Jackson v The State of SA
[2016] SAEOT 6
•7 December 2016
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
JACKSON v THE STATE OF SA
[2016] SAEOT 6
Judgment of Her Honour Judge Cole, Member Ms H Jasinski and Member Ms A Bachmann
7 December 2016
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - DISABILITY OR IMPAIRMENT
The complainant, Mr Jackson, brought proceedings alleging discrimination on the grounds of a refusal by the respondent to give him taxi vouchers under the South Australian Transport Subsidy Scheme (SATSS). Mr Jackson alleged discrimination by the respondent on the grounds of a physical and intellectual disability.
Held: The decisions in relation to Mr Jackson's applications for taxi vouchers under the SATSS did not constitute the provision of a service, pursuant to s 76 of the Equal Opportunity Act 1984. The refusal of the complainant’s application for taxi vouchers under the SATSS did not amount to discrimination on the grounds of disability under the Act. The complaint is dismissed.
Equal Opportunity Act 1984 (SA) ss ss 5, 66, 76, 82; Equal Opportunity Act 1984 (WA); Passenger Transport Act 1994 (SA) s 20; Passenger Transport Regulations 2009 (SA) regs 3, 150A, referred to.
IW v City of Perth [1997] HCA 30; 191 CLR 1; New South Wales v Whiteoak [2014] NSWCATAP 99; Jackson v Homestart Finance [2013] SAEOT 13; R v Entry Clearance Officer, Bombay, Ex parte Amin [1983] 2 AC 819; Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770, considered.
JACKSON v THE STATE OF SA
[2016] SAEOT 6THE TRIBUNAL DELIVERED THE FOLLOWING JUDGMENT:
Dean Jackson and his mother, Joan Jackson, made a complaint under the Equal Opportunity Act 1984 (“the Act”) to the Commissioner for Equal Opportunity (“the Commissioner”) on 22 June 2015.
The Commissioner referred Dean Jackson’s complaint to the Tribunal on 14 December 2015.
The Complaint
The grounds for the complaint, set out in the complaint form, were as follows:-
Early May 2015 I called the Transport Subsidy Scheme. For my son Dean to receive new Book of Taxi Vouchers. I was told straight away that Dean would not be getting a new Book, but was not given any reason why. Then she said that she would only be dealing with Dean. I had explained I was his carer, I put Dean on the phone I then had asked for the Manager also her name, I was told that I would not be able to speak with her. So I made numerous phone calls to ask to speak to the manager no luck. Then finally someone called me. She said she was the Manager Michael Doyle, she said that Dean would not be getting any further vouchers as people with kidney transplants don’t get vouchers. I said to her that Dean has a learning disability, she was unresponsive to everything I said and also very Rude in her manner Very unproffes [sic] I also spoke to someone called Josie Fletcher who also said she was the manager, They were both very difficult to deal with. I thought that they may be rude because I am Irish and have a strong Irish Accent, although I have been in Australia for 37 years and Dean is born here. I also don’t believe there is a temporary Vouchers for Taxis as especially as Deans Disability is pernment [sic]. I believe that Dean and I have treated different.
The remedy sought in the complaint was the provision of taxi vouchers from the South Australian Transport Subsidy Scheme (SATSS).
The Act
The complainant filed particulars of Dean Jackson’s complaint in the Tribunal. In the particulars, the complainant alleged a breach of s 76(1) of the Act and s 66(a) and (d) were cited. The Act says, in s 76(1):
(1)It is unlawful for a person who offers or provides—
(a) goods; or
(b) services to which this Act applies,
(whether for payment or not) to discriminate against another on the ground of disability—
(c) by refusing or failing to supply the goods or perform the services; or
(d) in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.
(1a)For the purposes of the application of subsection (1) to services comprised of access to or use of a place or facilities that members of the public are permitted to enter or use (see paragraph (a) of the definition of services to which this Act applies), the owner of the place or facilities and the occupier of the place or the place where the facilities are provided will each be taken to offer or provide the services.
Sections 66(a) and (d) provide:
For the purposes of this Act, a person discriminates on the ground of disability—
(a)if he or she treats another unfavourably because of the other's disability, or a past disability or a disability that may exist in the future; or
…
(d)if, in circumstances where it is unreasonable to do so—
(i) he or she fails to provide special assistance or equipment required by a person in consequence of the person's disability; or
(ii) he or she treats another unfavourably because the other requires special assistance or equipment as a consequence of the other's disability; or
The phrase “services to which this Act applies” is defined in s 5 as follows:
services to which this Act applies means—
(a)access to or use of a place or facilities that members of the public are permitted to enter or use; or
(b)services provided by an employment agency; or
(c)services provided in the course of a banking business (within the meaning of the Banking Act 1959 of the Commonwealth), the provision of credit, or insurance; or
(d)the provision of a scholarship, prize or award; or
(e)entertainment, recreation or refreshment; or
(f)services provided by an introduction agency; or
(g)the provision of coaching or umpiring in a sport; or
(h)services connected with transportation or travel; or
(i)services of a profession or trade; or
(j)services provided by a Government department, instrumentality or agency or a council;
The SA Transport Subsidy Scheme
The Passenger Transport Act 1994 provides, in s 20(1)(f) and (i):
(1)The Minister may, in connection with the operation of this Act, adopt the following functions:
…
(f) to administer a system of fare subsidies and concessions in appropriate cases;
…
(i) to facilitate the use of passenger transport services by people with disabilities;
The Passenger Transport Regulations 2009 refer to the South Australian Transport Subsidy Scheme (the SATSS) and provide as follows:
South Australian Transport Subsidy Scheme or SATSS means the scheme approved by the Minister entitling an eligible person to travel in taxis and certain hire cars at subsidised fares fixed in the SATSS conditions of use and includes—
(a)the Journey to Work Scheme (JTWS); and
(b)the Tertiary Education Assistance Scheme (TEAS); and
(c)any other scheme recognised by the Minister for the purposes of this definition;
SATSS conditions of use means the conditions of use determined by the Minister under regulation 150A;
150A—SATSS Conditions of Use
(1)The Minister may determine (or vary) conditions of use for the South Australian Transport Subsidy Scheme for—
(a) the drivers and operators of taxi services or certain car hire services; and
(b) centralised booking services; and
(c) SATSS members.
(2)The Minister must ensure that the SATSS conditions of use (or a variation to conditions of use) under subregulation (1) are published in the Gazette.
(3)The SATSS conditions of use may include rules, procedures, prohibitions, restrictions or limitations that are to apply to accredited drivers, operators, centralised booking services and SATSS members, including (but not limited to)—
(a) eligibility criteria for persons using the scheme; and
(b) requirements for the carrying, presentation and verification of certain identification cards determined by the Minister for the purposes of the scheme; and
(c) requirements relating to persons permitted to travel in taxis or certain hire cars for a subsidised trip; and
(d) rules about entering information on or in respect of a SATSS voucher; and
(e) rules about the calculation and payment of fares; and
(f) requirements relating to the issuing of receipts by drivers and the information required on receipts; and
(g) requirements for reporting any real or potential conflict of interest as defined in the SATSS conditions of use.
(4)A SATSS member who fails to comply with a SATSS condition of use is guilty of an offence.
Maximum penalty: $1 250.
Expiation fee: $160.
(5)A driver of a taxi or certain hire car, an operator of a taxi service or hire car service or a centralised booking service who fails to comply with a SATSS condition of use in respect of that driver, operator or service is guilty of an offence.
Maximum penalty: $2 500.
Expiation fee: $210.
In the Government Gazette of 13 February 2014, there appeared a document entitled “Eligibility Criteria and General Conditions of Use for all SATSS Members (Including JTWS and TEAS members). That document stated, with respect to eligibility for the SATSS scheme:
Eligibility Criteria for SATSS Members (JTWS and TEAS Members must meet this criteria as well as additional criteria which is provided for below)
·Permanent residents of South Australia who have severe and permanent disabilities which limit their capacity to use public transport, can apply for the transport assistance, by way of membership to SATSS.
·Eligibility for membership of SATSS is determined after an assessment of the applicant’s permanent disability and the way this affects their ability to use public transport, namely public transport service by bus, train or tram. As such, functional assessment, not diagnosis type or condition, is the basis for eligibility.
·A temporary SATSS membership is available to those who may be undergoing rehabilitation or whose condition may improve through surgery and is subject to review (e.g. as a result of an accident or stroke).
In evidence, both the complainant and the respondent tendered a document entitled “Statement of Requirements”.[1] In her affidavit, Ms Doyle, the Manager of SATSS and an employee of the Department of Planning, Transport and Infrastructure (“DPTI”), described this document as “an extract from the Agreement for Services between the Minister for Transport and the third party contractor who conducts assessments of applications for Transport Assistance”.[2] The Statement of Requirements says, in relation to eligibility for the SATSS scheme:
[1] Exhibit R2, Affidavit of Michele Margaret Doyle sworn on 27 June 2016 “MD2” and Exhibit C1, Book of Documents, document 6.
[2] Exhibit R2, Affidavit of Michele Margaret Doyle sworn on 27 June 2016 paragraph 5.
2.2 Eligibility
The eligibility for transport assistance focuses on the applicant’s permanent disability (or disabilities) and the way this affects the ability to travel. Functional assessment, not diagnosis or type of condition, is the basis for eligibility
There are two eligible categories of SATSS membership:
(a)An ambulant member (able to walk) receives a 50% subsidy up to a maximum fare of $40 ($20 maximum subsidy) of a taxi fare;
(b)A member confined to a wheelchair for all mobility receives a 75% subsidy up to a maximum fare of $40 ($30 maximum subsidy) of a taxi fare.
Eligibility criteria is assessed against:
(a)Evidence of a person’s inability to use public transport independently;
(b)The effect of a combination of impairments on an individual’s abilities;
(c)The appropriateness of SATSS to provide transport assistance;
(d)Personal safety issues (from the individual, transport provider and general public perspective);
(e)Total and permanent dependence on a wheelchair;
(f)Severe permanent inability to negotiate three bus steps 350mm high;
(g)Permanent inability to user their arms to assist balance and safety when using public transport;
(h)Unable to walk for more than 100 metres without brief rests;
(i)Sensory impairments (including vision);
(j)Cognitive and intellectual impairment and;
(k)Communication impairments
The SATSS documents refer to the people it assists as “members” of the scheme, and refers to them having SATSS membership. Membership entitles the person to assistance of the kind for which they are assessed to be eligible. On the information before us, the types of assistance available under the scheme are vouchers entitling the user to a discount of either 50% or 75% of a taxi fare, or a Plus One Free Companion card, which entitles the holder, if he or she has a metro ticket and a valid concession card, to travel on public transport with a companion who need not pay a fare. The assistance is therefore financial assistance in respect of transport costs.
The Evidence
Mr Jackson applied for and was given a book of 80 taxi vouchers in 2010 under the SATSS. The use of the taxi vouchers granted to him enabled Mr Jackson to ride in a taxi for 50% of the usual fare. Mr Jackson was advised, when the book was provided, that the decision related to the provision of only one book of taxi vouchers.
Mr Jackson applied for a further book of taxi vouchers in May of 2015.[3] The application included the following statement:
I am Dean’s mother and carer. Dean has a learning disability this is the reason he receives a Disability Pension, his condition is not going to change it is lifelong. The Taxi vouchers are important to Dean as he may be in a situation where he needs to use a taxi, it also gives him some security.
[3] Exhibit R2, Affidavit of Michele Margaret Doyle sworn on 27 June 2016 “MD7”.
The application also included information from Dr Hart, a medical practitioner. Dr Hart gave his diagnosis of Mr Jackson as “renal transplant”, “educational deprivation” and “depression”. In response to the question on the form “Does the applicant require the assistance of another person (excluding the driver) when travelling on public transport and/or taxis?” Dr Hart crossed the box for “No”. No physical or communication deficits in Mr Jackson were noted. In a section of the form dealing with the applicant’s ability to use public transport, Dr Hart wrote:
Requires support for anything but routine day to day use – then cannot manage by himself.
The application was referred to Ms Weston, an occupational therapist, for assessment. Ms Weston declined to approve the application. She said, in her written assessment:
Dr Hart contacted. Renal transplant was “years ago”. Dr told Dean and mother that Dean would not qualify but mother insisted. Physically capable.
An affidavit of Ms Weston was tendered in the respondent’s case, and Ms Weston gave evidence. Ms Weston said that she had assessed Mr Jackson’s first application in 2010. She approved it because she understood from the application, mistakenly, that Mr Jackson’s renal transplant had occurred just prior to the making of the application and that he had a temporary physical deficit on account of it which would impede his ability to use public transport. In relation to the application of 2015, Ms Weston said that she assessed it against criteria (a) to (k) in the Statement of Requirements. Ms Weston said that her interpretation of the Statement of Requirements, together with conversations that she has had with Ms Doyle and Ms Josie Fletcher, another employee DPTI, caused her to believe that the SATSS scheme exists for the benefit of people who are physically unable to use public transport. Ms Weston’s evidence was confusing, in part, because she said that, if a person had an intellectual disability, but no physical disability, then they would not be eligible for the SATSS scheme, however, she acknowledged that there are members of the SATSS scheme who have only an intellectual and not a physical disability, albeit “very few”.[4]
[4] Transcript pp 38-39.
Throughout the relevant period, Mr Jackson has continued to hold a Plus One free companion card from the SATSS.
On 21 September 2015, Mrs Jackson sent to DPTI a document which was treated as a fresh application and which included information from a psychologist, Mr Smith. In response to the question quoted above as to whether Mr Jackson requires assistance when travelling on public transport, Mr Smith crossed the box for “Yes” and added:
If going somewhere new Dean has an intellectual disability. [sic] He processes information slowly. Poor literacy.
In response to the question on the form “How do these disabilities impact on the applicant’s ability/inability to use public transport or taxis with or without assistance” Mr Smith wrote:
Dean processes information slowly so has trouble reading bus nos if going somewhere new. His deductive reasoning is limited. He becomes confused and finds it difficult to solve problems such as how to get home from somewhere new.
Mr Smith said, on the form, that Mr Jackson would be able to be trained to use public transport, but only for regular routes. Mr Smith said that Mr Jackson would need to be accompanied to new places, and that this is not always possible. A letter of Mr Smith was also provided to DPTI at about this time. It amplified the issues set out by Mr Smith on the form, and also stated that Mr Smith’s opinion was based upon an assessment made of Mr Jackson on 26 October 2010.
Ms Doyle, in her affidavit,[5] said that she assessed this further material and determined that it did not disclose a change in Mr Jackson’s condition or eligibility for SATSS membership and taxi vouchers. Ms Doyle, in evidence, said that she relied on the factors set out in the Statement of Requirements.[6] Ms Doyle said that she thought that the scheme is “primarily mobility based”.[7] However, Ms Doyle said that it was possible to become an SATSS member with a solely cognitive impairment, however, in the event that an applicant was capable of catching public transport with a companion, then the Plus One card was the appropriate form of assistance. In evidence, Ms Doyle said:[8]
A.Okay, when Mr Jackson - because I don't do the assessments - when Mr Jackson applied for a review, all of the information on the application form was exactly the same, like exactly the same word-for-word, including renal transplant. And I thought 'Well that's really odd because this was five years ago, has he had another or whatever', so I had a look at that and I've sent it through to Merle for her assessment as is the normal process. But in my conversations with Mrs Jackson, who was ringing, you know, five, six, seven times a day, she was saying to me that she wanted - she wanted a letter because Dean didn't have any vouchers left and she wanted a letter to allow him to use a taxi at the subsidised price while he was waiting for this review which is not and never has been part of the scheme. And in those conversations Mrs Jackson said that Dean, if he missed the last bus or he, you know, needed to get himself out or get himself home again, he should be able to catch a taxi and not have his mother wait for him. And so she made it quite clear that he can and he does use public transport and that his cognitive impairment didn't really seem to be an issue. It was that he wanted to - he wanted to be able to use it when he felt there was no other alternative for him to get home.
[5] Exhibit R2, Affidavit of Michele Margaret Doyle sworn on 27 June 2016.
[6] Affidavit of Michele Margaret Doyle sworn on 27 June 2016 “MD2”.
[7] Transcript p 28.
[8] Transcript pp 31-32.
The outcome of the application was communicated to Mrs Jackson in a letter dated 29 September 2015, which said in part:[9]
The information provided by Dr David Smith (Psychologist) confirms that Dean is able to access public transport and it is acknowledged that sometimes this may be difficult. Dr Smith states that if Dean is travelling somewhere new, he would require the assistance of another person. He also advises that Dean has difficulty dealing with money and interacting with the driver.
Accordingly, I advise that Dean has again been assessed as not eligible for the provision of taxi vouchers. The level of support that can be offered by SATSS is the provision of a Plus One Free Companion Card which our records show Dean already has.
As Dr Smith has indicated that Dean has difficulty interacting with the driver and handling money, you may wish to consider applying for an Adelaide Metro Mobility Pass through the Adelaide Metro InfoCentre. The mobility pass itself is issued free of charge annually. Holders purchase monthly validating stickers at the equivalent cost of four “All times Concession Multi Trip” tickets. The prepaid stickers are attached to the mobility pass. Holders are then exempt from validation and there is no need for dealing with money or interacting with the driver. The mobility pass entitles the holder to unlimited travel/transfer on all Adelaide Metro Services for every month that they have purchased a validating sticker.
[9] Affidavit of Michele Margaret Doyle sworn on 27 June 2016 “MD18”.
In evidence, the Tribunal was provided with material from Mr Smith which provided further information about Mr Jackson. Mr Jackson also gave evidence of the difficulties with orientation and confusion which he believed that he would experience were he to catch a bus alone. He denied ever having caught a bus alone.
Part of Mr Jackson’s case focussed upon the question of whether he was eligible for taxi vouchers from SATSS on a proper interpretation of the criteria in the Statement of Requirement. A further part of Mr Jackson’s case focussed upon the manner in which his applications were processed, and, in particular, the assessors perceived failure to seek further information from Mrs and Mr Jackson.
It is not our function, in this appeal, to conduct a review at large of the merits of the decisions made by the departmental officers with respect to Mr Jackson’s application, and neither is it our function to identify errors of law in the processing of the applications (other than those relevant to the issue of unlawful discrimination). We are dealing with an application under the Equal Opportunity Act 1984. In order to succeed, the complainant must show that he has been discriminated against in a manner contrary to the provisions of the Act.
The respondent drew the Tribunal’s attention to the findings of fact in relation to Mr Jackson’s capacity in the decision of a differently constituted Tribunal in Jackson v Homestart Finance.[10] The evidence before the Tribunal in that matter was not before us in the present matter, so we have not relied upon, or taken into account, the findings of fact in that decision.
[10] [2013] SAEOT 13.
Are the decisions a breach of the Act?
SATSS is a scheme set up and administered under the Passenger Transport Act 1984. In order to succeed in his complaint under s 76(1) of the Equal Opportunity Act 1984, Mr Jackson must establish that, in administering the SATSS, or in making some of the decisions in the assessment of applications for assistance from the SATSS, the respondent is providing a service to which the Act applies. The relevant limb of the definition in s 5 of the Act, of “services to which this Act applies” is “services connected with transportation or travel”.
Ms Shepherd, counsel for the respondent, argued that no part of the administration of the SATSS by the respondent comes within the meaning of “goods” or “services to which this Act applies” in s 76(1) of the Act. Ms Shepherd referred to the decision of the High Court in IW v City of Perth.[11]The High Court was there dealing with an allegation that the refusal, by the City of Perth, of an application, made by an incorporation founded for people living with AIDS, for planning approval for a drop-in centre, was discriminatory in a manner contrary to the Equal Opportunity Act 1984 (WA). Brennan CJ and McHugh J considered the question of whether the Council, in administering the planning scheme, was performing a service:
Thus, when a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act. This is particularly so when councillors are acting as representatives of their constituencies in making by-laws or resolutions that will have the force of law throughout the municipality or borough. Such "legislative" acts have to be contrasted with the acts involved in making operational decisions as to whether a particular service should be provided to certain individuals or to a section of the community. Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual.
…
The appellant does not assert, and the Tribunal did not find, that the relevant service which the City provides was the consideration of an application for approval. There was clearly no refusal to provide such a service. Rather, the appellant asserts that it was the refusal to approve the application that was the refusal of the service which the Council provided. However, the City did not provide any service of giving approvals. Conversely, it did not provide any service of refusing approvals. The Council, acting on behalf of the City, merely had a duty to consider applications and a discretionary power to refuse or approve those applications unconditionally or on conditions.
…
Thus, the granting or refusal of an application was the end product of a deliberative process. Approval of an application no doubt conferred a benefit on an applicant. But it misdescribes the process to say that the Council provided a service of giving approvals.
[11] [1997] HCA 30; 191 CLR 1.
Similar reasoning has been adopted in other cases, in the context of a variety of statutory schemes and functions.[12]
[12] New South Wales v Whiteoak [2014] NSWCATAP 99; R v Entry Clearance Officer, Bombay, Ex parte Amin [1983] 2 AC 819; Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770.
The SATSS is a scheme established under the Passenger Transport Act 1994 to facilitate the use of passenger transport services by people with disabilities by, among other things, the provision of taxi vouchers to defray the cost of travel by taxi. Its character is that of an administrative scheme in pursuance of a public policy. It does not have the character of the offer or provision of services to the public at large, or even a subcategory of the public such as persons with disabilities. It is inherent in the nature of the scheme that choices will have to be made on a case by case basis as to who is entitled to the benefit of the scheme. Were it otherwise, the purview of the scheme would be so wide that it could not succeed in its policy objective.
We determine that the making of the decisions in relation to the applications by Mr Jackson for membership of SATSS entitling him to taxi vouchers did not constitute the provision of a service within the meaning of s 76(1) of the Act. The making of those decisions constituted the exercise of the administrative function of assessing eligibility for financial assistance for a particular purpose under a scheme established under legislation. The respondent was acting as an arm of government.
Mr Jackson’s complaint cannot, therefore, succeed. However, we will continue to consider it in case we are wrong and the making of the decisions does constitute a service.
Mr Jackson’s applications were refused. In order to succeed in his complaint, Mr Jackson must prove that the refusals constituted discrimination against him on the ground of disability, as described in s 66 of the Act.
Mrs Jackson cited s 66(a) and (d) as the subsections describing the discrimination which, she argued, Mr Jackson had experienced. Both are set out above.[13]
[13] Refer to p 2 of the judgment.
We do not consider that Mr Jackson was “treated unfavourably because of..[his].. disability” within the meaning of s 66(a). His application was refused because he does not have a physical disability at all, let alone a physical disability of the kind and extent to qualify him for the scheme. Likewise, his intellectual disability was assessed as being not nearly severe enough to warrant the grant of taxi vouchers under the SATSS.
We do not consider that the respondent, in circumstances in which it was unreasonable to do so, failed to provide special assistance to Mr Jackson in consequence of his disability within the meaning of s 66(d). Mr Jackson was assessed as not requiring the taxi vouchers, within the criteria being applied within the scheme. The decisions were made on the basis that, in the opinion of the assessors, on the basis of the information provided, Mr Jackson does not have the kind of disability, or a disability of sufficient severity, to make him eligible for membership of SATSS for the purpose of obtaining taxi vouchers.
We have considered the other limbs of s 66, and none of them are applicable. Mr Jackson has not established that he was discriminated against on the grounds of disability in the making of the decisions in relation to his applications for membership of SATSS for the purpose of obtaining taxi vouchers.
The Act provides, in s 82:
This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking for the benefit of persons who have a particular disability.
Summary and Conclusion
The administration of the SATSS scheme, and the individual steps in that administration, including the making of decisions in relation to an individual’s eligibility for taxi vouchers under the scheme, do not constitute the offer or provision of a service to which the Equal Opportunity Act 1984 applies.
The refusal of the complainant’s applications for taxi vouchers from the SATSS does not constitute discrimination on the ground of disability under s 66 of the Act.
The complaint is dismissed.
0
3
1