The Year in Review

Business Planning Activity in 2003

Business planning activities continued throughout 2003 aimed at improving the quality of the service we provide to our clients and supporting the personal development of our staff in providing this service.

Service to Our Clients

Case Screening

The new case screening procedures which were first introduced in 2001 were refined in a number of ways in 2003 and the procedures are now well embedded. They give an added focus to the initial assessment of new complaints so that it is clear which issues need to be pursued with the public body. In addition, they help to clarify if there are aspects of the complaint which may be outside remit. The procedures also enable managers to give detailed guidance to case-workers on how to approach the case at the outset.

Quality Casework

Throughout 2003 a number of Office working groups sampled individual complaint files by reference to a set of agreed quality standards and indicators and reports of their findings were submitted to the Management Advisory Committee on a bimonthly basis. A summary report covering the year as a whole was drawn up which included recommendations on how to maintain and improve quality casework and how to improve the sampling process which will continue throughout 2004. Implementation of the recommendations has been prioritised for action in the 2004 Office Business Plans

Progress Report on Our Human Resource Management (HRM) Strategy

Last year's Annual Report set out the background to our emerging HRM Strategy and the rationale behind it. Following extensive consultation with staff I was pleased to oversee the completion and launch of the HRM Strategy 2003-2005 in July 2003.

While the HRM agenda is very wide the approach which was adopted was to identify a limited range of issues which could be formulated as projects to be fully implemented over the three years of the strategy. These projects were to be implemented using team-based working with the assistance of staff drawn from across the entire Office. The published strategy included Action Plans for the following four selected priority areas; Induction, Rewards and Motivation, Performance Management Development System (PMDS) (including monitoring of the process, standardising role profiles and competencies and delivering training and development) and Gender Equality.

Induction

The aim was to produce a formal comprehensive induction training programme for new entrants to the Office. A Working Group was established which formulated a Framework for Induction Training (FIT). In its report to management the Group identified a comprehensive range of generic and section level induction training modules and made recommendations on how they should be drawn up and delivered. Responsibility was then assigned to individual staff members and teams of staff to begin work on drawing up the contents of the FIT modules. The Partnership Committee is involved in monitoring progress and vetting the individual modules as they are produced. It is proposed to have a full induction training programme agreed and in place by the summer of 2004.

Rewards and Motivation

A Middle Management Group on Rewards and Motivation was set up in 2003. Its remit is to examine ways of motivating staff and how to maintain motivation and commitment with a view to the development and implementation of policies in this regard in 2004. As part of its work programme the Group issued a questionnaire to all staff seeking their views on work related issues which might be seen as motivational or demotivational. They were also asked whether they considered certain schemes and entitlements to be rewards e.g. increments etc. An interesting feature of the results is that the highest motivational factor that staff identified was the nature of the work they were involved in within the organisation. Using the results of the survey the Group will be conducting a series of meetings with individuals and groups of staff to get a more in-depth understanding of what motivates them and this will in turn feed in to the policy formulation process.

PMDS

The Performance Management and Development System (PMDS) is now an integral part of how the Office functions. Major developments in 2003 included the undertaking of an organisational climate survey in preparation for the next phase of PMDS whereby job holders, during their annual performance review, will be encouraged to give upward feedback on their supervisor's performance. The results of the climate survey were very positive. It showed that
90% of staff agreed that they were clear on their roles within the organisation as a whole; this clarity is due in no small part to the operation of PMDS. Equally, 83% agreed that management communicated the organisation's direction, plans and progress to staff.

A complete suite of competencies for each grade in the organisation was prepared in 2003 and is utilised by staff and mangers in determining requirements for effective performance and training and development.

Gender Equality
A Gender Equality Group monitors the Office's gender balance targets and the factors that may influence the achievement of these targets such as:

· staff participation in promotional competitions;

· training and development initiatives;

· the gender makeup of interview boards for internal/interdepartmental competitions;

· the take up of family friendly initiatives (flexitime, worksharing, termtime, career breaks);

· the distribution of men and women across the sections of the Office.

It reports on these issues to the Management Advisory Committee on a quarterly basis. The Group also gender proofs relevant new Office policies and during 2003 it developed gender equality guidelines for interviewers and assessors.

The Office's gender targets apply to grades at Executive Officer level and above in the Offices of the Ombudsman, the Information Commissioner and the Secretariat to the Standards in Public Office Commission. The time frame for the achievement of the targets is five years. At present the percentage of women in the grades of Executive Officer, Higher Executive Officer and Assistant Principal Officer (Investigator) is either just short of or exceeds the agreed targets. It is hoped to achieve the target participation rate at Principal Officer (Senior Investigator) level within the relevant time frame with the active assistance of gender equality policies.

Office Statement of Strategy 2004-2006

With the assistance of outside facilitators the Ombudsman/Information Commissioner and Senior Management drafted proposals for a Statement of Strategy covering the period 2004-2006. The Strategy encompasses the Office of the Ombudsman, the Office of the Information Commissioner and the Secretariat to the Standards in Public Office Commission. Following a widespread consultation process with staff throughout the organisation and the Partnership Committee an agreed Strategy was finalised which identified four High Level Goals to guide the work of the organisation over the next three years. These are:

High Level Goal 1

We will deliver a high quality service to our clients that is efficient, easily accessible, and that produces clear and fair decisions.

High Level Goal 2

We will work with the public bodies and institutions within our remit to support them in achieving and maintaining the highest standards in their interactions with individual service users.

High Level Goal 3

We will commit the experience and authority of the Office to serve civil society and, working together with those institutions and public bodies falling within our remit, we will seek to ensure that the public interest is properly served.

High Level Goal 4

We will develop as a best practice organisation operating to the highest standards in the delivery of our services.

Flowing from the High Level Goals a range of supporting actions has been identified which will in turn feed in to the new round of annual business plans for the three constituent Offices over the period of the Strategy. Objectives will be delivered by means of activities at Corporate level, Business Unit level and through goals and activities agreed between managers and each member of staff which will be set out in individual performance management goals and objectives

Other Management Activity

As a result of the implementation of the civil service-wide Management Information Framework (MIF), the Office has in place an on-line process for dealing with travel and subsistence and the procurement of supplies. The on-line processing of these transactions has reduced the number of paper transactions involved and duplication of records has also been eliminated with consequent efficiency gains. The MIF system has also provided a platform for the automatic generation of the Appropriation Account which will yield savings in staff time in future years.

In line with the recommendations of the Mullarkey Report on the Accountability of Accounting Officers my Office has established an Audit Committee under an outside Chair. The Committee will oversee financial controls and procedures within the Office and, among other things, this initiative will considerably strengthen the Office's internal audit function which has been operating actively since 1995.

Redress for Taxpayers - Implementation of Recommendations

Following my predecessor Kevin Murphy's, Special Report to the Oireachtas - "Redress for Taxpayers" - the intervention of the Joint Oireachtas Committee on Finance and the Public Service resulted in the full implementation of his recommendations (full details of the recommendations can be found at page 36 of the Ombudsman's Annual Report for 2002).

There were two issues of concern in the investigation:

1.    time limits on retrospective refunds of tax wrongly collected, and

2.    compensation for loss of value where tax refunds are made in cases where overpayments of tax were the result of maladministration.

I understand that Revenue has made refunds of tax, as well as compensation payments for loss of purchasing power, to the widows whose complaints were at the heart of the investigation. Following acceptance of the recommendations in full, the Revenue also undertook a range of initiatives to ensure that any similarly affected widows would be identified. To date, refunds of taxes have been made in 131 cases, compensation payments have been made in 185 cases, and an additional 49 cases are still being reviewed.

The total cost of implementing the recommendations to date amounts to just over €900,000. The potential cost of implementing the recommendations in full was estimated by the Revenue at the Oireachtas Joint Committee briefing as running to €3.8 million. This estimate had been relied on as a defence against implementation. The significantly lower cost of implementation must give rise to regret that more realistic and accurate estimates had not been prepared at an earlier stage which, perhaps, might have facilitated an earlier resolution of the entire issue.

A general scheme of compensation for loss of value in respect of refunds of taxes - recommendation five of the Special Report - was introduced with effect from 1 November 2003. The scheme provides for a general right of repayment of taxes and duties, as well as payment of interest on all such repayments subject to certain conditions. The scheme, which is subject to transitional arrangements, introduces a new, and more restrictive, four year limit for making claims to replace the existing 10 year limit.

Payment of interest will be made by Revenue from the date that tax was paid until the date of repayment, in cases where Revenue has made an error in the application of the law. In all other cases, including repayments of preliminary tax, interest will be payable from the period beginning six months after a valid claim for the repayment has been made, where the Revenue has not made the repayment by that time.

I welcome the response of the Revenue in implementing the recommendations of the Special Report. I am particularly pleased to see the flexible approach which Revenue has adopted in the case of certain widows who might not otherwise have been entitled to refunds and compensation. This group of claimants had not, in fact, claimed the refunds due to them under the O'Carroll judgment within the required time frame and could, in theory, have been excluded from the import of the Ombudsman's recommendations. Revenue has in fact adopted a pragmatic and flexible approach in these cases and full payments have been made.

The examination and investigation of the issues leading to the preparation of the Special Report in this case were long, complex and time-consuming for both my Office and the Office of the Revenue Commissioners. I am pleased - as I know Kevin Murphy was- that the final resolution of the case resulted in the acceptance and implementation of all recommendations and that the authority of the Ombudsman's Office has been affirmed. He and I also very much appreciate the vital role played by the Oireachtas and, in particular, by the Joint Committee on Finance and the Public Service.

Local Authority Performance on Planning

Correspondence from Public Representatives
My Office has an important role in maintaining public confidence in the planning process and in ensuring that its administration at local level meets standards of good practice. Therefore, when a complaint is made which suggests that a planning matter may not have been dealt with properly by a local authority, it will be examined thoroughly by my Office. This is what happened when a complaint was made concerning the discovery of correspondence from a public representative on a planning file when an applicant for planning permission examined it in the planning office of Westmeath County Council.

The complainant, who had been refused planning permission, discovered a letter on the file from a public representative who wrote to the Council as follows: "Please keep me advised of any relevant developments re. p.p. ref. no.....". The complainant had not been in touch with the public representative concerned and alleged that the role his correspondence had played in the planning application was unclear, did not have an audit trail and was not properly handled by the local authority. The local authority had given assurances to the complainant, and to my Office, that staff of the local authority had not discussed the application with the public representative. However, the complainant believed he had discussed the case with officials of the local authority, including the relevant planner, and was convinced this had influenced the outcome.

Following a thorough examination, including interviews with the complainant, relevant local authority officials and with the public representative, my Office was satisfied that the public representative had played no role in the decision to refuse planning permission. However, this might not have been clear to a member of the public reading the planning file. Public representatives are, of course, entitled to make representations on behalf of members of the public but local authorities must ensure that, particularly in matters of planning, its procedures for dealing with public representatives provide for maximum transparency so that the public is in no doubt about their role.

My staff subsequently discussed procedures with the County Manager concerned who readily acknowledged the transparency argument and has introduced improved procedures for dealing with public representatives, and for record keeping, in relation to planning matters. To some extent the requirements of the Planning and Development Act, 2000 which came into force in March 2002 have brought greater clarity to the matter in that a fee would have to be paid if the representations were to be treated as a submission in relation to a particular application. While I have received no specific complaint about this matter against any other local authority, I noted a recent comment of concern in a media debate on planning in relation to letters from public representatives on planning cases. I intend to make further enquiries of local authorities about how they are dealing with letters from public representatives about planning matters.

Compensation for Loss of Opportunity to Lodge an Objection/Appeal
I have been disappointed to note that, where local authorities have, through error on their part, denied a person the right to appeal a planning decision to An Bord Pleanála, they do not seem to pay sufficient attention to providing redress for their errors. Apart from expressing regret, they do not seem to think anything more is required and, in general, do not offer any substantive redress of their own accord. For many years the Office has reported on cases where monetary compensation was recommended by the Ombudsman and paid. I also take the view that, where a statutory right is denied through error on the part of the local authority, such error is maladministration for which it should be the exception rather than the rule, not to pay compensation. The amounts involved are relatively small, usually not more than €1,000, and I would like to see local authorities take the initiative by offering redress rather than wait for my Office to prompt them.

Access to Planning Files
My Office continues to receive complaints that planning files are not always available when a member of the public wants to view them or, that the papers are not always on the file or, if a person wants a copy of a document from a planning file, they are charged an excessive amount, as compared with charges for documents under the Freedom of Information Act. In fact, my Office has been looking at excessive charges for some time and has written about the matter to the Department of the Environment, Heritage and Local Government.

Enforcement Issues
I also have jurisdiction in the area of planning enforcement. This means that, where a local authority fails to take appropriate action in relation to a complaint to it that a specific development has not been carried out in accordance with the permission granted, I can examine it. Complaints about planning matters accounted for 27% of all complaints to my Office last year and the majority of these cases were about planning enforcement.

The Planning and Development Act, 2000 has laid down specific actions that are to be taken by local authorities in response to planning infringements and my Office intends to continue to monitor whether the Act is being properly and fully utilised in order to ensure compliance. Complaints to my Office last year suggest that there has been some improvement in local authority performance in relation to enforcement generally, but it is too early to make an accurate assessment based on performance over a period of less than two years since the introduction of the Act.

There is a public perception that planning enforcement is, as quoted recently in the media, "very much the Cinderella area of planning with very few local authorities prepared to allocate the resources needed to curb unauthorised development....". I have evidence to suggest that while local authorities may be endeavouring to comply with the spirit of the new Planning and Development Act, some are not paying sufficient attention to the letter of its provisions.

The current legislation enables local authorities to take a more proactive role, if they are disposed to doing so, to ensure, insofar as possible, and without necessarily going to the courts, that every person whether a large or small scale developer, abides by the planning code. The Act gives a local authority a range of powers it can use to bring about compliance without resorting to the courts and, in examining complaints, my policy will be to consider whether the local authority has fully used the powers. Furthermore, it will not be sufficient to tell my Office that action is not being taken because the local authority is of the view that it would not win in court. The local authority will have to satisfy me that it had good cause for not taking action in any particular case. There are a number of steps that can be taken before court action comes into the picture and, in all cases of complaint to me, I will seek to establish that the provisions of the legislation are being used properly and effectively.

Planning is a matter of significant public interest as evidenced by complaints processed by my Office over the years which have increased from 64 in 1993 to 185 in 2003. Within the limits of my jurisdiction, I intend to ensure that, in the context of complaints to me, my Office will be proactive in protecting public confidence in the planning system

The Ombudsman's Remit

There are a number of new pieces of legislation which will impact on the workload and remit of my Office. I am pleased to note that the government has given a commitment to publish the Ombudsman (Amendment) Bill in late 2004 and I hope that it will be speedily enacted. Among other things this Bill will provide for a significant expansion of the range of public bodies which will come under my remit.

The Official Languages Act, 2003 imposes new statutory obligations on a large number of public bodies to provide a higher standard of service through Irish. While a Commissioner, Séan Ó Cuirreáin, has been appointed to monitor compliance with the Act and to investigate complaints about failure to meet obligations under the Act I will continue to have the power to investigate complaints relating to the administrative actions of the public bodies within my remit in relation to Irish language matters. I anticipate an increase in complaints in this area arising from the new Act.

The proposed Disability Bill gives a role for the Ombudsman in examining complaints in relation to non-compliance with sectoral plans which will have to be drawn up to illustrate how public bodies will meet their obligations in providing services to persons with disabilities. This is likely to have a significant impact on the workload of my Office and, in so far as it relates to my role under the Disability Bill, it will greatly extend the number of bodies coming under my remit.

The Ombudsman for Children Act amended Section 5 of the Ombudsman Act, 1980 to exclude examination of a complaint by the Ombudsman where the matter is proper for the Ombudsman for Children. The functions of the Ombudsman for Children will include the investigation of complaints where a child has been adversely affected by an action which may have amounted to maladministration. My Office will be liaising with the Ombudsman for Children, Ms Emily Logan, to deal with any jurisdictional issues which may arise as a consequence of the legislation.

Public Bodies and Access to Information

During the examination of a planning enforcement case against Louth County Council, which is ongoing, the Council compiled a report on its investigations into allegations of environmental pollution and illegal waste disposal. When the complainant sought a copy of the report the Council wrote to her and informed her that she would have to submit a Freedom of Information (FOI) request. I could see no valid reason why the document could not have been given to the complainant outside of the Freedom of Information Act, 1997 and there was no evidence to suggest that the Council had considered this option. When my staff conveyed my concern to the Council the document was released, free of charge, to the complainant.

I am also aware, from an answer given by the Minister for Justice, Equality and Law Reform in the Dáil in November 2003, that his Department had a policy of not disclosing reasons for refusing an individual a certificate of naturalisation. Failed applicants were advised to apply for access to their records by means of a FOI request. The Minister's answer indicated that the policy had ceased and that reasons are now normally given for refusals.

As Ombudsman I believe it is of paramount importance that public bodies should deal openly with people by disclosing information available to them to the public with the minimum of restrictions and in a prompt manner, unless there are valid statutory or other grounds for restricting or refusing the information. I would be very concerned if a pattern emerges of public bodies becoming less open by insisting that members of the public use FOI requests to obtain information which should be made available without recourse to the FOI Act. This is of even more importance since the Freedom of Information (Amendment) Act, 2003 enabled the introduction of fees for non-personal information requested under the Act.

I will exercise extreme vigilance in ensuring that the public are given full and prompt access to information to which they are entitled in the normal course without being forced to resort to the formalities of the FOI Act. I will take any necessary action against public bodies within my remit which fail to respect this entitlement. I will also report on any similar cases I come across in future annual reports.

The Ombudsman and Legal Professional Privilege

The Ombudsman Act, 1980 gives me the power to see all information which I consider to be of relevance in examining a case. For example, the Act specifically provides that Departments may not claim legal professional privilege in order to deny me access to their legal advice. It seems that there may be some confusion on this point in some Departments.

During the year I requested a copy of legal advice received by the Department of Communications, Marine and Natural Resources in relation to a complaint made against that Department. The Department initially refused to supply this advice on the basis that the legal advisor had indicated that it was entitled to refuse my request. The legal advisor claimed that, notwithstanding the terms of the Ombudsman Act ,1980 such legal advice was subject to legal privilege. In the event, the advice was eventually supplied to my Office but only on the basis that a previous advice on the particular complaint had already been supplied. The Department was nevertheless of the view that, in providing this advice on this occasion, this did not count as a precedent.

I consider it very important to remind Departments that the terms of the Ombudsman Act, 1980 are quite specific and unambiguous in stating that:

"Any obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or furnished to a Department of State or civil servant imposed by the Official Secrets Act, 1963 shall not apply to an examination or investigation by the Ombudsman under this Act, and ..... the State shall not be entitled in relation to any such examination or investigation to any such privilege in respect of the production of documents or the giving of evidence as is allowed by law in legal proceedings."

Section 7 (1) (a) of the Act also provides that;

"The Ombudsman may, for the purposes of a preliminary examination, or an investigation, by him under this Act, require any person who, in the opinion of the Ombudsman, is in possession of information, or has a document or thing in his power or control, that is relevant to the examination or investigation to furnish that information, document or thing to the Ombudsman and, where appropriate, may require the person to attend before him for that purpose and the person shall comply with the requirements."

In this specific case I am concerned that the Department and its legal advisor do not recognise that the provisions of the Ombudsman Act give me the clear right to see legal advice in order that I can conduct a full examination of a complaint.

Compensation for Loss of Purchasing Power to Pensioners in Superannuation Schemes

Compensation for Loss of Purchasing Power to Pensioners in Superannuation Schemes

The Ombudsman Act, 1980 precludes me from investigating complaints which relate to or affect the terms or conditions of employment including those under which superannuation benefits are payable. However, when the core of a complaint does not relate to such terms and conditions, but rather relates to the administration of a scheme e.g. the refusal of a public body to mitigate the adverse effect of an administrative oversight, then my jurisdiction applies in the normal way.

I received complaints from three pensioners who had been health board employees or whose spouses had been employees. They complained that the pensions or lump sums which they had received on retirement some years previously had been incorrectly calculated. The Boards in question had subsequently acknowledged the errors made, and adjusted the pension and lump sum payments to the correct level. Each person had received a lump sum payment to cover relevant arrears. However, the Boards had declined to pay compensation for the loss of purchasing power in the intervening periods. They did not consider that they had authority to pay such compensation under the relevant superannuation legislation.

I felt that it is was unfair to penalise the pensioners for errors made by the Boards. I also felt that the decisions not to compensate in these types of cases were contrary to fair and sound administration. I pursued the issue with the Department of Health and Children. In line with the principle of redress as articulated by my predecessor and in the interests of good administrative practice, the Department put a scheme in place which would allow health boards to make compensatory payments with reference to the Consumer Price Index, on an ex gratia basis, where refunds or payments of benefits have been delayed or withheld over an extended period of time as a result of error, misinterpretation, oversight or other similar action, when operating the superannuation schemes.

I would like to take this opportunity to acknowledge and commend the actions of the Department in this regard. I am pleased to note that the three pensioners received compensation in accordance with the Department's guidelines which issued to all health boards in December 2003.

Public Access and Awareness

During the year my Office continued the important work of bringing our services to local areas throughout the country and in Dublin in order to increase access and awareness among the general public. My staff carried out monthly visits to a number of Citizens Information Centres (CICs) and there were also one-day regional visits to two locations.

In 2003 the CIC visits were to Cork, Limerick, Galway and Coolock. A total of 263 new complaints were received during these CIC visits of which 182 were valid and 81 (or 31%) were invalid. Once again we are indebted to the CICs for their support in delivering this service.

Staff from my Office also made one-day visits to Galway and Waterford. A total of 135 new complaints were received as a result of these visits, of which 113 were valid and 22 (or 16%) were invalid. The combined total of new valid complaints received as a result of the monthly and one-day visits amounted to 295. Details of the 2004 programme of visits are available from my Office's website at www.ombudsman.ie

Visitors to my Office

In May my predecessor met with the newly appointed Pensions Ombudsman, Mr Paul Kenny.

During the year my Office received visits from two separate groups from Uganda. The purpose of the visits was to receive briefings on the work of the Office and the statutory powers at my disposal in resolving complaints. The first visit took place in June and comprised a delegation from the Ugandan Directorate of Ethics and Integrity, the Inspectorate of Government and the Office of the Directorate of Public Prosecutions. In September the Office received a visit from a Ugandan Parliamentary delegation led by Rt. Hon. Edward Kiwanuka Ssekandi, M.P., Speaker of the Ugandan Parliament.

In April 2003 the former Greek Ombudsman, P. Nikiforos Diamandouros was appointed European Ombudsman and I was very pleased to meet him in July to discuss issues of mutual interest. I look forward to continuing the fruitful co-operation between our two offices.

In October 2003, Ms Alice Brown, Scottish Public Services Ombudsman and Ms Judie Sadler, a senior member of her staff, visited the Office. Discussions were held in relation to planning issues and also in relation to my Office's processes and procedures in the area of complaint handling. They also visited An Bord Pleanála and I would like to acknowledge the assistance of the staff of An Bord Pleanála in facilitating the Scottish Public Services Ombudsman, in particular, Ms Berna Grist, Board Member, who at short notice, briefed her on the Irish planning system.

Notices Issued under Section 7 of the Ombudsman Act, 1980

Notices Issued under Section 7 of the Ombudsman Act, 1980

When there is a significant delay on the part of a public body in responding to my Office in the course of the examination of a complaint a statutory Section 7 notice is issued seeking the required information. A breakdown of the number of notices issued was first published in my Office's 1998 Annual Report. In that year a total of 45 notices were issued. In 1999 this was reduced to 27 and this was further reduced to 14 in 2000. There was an increase to 19 in 2001 and in 2002 a total of 16 notices issued.

I am very pleased to note that the number of Section 7 notices issued in 2003 is the lowest recorded since my Office began publishing the figures. However, it is disappointing to see that the Department of Education and Science is at the top of the list for the fourth year in a row and that over half of the notices issued to local authorities.