Matthew Reilly is a young adult with a mental disability.
When his parents first came to see me in December 2019, they had a strong sense of unfairness and injustice on Matthew’s behalf.
Matthew had been a member of his local credit union for many years. Always in the members’ car draw.
Until November 2018 when his parents were told he could no longer be in the credit union car draw. The reasons given ranged from Matthew’s inability to drive the car if he won to the implementation of Central Bank guidelines/policies in relation to withdrawals from the accounts of incapacitated members to legal advice received concerning withdrawals from the account of an incapacitated person.
When Mr and Mrs Reilly came to me, they has already been defeated.
For they had brought their claim of discrimination to the WRC under the Equal Status Acts in November 2019. The legal team for the credit union argued at that hearing that the WRC did not have jurisdiction to hear the complaint by reason of a technical lapse by the lay litigants: they had failed to complete and serve the required ES1 form within the two months’ time period provided in the act.
The adjudicator agreed and decided he did not have jurisdiction to hear the case. Here is a link to that 17.12.2019 decision.
Another bite at the cherry?
The Reillys came to me after that decision to see if anything could be done.
My view was that we could start again and make a fresh complaint. Our argument would be that the discrimination about which we complained was ongoing and formed part of a continuum and the most recent example of this would be the car draw held the previous month and from which Matthew was excluded.
We then started the ball rolling again by submitting a new ES1 complaint form on 20th December 2019 about the car draw held on 19th December 2019.
We anticipated a further argument from the credit union’s legal team: that the issue had already been decided and we could not have a further bite of the cherry. The “double jeopardy” argument.
But our argument would be that the issue was never decided for the adjudicator in the first case determined that he did not have jurisdiction. If he did not have jurisdiction then he never had to turn his mind to the legal issue in dispute between the parties.
Our case came on for virtual hearing in May 2021 during a Covid lockdown.
The adjudicator held that Matthew was discriminated against by reason of his disability and ordered
- That he be entered in all future draws
- That he be paid compensation of €7,500 for the discrimination which he suffered
Our case was that the credit union discriminated against Matthew Reilly on the ground of disability by excluding him from the credit union’s member car draw each month from November 2018. We claimed this was a breach of the Equal Status Acts, 2000-2015 which provides for remedies for discrimination in the provision of goods and services.
Credit Union case
The credit union’s case was that they were acting in the best interests of a person with a disability and had a duty of care regarding disbursements from his credit union account, welfare concerns, must adhere to Central Bank guidelines, and must ensure the member’s property was protected and prudently overseen.
They also argued that our second claim of December 2019 was out of time and time barred as the discrimination occurred in November 2018.
Adjudicator decision summary
The adjudicator found that the credit union failed to make reasonable accommodation for Matthew to enter the draw, with his mother acting as his authorised signatory/agent, and was discriminatory.
The refusal of the Credit Union on the facts of this case to do all that is reasonable to accommodate the complainant, by providing special treatment and allowing his mother to act on his behalf; to authorise his participation in the draw and without such special treatment it would be impossible for him to avail himself of the service, does constitute discrimination and I determine that the respondent is engaged in prohibited conduct. In this particular case I do not hold that section 16(2) can be relied upon by the respondent to rebut the presumption of discrimination as it would not be reasonable to do so. I have determined that the complainant has met the prima facie test that shifts the burden to the respondent to justify their policy. I have not found in favour of the respondent that they can rely on section 16(2) to rebut that inference or presumption of discrimination. As the presumption has not been rebutted; I determine that the complainant has been discriminated against and the Credit Union is engaged in prohibited conduct.
In accordance with Section 27(1)(b) having found that the respondent has and continues to engage in prohibited conduct I order the respondent take the following course of action:
1. That the complainant can participate in the car draw subject to authorisation by his mother who is the duly approved person to do so by the Board of the Credit Union.
- And make compensation to the complainant of €7500 for the effects of the prohibited conduct, having regard to the principle of proportionality and that the award should be dissuasive.
We were particularly pleased with the outcome of this case. Mr and Mrs Reilly had gone to the WRC and were knocked back. They had tried to raise the issue in the national media, including the Joe Duffy show, and had got nowhere.
But they were still driven by a sense of injustice, a sense of unfairness, and were determined to do their best for Matthew. They have done that now.
All that remains is for Matthew to win a car in the monthly draw.