Civil Service

Office of the Revenue Commissioners - Income Tax Relief on Tuition Fees

Office of the Revenue Commissioners

Income Tax Relief on Tuition Fees

I received a complaint from the father of a student who was attending a computer engineering course in a particular college. The father complained that he had been twice denied tax relief on the tuition fees that he had paid on his son's behalf, even though the college in question had assured him that the course attracted tax relief. The Revenue Commissioners had rejected his claim for the tax relief on the basis that the particular course was not one of those listed as attracting relief.
Tax relief is available for tuition fees paid for certain approved courses in the area of information technology and foreign languages. The tax relief is available for the tax year 1997/1998 and following years. In the year 2000/2001 the relief was extended to an individual's child or a person for whom the individual is the legal guardian. Qualifying courses must meet certain criteria, including the approval of the Minister for Enterprise, Trade and Employment and FÁS with the consent of the Minister for Finance. The list of courses and course providers are approved by FÁS and forwarded to the Revenue Commissioners annually. The Revenue Commissioners themselves have no role in the approval of the courses. In this case the course was not listed as a qualifying course on the list provided by FÁS to the Revenue.

When my Office examined the case the Revenue, having contacted FÁS, clarified that the course was in fact a qualifying one for tax relief and that it had been inadvertently omitted from the formal list sent to the Revenue. The full relief was paid to the complainant in this case. My Office also requested the Revenue to put arrangements in place to ensure that other taxpayers similarly affected could be made aware of the relief. The issue has now been brought to the attention of Revenue staff, to the colleges in question and has been highlighted in relevant professional publications

Department of Social and Family Affairs - Carers Allowance Refused

Department of Social and Family Affairs

Carers Allowance Refused

I received a complaint from a woman about a decision of the Department of Social and Family Affairs to refuse her application for Carers Allowance.

In January 2002 the woman started to care for a seventy-seven year old lady suffering from feebleness and confusion. She applied for Carers Allowance but was turned down by the Department on the basis that she was in full employment.

The woman had resided with the old lady for almost two years, and it was her contention that this residence was now her home. She provided full-time care and attention to the old lady and had obtained qualifications by attending courses dealing with elderly care. Her view was that, in these particular circumstances, she was not in full time employment outside her home. In the course of my examination of the complaint the old lady died.

I examined the relevant legislation and confirmed that one of the conditions was that the carer should not be engaged in employment/self-employment outside her home. The legislation was silent on any aspect of employment or self employment within the home. It appeared to me that the fundamental points at issue i.e. the interpretation of the word "home", the Department's position regarding the award of Carers Allowance to persons engaged in employment/self employment in the home, the interpretation of the term "employment" and the rationale that led to the conclusion that the complainant was employed, had not been fully considered by the Department.

I put these issues to the Department. Following a review of the matter it agreed, in the light of the unique circumstances of the case, to award Carers Allowance to the complainant as an exceptional measure and without prejudice to further cases of this nature. Arrears of €5,353 were subsequently paid to the complainant

Department of Agriculture and Food - Dispute over Repayment Procedures

Department of Agriculture and Food

Dispute over Repayment Procedures

A participant in the Scheme of Early Retirement from Farming (ERS) complained that a computer error in the Department of Agriculture and Food caused an overpayment of his early retirement pension to be made to him and he was not happy about the way the Department sought the repayments.

The ERS provides that early retirement pension payments made to participants are reduced by the amount of national pension payments which they receive. In this case, the Department failed to take account of budgetary increases which were made to non-contributory pensions in calculating the ERS payments. On discovering its mistake the Department issued a standard letter which it used in cases where overpayments occurred. By this stage the complainant had been overpaid for a period of almost twelve months. The letter imposed a six month repayment schedule on the complainant and he was not consulted about the proposed schedule.

While I accept that mistakes can happen and, generally speaking, public bodies are entitled to recover overpayments I hold the view that where the fault lies with a public body it should adopt a flexible approach in recovering overpayments. This is particularly the case where there is no evidence that the person receiving the overpayment had contributed in any way towards the error.

Following contact with my Office the Department agreed that it would revise the terms of the standard letter it issues in such cases to allow the participant an opportunity to discuss the terms under which the repayments can be made. I considered that this was a positive step taken by the Department which will benefit others in a similar position in future.

Health Boards

Midland Health Board - Communication Difficulties in Relation to Stillbirth

Midland Health Board

Communication Difficulties in Relation to Stillbirth

I received a complaint from a couple against the Midland Health Board (MHB) in relation to the treatment they received following the stillbirth of their baby daughter. The complaint related, mainly, to the lack of communication which the couple experienced following their request for information about the possible causes of the stillbirth, and difficulties which they experienced in obtaining follow-up appointments with the attending Consultant Obstetrician. The couple also complained that they encountered delays with regard to the Health Board's handling of their subsequent written complaint. The events complained of generated considerable frustration for them. Given that it was ten months since their baby daughter had died, they needed the information in order to help them advance through the grieving process and give consideration to any implications for possible future pregnancies.

I contacted the Board outlining the details of the case and was advised that it had not been possible, from a medical point of view, for the Consultant Obstetrician to give exact answers to the questions raised by the couple. He had spoken with them following the receipt of the post mortem results, but could not indicate a possible or likely cause of death. The Board advised me that, in the circumstances, it proposed to hold a Critical Incident Review in relation to the case in the hope that this might establish the cause of the baby's death, and whether there were implications for future pregnancies.

The review was facilitated by an expert in the field from outside the Board's area in collaboration with the Board's Risk Management Team, Consultants, Doctors, Nurses, Managers and Administrators, and involved a detailed medical investigation of all the circumstances surrounding the treatment of the mother during and after her pregnancy. This review included a set of recommendations. The Review Group held the view that this tragedy could not have been detected or prevented. It also confirmed, from the available information, that there was no clinical indication that such an event was likely to recur.

It is very difficult for a bereaved couple who have experienced stillbirth to consider the issue of future pregnancy. Such difficulty is compounded if there is a perceived lack of information or co-operation on the part of hospital or health board staff. In this particular case, I was encouraged by the Board's decision to hold a Critical Incident Review in relation to the circumstances surrounding this baby's death. I felt that this was a positive step in attempting to identify when and how the stillbirth happened and to give some reassurance and hope to the bereaved couple. I was further encouraged to note that the Review Group had identified a number of ways in which the Board's Stillbirth Policy could be significantly improved and made a series of recommendations in this regard. These reviews have the added advantage in that, in addition to dealing with the individual incident, systemic weaknesses can be identified and steps taken to ensure that similar incidents do not recur. The Board also produced and published a Bereavement Booklet which is to be made available throughout other health board areas.

I also received a somewhat similar complaint from a mother in the North Eastern Health Board (NEHB) area who had given birth to a stillborn baby. She had complained of an uncomfortable rash throughout her pregnancy and was referred to a Consultant Dermatologist. Following the stillbirth the woman became convinced that the rash which she had suffered throughout the pregnancy was Obstetric Cholestasis, a condition which only occurs during pregnancy and places the unborn baby at risk of stillbirth.

Under the Ombudsman Act I am specifically precluded from examining complaints against health boards about clinical decisions in the care or treatment of a patient. Consequently, the clinical aspects of the complaint were not matters which I could examine. However, I felt that it would have been useful if a Critical Incident Review, similar to that conducted by the MHB, had been carried out. I asked the NEHB to consider such a course of action in the event of future similar cases. In subsequent discussions with the Board I was encouraged to note that, since the time of the complaint to my Office, substantial progress has been made in relation to the holding of such reviews. The Board confirmed that the event complained of would be the subject of a review if it occurred today.

East Coast Area Health Board - Complaint About Patient Charges

East Coast Area Health Board

Complaint About Patient Charges

I received a complaint from a woman whose late husband had been a long-stay patient in one of the East Coast Area Health Board's elderly care hospitals from 31 January 1995 until his death on 21 September 1997. A maintenance charge of £45 per week was raised by the Board and paid by the lady for the duration of her late husband's stay in the hospital. Her husband was the holder of a medical card and she was his dependant. In the circumstances she believed that charges were not applicable.

I pointed out to the Board that under the Health (Charges for In-Patient Services) Regulations, 1976, as amended, a charge towards the cost of in-patient services provided under Section 52 of the Health Act, 1970 may be made on a person who is not a person with full eligibility (has a medical card) where the person has no dependants. However, in this particular case the patient was the holder of a medical card and had a dependant. Therefore, maintenance charges should not have been raised. The Board reviewed the case and agreed to refund the charges levied for the period in question. A refund of €7,746.30 was issued to the lady.

However, it is my view that an individual should not be at a loss because of an error on the part of any public body, and all measures to restore an individual to the position he or she would have been in, had the error not occurred, should be taken.

I put it to the Board that the refunded amount did not include any element of compensation to cover the loss of purchasing power in the intervening period. As the charges were incorrectly levied I asked the Board to consider this matter further. The Board decided that, in the circumstances, compensation was in fact payable and an amount of €2,102.58 based on the monthly Consumer Price Index was also paid to take account of this situation.

Midland Health Board - Orthodontic Treatment Refused

Midland Health Board

Orthodontic Treatment Refused

A woman complained to me on behalf of her son who had been assessed by the Midland Health Board for orthodontic treatment and placed on a waiting list which was, at the time, approximately three years in duration. This was due to the difficulties which the Board was experiencing in dealing with the volume of orthodontic cases and the shortage of orthodontists within its area. After waiting for two years, the child's mother decided to bring her son to a private dentist and treatment commenced with the extraction of one tooth. The child was subsequently called by the Board but when it was noticed that private treatment had commenced, his name was removed from the waiting list.

I enquired as to why the child had been refused treatment given that he had a statutory entitlement to it under the Health Act, 1970. The Board clarified for me that it was not its policy to intrude on a private contract given that in orthodontic treatment, each step influences the next, and that a treatment plan may vary from one orthodontist to another. Had the Board taken over where the child's private dentist left off, it claimed that it could not have guaranteed the outcome but would have been responsible for the overall treatment nonetheless. I accepted that the clinical considerations would prevent public orthodontists from taking over a course of treatment which they had not approved or commenced.

However, I was concerned that the complainant had not been made aware of the implications of commencing private orthodontic treatment for her son while on the waiting list. People on the orthodontic waiting list should be made fully aware of the implications of deciding to seek any type of private remedial work and the clinical considerations for health boards if they do. It is only by informing parents of the options open to them that they can make reasoned decisions about their children's treatment. In this case, the complainant had not been advised by the Board that if she commenced private treatment for her son, his name would be removed from the Health Board's waiting list.

I asked the Board to review the case in this context. The Board agreed that, as the complainant had not been made aware of the situation regarding the commencement of private treatment, it would alleviate the financial burden on the family of continuing with the private treatment. It decided to award the complainant an ex gratia payment of €1,000 towards the costs involved. I subsequently wrote to all health boards requesting that they put in place a procedure whereby people are fully advised of the clinical ramifications of commencing private remedial orthodontic treatment while awaiting public treatment. This was to ensure that the policy of fully informing parents of the position in relation to orthodontic treatment was applied consistently and uniformly throughout the individual health boards.

Southern Health Board - Shortfall in Nursing Home Fees

Southern Health Board

Shortfall in Nursing Home Fees
The complainant was a 98 year old patient in a private nursing home and had been there for the previous eight years. She was in receipt of a subvention of €96.99 from the Southern Health Board to assist with the payment of her nursing home fees and this, along with a pension from the United States of America, brought her monthly income to approximately €1,150. However, her monthly nursing home fees were €2,275 leaving a shortfall of €1,125 per month.

The matron of the nursing home wrote to a local public representative outlining the complainant's plight. The public representative then wrote to me about the case by which time the complainant had accumulated arrears of around €6,000, which was causing her considerable worry and distress. When I approached the Board regarding the possibility of an enhanced subvention I was advised there were almost five hundred individuals ahead of her on the waiting list for an enhanced subvention.

I examined the Board's Enhanced Subvention Policy and noted that it could consider cases as an immediate priority where applicants, by virtue of a crisis in relation to their individual circumstances, required immediate intervention. I suggested to the Board that in the light of this complainant's age and financial circumstances that it might consider such immediate priority in relation to her application for an enhanced subvention. The Board responded by increasing the subvention payable to €166.55 per month and saying that her position on the waiting list would be kept under review.

I was unhappy with the Board's response and requested that the matter be reviewed again. It did not seem to me that adequate consideration had been given to the complainant's worsening personal circumstances. Following a further review the Board indicated that it had decided to provide an enhanced subvention of €375.65 per week to the complainant which, along with her income of €204.43, fully covered her nursing home fees of €550 and left her with an amount equal to one fifth of the non-contributory old age pension for personal use.

South Western Area Health Board - Nursing Home Subvention Arrears

South Western Area Health Board

Nursing Home Subvention Arrears Refused

I received a complaint from a man whose late mother had been a patient in private nursing home care from 1987 to 2000. This lady had been in receipt of financial assistance towards the cost of her care by way of subvention from the South Western Area Health Board under the terms of Section 54 of the Health Act, 1970 from the time of her admission. The legislation changed in 1993 with the introduction of the Nursing Home Subvention (Regulations) which allowed an applicant's circumstances, including those of his or her family, to be taken into account in determining his or her eligibility for subvention.

Following the Ombudsman's Report on Nursing Home Subventions in 2001, the complainant approached the Health Board to see whether his late mother might have been entitled to compensation as a result of family circumstances having been assessed. At that stage, the complainant was advised that his late mother had received her full subvention entitlement and therefore, no arrears were due. He was not aware of the avenue of appeal to the Board's Director of Customer Services and Appeals regarding the matter. The complainant contacted my Office, and on examination of the issue, I felt that his late mother should have been reassessed in 1993 following the introduction of the new legislation. I suggested that he approach the Director of Customer Services within the Health Board in order to have the matter reviewed along these lines.

Following this review, the Director determined that the complainant's mother had not received her full entitlement to subvention and a payment of arrears totalling €34,604 was made to her estate.

Local Authorities

Mayo County Council - Essential Repairs Grant Refused

Mayo County Council

Essential Repairs Grant Refused

An elderly woman applied to Mayo County Council for an Essential Repairs Grant (ERG) in February 1996. The Council approved specific works, at an estimated cost of £5,000 (€6,350) and a grant, in the sum of £1,800 (€2,285), was approved in respect of the agreed works. However, when the Council's Engineer inspected the work on completion, he reported that extensive renovations had been carried out to the property, including the provision of dormer windows. The estimated cost of the completed works was £24,000 (€30,500). The Council Engineer reported that this was far in excess of the original approved works and that, having regard to the terms of the Council's ERG Scheme, the Council was unwilling to pay the original approved grant, in the sum of €2,285.

Article 5(1) of the Housing (Disabled Persons and Essential Repairs Grants) Regulations, 2001, provides that

"a housing authority may pay a grant to a person carrying out essential repairs to a house where in the opinion of the authority, the repairs, while less than those appropriate to render the house fit in every respect, constitute repairs it considers are reasonably necessary to prolong the useful life of the house."

My Office tended to the view that, given the complainant's particular circumstances, there were good reasons for her undertaking the extensive repairs which were above and beyond the works originally approved. In saying this, my Office had to accept that these additional works, given they were undertaken without the prior knowledge and inspection of the Council, did not qualify for grant assistance under the terms of this particular grant scheme.

It was my Office's view that, if the works which had originally been approved had been completed, then the complainant should be entitled to the original grant, as approved, in respect of the specific approved works. Accordingly, my Office asked the Council to review its handling of the case. The Council reviewed the case but, unfortunately, declined to make any grant payment to the complainant in respect of the approved works which she had undertaken.

Not satisfied with its response, my Office approached the Council again and drew its attention to the fact that, shortly after the complainant commenced the approved works, a storm came while the roof was off the house and, as a result, she felt she needed to undertake extensive repairs to the house. My Office asked the Council whether, having regard to the particular circumstances of this case, namely the occurrence of a storm when the roof was off the house, it had considered the principle of force majeure.

This principle, which is a feature of European law, relates to circumstances which are outside the control of an individual and where the consequences cannot be avoided. The principle enables flexibility in the application of rules with a view to avoiding the creation of an inequity. My Office took the view that, in this particular case, the principle of force majeure applied and this appeared to be a matter the Council had not taken into account in coming to its original decision. Again, my Office asked the Council to reconsider its position having regard to the specific details of this case and, again, the Council refused to reconsider the case.

At this stage, given the experience with this particular case and others, my Office requested the Council to review its ERG Scheme having regard to the current governing Regulations. In response, the Council agreed to undertake a comprehensive review and this review is ongoing. My Office again suggested that this case be revisited in the context of the ongoing review. As a result, the Council finally agreed to pay a grant in the sum of €2,285, in respect of the approved works which had been undertaken by the complainant.

Carlow County Council - Administrative Error in Planning Process

Carlow County Council

Administrative Error in Planning Process

Local Authorities have many complex and varied functions and sometimes they can make mistakes or errors in administering them. When I receive a complaint about such an error, as well as examining the original action, I also examine how the local authority deals with the aftermath once it realises its mistake. In some cases, where the local authority fails to act or apologise, the lack of any follow-up exacerbates the situation. In other cases, increasingly, local authorities are proactively seeking to mitigate the adverse effects of their own actions and this is a development which I have encouraged and am very happy to see now gaining a foothold.

One example of this involved Carlow County Council and its wrongful acceptance of an objection to a planning application outside of the time limit. I received a complaint from a man whose grant of planning permission was delayed because the Council accepted an invalid objection to his application for planning permission. The planning application was received on 16 January 2003. The statutory period for receipt of objections expired on 19 February 2003 (5 weeks later). The Council accepted an objection to the development on 19 February 2003 but there was no fee enclosed, rendering it invalid. However, the Council wrote to the objector requesting the fee which was subsequently paid on 27 February 2003. The decision to grant permission was issued to the applicant on 11 March 2003 and the objector was notified the same day. The objector subsequently appealed to An Bord Pleanála.

Once it was pointed out to the Council that it had accepted an invalid objection, it contacted An Bord Pleanála to ascertain the legal position. An Bord Pleanála pointed out to the Council that because the Council had accepted the objection it was now bound to deal with the appeal. The Council explained the position to the Bord and asked informally that it deal with the case as quickly as possible. An Bord Pleanála subsequently made its decision on 16 May 2003. Overall, the Council's error in accepting an objection that was invalid, and retaining and facilitating it by the subsequent request for the fee, caused the applicant a delay of only one month. The Council apologised to the complainant and endeavoured to minimise the delay caused by its error. It was very heartening to see the speedy acceptance of its mistake by the Council and the genuine and effective way it subsequently sought to mitigate its impact.

Kildare County Council - Dispute Over Scheme of Letting Priorities

Kildare County Council

Dispute Over Scheme of Letting Priorities

My predecessor's Annual Report for 1999 included the case of a woman who complained that Kildare County Council had refused to provide her with details of her position on the housing waiting list. He commented as follows:

’I felt that applicants for housing are entitled to know the criteria used in determining housing allocations and, in addition, how these criteria affect their own applications i.e. where they stand on the housing list. Following a number of contacts from my Office, the Council agreed to introduce a system which would enable it to inform applicants of their approximate position on the housing list.’

It was disappointing, therefore, to receive a similar complaint against Kildare County Council in 2002. The complainant lived in private rented accommodation, and her lease was due for renewal. She was concerned that if she signed a new lease, and a Council house then became available, she could be left liable for rent for the term of the lease. She asked the Council for details of her position on the waiting list so that she could tell her landlord whether or not she could take a twelve month lease.

In the course of correspondence with my Office, and a subsequent meeting with the County Manager, the Council explained that it had put a points based Scheme of Letting Priorities before the elected members. Under the proposed scheme applicants would be invited to express their preferences in respect of the areas where housing was to be made available. When housing then became available, those who had expressed a preference for that particular area would then be assessed and ranked. The Council did not, however, intend to provide applicants with details of their points, or relative positions on the waiting list. Among the reasons given by the Council for not doing so were that it would consume staff resources in carrying out assessments and could leave the Council open to criticism for providing information which was not accurate.

My officials pointed out that the failure to provide applicants with information about their position on the various housing waiting lists was contrary to the undertaking previously given to my Office. While it was accepted that the recently proposed scheme was a method of determining priority for housing, the way it was to be implemented meant that applicants would still not be advised about their position on the housing list until such time as houses were ready to be allocated. In my view, the proposed scheme lacked transparency in a way that was likely to lead to a lack of confidence in its administration, and would continue to give rise to further complaints.

In order to overcome the difficulty my Office suggested to the Council that an application form, capable of capturing all the details required, could be provided by the Council and, when completed by each housing applicant would enable the Council to make a provisional assessment of points in respect of each applicant. At that stage, applicants could be advised of the areas where there were no plans for housing. Where housing was planned, however, applicants could be told the number of units being provided, the points they had been provisionally been awarded based on the contents of the application form, and the minimum number of points that would be needed to get an offer of accommodation in any particular area. The minimum points figure would be based on the overall demand for the number of units available. The provisional points awarded at application stage would be subject to verification in the event of the person having sufficient points to be considered for an offer at the allocation stage. Offers of housing would then be made in line with the scheme.

I felt that this approach would overcome the concerns of the Council regarding resources and the quality of information being provided to applicants, as a full assessment would now only be required in order to confirm or revise the details already provided at application stage. Applicants would now know the number of points they had been allocated, the basis upon which these points were allocated, and the minimum number of points they would need in order to receive an offer of housing. The Council subsequently advised my Office that it had adopted a Scheme of Letting Priorities which incorporated a provisional points assessment system at application stage, and the scheme was awaiting Ministerial sanction.

Mayo County Council - Obligations Under the Consumer Credit Act, 1995

Mayo County Council

Obligations Under the Consumer Credit Act, 1995

Due to an oversight, Mayo County Council's Law Agent charged a Council client, rather than the Council, for legal work done in certifying title to a property in connection with a Council loan application. The amount involved was €153.67. My Office discovered that this practise was contrary to Section 125 of the Consumer Credit Act, 1995 which provides that, after 1 September 1997, any costs of legal investigation of title must be borne by the Council and not by the borrower.

When my Office brought this matter to the Council's attention, it arranged to refund the amount in question to the complainant and apologised to him for the oversight. However, as this might not have been an isolated incident, we asked the Council to clarify whether there were other similar cases and, following an examination, the Council confirmed that, in addition to the original case, it had identified a further 16 cases where a similar error had occurred. The Council's clients were all overcharged in sums ranging from €122.94 to €153.67. The total amount, including the original case, came to €2,397.25. Once these cases were identified, the Council arranged for the necessary refunds to be made to its clients.

Another issue arose out of this complaint. It involved the notification to applicants of any fees which may be charged by the Council in connection with housing loans. In this particular case Mayo County Council told my Office that its initial procedure was to notify applicants at interview of any legal fees arising which would be charged to the applicant. When my Office examined the relevant legislation, it was clear that Section 132 of the Consumer Credit Act, 1995, obliges a local authority to draw the attention of the applicant in writing to his/her liability and how the fee is to be determined. The purpose of this is to ensure the applicant will be aware of how much he/she will have to pay in advance of agreeing to accept the loan. By notifying people verbally rather than in writing, the Council did not meet its obligations under the Consumer Credit Act. I subsequently asked the Council to review its procedures in this regard and the Council obliged. Given the scale of the problem which was identified in Mayo, my Office reported the matter to the Department of the Environment, Heritage and Local Government and requested it to remind all local authorities of their responsibilities to their customers under Sections 125 and 132 of the Consumer Credit Act, 1995. Shortly afterwards, the Department issued the necessary Circular Letter to all local authorities.