March 20, 2009

KITTY HOLLAND

THE EQUALITY Tribunal has found the Health Service Executive unlawfully discriminated against people with mental health and intellectual disabilities by failing to recognise these as being on a par with physical disabilities.

The judgments, published yesterday, were delivered last month and concerned eligibility criteria for the HSE’s mobility allowance. In both cases the complainants were refused the allowance because they did not meet the Department of Health’s criteria.

The first case was taken by the mother of a woman with Down syndrome against HSE South. She said it was unfair that her daughter could not avail of the allowance simply because she could use her limbs.

“It was submitted that it is (sic) her intellectual disability that restricts her mobility.”

The HSE responded that the applicant was assessed on a number of occasions for the allowance and was found not to meet the criteria.

In particular she did not comply with the criteria of having an inability to walk, that walking would be dangerous or that she was forbidden from being moved for medical reasons.

Equality officer Tara Coogan said in her report she was satisfied the respondent “acted entirely in accordance with the rules set out by the Department of Health”.

She noted the aim of the mobility allowance was “for severely handicapped persons . . . who would benefit from trips away from home”.

Under the Equal Status Acts discrimination is defined as where a person is treated less favourably than another person in a comparable situation. Disability is defined in ways including “a condition or malfunction which results in a person learning differently from a person without the condition or malfunction”.

Ms Coogan said in considering how the woman was assessed there was “an obvious failure to assess the intellectual capacity of the applicant in relation to their mobility”.

She “strongly” recommended that the Department of Health examine all allowance schemes to ensure the assessment processes comply with the Equal Status Acts and she ordered that the HSE reassess the complainant’s application for the mobility allowance.

The second case concerned an applicant who has schizophrenia and agoraphobia and who was refused the mobility allowance. His advocate submitted that he had a mental health disability severe enough to prevent him using public transport. He was refused the allowance because he failed to meet the department’s criteria.

The equality officer, again Ms Coogan, judged that the concept of mobility according to the department’s criteria was “construed in such a narrow manner” that it failed to recognise that mental disability could restrict mobility as severely as physical disability.

She again “strongly” recommended that the department examine its assessment criteria for allowances to ensure they complied with legislation, and that the complainant’s case be reassessed.

In both cases she awarded €1,500 to the complainants for inconvenience caused.

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