James v Department of Family and Community Services

[2017] NSWCATAD 146

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	James v Department of Family and Community Services [2017] NSWCATAD 146
Hearing dates:	21 March 2017
Date of orders:	09 May 2017
Decision date:	09 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	Leave granted
Catchwords:	Disability discrimination in provision of goods and services- Age discrimination in provision of goods and services
Legislation Cited:	Anti-Discrimination Act 1977 Disability Inclusion Act 2014
Cases Cited:	BRQ v State of NSW (Department of Family and Community Services) [2015] NSWCATAD 29 Coomaraswamy v University of New South Wales [2016] NSWCATAD 41 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis v New South Wales (2003) 217 CLR 92.
Category:	Procedural and other rulings
Parties:	Colin James (Complainant) NSW Department of Family and Community Services (Respondent)
Representation:	Counsel Ms Goodchild (Complainant)     Solicitors CAREfusion Advocacy & Legal (Complainant) Family and Community Services Legal (Respondent
File Number(s):	2017/0037634

Reasons for decision

The Application

1. Mr James ("the Applicant") brought proceedings for leave pursuant to section 96 of the Anti-Discrimination Act 1977 ("the Act") arising out of the Acting President declining his complaint to the Anti-Discrimination Board ("ADB").

2. The Applicant’s complaints were of disability discrimination in the provision of goods and services under sections 49A, 49B, 49C and 49M; and age discrimination in the provision of goods and services under sections 49ZYA and 49ZYN of the Act.

3. The Acting President of the Anti-Discrimination Board declined the complaint as lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1) (a). The issue in this case is whether it is fair and just for the Tribunal to give Mr James permission (or “leave”) for his complaint to go ahead: Anti-Discrimination Act, s 96. Mr James bears the onus of persuading the Tribunal that leave should be granted.

4. The Tribunal conducted a hearing of the application for leave on 21 March 2017. Mr James was represented by Ms Dona Graham, solicitor, of CAREfusion Advocacy & Legal and Ms Louise Goodchild of counsel. The Respondent was represented by Mr Viet Hoang Nguyen of FACS Legal.

5. The Tribunal is satisfied that it is fair and just for Mr James to be given leave to proceed with his complaints. The Tribunal has determined to grant leave for the disability and age discrimination in provision of goods and services complaints to proceed against the Respondent for the following reasons.

Summary of the Complaint

6. Mr James made a complaint to the Acting President of the ADB on 8 June 2016 of disability and age discrimination in the provision of goods and services against NSW Department of Family and Community Services (FACS).

Background

7. The Tribunal sets out the background as stated in the Acting President’s report. Mr Colin James is a 66-year-old man who lives with his younger brothers, Neil 63 and Gary 62, in a home in Ballina, New South Wales. They receive 24 hour a day care provided by a non-government organisation with funding support from FACS. The three brothers are under the guardianship of their Melbourne-based maternal aunt and uncle. They receive continuous support from Ms Dona Graham of CAREfusion as their advocate.

8. The three men have a genetic disorder, Phenylketonuria (PKU), which causes severe intellectual disabilities. As result of their condition, all three men demonstrate progressive impairment of cerebral function and other irreversible effects.

9. In June 2010, a decision was made by the then Department of Ageing, Disability and Home Care (ADHC) to cancel Mr Colin James’ application for supported accommodation funding, following the death of his mother, on the basis that his two brothers had each been approved for an in-home individual accommodation support package (IASP).

10. After years of repeated funding support applications and assessments of the three brothers, in March 2016, FACS offered Mr Colin James an IASP valued at $63,631. This grant was limited to the next 12 months. After this time, he would no longer receive funding. Mr James’ guardian sought a formal review of that funding offer for Mr James on the grounds that it was considered inadequate. The outcome of that review was the final IASP offer of $33,453. This represented a reduction of $30,178. This latter amount of $30,178 was to be split between Mr James’ two brothers to increase their individual IASP of $153,176 each.

11. Mr James’ complaint was that he had been discriminated against by FACS on the grounds of his brothers’ disabilities and on the grounds of his age, in assessing his support and care needs and in the level of funding provided to him in relation to an independent accommodation support package (IASP).

Complaint of discrimination on the ground of disability

12. The complaint alleged that the IASP funding offered to Mr Colin James was inadequate. It did not accurately reflect his support care needs when compared to FACS’ clients in similar situations who do not live with brothers who also have a disability. The offer demonstrates discrimination against Mr James on the grounds of his brothers’ disabilities as it treats Mr James less favourably than would be the case, but for his brother’s disabilities. Ms Graham asserted that the IASP of $33,453 offered to Mr Colin James was much less than the amount that would have been offered to Mr Colin James if he had been assessed independently without consideration of his brothers’ disabilities. This was evidenced by the decision to reduce his IASP offer and to allocate the residual $30,178 between his two brothers to increase their individual IASP to $153,176 each.

Discrimination on the ground of age

13. The IASP funding from FACS of $33,453 discriminated against Mr James as the offer was a one off and time limited for a period of 12 months, due to his age, after which he would no longer receive the disability support funding.

14. In reply to the Respondent’s response to the ADB, Mr James submitted that the Respondent’s decision to cut both Mr Colin James IASP and active ageing funding as at 30 June 2015, was based upon a mistaken belief by ADHC that Mr Colin James turned 65 years of age on the forthcoming weekend. This decision was made before the results of the review process were complete. Mr James alleges that these actions were discrimination on the ground of his age. FACS was aware that he would be ineligible to reapply for disability funding after 1 July 2015. This amounted to less favourable treatment of Mr James by refusing to continue his IASP and active-ageing funding once he turned 65, unlike other people with a disability once they turned 65 years of age.

The Respondent’s response to the Anti-Discrimination Board

15. The Respondent responded to the ADB’s letter of 25 July 2016 setting out the complaints, with the Respondent’s response of 29 August 2016.

16. The Respondent stated that FACS had provided financial support to Mr James and his brothers since 2009, after the death of their mother. Mr Colin James currently receives $50,271 per annum, comprising an IASP of $33,453 and $16,818 as an active ageing package. Each of Mr Colin James’ brothers receives $153,176 per annum. The three brothers share private rental accommodation in Ballina New South Wales.

Complaint of discrimination on the grounds of Mr Colin James’ brothers’ disabilities

17. The Respondent said that the ADB did not have jurisdiction to deal with a complaint about the adequacy of financial assistance. The Disability Inclusion Act 2014 states that the Respondent’s decisions regarding the provision of financial assistance to eligible persons are not the subject of review by the ADB or NCAT.

18. The Respondent disputed the claim that the financial assistance provided was inadequate.

19. The Respondent stated that it had not treated Mr Colin James any less favourably than it treats other people in similar circumstances. It had applied the same legislative framework, policy and procedures in making the decision about Mr Colin James, as it does for other clients with similar disabilities. There are many factors to be taken into account in making a decision regarding the amount of financial support for a person with a disability. This depends on each client’s individualised support plan. The Respondent engaged an independent expert from Assessments Australia to assess Mr Colin James’ support needs. Economies of scale were built into the weekly schedules as the men live in a shared home, without limiting the requirement to take into account the men’s individual needs. This resulted in the total funding package of $33,453 being allocated to the Complainant, in addition to the active ageing funding he receives annually from the ADHC section of FACS, an amount of $16,818.

20. The Respondent did not base its decision regarding the amount of financial assistance to the Complainant on the disabilities of his brothers. The Complainant’s attempt to equate the consideration of support already available in the same residence with the consideration of Mr James’ brothers’ disabilities was misleading. The Respondent stated that it provided Colin James with financial support in accordance with the independent expert’s recommendations. It was an abuse of the ADB’s processes to challenge the Respondent’s decision.

21. The legislative schemes under the Disability Inclusion Act 2014 and the National Disability Insurance Scheme do not envisage that every person with the same type of disability would be entitled to receive exactly the same amount of funding. It is determined on the basis of a combination of variables relevant to each individual. The Complainant’s arguments about the inadequacy of funding were flawed. The Respondent stated that the Respondent treated Mr Colin James more favourably than other people who do not have such a disability by providing him with financial assistance which is currently $50,271 per annum.

22. The Complainant’s brothers receive higher amounts of financial assistance because they suffer a much higher level of disability. Mr James’ brothers have high support needs. Mr Colin James is capable of carrying out a number of day-to-day tasks including operating basic machines, using a telephone, cooking, socialising and driving a car a considerable distance to visit friends.

Respondent’s response to complaint of discrimination on the ground of age

23. The Respondent denied that its offer to provide financial assistance to Mr James on a one off and time limited basis was discrimination on the ground of age. The decision was not based on the Complainant’s age. At the time the Complainant requested financial support, the district had no recurrent funding source to draw from and program slippage funds were identified. To assist the Complainant with his additional support needs, the one-off allocation was approved for the period 13 July 2014 to 14 July 2015. Given the Complainant was due to turn 65 in May 2015; the Respondent considered the one-off allocation would allow the Complainant sufficient time to explore an alternative provider of aged care services. The Respondent subsequently identified funds to allow it to continue to provide support to Mr James. The Respondent continues to support Mr James who is now 66 years of age.

24. The Respondent denied discriminating against the Complainant on the grounds of age or of having a disability.

Acting President’s reasons for declining complaint

25. On 1 November 2016, the Acting President of the ADB informed the Complainant and Respondent that the Acting President had declined the complaint as lacking in substance.

Acting President’s Reasons for declination

26. The Acting President’s reasons for declination were set out in a letter to the Complainant as follows.

• The material provided by the Complainant does not support the allegations of discrimination on the grounds of disability and age in the provision of goods and services.

• There is no persuasive information provided by the Complainant to support an inference that he was treated less favourably by the Respondent on the ground of his disability or that he was subjected to a different assessment process to that mandated by the relevant legislation, policies and procedures which the Department is required to follow for all clients. The fact that Mr James’ two brothers receive a higher level of funding is not sufficient argument to demonstrate differential treatment in the context of the Anti-Discrimination Act 1977

• Whilst eligibility for funding was based upon Mr James’ disability, the decision as to the level of financial assistance offered appears to be based on the individual level of need arising from his disability and it is those considerations that determine the amount of financial support offered to him. Although it is uncontested that Mr James’ brothers suffer from the same condition and receive a higher level of funding than the Complainant, that in itself is insufficient to demonstrate less favourable treatment on the ground of disability if they receive a higher level of funding because they suffer from a higher level of impairment caused by their disabilities. For that reason, the information provided by the Complainant does not disclose differential treatment and it does not demonstrate a causal link to his disability.

• In regard to the allegation of discrimination on the ground of age, there is an insufficient link to ground and no evidence of substantive detriment. The fact that the Respondent took into account that Mr James was at ,or near, 65 years of age and may qualify for a different type of funding does not demonstrate less favourable treatment on the ground of age. It would seem to be a relevant and appropriate consideration for the Respondent, which is a government department allocating public funds, to take into account which pool of State government funds were most applicable in the Complainant’s circumstances and to allow him a 12-month period to explore alternative aged care services.

27. On 28 November 2016 Mr James requested that the matter be referred to the New South Wales Civil and Administrative Tribunal (“the Tribunal”) for a hearing.

The leave hearing

28. At the leave hearing on 21 March 2017, the parties provided written and oral submissions.

29. The Tribunal summarises the submissions made by both parties below.

Mr James’ submissions at leave hearing

30. Mr James’ submissions at hearing, both written and orally, were consistent with the matters put before the Anti- Discrimination Board.

31. The Tribunal also notes the following matters raised:

32. Section 49M1(b) of the Act, makes it unlawful to discriminate on the grounds of disability in the terms on which a person provides a person with services. The Applicant noted that the provision of services is embodied in a direct payment agreement (DPA) in operation between the two parties. The terms of the DPA means that the provision of services and the funding required to purchase those services are inextricably linked and cannot be severed. The amount of DPA funding allocated by FACS to Mr James is an integral component of services under the terms of the DPA. Therefore, this is a matter within the jurisdiction of the Tribunal to consider separately and in conjunction when reviewing Mr James’ claims of direct discrimination on grounds of age and disability in the provision of, or the lack of provision, of adequate services.

33. The Applicant submitted that the defence of unjustifiable hardship under section 49M, were it to be raised by the Respondent, would be dubious as the amount in dispute was $61,042 per annum. This would clearly not impose unjustifiable hardship on FACS.

34. The Applicant referred to the matter of BRQ v State of NSW (Department of Family and Community Services) [2015] NSWCATAD 29. In this matter the Tribunal ruled that under section 53 of the Act, conduct for which the service provider is personally or vicariously liable is within the jurisdiction of the Tribunal to review.

35. The Applicant submitted that in her decision to decline the complaint to the ADB, the Acting President only considered whether discrimination on the grounds of the Applicant’s disability occurred. The Acting President did not fully consider the question of whether discrimination on the grounds of Mr Colin James’ brothers’ disabilities occurred.

36. To determine the appropriate comparator, the Applicant referred to the High Court’s findings in Purvis v New South Wales (2003) 217 CLR 92.

37. This meant that to be successful, the Applicant must first identify the circumstances attending the treatment given to him and then examine what would have been done in those circumstances if the person concerned was not a relative of a person with a disability. The circumstances of the treatment of the Applicant was the FACS decision making process, which leads to the determination of his IASP. The Applicant claimed that in determination of his IASP, there was a comparison made between the level of disability of his brothers and his level of disability. As a result of that comparison, he was treated less favourably than he would have been, had FACS not compared him with his brothers.

38. The appropriate comparator in circumstances which were not materially different was to compare the way in which Mr Colin James had been treated living with brothers who had a disability, in comparison to someone who lived with others who had disabilities, who were not the Applicant’s brothers.

39. It is not the amount of funding that is the unfavourable treatment. The Applicant was not seeking review of the amount of funding. It was the process in determining the amount of funding to be given to the Applicant that was the problem. What should have been considered is what the Applicant’s needs were. The Applicant should be considered completely independently of his brothers. He was to have been considered not as a person with a lower level of PKU than his disabled brothers, but as a person whose needs are entirely independent of his brothers. It was not appropriate to use a comparison of higher and lower level of disability between the brothers.

40. The Applicant stated that there were two possible arguments that can be made in support of the Applicant’s case.

41. One is that he had been discriminated against on the grounds that his brothers have a higher level of disability than he has. Had he not had brothers with disabilities, he would have been treated more favourably.

42. The other argument is that he has been discriminated against on the grounds that he is the relative of brothers with a disability. Had he not been their relative Mr James would have been treated more favourably.

43. In support of this construction, the Applicant noted that in 2010 the Applicant’s application had been cancelled because his two brothers had been approved for supported accommodation. In 2012, he was unsuccessful because his brothers already had a funding package. In 2016, the Applicant’s suitability and eligibility had been calculated through what his brothers had received. The Applicant considered that the mode of assessing his entitlement and the amount of his entitlement were flawed.

44. For Colin James to be treated lawfully under the ADA, he needed to be independently assessed without consideration of the needs of his brothers who have disabilities. The process had failed to identify Mr Colin James’ independent and separate needs. The independent assessment done by the independent person assessed Mr James’ needs as far higher than the Respondent had subsequently funded him.

45. The Applicant was not saying that one should hypothetically imagine Mr James living on his own. Mr James did say that the assessment and financing should consider that the three brothers lived together. Gary and Neal James are both receiving one-on-one assistance. If Mr Colin James had been considered separately to his brothers, he would have been considered eligible to receive one-on-one assistance. Saying that the Respondent was applying economies of scale was too simplistic.

30. Colin James could be considered as a person who lives in a group home. However, his assessment and financing of his needs should not be determined by the needs of other specific people.

31. This was not an attempt to circumvent the review process set out under the Disability Inclusion Act 2014. The issue was none of the matters listed in the Disability Inclusion Act 2014.

32. This was not a matter concerned with reviewing the amount of funding. It was the process that was a matter of concern.

Detriment

49. Mr James said that he had been discriminated against by the Respondent subjecting to him to a detriment on the grounds of disability under section 49B of the ADA. The detriment had been an inadequacy of funding for Mr Colin James.

Comparator

50. Mr James submitted that he had been treated less favourably than he would have been if he had not been assessed with the needs of his brothers in mind. The appropriate comparison was to compare Mr Colin James’ situation with someone who required assessment and funding who did not have brothers with disabilities.

Principles for granting leave

51. Mr James submitted that the principles that emerged from Ekermawi’s case were that a cautious approach was needed before terminating the opportunity to proceed with a complaint. See Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

The Respondent’s submissions

52. The Respondent submitted that Mr Colin James bore the onus of persuading the Tribunal that leave should be granted. The issue was whether it was fair and just for the Tribunal to grant Mr James leave for his complaints to proceed, pursuant to section 96 of the Anti-Discrimination Act 1977. The test was set out in the matter of Ekermawi. That is, was it fair and just in all the circumstances for the complaints to proceed. See Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

Differential treatment

53. The Respondent submitted that there was no persuasive information provided by the Applicant to support an inference that the Respondent treated him less favourably on the ground of his disability or that he was subjected to a different assessment process to that mandated by the relevant legislation, policy and procedures which the Respondent is required to follow for all clients. The fact that the Applicant’s two brothers receive a higher level of funding is not sufficient argument to demonstrate differential treatment in the context of the Anti- Discrimination Act 1977.

54. Although the Applicant’s brothers suffer from the same medical condition, the independent assessment of the three men by the Respondent demonstrates different levels of disability and needs. The Applicant acknowledged his brothers have higher needs than himself in correspondence with the ADB. Therefore, the fact that the Applicant’s brothers receive a higher level of funding is insufficient as evidence that the Applicant was treated less favourably on the ground of his disability.

Causation

55. Whilst the eligibility for funding was based on the Applicant’s disability, the decision as to the level of financial assistance provided by the Respondent is based on the individual level of need arising from the Applicant’s disability and available shared resources.

56. For the above reasons, the information provided by the Applicant does not disclose a differential treatment and does not demonstrate a causal link to the Applicant’s disability.

Age discrimination

57. The Applicant had not provided any evidence to demonstrate differential treatment. The fact that the Respondent took into account that the Applicant was 65 years of age and may qualify for a different type of funding, does not demonstrate less favourable treatment on the ground of age. It is a relevant and appropriate consideration of the Respondent to take into account which pool of government funds was most applicable in the Applicant’s circumstances.

58. The information provided by the Applicant did not disclose sufficient link to the Applicant’s age as a cause of discrimination.

59. When determining whether it is fair and just for the complaint to proceed, the merits of the complaint are relevant. As Schmidt J held in Ekermawi v Administrative Decisions Tribunal of New South Wales and Others [2009] NSWSC143 at [38] “While an obviously meritorious complaint will not be refused leave, leave for a complaint which lacks substance may be refused.”

The Respondent’s oral submissions

Proper comparator

60. In response to the Applicant’s submissions at hearing, the Respondent noted that there is a difference between a person who has a brother and a person who chooses to live with their brother. The Applicant was asking the Department to disregard the fact that other people with disabilities do not live together.

61. There was inconsistency in the Applicant’s case. The Applicant was asking the Tribunal to imagine that the Applicant was not living with his brothers and then assess him and provide him with an amount of money. The Applicant had been applying for additional in home cleaning. The Respondent was applying economies of scale to the situation. The Tribunal should find that it is part of the actual circumstances that the three brothers are living together.

62. The Anti-Discrimination Act 1977 was not a way of bypassing the available review process set out under the Disability Inclusion Act 2014. Accordingly, it was not fair and just to allow leave for the matter to proceed.

The Tribunal’s consideration of whether to grant leave

Principles for granting leave

63. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:

(1) emphasised that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;

(2) found that the Tribunal’s discretion is unfettered and is not confined to the grounds on which the Acting President of the Anti-Discrimination Board may decline a complaint;

(3) concluded that leave must be granted or refused “depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and

(4) noted that where it is apparent that the complaint lacks substance, leave may be refused, if that is what justice dictates.

64. 14.   Accordingly, the Applicant must satisfy the Tribunal that it is fair and just for the Tribunal to grant leave for the complaint to proceed, despite the decision of the Acting President that it lacked substance.

Relevant Legislation

What constitutes discrimination on the ground of disability?

65. The tribunal sets out relevant sections with the tribunal’s bolding.

49A Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

49B What constitutes discrimination on the ground of disability

(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability:

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability.

(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

49M Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

Provisions relating to Discrimination on the ground of Age

49ZYA What constitutes discrimination on the ground of age

(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of age if the perpetrator:

(a) on the ground of the aggrieved person’s age or the age of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.

49ZYN Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age:

(a) by refusing to provide the other person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

(2) Nothing in subsection (1) applies to or in respect of:

(a) benefits, including concessions, provided in good faith to a person by reason of his or her age, or

(b) holiday tours offered or provided to persons who are of a particular age or age group.

(3) Nothing in this section renders it unlawful for a person to discriminate against a person on the ground of age in disposing of goods, or in providing services, by gift or will or in accordance with the terms of a gift or will.

4A Act done because of unlawful discrimination and for other reasons

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

53 Liability of principals and employers

(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

54 Acts done under statutory authority

(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:

(a) any other Act, whether passed before or after this Act,

(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,

(c) an order of the Tribunal,

(d) an order of any court, not including an order or award of a court or Tribunal having power to fix minimum wages and other terms and conditions of employment, or……….

Disability Discrimination complaint

Services

66. The Tribunal is satisfied that the Respondent offers services of assessment and funding within the meaning of the ADA. The Tribunal understood that this was not contested.

67. To establish a complaint of disability discrimination the Applicant must be able to show that:

1. he was treated less favourably than other persons (detriment);

2. that the, or one of the, reasons for the less favourable treatment was the disability of a relative or associate of the aggrieved person, (causation); and

3. that a comparator (a person without a relative or associate with the relative or associate’s disability) would have been treated more favourably in the circumstances and that the Respondent treated him less favourably because of his disability.

Detriment

68. Mr James’ complaint identifies a detriment to him as being the way in which he was assessed which then lead to inadequate funding.

69. The Tribunal is satisfied that this articulation could fit within the relatively broad meaning of detriment set out in Coomaraswamy v University of New South Wales [2016] NSWCATAD 41.

Causation

70. In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20. The Panel observed [at 28]:

The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment.

Comparator

71. Mr James submitted that he had been treated less favourably than he would have been if he had not been assessed with the needs of his brothers in mind. The appropriate comparison could be to compare Mr Colin James’ situation with someone who required assessment and funding who did not have brothers with disabilities. Another appropriate comparator in circumstances which were not materially different was to compare the way in which Mr Colin James had been treated, living with brothers who had a disability, in comparison to someone who lived with others who had disabilities who were not the Applicant’s brothers. An example of this comparator in circumstances which were not materially different, might be a person who lived in a group household with others who had disabilities, to whom the Applicant was not related.

72. The Respondent’s initial response did not deal with a complaint made on the basis of the disability of Mr James’ brothers. Nor did the Acting President of the ADB.

73. At the hearing, the Respondent noted that there is a difference between a person who has a brother and a person who chooses to live with their brother. The Applicant was asking the Department to disregard the fact that other people with disabilities do not live together. There was inconsistency in the Applicant’s case. The Applicant was asking the Tribunal to imagine that the Applicant was not living with his brothers and then assess him and provide him with an amount of money. The Applicant had been applying for additional in home cleaning. The Respondent was applying economies of scale to the situation. The Tribunal should find that it is part of the actual circumstances that the three brothers are living together.

74. The Tribunal was satisfied that where the complaint was one of less favourable treatment on the grounds of the disability of a relative, that is the disabilities of Mr James’ two brothers, that a potential comparator in circumstances which were not materially different was someone who required assessment and funding who lived with others with disabilities to whom the Applicant was not related.

Age Discrimination Complaint

75. To establish a complaint of age discrimination the Applicant must be able to show that:

1. he was treated less favourably than other persons (detriment);

2. that the, or one of the, reasons for the less favourable treatment was the age of the aggrieved person, (causation); and

3. that a comparator (a person who is not of that age or age group) would have been treated more favourably in the circumstances and that the Respondent treated him less favourably because of his age.

Detriment

76. The Tribunal understood that the Complainant’s age discrimination complaint was that the IASP funding from FACS of $33,453 discriminated against Mr James as the offer was expressed as a one off and time limited for a period of 12 months due to Mr James’ age, after which he would no longer receive the disability support funding.

77. The Tribunal understands the detriment alleged to be the Respondent’s decision to cut both Mr Colin James IASP and active ageing funding as at 30 June 2015.

Comparator

78. The Tribunal understands that the Applicant’s argument is that FACS was aware that Mr James would be ineligible to reapply for disability funding after 1 July 2015. This amounted to less favourable treatment of Mr James by refusing to continue his IASP and active-ageing funding once he turned 65, unlike other people with a disability.

Causation

79. In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20. The Panel observed [at 28]:

The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment.

80. The Tribunal understands the Applicant’s argument to be that the Respondent’s decision to cut both Mr James IASP and active ageing funding as at 30 June 2015, was based upon a mistaken belief by ADHC that he turned 65 years of age that weekend.

81. The Respondent submitted that the fact that the Respondent took into account that the Applicant was 65 years of age and may qualify for a different type of funding, does not demonstrate less favourable treatment on the ground of age. It is a relevant and appropriate consideration of the Respondent to take into account which pool of government funds was most applicable in the Applicant’s circumstances.

82. The Tribunal need only be satisfied that age is at least one of the “real”, “genuine” or “true” reasons for the treatment – that is, the decision to cease the funding. The Respondent has raised the issue of the Applicant’s age as being relevant to its decision.

83. The Respondent referred to the Applicant’s age as being an element in its decision-making. Putting the Applicant’s case at its highest, the Tribunal is satisfied that there is substance in the Applicant’s complaint of age discrimination in the terms on which services were provided or proposed to be refused.

Fair and Just in the particular circumstances

84. The Tribunal returns to the principles set out in Ekermawi for determining whether leave should be granted in which Schmidt J:

(1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights";

(2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the Acting President of the Anti-Discrimination Board may decline a complaint;

(3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and

(4) noted that where it is apparent that the complaint lacks substance, leave may be refused, if that is what justice dictates.

85. The Respondent argued that it is not fair and just for the Complainant to be allowed leave, as the complaint to the ADB is a mode of circumventing the process set out under the Disability Inclusion Act 2014. The Applicant argued that the provisions of the Disability Inclusion Act 2014 do not deal with the Applicant’s complaint about the process for assessing his funding. In passing, the Tribunal also notes that the Respondent did not argue that the Complainant was precluded by section 54 of the Anti-Discrimination Act 1977 from bringing the complaint.

86. The Tribunal should proceed cautiously by reading the Complainant’s case at its highest. In this respect, the parties do not differ significantly in relation to the factual circumstances alleged. The Complainant has put forward a case addressing the elements of a disability and an age discrimination complaint. Ultimately it is for the Tribunal to determine whether these factual circumstances meet the requirements of the legislation.

87. The Tribunal must be satisfied that it is fair and just in all the circumstances for Mr James’ complaint to proceed. It appears that the Acting President may not have considered that the basis of the Applicant’s complaint was that he had been discriminated against on the ground of his brothers’ disabilities. The Respondent contests the appropriate comparator for this complaint. Such issues should be determined by the Tribunal at full hearing. In the circumstances, the Tribunal is satisfied that it is fair and just for Mr James’ complaint against the Respondent of disability and age discrimination in the provision of goods and services to proceed.

Decision

88. The Tribunal grants leave for Mr James to proceed with his complaints, pursuant to section 96 of the ADA.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 09 May 2017