Annual Report of the Ombudsman 1999
Chapter Two - Protecting Rights and Delivering Remedies
Protecting Rights and Delivering Remedies
The Ombudsman Act, 1980 confers considerable powers on the Ombudsman to examine and investigate the actions of public bodies. It also allows the Ombudsman to conduct his investigations in whatever manner he �considers appropriate in all the circumstances of the case� and subject only to the requirements of constitutional justice.. Equally, where the Ombudsman considers that a person has been adversely affected by an action, the Act allows quite a degree of latitude as to the remedy which the Ombudsman may recommend. It is the hallmark of Ombudsman offices internationally that they operate flexibly and informally within a range of working methods, and with a range of possible remedies. The Ombudsman Act, 1980 enables my Office to operate in this manner and allows for evolution and development in line with best international Ombudsman practice.
Accordingly, my Office does not consider complaints solely on the basis of whatever the two sides put forward. Such an approach will not necessarily result in outcomes which are fair. Because of the unequal positions of the two sides, viz. usually an individual against a large public service body, the complainant is not always able to present the best possible case. For this reason, my staff will generally make the benefit of their own expertise and knowledge available so that complainants can better describe the adverse effect on them and the alleged shortcomings in the public body's decision making process.
To this extent my Office acts, in a sense, on behalf of the complainant in presenting or articulating the perceived maladministration by the public body. However, we have to be entirely objective as regards the ultimate outcome of the complaint. It is not my role to make representations on behalf of complainants but rather to assess whether the public body has acted properly, fairly and impartially in the particular case. I believe it is reasonable, in effect, to discriminate in favour of the complainant in terms of ensuring that the best case is made while at the same time remaining objective in terms of the ultimate outcome. This can be a difficult balance to achieve but, in general, I believe that public bodies accept the legitimacy of this approach.
As with most Ombudsman Offices, my office variously finds itself acting as conciliator, as facilitator, as investigator, as presenter of complainants' cases, as enablers (where a complainant cannot develop and articulate the relevant arguments); and of course, ultimately, my Office must take a view on the merits of the particular complaint. In seeking solutions to the problems presented in complaints, the ultimate step is a written investigation report with formal findings and recommendations. This arises in a small minority of cases only. The vast majority of complaints are concluded on the basis of a relatively informal, but none the less fair, procedure. The methodology of the Office, in seeking the conciliatory resolution of disputes where possible, is in sharp contrast with the adversarial nature of the courts. In addition, where the complaint centres on an issue of fairness rather than of legality, the Office may provide a remedy not available at law.
In principle, a remedy is called for where a member of the public has suffered loss ('adverse effect') because of the actions (or inaction) of a public body. The loss may be a direct, financial loss and thus quantifiable (e.g. a grant wrongly refused); or it may be in terms of time, effort and perhaps money lost in coping with the consequences of a bad decision; or it may be in terms of an opportunity lost ( e.g. to object to a planning application) or it may be a loss in terms of anxiety and upset resultant on a bad decision. Or, indeed, the loss may involve any combination of these elements.
Not surprisingly, the resolution of complaints is not always black and white and this is reflected in the range of remedies achieved. Remedies can range from an apology given, the payment of a disputed grant or allowance, the payment of compensation and/or changes to the rules or procedures governing a particular scheme. Where a complaint is only partially upheld, for example where a compromise settlement has been achieved between the parties, then the remedy will reflect this compromise. The cases outlined in this chapter have been chosen to illustrate the range of working methods of my Office including the approach pursued in relation to remedies. However, public bodies themselves need to be much more active in offering remedies, on their own initiative, where their actions have caused loss for a client. Such an approach is entirely consistent with the Quality Customer Service Initiative currently underway within the civil service and with the development of internal complaints systems across the public service generally.
Remedies
In a case involving the North Western Health Board (NWHB) the complainant was aggrieved with the Boards failure, as he saw it, adequately to support him in caring at home for his ill and elderly parents. He was also unhappy with the way in which the NWHB dealt with complaints he made on the matter. On examination, I concluded the case warranted a payment of �1,000 in recognition of the cumulative effect of a series of NWHB decisions and of the upset caused to, and the time and effort expended by, this man in his dealings with the Board.
The complainant had been unsuccessful in a number of separate applications made to the NWHB:
- He applied for assistance under the Housing Aid for the Elderly Scheme for the provision of a shower as his parents had difficulty in using the bath. The application was refused for two reasons. Initially the NWHB said that the provision of a shower was not covered under the Scheme; subsequently the NWHB said that, as they had received a Gaeltacht grant to carry out other work on the house, his parents did not qualify under the Scheme.
- He applied for help under the Supplementary Welfare Allowance (SWA) scheme for the purchase of a washing machine. The complainant had to wash his own and his parents' clothes by hand. Due to his parents' ill-health, their clothes, including bed clothes, had to be changed and washed a few times each week. This application was refused on the grounds that total household income was in excess of SWA guidelines.
- After his mother's death, he applied to the NWHB for a SWA payment to help cover her funeral expenses. The application was refused on the grounds that the funeral account had been paid by the time the application was made and the NWHB felt that no exceptional need existed. The complainant said that he had to borrow money from his brother to pay the bill and that he also had other expenses arising from his mother's death.
In addition to these decisions which he disputed, the complainant was also otherwise aggrieved with the NWHB's actions. He found it upsetting, and an indication of carelessness on the part of the NWHB, that his mother was sent a hospital outpatient appointment four months after she had died. He also complained that his mother, in his view, had not received proper care and treatment while in Letterkenny General Hospital or following her discharge from the hospital.
The NWHB arranged for an external Public Health Medicine Specialist to look into these complaints. He found:
- that the applications in relation to the shower and washing machine had been appropriately refused; - that there had been certain shortcomings in relation to the discharge of the complainant's mother from hospital; - that a failure of communication within the hospital resulted in the issuing of the out-patient appointment.
No opinion was given in relation to the funeral expenses application. The NWHB then apologised to the complainant for the shortcomings identified. However, he was not happy with this and, accordingly, he complained to my Office.
On examining the case, there were some aspects of the NWHB's dealings with the complainant with which I was not satisfied. It seemed to me that, given the flexibility of the Housing Aid for the Elderly Scheme, the shower application could have been granted. In considering the washing machine application, no consideration seemed to have been given to the exceptional circumstances within the household viz. a single man caring for ill and elderly parents, or to the applicant's financial circumstances (he was repaying a loan related to the cost of house repairs). While an apology had been given in relation to the treatment of the complainant's mother, and for the issuing of the out-patient appointment, there was no acknowledgement of the cumulative effect on the complainant of all of the problems encountered or of the time and trouble involved in his pursuing these matters.
I asked the NWHB to review the case in its totality. I also asked it to acknowledge in some way the upset suffered, and the time and trouble taken, by the complainant in pursuing his complaints with the Board. Following discussions with the NWHB, it decided to offer an ex gratia payment of �600 to the complainant in acknowledgement of the time, effort and expenses incurred in his dealings with the Board. The complainant rejected the NWHB offer. Having reviewed the complaint fully, I expressed the view that the complainant had been adversely affected by the actions of the NWHB both before and after the death of his mother. I felt the NWHB should make a �gesture� in acknowledgement of this and I suggested that a payment of �1,000 to the complainant would represent an appropriate remedy. The Board agreed to make this payment. The complainant accepted this resolution on the basis that it represented my views on the complaint and that he would accept my independent conclusions.
In a complaint against the Revenue Commissioners I found there had been significant departures from good administrative practice to the detriment of the complainant. In the particular case, I concluded that an apology to the complainant, coupled with assurances of improvements in Revenue�s procedures, represented a satisfactory remedy.
The complaint arose from an incident in a public house in 1994 in which, it is claimed, an Inspector of Taxes made derogatory remarks about a businessman and his tax affairs. The businessman felt that these remarks were defamatory and that they constituted a breach of confidentiality. Subsequently, he commenced civil proceedings against the Inspector.
Some months later his solicitor wrote to Revenue to complain about the incident. The initial Revenue response, after two months, was that it had �no comment to make on the matter�. Coincidentally, the Inspector resigned from the Revenue to take up another position shortly after the complaint was made. Some months later the solicitors again wrote to Revenue seeking a full report on its investigation of the complaint. Revenue's response did not clarify whether or not it had conducted an investigation, but it did say that it had no reason to believe that the Inspector had breached Section 163 of the Income Tax Act in relation to the confidentiality of personal and business information provided to the Revenue Commissioners. A further enquiry from the solicitors elicited the fact that Revenue had not conducted any enquiry into the allegations.
The complaint considered by me related to the apparent failure of the Revenue adequately to investigate the complaint made on behalf of the businessman. The civil court action arising from the incident was heard in 1999 and my complainant was awarded damages. (Revenue was not a party to the action.) I concluded that Revenue had failed adequately to investigate the complaint made; that it had not dealt with the complaint in a manner consistent with good administrative practice; and that these failures were contrary to the requirements of fair and sound administration. Revenue agreed to apologise to the businessman for these failings and also assured me that their procedures had been revised, taking into account the facts of this case.
I gave very careful consideration to the question of whether a financial remedy was also appropriate given that the complainant had, as I saw it, been adversely affected. My guiding principle in relation to remedies generally is that they should seek, where possible, to restore the complainant to the position he would have been in had the action complained of not occurred. Ultimately, I decided in the particular circumstances of this case (which including a successful civil action against the former Inspector) that an apology, coupled with the assurance from the Chairman of the Revenue Commissioners of improved procedures within Revenue, represented a satisfactory remedy. This case highlights once again the tendency of public bodies to adopt adversarial attitudes to complainants where they fear litigation may be a possibility.
The operators of a coffee shop complained that the Eastern Health Board (EHB) had given them incorrect information regarding compliance with the Food Hygiene Regulations; the operators relied on this information and incurred unexpected financial costs as a result. The remedy in this case was compensation for the financial costs incurred.
In late 1992 the complainants were completing the purchase of the lease on a coffee shop premises. They understood from the vendor that the premises were registered with the EHB for the purposes of the Food Hygiene Regulations. Before completing the purchase, they met with a local Environmental Health Officer (EHO) seeking confirmation of the registration. The EHO confirmed that the registration was in order and my complainants proceeded with the purchase. However, in September 1994 my complainants discovered that, contrary to the information given by the EHO in late 1992, the premises were not registered at the time the lease was purchased. Furthermore, while the EHB then issued a provisional registration, full registration depended upon the implementation of a list of alterations specified by the Board.
During 1995 and 1996 the complainants set about meeting the registration requirements. This proved difficult as some of the alterations were infrastructural and required the consent of the landlord. At the same time, they complained to the EHB in relation to the incorrect information given and sought compensation for the extra costs incurred by virtue of reliance on the EHBs information. In 1997 they complained to my Office following the refusal of the EHB to accept any liability arising from the incorrect information. The complainants contended that they would never have proceeded with the lease purchase had they known that the premises were not currently registered. Furthermore, they would have avoided the financial and other costs arising from the registration requirements notified in September 1994. In contacting my Office, the complainants said they hoped they could avoid a court action and the high costs likely to be associated with such an action.
In examining the case I was unable to resolve a difference between the parties as to whether - as contended by the EHB - the complainants were made aware by the EHO, at the meeting in late 1992, of the need to undertake some remedial measures in order to continue to comply with the registration requirements. However, I was satisfied that the EHO had given incorrect information regarding registration and that my complainants had relied on it in good faith. I felt that the EHBs mistake had adversely affected my complainants both financially and in terms of the interference which resulted to the operation of their business. The complainants were seeking financial compensation on the basis (a) that they would not have entered into the lease agreement had the EHB given correct information, (b) that they had incurred unexpected costs arising from the registration requirements and (c) on the grounds of general disturbance and loss.
My approach was to seek to base compensation on the actual adverse consequences of the EHBs mistake. Primarily this related to the extra costs incurred in the process of implementing the alterations required by the EHB itself. I felt that compensation in the region of �5,000 - �6,000 would be reasonable in the circumstances of the case. The EHB was agreeable to this, subject to some conditions, but the complainants felt a higher figure was warranted. In the event, I suggested to the two sides that they meet and seek to resolve their differences. The parties did meet and subsequently informed me that the EHB would pay compensation of �7,000 subject to certain conditions which were acceptable to the complainants.
Sometimes the remedy achieved in a particular case can have consequences for all similar cases and, indeed, result in an amendment of the relevant legislation. This is what happened in the case of two complaints against the Department of Social, Community & Family Affairs (DSCFA) involving Deserted Wife's Benefit (DWB).
The Social Welfare Act, 1996 provided for the abolition of DWB with the exception that existing recipients would continue to be paid �for the duration of the woman's continuous entitlement� to the benefit. This provision was put into effect on 2 January 1997. In early 1997 both complainants, whose cases are otherwise entirely unrelated, returned their DWB payment books to the Department as they were going abroad to visit family for a few months. Both women were aware that DWB was not payable for the duration of any absence from the State. On their return, in July and August respectively, they applied unsuccessfully to have their DWB restored. In both cases the DSCFA said that their absence from the state for a few months meant they had ceased to have �continuous entitlement�; thus both women were affected by the abolition of DWB which came into effect on 2 January 1997. Both women disputed these decisions and ultimately complained to my Office.
Neither of my complainants knew in advance that going abroad would mean the permanent loss of Deserted Wife's Benefit. Indeed, one of them contended that she had telephoned the DSCFA in advance of her departure and was given to believe there would not be a problem with the restoration of the benefit. However, the key issue was whether there was a sound legal basis for deciding that a temporary absence from the State breached the period of �continuous entitlement� and thus prevented the restoration of benefit. It was clear that absence from the State disqualified a DWB recipient from payment for the period of the absence; but there did not seem to be any basis for deciding that such a disqualification effectively breached the period of �continuous entitlement�.
I suggested to the Department that this key issue was not dealt with in the legislation and, in the context of a temporary absence from the State, the decisions taken were unreasonable. Arising from these two complaints, and the apparent lack of a specific legislative provision, the DSCFA undertook a re-examination of its policy in this area. The Department's policy review resulted in a decision that, in the case of DWB recipients, the period of �continuous entitlement� would not be broken by an absence from the State of less than 12 months. So, while a DWB recipient would not receive payment for any period of absence from the State, DWB would be restored on return provided that the absence did not exceed 12 months. On this basis, both complainants had DWB restored with appropriate arrears being paid, amounting to approximately �7,500 and �5,700 respectively. In addition, the Department's policy decision was given a statutory basis by virtue of Section 23 of the Social Welfare Act, 1999. In this way, the remedy obtained for the two complainants was incorporated into legislation for the benefit of other such cases in the future.
A complaint involving the Department of the Environment and Local Government, arising from a claim for a refund of motor tax, resulted in a remedy which will be of benefit to all similar cases in the future.
In June 1998 a Galway woman had her car stolen. The car was not recovered and she claimed on her insurance in the normal way. She applied to the local Motor Tax Office for a refund of the motor tax which was paid up to March 1999. She discovered that, under the procedures laid down by the Department of the Environment and Local Government, a motor tax refund would not be payable until the end of the period for which the car was taxed (March 1999 in this case). In order to settle her insurance claim, she was required to transfer ownership of the car to the insurance company. However in this event, the tax refund, when eventually made, would go to the insurance company as the procedures only allowed for a refund to be paid to the person registered as the owner when the refund was being made. The woman felt these procedures were unfair and inflexible and she complained to my Office.
It was clear that the Motor Tax Office had acted in accordance with instructions from the Department and in accordance with the relevant regulations. When I contacted the Department it acknowledged that the procedures were unfair and it arranged to have a refund of motor tax paid to my complainant. In addition, the Department issued revised instructions to all motor tax offices advising that refunds should be made as soon as possible after application in this kind of case. The new procedures mean that motor tax refunds will be made to the registered owner of the car at the time of application rather than to the insurance company which ultimately acquires ownership of the car. In this way the remedy achieved in this particular case has resulted in a general improvement in procedures which will benefit all such cases in the future.
In some situations financial compensation is the obvious remedy if the person affected is to be restored to the position he would have been in had the problem complained of not occurred. This is the case where cash entitlements have been withheld or delayed over a lengthy period or where income tax has been overpaid, and not refunded, over a period.
A formal scheme of compensation for delayed social welfare payments has been in existence since 1986. The scheme was established in response to a particular complaint to my Office at that time. The Department of Social, Community & Family Affairs (DSCFA) will pay compensation for loss of purchasing power in cases where it was solely or significantly to blame for the delay in making the payment. The DSCFA accepts that it should itself identify cases to which the scheme applies and pay compensation on its own initiative. Indeed, in a recent case the DSCFA agreed to my suggestion that it should pay additional compensation for its delay in paying compensation! This case involved a man who was paid eight years arrears of Invalidity Pension in 1996 but who was not paid compensation under the scheme. In 1998 he learned that compensation should have been paid and was eventually awarded almost �4,000. Of course this �4,000 should have been paid in 1996 so the DSCFA paid a further �112 in compensation for the delay in paying the �4,000.
The Department of Education and Science has also paid compensation in a number of cases where higher education grants or scholarships were wrongly refused (see Pages 15 and 26).
In 1998/9 I dealt with two similar complaints relating to delays in making superannuation payments to retired public servants. In the first case Fingal County Council delayed the payment of a lump sum by more than one month. The Council accepted that it had benefited financially because of the delay and agreed to pay compensation of �287 for a 34 day delay in making the payment. In the second case, involving the North Eastern Health Board, a retired employee discovered that his lump sum and pension had been underpaid for a period of two years. In addition to paying the arrears due, the Board agreed to pay compensation of �635 for the loss involved. In both cases the compensation was based on the rate of investment interest available at the time.
Arising from a particular case of benefit delay in the Eastern Health Board in 1998, I suggested that it should adopt a scheme similar to that of the Department of Social, Community and Family Affairs. The EHB paid compensation in the particular case and also agreed to have the introduction of a compensation scheme considered at national level by all eight health boards. Agreement from the boards followed very shortly and a national scheme was drawn up. The boards are currently awaiting sanction from the Department of Finance to implement it.
By way of contrast, the Revenue Commissioners refuse to pay compensation for loss of value in the case of overpaid income tax. In a small number of court decisions, Revenue have been required to pay interest in such cases. However, they argue that they would need a specific statutory authority to pay compensation in all such cases. In fact, I have been in regular contact with the Revenue on this issue and my Annual Report for 1996 carried a detailed piece on the subject. It is regrettable that the issue remains unaddressed and, as a consequence, I am currently investigating eight separate complaints against Revenue on the matter.
Working Methods
Flexibility is an essential characteristic of my Offices approach. This includes the capacity to identify and pursue an issue even where the complainant has not specifically raised it as a problem. The following complaint involving the Department of Education and Science (DES) illustrates this approach.
The complaint made against the DES related to the assessment of means for the purposes of a Higher Education Grant even though the student had by now completed a six year medicine course in Cork. Some months into the examination the Dáil Deputy, who had made the complaint on behalf of the student, sent on a letter he had received from the students mother. This letter was primarily about the means assessment but mentioned, in passing, that her daughter had been discriminated against previously when she was unable to avail of a Trí Ghaeilge Scholarship. [This is a scholarship available to students whose second level education has been through Irish and who, at that time, proposed to study one of a list of approved courses at University College, Galway (UCG).] The mother mentioned that, when her daughter began in university in 1991, medicine was not (but is now) one of the approved UCG courses for the purposes of the Scholarship. The daughter opted to study medicine in Cork, which was nearer home, because she understood the Trí Ghaeilge Scholarship would not be tenable were she to study medicine in Galway.
My Office was aware from other complaints (see 1995 Annual Report, P. 13) of inconsistencies over the years in the administration of this scholarship scheme. Specifically we were aware that, whereas medicine was not listed as an approved UCG course, scholarships had been awarded to students doing medicine in Galway. It was clear that this student had assumed, quite reasonably, that as medicine was not on the list of approved UCG courses then she could not avail of the scholarship to study medicine in Galway. In practice, had she approached the DES on the matter it was most likely that it would have awarded the scholarship even though medicine was not on the list of approved courses. In effect, it seemed that this student had suffered because she was unaware of an unwritten rule governing the scholarship scheme.
I felt it was wrong that this student should have lost out on a substantial scholarship, over six years, because she had taken the written scholarship rules at face value. Fortunately, the DES accepted this position and decided to give her the benefit of the scholarship even though she had studied in UCC rather than in Galway. The DES paid the student scholarship arrears of �10,319 and an additional �1,273 in compensation for the delay in awarding the scholarship.
The experience of one complainant is sometimes enough to suggest a general problem affecting many others. My Office has the capacity to move from the examination of a specific instance of a problem to a wider examination of whether that same problem is adversely affecting others. In last year's Annual Report I gave details of a particular case, involving Meath County Council, where house loan repayments continued to be accepted long after the loan had actually been fully repaid. This single case led me to investigate the extent to which this same error might be occurring in other local authorities. The report of this wider investigation will be published shortly; it will show that the practice identified in the Meath case was widespread and that local authorities retained significant amounts in overpaid loans. During 1999 a complaint against Offaly County Council has identified a problem in internal financial control systems which may be replicated in other local authorities.
The complainant took out a loan with the Council to buy a new local authority house in 1979. As a first time purchaser of a new house, he was entitled to a �1,000 grant from the Department of the Environment. He understood this grant had been paid directly by the Department to the Council, thus reducing the loan amount and the repayments. In 1998 the complainant sought confirmation that the �1,000 grant had actually been paid and credited to his loan account. The Department confirmed that the grant had been paid to the Council but the Council had no record of having received it. At this point he complained to my Office.
Following detailed examination of its records, the Council eventually confirmed that it had received the grant. However, in the process of computerising its loan accounts in 1988, the payment of the �1,000 grant was omitted and the repayments thereafter were based on the full, original loan amount. This meant that this man had overpaid his loan account by �1,195 during the period 1988 - 1999. The Council refunded this overpayment and corrected the complainant's loan account record. The Council itself decided that a similar mistake might have been made in other such cases and undertook to check these cases. The Council's checking has revealed 13 other such cases to date. In one of these cases the amount overpaid on the loan was �4,306.
I am continuing my enquiries with Offaly County Council as to how precisely this problem came about and also to get a definitive figure on the number of cases affected. A related issue, raised by one of the 13 cases so far identified, is whether the Council should pay some compensation for its miscalculation of the loan repayments due. Finally, as it is possible that similar mistakes may have been made by other local authorities, I have asked the Department of the Environment and Local Government to ensure that each local authority does a thorough check of its records to identify any such cases.
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Sometimes it is necessary for my Office to develop and articulate the argument which the complainant wishes to make. This is illustrated by the following complaint, against the Department of Social, Community & Family Affairs (DSCFA), which raised issues regarding the application in Ireland of the European Union social security regulations.
The complainant and his wife are nationals of another EU member state but have been living in Ireland for some years. His wife is incapacitated and requires a high level of care from her husband. The couple's only income was a social security disability payment to the wife from their own country. In December 1993 the husband applied to the DSCFA for the Carer's Allowance but was unsuccessful as his wife's income was assessed against him. He appealed this decision unsuccessfully and a subsequent application was also unsuccessful. Eventually in June 1995, following an easing of the means test rules, he qualified for a reduced rate of Carer's Allowance. However, he continued to dispute the validity of the earlier refusals and in 1996 complained to my Office.
The letter of complaint referred in a general way to EU social security regulations and to the notion that EU citizens living outside their own country should �receive the same treatment in social security matters as the citizens of the country where they live�. Had his invalid wife been receiving an Irish social security payment then it would have been excluded in its entirety from the means assessment for Carer's Allowance. According to the complainant, EU social security law required that the disability payment to his wife from their own country (which was more generous than the Irish equivalent) should be treated in the same manner as would an Irish payment i.e. it should be excluded from the means test. He suggested that this was an instance in which EU law took precedence over Irish domestic law. He complained that this argument had �been consistently ignored by everybody involved�.
On examination, there was no evidence that the DSCFA or the Appeals Office had given detailed attention to the EU law argument. On the other hand, it was clear that the argument had not been fully articulated and supported. I felt that the EU law argument had potential and should be explored further. On consideration it seemed that the provision in the Irish Social Welfare Acts, which excluded Irish social security payments (but not social security payments from other EU countries) from the Carer's Allowance means test, might - at least in the manner of its application - run counter to the relevant European social security provision i.e. Article 3 of EC Regulation 1408/71. Article 3.1. requires that �persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member States as the nationals of that State�.
I felt that the exclusion from the means test of income from an Irish social security source amounted to indirect discrimination against other EU nationals who are less likely to be recipients of such payments. Accordingly, I put it to the DSCFA that there was a good case for believing that the Irish provision breached Article 3 of the Regulation. Between May 1997 and June 1999 I engaged in discussion with the DSCFA on this issue. Some of this delay is attributable to the complexity of the issues raised, including the question of whether the complainant was someone who came within the scope of the EU regulation. In the meantime, the Social Welfare Act of 1998 resolved the issue on a current basis. It provided that where the carer's spouse has a social security payment from another member state, which equates to Invalidity Pension, then an amount of that payment, equal to the maximum rate of Irish Contributory Old Age Pension, will be disregarded in the Carer's Allowance means test. This meant that there was no longer any discrimination in favour of situations where the spouse had an Irish payment as opposed to a payment from another member state. However, my complainant's entitlement for the period prior to June 1998 remained to be resolved.
In June 1999 the DSCFA notified me that, on the basis of legal advice, it now accepted that the practice complained of did amount to a breach of Article 3 of EC Regulation 1408/71. This breach had been put right in the Social Welfare Act, 1998 but my complainant was entitled to arrears of Carer's Allowance retrospective to December 1993. These arrears amounted to �2,360 and the DSCFA also paid compensation for the delay in making this payment.
Some complainants are unsuccessful in their dealings with a public body because they do not understand that a specific type of evidence is required to support their case. When such a complaint reaches my Office my main intervention may be to advise the complainant on how best to present their case to the public body concerned. In the past few years there have been many examples of this involving, in particular, pensioners who failed to claim their pension on time and who lost substantial arrears of pension as a consequence. The following complaint, against the Department of Social, Community & Family Affairs (DSCFA) is just one such example.
The complaint was made on behalf of an elderly woman who should have claimed the Contributory Old Age Pension in 1980 but, in fact, did not claim until 1996. She was awarded the pension and six months arrears were paid. In line with the DSCFA's practice at that time, arrears back to 1980 were not paid. The woman's family contended that the failure to claim in 1980, or in the following years, was directly attributable to the fact that she had a very long history of serious ill health, coupled with traumatic domestic circumstances, which meant she was unable to manage her affairs. My Office's advice to the family was to seek payment of the arrears under the terms of an extra-statutory arrangement which took account of a delay in claiming pension because of medical incapacity. In support of this claim, my Office suggested that detailed medical evidence should be sought from the pensioner's doctor.
In due course the pensioner's doctor wrote a detailed medical report outlining a range of chronic illnesses which, in his opinion, �caused a marked premature cognitive decline as well as significant intellectual and memory impairment�. The doctor also referred to her difficult home situation as an additional relevant factor. However, the DSCFA response to this was to say that its medical advisor, having considered the medical evidence provided, had concluded that the pensioner �was not so incapacitated as to be unable to make a claim to pension on time�. I was surprised with this conclusion, given the apparent strength of the pensioner's medical evidence, the fact that the DSCFA medical advisor had not ever met the pensioner, and the fact that neither the medical advisor nor the DSCFA had taken up the doctor's suggestion that he be contacted if any further details were required.
On examining the DSCFA file I discovered that the medical advisor's view appeared to be influenced to some extent by the fact that the pensioner had continued to be involved with her small business during some of the period to which the doctor's report related. The inference was that a person who is capable of work is likely to be capable of handling his or her affairs. In general, this may be a reasonable inference to draw but it is not necessarily valid in each individual case. Indeed, the DSCFA itself in a number of individual cases has accepted that people who managed to continue in employment were, at the same time, incapable of managing their affairs. In this particular case the family felt that the pensioner had been only nominally in charge of her business for the last few years of its existence, that she had relied entirely on employees to manage it for her.
In its initial contacts with the DSCFA, the family had made the point that the pensioner had been incapable of independent living throughout most of the period (1980 - 1996) to which the arrears claim related. The family mentioned that since 1984 she had been living in nursing homes. The DSCFA had never reacted to this statement and the family had done nothing to verify it or to explore its relevance. I suggested to the family that this fact, if verifiable, taken in conjunction with the existing medical evidence, must considerably strengthen the case for payment of the arrears. In due course the family produced evidence of the pensioner's residence in various nursing homes and, in addition, details of frequent hospital admissions between 1979 and 1993. The DSCFA looked at the case again in the light of this evidence and decided to award pension arrears from January 1984 viz. from when the pensioner effectively became institutionalised. The arrears paid amounted to almost �31,000 (a separate amount of �4,800 had already been paid in December 1998 in line with general arrangements to pay a proportion of outstanding pension arrears in such 'late claim' cases).
Issues arising in some current Complaints
I am required to report annually to the Dáil and Seanad on the performance of my functions. In doing so I report on individual cases of interest or concern and I identify themes emerging from them. My Annual Report is also an opportunity to highlight systemic failures which I have identified and to put forward suggested remedies. From time to time I also comment on cases which serve to clarify my jurisdiction as this can be important from the point of view of prospective complainants. My Annual Report presents an opportunity to look back over the past year but also to highlight issues of on-going concern which will be receiving particular attention in the coming year.
In this Chapter I deal with the particular difficulties which planning complaints pose for my Office. I also clarify my jurisdiction in relation to the examination of complaints regarding certain fines. I then comment on the hardship being suffered by certain families with high interest local authority loans and my efforts to relieve the situation. Finally, I identify what I see as unacceptable policies being adopted by some local authorities in their handling of representations made to them on behalf of members of the public.
Local Authority Planning Complaints
Ireland is experiencing a building boom at present. For instance, in 1989 local authorities received 41,924 planning applications. By 1999 this had risen to 80,261 applications. The boom has resulted in increasing numbers of planning complaints arriving in my Office as well as an increase in the number of day to day planning queries which my staff deal with over the telephone. My remit confines my role in planning matters to the examination of the administration of the planning process by local authorities and to their enforcement of the planning laws in instances where planning breaches arise. I cannot question decisions to grant or refuse planning permission as An Bord Pleanála provides an independent statutory appeals mechanism in relation to planning decisions. From my point of view there are a number of factors which make it increasingly difficult to resolve planning complaints satisfactorily. The thrust of economic and political pressure is towards the completion of developments in as short a time frame as possible. In my view, what is being lost sight of is the very real adverse effect that building development can have on persons living in the neighbourhood of such developments. Industrial developments which are not tightly controlled can cause noise and air pollution. Unauthorised developments can encroach on the privacy of neighbouring properties. Unfinished housing estates can cause years of disruption and annoyance for householders. The individual cases I have seen confirm the extent and variety of the adverse effects which can arise.
To compound the difficulties faced by persons objecting to unauthorised developments, or developments which allegedly do not comply with planning permission, it is becoming all too apparent that very many local authority planning sections are understaffed. As a result the emphasis is on processing applications for planning permissions as opposed to policing breaches of planning permissions which have been granted or pursuing developers who have carried out unauthorised developments. Where it is evident that a breach has occurred or an unauthorised development is in place, I find that there is a marked reluctance on the part of local authorities to take developers to court. More often than not a hands off approach is adopted with developers being encouraged to apply for retention to regularise existing breaches, as opposed to being subjected to enforcement proceedings. While local authorities have discretion as to whether or not to take enforcement proceedings in individual cases, it seems to me that this discretion is very frequently exercised in favour of the developer. This, in turn, creates a climate which encourages developers to continue to breach the planning laws, particularly where full compliance is more costly and inconvenient for the developer. It also undermines public confidence in the planning process and increases public cynicism and the tendency to give credence to unfounded allegations of corruption and conflicts of interest on the part of public officials and public representatives.
Even the most basic elements of the services provided by planning sections are deteriorating. The public tell me that they are unable to make contact with staff to discuss their complaints, that it is increasingly difficult to arrange meetings with planning officials and that letters are not acknowledged or replied to. I am also concerned about the very considerable delays on the part of local authorities in furnishing reports to my Office on planning complaints. My overall impression is one of a system which is in a state of collapse.
The new Planning and Development Act, 2000 consolidates and revises all of the previous Planning Acts and introduces a range of new provisions, including some in the area of planning enforcement. These provisions are being brought into force over time and the full impact of the new Act is not yet clear. Our growing economy requires a fully functioning planning process which recognises and encourages balanced and integrated planning, on the one hand, while respecting the rights and quality of life of persons living adjacent to new developments. Legislative change alone will not bring this about without the provision of sufficient staff and other resources on the ground. I intend to monitor this area closely over the coming year and, if necessary, to highlight any systemic flaws I identify in the planning process as the new legislation takes full effect.
The Ombudsman's Jurisdiction and certain Fines
From time to time I receive complaints which do not clearly fall within my jurisdiction. Jurisdictional issues arose during the year in relation to three separate pieces of legislation. The common aspect of all three was whether or not I could deal with the imposition of fines/penalties by bodies within my jurisdiction. I decided to take legal advice on the matter.
The first case related to a decision by An Post to prosecute three tenants whom it believed did not have television licences. An Post advised the residents that each of them was to be summarily prosecuted under Section 77(b) of the Postal and Telecommunications Act, 1983. An Post argued that its actions in the matter did not come within the scope of Section 4(2) of the Ombudsman Act, 1980 and "were taken for the purpose of the enforcement of the criminal law and not in the performance of an administrative function." Section 4(2) of the Ombudsman Act, 1980 permits me to examine the administrative actions of bodies within my remit.
The advice I received in relation to this case was that the matter did fall within my jurisdiction and, with the co-operation of An Post, I am proceeding with my examination of the complaint.
The second complaint related to a decision by Dublin Corporation to impose a fine for an alleged breach of Section 3(1) of the Litter Pollution Act, 1997. The matter was appealed by the complainant to Dublin Corporation but he was informed that the fine would not be waived. He was informed that the Corporation would grant him a time extension to pay the fine before it referred the matter for legal proceedings.
The purpose of fixed penalty notices (or "on the spot fines") is to avoid the cost and effort of court proceedings for rather obvious and not too serious offences. A person to whom a notice applies may pay the "fine" within a period of 21 days, on a voluntary basis, and thereby avoid a prosecution for the alleged offence.
Arising from the second case, I also decided to seek legal advice on my jurisdiction in relation to complaints about "on the spot" fines which are imposed by local authorities under the Road Traffic Act, 1994 for less serious offences, particularly parking offences, and for the non-display of a valid motor tax disc. An Garda Síochána is listed in Part 11 of the First Schedule to the Ombudsman Act, 1980 as being one of the bodies outside my remit and so I cannot examine complaints in relation to fines issued by the Gardaí.
Apart from the question of whether the actions in question could be deemed to be administrative actions, my legal advisors also had to take into consideration Section 5 (1)(a)(ii) of the Ombudsman Act 1980 which provides that I cannot investigate any action where a person has a right of "appeal, reference or review to or before a court...".
The legal advice I received in relation to the second case and also in relation to the particular road traffic fines was that the actions in question were administrative in nature and also that such cases would not fall within the terms of the exclusion in Section 5 (1)(a)(ii) of the Ombudsman Act 1980.
Accordingly, I proceeded with my examination of the complaint against Dublin Corporation. The Corporation subsequently waived the fine.
Local Authority Housing Loans
During the year a number of complaints I received highlighted the difficulties which have arisen for certain families who had taken out high interest rate local authority mortgages with no mortgage protection. An interest rate of 12.5% was applied to some local authority fixed rate house purchase loans issued in the late 1970s and early 1980s. The interest rate was related to the then prevailing cost of long-term funding and the rate was fixed for the life of the loan. In some cases loans were made available at slightly lower rates but the rates applied were still significantly higher than the interest rates prevailing in recent years.
Since July 1986 mortgage protection has been a mandatory part of such local authority loans. In examining one complaint I discovered that, when the mortgage protection requirement was first introduced, it only applied to loans taken out on or after 1 July 1986. Persons with local authority mortgages prior to that were not allowed the option of buying into the mortgage protection scheme at the time and were not informed that such a scheme was being introduced for new applicants. As a result most would not have realised the potential benefits of mortgage protection and were not advised to seek their own cover. Indeed, over the years many of them assumed wrongly that they had mortgage protection until circumstances arose which led them to make enquiries with the local authority.
I asked the Department of the Environment and Local Government to request local authorities to alert all mortgagees with outstanding loans who had taken out their loans before 1 July 1986 that they had no mortgage protection as part of their local authority loans and to advise them to make their own enquiries about obtaining such protection. The Department duly contacted the local authorities. I believe the number of families in this position is quite considerable. Indeed Cavan County Council has over 1000 such mortgagees and Wexford County Council has nearly 300.
The financial impact of high interest rates combined with a lack of mortgage protection has resulted in very serious consequences for some families. In one case a couple took out a local authority loan in 1981 of £9,000 (€11,427.64) to be repaid over 30 years. The loan was at a fixed interest rate of 12.5%. The amount outstanding as of March 2000 was £7,306.99 (€9,277.96) and monthly repayments amounted to £96.29 (€122.26). The husband died in tragic circumstances in 1998 leaving the widow to fend for two young children. Her income was £110 (€139.67) per week. By the end of 2000 repayments on the loan amounted to £19,987 (€25,378.25). Over the full period of the loan repayments will amount to £34,578 (€43,905) which includes £25,578 (€32,477.36) in interest. Because the loan in question was taken out before 1 July 1986 it did not include mortgage protection and she did not realise this until she contacted her local authority following the death of her husband.
In another case a couple took out a loan of £12,000 (€15,236.86) in 1985 to be repaid over 30 years. The loan was at a fixed interest rate of 12.0%. The husband fell seriously ill in 1998 and had to leave his employment. Shortly after his wife brought her complaint to my Office, her husband died. The widow was left with four children. Monthly repayments on the loan amounted to £129 (€163.80). By the end of 2000 total repayments on the loan amounted to £21,116 (€26,811.79). Over the full period of the loan repayments will amount to £44,435 (€56,420.81), which includes £32,435 (€41,183.95) in interest. Again, she did not realise she had no mortgage protection until she contacted her local authority.
I am concerned that these cases may reflect a more widespread problem affecting many other families caused by the particular combination of factors. I am sure that, unlike other mortgage holders, the option of converting their mortgages by switching to another mortgage provider, is not available to many families with local authority mortgages because of their low or uncertain incomes. I have written to the Department outlining my views and asked it to consider some form of relief scheme to provide assistance for such genuine hardship cases. One must periodically review schemes to see if they are achieving their objectives. The scheme of local authority housing loans was originally designed to assist those who would not be in a position to obtain loans on the commercial market.
Local Authorities Refusal to Reply to Correspondence
The life blood which sustains a vibrant, healthy and fully functioning democracy is the free flow of information from public bodies into the public domain. Public bodies have a duty to explain their decisions and to give information to the public on their rights and entitlements. It should be possible for every citizen to make representations either personally, through a public representative, through a group of which they are a member e.g. a residents' association or with the assistance of a third party of their choice e.g. a priest, doctor, social worker etc. Legislation and recent public service initiatives underpin these principles from a number of perspectives. The most obvious examples are the Freedom of Information Act, 1997 and the Strategic Management Initiative (SMI) which is now beginning to permeate the local authority sector. Indeed, in the context of the SMI process, the Department of the Environment and Local Government's publication Modernising Government - The Challenge for Local Government refers to the need for "pro-active information dissemination to customers".
Public bodies which seek to operate in a climate of secrecy, which provide partial information to citizens or which disseminate information on a selective basis, undermine these basic principles of openness and transparency. If a public body consciously erects barriers which serve to prevent or obstruct the free flow of information to the public then this has to be a cause for concern. Yet this is what I encountered in dealing with a number of complaints against Galway County Council and Leitrim County Council. I have been dealing with the individual cases for some considerable period of time and it has been suggested to me that the problem may not be confined to these two local authorities. In view of this I have taken up the matter with the Department of the Environment and Local Government.
Leitrim County Council had adopted a policy of replying only to representations from elected members of the Council and other elected persons representing the constituency of Sligo/Leitrim or Ministers and Ministers of State. The effect of the policy was that it would not reply to representations from, for example, community activists who had failed to become elected members of the Council, doctors, priests etc. Following my intervention the Council set aside this policy.
Galway County Council has adopted a policy of replying in writing only to those representations which come from elected members of the Council or members of the Oireachtas on behalf of individuals or groups. The effect of the policy was that the Council would not reply to representations from an elected Town Commissioner and prospective County Councillor, from within County Galway, acting on behalf of his constituents and others. In my view this is an unacceptable policy. It was introduced specifically to confer an unfair advantage on elected Councillors and is an abuse of the democratic process in that it is an attempt to force constituents to channel their representations through those Council/Oireachtas members who already hold power. I have no doubt that one of the main purposes of the policy is to reduce competition from would-be Councillors. I have communicated my concern both to the Department and the Council but to date the Council has not set the policy aside. My examination of the issue is continuing.