Planning and development issues - Matters arising from Annual Report 2000
In my Annual Report 2000, I characterised the state of the planning system in local authorities as being "a system which is in a state of collapse". Not surprisingly, there was considerable media coverage of my comments and while I am sure local authorities were not pleased with my remarks, they generated a significant response from members of the public who sought my assistance to deal with their on-going complaints against local authorities for their failure to enforce the planning code.
There was a significant increase in the number of telephone calls to my Office in the weeks following publication to the Report and a 39% rise in complaints to my Office during 2001 about planning matters. While some local authority officials told my staff that they agreed with my comments, two County Managers wrote to me expressing surprise or disappointment with my remarks. Of course, each Manager expressed his opinion based on his experience of planning enforcement in his functional area and, while I accept that a few local authorities may have been making greater efforts than others to ensure compliance with planning laws, my comments were based on a national perspective built up over recent years from complaints from all parts of the country about failure, on a consistent basis, to take action against developers who did not adhere to the terms of planning permissions given to them or who engaged in other unauthorised environmental/planning activities. Indeed, the public and my Office have been very frustrated that such actions have not been pursued with sufficient vigour, including court action, where appropriate.
I can only recommend to a local authority that it should take a particular course of action; I cannot compel it to do so. In the past my Office has expended considerable energies trying to persuade local authorities to take an appropriate course of action or, alternatively, to justify their reasons for not taking action against unauthorised development. The outcome of a protracted complaint examination process has not always been to the satisfaction of the complainant or my Office. Accordingly I am reviewing the effectiveness of my Office's procedures for dealing with enforcement issues with a view to taking a more critical approach to failure by a local authority to act properly and without delay when a complaint is made about serious breaches of the planning laws.
To a certain extent my concerns may be allayed by the coming into force in March of this year of sections of the Planning and Development Act, 2000. This Act strengthens considerably the powers of local authorities in relation to the enforcement of planning but it also imposes obligations on them to act within specified timeframes. The proper implementation of the enforcement provisions of the new Act will call for a considerable shift in the mindset of local authorities which will be obliged to respond within six weeks of receipt of representations or a complaint from the public about enforcement. While a local authority will have discretion not to take enforcement action after carrying out an investigation, details of such a decision and any decision concerning an enforcement notice issued under the Act, must be entered in a planning register which will be available to the public. This will bring greater transparency to the process. However I wish to put all local authorities on notice that I will be highly critical of any local authority that, in my view, fails to use the provisions of the Act effectively to ensure compliance or to initiate court proceedings in cases of non-compliance. I know that, in some quarters, the planning laws and processes may be viewed as potential impediments to growth and the development of infrastructure. One cannot rule out, however, that failures in enforcement may be an important factor in engendering opposition to planning developments in the first place. Certainly public confidence in the planning process is a pre-requisite for an efficient planning system.
The new Planning and Development Act, 2000, to which I referred above, and regulations made under the Act (Planning and Development Regulations 2001) together consolidate all planning and development legislation. I am pleased to note that certain defects in previous legislation about which I had written to the Department of the Environment and Local Government, have been addressed in the new consolidated legislation. These included:
- the ability of a developer to lodge a second application for planning permission with a local authority while a previous application in relation to the same development was under consideration by An Bord Pleanála without the public being alerted properly to the application. Such application will now require that the site notice be in a different colour background (yellow) from the first notice which would have a white background.
- irregularities concerning the placing of site notices in obscured or inaccessible places. The new regulations require that a site notice be placed in a conspicuous position or near the main entrance to the land or structure and, where there is more that one entrance, on or near all such entrances.
There are implications for an applicant for planning permission who does not comply with the requirements of the regulations regarding site notices. If, on inspection, the authority considers that the requirements have not been met, the application is invalid and all documents will be returned together with the fee. Details of invalid applications must also be entered in the planning register.
The provisions dealing with the abuses outlined above will help to ensure that circumvention of regulations will be less likely to occur in the future and that the application process is even more open and transparent.
Local Authorities and Public Accountability
Last year I also reported on a long running complaint against Galway County Council which had adopted a general policy of replying in writing only to those representations which came from elected members of the Council or members of the Oireachtas on behalf of individuals or groups. In the particular case, the Council would not reply to representations from an elected Town Commissioner, from within County Galway, acting on behalf of his constituents and others.
I highlighted the complaint as I felt it was an important one in view of the systemic issues which it raised. There was not only the undoubted adverse affect suffered by the complainant in seeking to act on behalf of members of the public but, of course, the adverse affect suffered by those members of the public who had requested him to act on their behalf. A range of important principles was at stake in terms of openness, transparency, public accountability and the free flow of information from public bodies into the public domain. These issues were of concern to me not only as Ombudsman but also as Information Commissioner.
I am glad to report that the Council has now finally decided to set aside its policy and is no longer applying its previous restrictions. I will continue to pursue complaints with the utmost vigour where a public body is found to be erecting barriers to the free flow of information to the public or to persons representing members of the public.
Flexibility and Fairness
In my Annual Report for 1996, I said that public bodies in striving for the highest standards of administration in their dealings with the public should ensure that citizens are dealt with properly, fairly and impartially. I said that dealing fairly with people means accepting that rules and regulations, while important in ensuring fairness, should not be applied so rigidly or inflexibly as to create inequity. I also stressed that dealing properly with people required extra sensitivity in the case of older people or people with special needs. While schemes and services administered by public bodies must have eligibility criteria and other standard conditions underpinning them, it is equally important that public bodies should be able to accommodate unusual or special cases or unforeseen circumstances. They need to develop flexibility so that benefits or services are not unjustly withheld from people because of some technical requirement. The following case highlights this issue.
I received a complaint on behalf of a widow who was in her 80s and had been refused a waiver or reduced rate refuse charge by Limerick County Council. The woman in question was in receipt of a Non-Contributory Widow’s Pension from the Department of Social, Community and Family Affairs. She was also living on her own and in receipt of a medical card. The full rate charge was €203 (£160) and the reduced rate was €127 (£100).
The Council held that she could not be allowed a reduced charge as she did not come within the conditions imposed by the Council resolution allowing for the reduction. The resolution read as follows:-
“ Reduced refuse collection charge of £100 for Old Age Pensioners, on non-contributory pension, living alone, with a medical card.”
Because the complainant was not in receipt of Non-Contributory Old Age but rather a Non-Contributory Widow’s Pension, the Council’s interpretation of the resolution meant that she did not qualify. They had suggested that she change her pension from a widow’s to an old age one in order to qualify.
In my view the resolution was open to a different interpretation. I considered that the expression “Old Age Pensioner”, used in the way it was in the resolution, was simply meant to cover those members of the population over the age of 66. The phrase “Old Age Pensioner” is in common use and is not generally considered to mean only those in receipt of Non-Contributory Old Age Pension. To follow this logic through therefore, the complainant would qualify as she was over age 66, in receipt of a non-contributory pension, lived alone and had a medical card. I impressed on the Council that it would, in my opinion, impose a hardship on this woman to ask her to change her pension at this time in life. This could involve lengthy correspondence with the Department of Social, Community and Family Affairs for the sole purpose of qualifying for the reduced refuse charge. There is no monetary difference between the maximum rate of either pension, so the complainant would gain nothing except the reduced refuse charge but would have to go through a process which might create anxiety on her part.
I did not consider that my interpretation would have a very high cost to the Council and the objective of the resolution, that those over 66 in receipt of a non-contributory pension etc. qualify for a reduced refuse charge, would not be prejudiced.
After considering my request, the Council agreed to accept my interpretation of its resolution and to refund the difference between the full and reduced charge to my complainant, and to all others in a similar situation to her.
Local Authority Mortgages - Fixed Interest Rates - Lack of Mortgage Protection
Last year I referred to the difficulties experienced by families who had taken out high interest local authority mortgages. These mortgages were fixed for the life of the loan and in a period of falling interest rates represented a significant burden for the mortgage-holder. In addition there was potential for further hardship arising because prior to July 1986 these mortgages were not subject to mandatory mortgage protection. I referred to the serious consequences for some families resulting from a combination of high interest rates and a lack of mortgage protection. During 2001, I wrote to the Department of the Environment and Local Government expressing my views on these issues. On the matter of the high fixed interest rates, the Department has advised me that it has carried out some research and has estimated that the cost of reducing the high interest rate of 12.5% to the current local authority fixed rate of 5.3% would be in the region of €14 million (£11 million) in the first year declining thereafter as loans are paid off. It has requested approval from the Department of Finance for its proposal to reduce the high fixed interest rate but its request has been turned down. I have since written to the Department of Finance and, at the time of writing, I am awaiting a response to my request for a review of its decision.
Concerning the failure to offer mortgage protection to persons who borrowed prior to July 1986, the Department has advised me that arrangements are being made to devise a scheme to cater for all existing borrowers who meet certain eligibility criteria. As the age limit for joining the Local Authority Mortgage Protection Scheme is under 55 it is likely that a number of existing borrowers will not be eligible, on age grounds. The Department is also examining ways in which some form of relief can be offered to those people who suffer extreme hardship in meeting loan repayments. It hopes to have a scheme in place in 2002.
Hospital Services
My Office has always received a lower level of complaint against the health sector relative to those received against other sectors within remit. This undoubtedly reflects the exclusion of clinical judgement and the fragmented nature of my remit in relation to hospital services, which has resulted in a low level of public awareness of my role in relation to complaints within the hospital system. While I can examine complaints against health board hospitals, e.g., Cork University Hospital and Galway University Hospital, I cannot examine similar complaints against public voluntary hospitals, e.g., Beaumont Hospital or St James’s Hospital in Dublin, even though they are all publicly funded.
The public voluntary hospitals and a whole range of health bodies are now within my jurisdiction as Information Commissioner. However, notwithstanding the reference to the issue in “Quality and Fairness - A Health System For You”, the new national health strategy, the same bodies have yet to be brought within the jurisdiction of the Ombudsman. Thus, when things go wrong, a patient within a health board hospital, can complain, free of charge to the Ombudsman. However, if he or she is admitted to a public voluntary hospital, I cannot be of assistance. Such patients have to consider the prospect of costly litigation before the courts.
However, the inclusion of these bodies within the jurisdiction of the Information Commissioner is beginning to have a positive impact in raising awareness of my role as Ombudsman and, indeed, highlighting the anomalies in relation to my jurisdiction. And there is evidence that people are becoming more aware of my role as Ombudsman in relation to complaints about hospital services. The following case illustrates this point.
Southern Health Board - Tralee General Hospital
This case involved an investigation of a complaint against Tralee General Hospital (TGH) which lies within the functional area of the Southern Health Board (SHB).
A family wrote to me and said that their father had been admitted to hospital complaining of severe pain in his lower back and legs. In the following days he was examined by various doctors and had blood samples taken. Throughout this period his pain and discomfort increased with no relief and he became increasingly agitated. His family became concerned and distressed and sought explanations as to the cause of his pain and discomfort. The family was dissatisfied with the response of a particular doctor to their concerns which they felt was dismissive and uninformative. Their father was subsequently the subject of an emergency transfer to another hospital where he died shortly after admission.
The family were aggrieved that they were not informed of the nature and severity of their father’s condition and the standard of medical care he received until his emergency admission to another hospital. They were also very upset at the way the complaint they made after their father’s death was handled. They indicated, when complaining to my Office, that they simply wanted to find out what had happened to their father.
I investigated the complaint but found that the paucity of available records made it difficult to establish what precisely had happened. The standard of medical note-taking that is expected of medical staff following their contact with patients left a lot to be desired in this case. The relevant medical consultant accepted that, if the family’s observations regarding their father’s condition were correct (viz., that he was in continuing severe pain which was not being alleviated by the drugs administered, that his right leg was getting numb and cold and that there was discoloration in his lower back/front torso region), then “something catastrophic must have been going on”. Given those circumstances he would have expected the doctor on duty, if he made those observations, to contact a more senior doctor immediately. [Note: Because the Ombudsman is precluded, by law, from investigating decisions of persons when acting on behalf of health boards and, in the opinion of the Ombudsman, solely in the exercise of clinical judgement in connection with the diagnosis of illness or the care or treatment of a patient, the investigation could not consider whether it would have been appropriate for the junior doctor to consult a senior doctor earlier than he did.]. However, the family’s observations regarding the continuing severe pain were supported by the nursing observations recorded by nursing staff.
I upheld the complaint about the inadequacy of the care afforded to the family’s late father and about the response to concerns expressed by them. I also concluded that TGH needed to review its approach to complaint handling and to train and equip all staff in the practice of good complaint handling. I recommended
- that a member of the senior management of the SHB and the hospital visit the family to apologise for the shortcomings identified in the report and to explain what action would be taken on foot of the findings and recommendations contained in the report;
- that the hospital, in co-operation with the SHB, should review its procedures with regard to record keeping and complaint handling procedures.
I also recommended that the SHB take action to ensure that all the hospitals under its control carry out a review their record keeping and complaint handling procedures .
Finally, while recognising that I am precluded from examining matters of clinical judgement I called on the SHB, the hospital and the medical staff to bring greater clarity to the working relationships between junior and senior medical staff. In particular, I suggested an administrative protocol outlining the circumstances in which a junior member of a medical team should consult with his or her consultant when a patient’s condition gives cause for concern, and the corresponding obligation on consultants to be accessible for such consultation. The SHB accepted my recommendations.
This case underlined the importance of timely communication with patients’ relatives by medical and administrative staff. It also illustrated that, when things go wrong, a proper complaints system is essential if relatives’ concerns are to be addressed in an open and positive way. The complaints system should have the support of both medical and administrative staff. It was also evident from this case that the adoption of a negative and adversarial approach by hospital staff only fuels relatives’ suspicions that the hospital has good reason for attempting to withhold the details of what actually happened.