiming that the respondent discriminated against him in relation to his application for jobseeker's benefit/jobseeker's allowance. On the 4th of February 2009, he made an application to the Social Welfare office in Loughrea and he was awarded a jobseeker's allowance on the 17th of October 2009 a wait of over 9 months to process his application. He was awarded a weekly sum of money and this was backdated to the date of his application. Therefore arrears were owed from the 4th of February 2009 until the 21st of September 2009. The complainant submitted that the arrears were not paid until November 2010 and after he notified the respondent of his complaint under the ES Acts. He also appealed the decision to award him the jobseekers allowance rather than jobseekers benefit on the 4th of November 2009 and he submits he did not get a response until November 2010. He said that the respondent said that they sent him the outcome of the appeal in a letter dated the 15th July 2010. Despite informing the respondent of a change of address he said that they sent the decision to his old address. The complainant disputed that this letter was sent in July 2010 and said that his former landlord forwarded all his post to his new address and he did not get the letter rejecting his appeal. He got the letter from his local representative who made representations on his behalf to the respondent. His appeal was turned down because he did not have 39 contributions in the relevant contribution year to qualify for jobseekers benefit.

2.2. The complainant made a further application for jobseeker's benefit on the 4th of January 2010. He said that he was told by the Loughrea office that this application would not be considered until after his appeal was decided. He submitted that the respondent did not look at this application until December 2010 and some 4 months after the decision on his appeal. He said that he met all the conditions to qualify him for jobseeker's benefit but that he was not awarded it until 29th September 2011when he was also paid the outstanding arrears. He submits that this long delay in considering his application was discriminatory treatment on the race ground. He stated that an Irish applicant would not have been subjected to such treatment and they would have their application processed much quicker. He submitted that since his first dealings with the local social welfare office he has been subjected to delays. He said that there were delays in getting PPS numbers for his children and he was not paid the fuel allowance he believed he was entitled to.

3 Respondent's Case

3.1. The respondent denies that the complainant was discriminated against because of his race. It was submitted that any delays which occurred were due to the increase in the live register. The Loughrea Social Welfare Local Office covers Loughrea, Portumna and most of Athenry town and a large geographical area between these three towns in east Galway. The office was set in 2006 and the existing branch office in Loughrea, which was managed by and was part of the Galway Social Welfare Local Office, was closed. Social Welfare Branch offices, which provide front-end services such as providing information and taking in claims, are managed by private individuals under contract to the Department of Social Protection. Local Offices are staffed by civil servants where decision making functions etc are carried out. In 2006 it was decided to separate the Loughrea area from the Galway area and the Loughrea Local Office was established and was also given responsibility for the Tuam and Ballinrobe Branch Offices. However the Galway manager managed both offices until 2009 when a manager was appointed to the new office.

3.2. When the Loughrea office opened in 2006 the Live Register claims in that offices were 2,467 by February 2009 this had risen to 5,669 and by November 2010 it had risen to 6,509. The live register is a count of the number of customers claiming jobseekers benefit, assistance or credits in a particular week but it excludes other customers of the office claiming back to education allowance, farm assist, one parent family payments and a number of other schemes, whose claims are processed by each Local Office. Taking these categories of claims together with the live register figures there were 7,056 claims being dealt with by the office in February 2009 when the complainant first made his claim. In November 2009 when the decision was made on the complainant's claim the office had a total claim load of 8,219. In 2009 the total new claims received was 9,493 (about 183 per week) compared with 2006 when 3,493 (about 67 per week) new claims were received. The staff in the new Loughrea Local office did not increase in line with the increase in claims and in the period January 2006 to October 2010 staff increased from 8 to 18. The office found it extremely difficult to cope with the increase in claims and consequently decisions on the claims for the Loughrea office were made in 4 different offices all of which were staffed by new and inexperienced staff who had been redeployed from other Departments.

3.3. The complainant made a claim for a jobseekers payment on 4th of February 2009. At the time because his contribution record was unclear 2 applications were opened for him, a jobseekers benefit application which is based on his contribution record and a jobseekers allowance application which is subject to a means test. His jobseekers benefit claim was given priority. In order to qualify for this benefit a person must satisfy a number of conditions relating to their social insurance contributions. A person must have at least 104 weeks PRSI contributions and there are a number of rules and conditions which apply in relation to the calculation of these contributions in the relevant tax year. Contributions paid in other EU/EEA countries are added to the Irish record when calculating entitlements. The complainant indicated in his application that he had worked in Poland and Cyprus and a request was sent to these countries requesting his insurance record. In the complainant's case, for the purposes of calculating his contributions the relevant tax year was 2007, and while he had 104 weeks contributions he did not have the required contributions paid in the relevant tax year, that is 39 contributions in 2007, and he did not qualify for jobseekers benefit. The complainant was informed of the decision in October 2009 and also of his right to appeal. The delay in deciding on his application was due to the large volume of work in the office as outlined above and also because of the necessity to get details of the complainant's social insurance records in Poland and Cyprus.

3.4. The complainant appealed the decision not to award him jobseekers benefit on 4th November 2009. The Social Welfare Appeals Officer examined the documentation and upheld the original decision on the grounds that the complainant did not have sufficient contributions paid in the relevant tax year. The decision was made on the 28th...