I am empowered by the Ombudsman Act, 1980, to examine or investigate complaints against certain public bodies. If, as a result of my intervention, I find that a complainant has been adversely affected by some unfair or improper action on the part of the public body, I may ask it to offer redress. In many instances the body will acknowledge that, as a result of its actions, the complainant has suffered some detriment and will be anxious to remedy the adverse affect.
In 1997 when I published The Ombudsman’s Guide to Standards of Best Practice for Public Servants I said that dealing fairly with people included treating people in similar circumstances in like manner. As an extension of this principle public bodies should seek to ensure that similar complaints, when upheld, should attract similar remedies.
In this chapter I underline the obligation on public bodies to provide appropriate redress. I also give some guidelines and examples of redress with a view to assisting public servants to develop a consistent approach to its application across the public service.
Redress and public administration
Public bodies are responsible for delivering a vast range of services to the citizen. Where, as a result of poor administration, the service is not delivered satisfactorily, the citizen usually has nowhere else to turn for an alternative service provider. An obvious example here is in the provision of welfare payments or social housing. A basic tenet of the Government’s Strategic Management Initiative is the provision of a high quality service to its clients. It follows, therefore, that where there is a shortfall in this standard, and the fault lies with the public body, it should remedy the shortfall through the provision of redress.
As I mentioned earlier, the objective of redress is to put the individual back in the position he/she would have been in but for the administrative failure. It has been the trend in the recent past for public bodies to publish charters of rights in which they set out their goals in terms of the services provided to their clients. Many of these charters include target times for schemes, programmes and repayments. I welcome these targets as a positive development in the provision of a quality customer service. However, I feel that the value and credibility of charters and protocols would be greatly improved if they were to encompass a commitment from the public body to provide redress when the standards and targets to which the bodies are committed are not met.
Apologies and explanations
A person may be adversely affected by the action of a public body in a variety of ways - through loss of a particular benefit, service, a financial payment or the loss of an opportunity to exercise a right. Where this happens good administration demands, in the first instance, an acknowledgement by the body concerned that a wrong has occurred and that steps need to be taken to offer redress for the loss. A detailed explanation and/or a genuine apology by the public body should form part of the redress proposals and these measures in themselves have a significant role to play in alleviating the sense of grievance felt by the complainant.
Explanations and apologies should incorporate the following:
- the reasons why the service cannot be provided immediately;
- an apology for the inconvenience caused;
- details, where applicable, of alternative services available in the short term;
- an indication as to when the service requested will be provided.
Apologies should be given where a service to which a person has an entitlement has not been provided, has only partially been provided or has been delayed, as a result of a fault on the part of the public body. Letters of apology must:
- be genuine and sincere;
- accept responsibility for the fault which has occurred;
- acknowledge that hurt/inconvenience/hardship has occurred;
- undertake to make good any loss which may have resulted.
Through the examination and investigation of complaints I come across instances where public bodies have failed to deliver a service. The public bodies may be quick to accept that they have erred and may even offer an appropriate remedy. However, they tend to be unwilling to extend an apology to the person affected. My experience is that the more open and progressive a public body is, the more likely it is to look after the entitlements of its clients and to acknowledge its responsibility when problems arise and it is at fault.
Some public bodies tend to consider that apologies are not necessary if corrective action is taken in respect of the service. They are mistaken. The absence of an apology undermines good relations, trust and confidence between the body and the client and is detrimental to good public administration. Between these two extremes there are those public bodies which will not acknowledge that they have been at fault but which grudgingly accept that an apology is required. I have encountered a number of examples of this approach where the ‘apology’ from the body takes the following form
“we do not accept that we have been at fault but if we have, please accept our apologies”
Responses of this nature are unsatisfactory and there is an urgent need for bodies which adopt this stance to think again about their responsibilities and obligations to their clients.
A major reason why public bodies are reluctant to apologise is the question of legal liability. Of course legal liability is usually not an issue in the majority of cases where things go wrong. Indeed, the failure to apologise or to explain is often the trigger which sets litigation in motion. I am convinced that it is possible, in most cases, to provide detailed explanations and apologies in ways which do not involve admission of liability. Where litigation can be reasonably anticipated, public bodies clearly have the right to protect their interests. In that context I note with interest the suggestion put forward by the New South Wales Ombudsman, Mr Bruce Barbour in his Annual Report 2000 - 2001. He suggested that
“... legislation be introduced to make apologies or expressions of sympathy or regret given by public sector officials to help resolve a complaint inadmissible in any civil proceedings.
This would not be detrimental to the rights or interests of members of the public who have legitimate legal claims against an agency as in practice, without legislation of this kind, an aggrieved person would probably receive no apology - and consequently, no admission of responsibility - at all.
In contrast, the practical consequence of introducing legislation of this kind should be that more public sector officials would be encouraged to say ‘sorry’ and more members of the public are more likely to feel satisfied that their grievance has been taken seriously. An apology shows an agency taking moral, if not legal, responsibility for their actions and the research shows that most people would be satisfied with that.”
The health area is one where there is considerable concern about the possible admission of responsibility. I would commend my Australian colleague’s suggestion to the Department of Health and Children for consideration in the context of the new statutory complaints system proposed in the national health strategy.
Compensation for loss of purchasing power
Where refunds or payments of benefits have been delayed or withheld over an extended period of time as a result of an error, misinterpretation, oversight or other similar action on the part of a public body, the principle of redress, and good administrative practice, demands that a general scheme of compensation should be in place to cater for the loss of purchasing power of the payments made.
Over the years I have encouraged public bodies when making retrospective/late payments to clients, also to provide compensation for loss of purchasing power. For the last 15 years, the Department of Social, Community and Family Affairs has administered such a scheme in cases where the Department itself was solely or significantly to blame for the delay. Under this arrangement there is a standard period of twelve months - sometimes known as the “fallow period” - within which the application/entitlement/benefit might be expected to be processed. Compensation only becomes an issue where the application is not processed within this period. In certain circumstances the Department should pay compensation for loss of purchasing power to clients who were late in claiming an entitlement. This can arise where, for example, a person was given wrong information by the Department when enquiring about entitlements. The Department has made Regulations giving this scheme legislative status but it had operated previously under delegated sanction from the Department of Finance.
Other public bodies have also introduced arrangements for the payment of compensation in certain circumstances:
- The Department of Education and Science pays compensation in respect of loss of purchasing power in cases where payment of higher education grants has been delayed.
- The health boards have also agreed to the introduction of a national compensation scheme.
- Following an investigation carried out by my Office into the level of unrefunded overpayments on borrowers’ loan accounts, local authorities accepted my recommendation that they pay the borrowers compensation for loss of purchasing power on the amounts in question.
As I have mentioned earlier the underlying principle governing redress is that the complainant should be restored to the position he/she would have been in before the wrongdoing took place. The arrangements adopted by the public bodies to compensate for loss of purchasing power satisfy the redress principle. However one organisation which has been conspicuous in its resistance over the years to making such compensation payments is the Office of the Revenue Commissioners.
Revenue’s view is that, apart from a number of specific instances, there is no legislative provision which would allow such payments to be made. I have never been convinced of this argument and I believe that there is latitude within the care and management provisions of the Tax Acts for such payments to be made. However my greater concern in this matter is that there appears to be an underlying unwillingness on the part of the Revenue to acknowledge an obligation to provide redress in cases or to put any mechanism in place to cater for redress. This issue had previously been raised with the Revenue and it had agreed to carry out a review. However there has been no progress on the matter to date. The year 2002 will see the finalisation of my investigation into complaints against the Revenue’s refusal to compensate eight taxpayers for the loss in value of delayed refunds of income tax. The investigation report will also address the question of whether a general scheme of compensation should be introduced to cater for such overpayments.
A more positive approach was adopted in the following case by the Department of Education and Science:
I received a complaint from a former teacher from whom incorrect deductions of PRSI had been made. She had been widowed since 1970 and, therefore, should have been paying Class D2 PRSI (Class A2 from April 1995). However, deductions were made initially at the D1 rate (and then at the A1 rate from April 1995). Having applied to the Department of Social, Community and Family Affairs (DSCFA), refunds in respect of the incorrect deductions were made to her. She also sought compensation for the loss of purchasing power involved and complained to my Office when this had been refused. The DSCFA said that while it had paid out the refund in respect of the incorrect deductions, the responsibility for the error was that of the employer, and not the Department.
In this case, the Department of Education and Science (DES) paid the salary of the teacher on behalf of her employer, the board of management of the school. Accordingly, my Office asked the DES to examine the complaint in respect of compensation for loss of purchasing power. The DES initially said that the responsibility for informing it of any changes in circumstances which would warrant deductions at the D2 rate rather than at D1, such as holding a medical card, receiving a lone parent allowance or widow/widower’s allowance, lay with the teacher. It also considered that the responsibility for compensating her for loss of purchasing power lay with the DSCFA which had made the refund of incorrect deductions.
On further examination of the complaint, I established that the DES’s Personnel Section was aware that the complainant was widowed. However, the DES said that that Section would not necessarily be aware of any potential implications for PRSI contributions arising from this information. Having reviewed the matter, I considered that the DES held sufficient information to allow it to make the correct deductions. The fact that the information was held in its Personnel Section rather than its Salaries Section could not be regarded as an adequate defence as it should have organised its information systems in such a way as to ensure that all relevant information was made available to whichever Section required it. I concluded that the DES was at fault in failing to act on the information available to it and that the complainant should be awarded appropriate compensation for loss of purchasing power in respect of the incorrect deductions made from her salary. I considered that, in line with similar cases across the public service, the amount of compensation should be calculated by reference to increases in the Consumer Price Index over the relevant period. The DES accepted my views and appropriate compensation was paid to the complainant.
Restoration of a lost non-monetary benefit or service
Many public bodies provide non-monetary benefits or services, e.g., school transport, housing repairs, refuse and water supply, hospital services, facilities for people with disabilities etc. Where these services are wrongly denied to a person as a consequence of a fault of the relevant public body and are subsequently provided, the public body should provide redress in respect of the period prior to their provision.
In some cases a payment can be made to cover the client’s costs. For example, where a local authority, without good cause, fails to carry out essential repairs to the roof of a tenant’s house which results in internal damage necessitating re-decoration, the local authority should consider funding or part-funding the costs involved. Similarly, where access to school transport is wrongly refused and parents incur costs in making alternative arrangements they should be refunded these costs if entitlement to the service is subsequently established. In some cases a payment or a deferment of future costs or charges which may be due should be made in acknowledgement of the fact that the person was wrongly deprived of the service.
Loss of opportunity
An action of a public body can have the effect of preventing an individual from taking advantage of special arrangements or participating in a particular scheme. The following case serves to illustrate this issue:
A couple was advised by Carlow County Council that they could purchase their house for €25,331 (£19,950). At the time they had insufficient funds available to proceed immediately with the purchase but they continued to seek loan approval. When they finally got loan approval they were advised that they were too late to purchase the house at the price of €25,331 as the time limit for taking up the offer had expired. They were advised that the revised purchase price was €41,274 (£32,506).
On examination I found that the original letter of offer, which issued to the complainants on 14 May 1999, made no reference to the claim that the valuation was for a limited period only. Furthermore, Part 7 of Circular Letter HRT 6/95, which issued from the Department of the Environment and Local Government relating to the house sales scheme, states:
“On notification of valuations to tenants, they should be advised that the valuation will stand for such period, not exceeding 12 months, as the authority see fit and that tenants who wish to purchase should, within this period, agree in writing to proceed with the purchase”.
Given that the complainants were not informed in May 1999 of a cut off date on the Council’s original offer, they had a reasonable expectation that the offer was open ended until such time as they secured the loan approval which they were allegedly seeking in the period June 1999 to June 2000.
My Office asked the Council to review the case. The Council undertook, on receipt of documented evidence that the complainants were making a genuine attempt to secure a mortgage during 1999/2000, to re-open the sale of the house at the original offer price of €25,331 (£19,950) for a limited period of 3 months. I felt that this was a reasonable position to adopt.
In addition, the Council amended its procedures and documentation to prevent a similar type of problem arising in the future.
Opportunity to appeal denied
In the area of planning administration, I have received complaints concerning the failure of planning authorities to notify interested parties of planning decisions in sufficient time to allow them to lodge appeals against these decisions. In such cases it has been my practice to ask the planning authority to review its actions and to consider the question of offering some form of redress to the complainant in respect of the loss of the opportunity to exercise their statutory right of appeal to An Bord Pleanála. Among the issues I might expect a planning authority to consider are:
- an acknowledgement by the planning authority of its responsibility for the oversight in failing to notify the interested party or parties;
- offering an apology for the oversight;
- a review of its procedures for logging objections against planning applications and notifying objectors of decisions;
- payment either directly to the complainant for costs incurred by him/her in pursuing the matter with the planning authority or a contribution towards some community works or planting in the area in which the complainant lives;
- financial compensation for the loss of opportunity to lodge an appeal.
In relation to the loss of an opportunity to appeal I made the following comment in my 1999 Annual Report:
“Financial compensation cannot adequately compensate where the opportunity to object to a proposed development - which is a fundamental aspect of our planning system - has been lost. I will take a very critical approach in future if similar practices come to light in this or any other local authority.”
I have taken the view that the loss of such an opportunity is serious maladministration for which compensation should be payable as a means of providing at least some degree of redress for the planning authority’s omission. Typically, I have recommended payments up to Ä700 where I have found that interested parties have been deprived of the opportunity to lodge an objection to a planning decision because of an administrative failing on the part of the planning authority. I have not yet encountered a case where there was prima facie evidence that a planning permission might not have succeeded at the Bord Pleanála stage or may have been subject to particular conditions if an objection had been lodged by a person adversely affected by the permission. Obviously this would raise more complicated questions in relation to appropriate redress.
Compensation for costs incurred
When a person feels aggrieved at a decision of a public body and decides to make a complaint he/she engages in a process which sometimes can be daunting and which may require persistence and conviction to achieve a resolution. There will often be a formidable power imbalance in this type of process and, depending on the nature of the complaint, the person taking on the public body may need to seek professional advice perhaps from a solicitor, accountant, architect or engineer in order to vindicate his or her position. If, at the end of this process, the decision of the body is reversed or varied the question of refunding costs incurred in obtaining professional advice should form part of the public body’s redress proposals.
Time and trouble payments
Writing letters, making telephone calls, carrying out interviews, research and getting legal or other professional advice are integral parts of the complaint process. These and other related activities involve time and trouble on the part of the complainant. These activities can also give rise to costs in the form of postage and telephone charges, travel expenses and the purchase of materials. Compensation in the form of payments for time and trouble reasonably expended in pursuing the complaint and associated vouched costs should always form part of any proposed compensation arrangement. The level of time and trouble payments would normally range from €100 up to €500 but could in exceptional circumstances go beyond this range. An important factor in considering such payments would be the attitude and approach of the public body in dealing with the initial complaint and whether or not it objectively reviewed its original decision.
Conclusion
I have set out above as a guide some instances where redress should apply - there are many others. Redress should be available to all individuals who have a justified complaint and not only to those who make a complaint to me. In considering what type of redress might be appropriate in any given situation, public bodies should take into account what steps are required to restore the party concerned to the position he or she would have been if the fault had not occurred. Imagination and creativity should be employed in providing suitable redress and, indeed, I have complimented particular public bodies in this and in previous Annual Reports for adopting an innovative approach to redress. In some cases it may not always be possible to reach agreement between the body and the affected person as to the most appropriate level of redress. I have had cases where the complainant’s level of expectation has been unreasonably high and where my recommendations for redress have not proved acceptable. There may be cases, from time to time - whether involving my Office or not - where the gap between the public body’s estimation of redress and the complainant’s may require the use of professionally qualified mediators or arbitrators rather than resulting in a “stand off” with litigation being the only alternative.