Department of Agriculture, Food and Rural Development/Dúchas
Compensation for loss of grant under the Rural Environment Protection Scheme
A farmer joined the Rural Environment Protection Scheme (REPS) in 1997. Under this scheme applicants receive a premium if they manage their land within the terms of a management plan approved by the Department of Agriculture, Food and Rural Development. Under REPS an additional premium is payable if any part of the land comes within the boundaries of a Special Area of Conservation (SAC) or a National Heritage Area (NHA). SACs are designated by Dúchas, the Heritage Service, in the Department of Arts, Heritage, Gaeltacht and the Islands under the European Council Directive on the Environment, 92/43/EEC.
In 1997 the farmer enquired of Dúchas if any of his land came within the boundaries of an NHA or an SAC. He was informed that none of his land did. However, in 1999 he was told that Dúchas had erred and that, in fact, a small portion of his land came within a NHA. He then sought retrospective payment of the additional premia for the three years during which he had been a participant in REPS. The Department refused to pay the additional premia claiming that it could not make retrospective payments under the terms of REPS.
The Department took the line that the farmer had been paid in accordance with the terms and conditions of REPS and that there was no provision within the scheme for retrospective payments. The Department had paid the additional premium once it had been advised of the correct position and, it argued, had acted correctly. I then turned my attention to Dúchas and I asked it for a report outlining its role in the case. I concluded that the error by Dúchas gave rise to the loss of three years premia and that, in the interests of good administration, the complainant should be compensated by Dúchas. This was accepted by Dúchas and it made a payment of €4673 (£3,680) to the farmer on an ex gratia basis.
Department of Social, Community and Family Affairs
Re-instatement of Deserted Wife’s Benefit
I received two complaints regarding the failure of the Department to advise claimants fully of the negative implications of switching from one social welfare payment to another. In both cases, the complainants had asked the Department to transfer them from Deserted Wife’s Benefit (DWB) to One Parent Family Payment (OPFP) in order to allow them participate on Community Employment (CE) schemes, as DWB was not a qualifying payment for participation.
OPFP is payable to a person with a dependent child, i.e., a child under 18 years of age (or 22 years of age if in full-time education). It is also means tested, unlike DWB. Both women lost their entitlement to OPFP when their youngest child reached 18 years of age, as they were no longer in full-time education. They argued that this was unfair, as their DWB payment was awarded because they were deserted, and this remained the position. Both complainants found themselves without financial support for their unchanged status for over a year. They said that they would not have transferred to OPFP if the Department had provided them with full information on the adverse consequences of the transfer.
I raised these issues with the Department and requested a review of both cases. It said that both complainants’ DWB entitlement had been restored as a result of an agreement with the Department of Enterprise, Trade and Employment on 5 November 2000 to relax the qualifying criteria for participation on CE schemes. This allowed DWB recipients with children to qualify. However, the Department did not address the fact that both complainants had been without a social welfare payment for a period of at least 12 months despite still meeting the qualifying conditions for DWB.
I pointed out to the Department that the only reason why the complainants had transferred from DWB to OPFP, was to meet the requirements of the CE scheme. I believed that they had been adversely affected by virtue of having to satisfy these requirements, and by the failure of the Department to advise them in advance of the implications of the transfer from DWB. The Department reviewed both cases and re-instated their DWB entitlement from the date they transferred to OPFP. The arrears amounted to €4,773 (£3,759) and €3,681 (£2899) respectively. In addition the Department advised that it would review any other similar cases and pay appropriate arrears to those individuals also.
Pre-1953 Pension Awarded.
Since 5 May 2000, people over 66 years of age, with at least 260 (5 years) PRSI contributions paid either solely before 1953 or both before and after 1953, may qualify for the special half-rate Contributory Old Age Pension (COAP). At least one contribution had to be paid or credited before 1953. In a case brought to me a woman had over 260 PRSI contributions but none were paid or credited before 1953. As a result, her claim for the pension was refused.
The complainant said that she had worked prior to 1953 and I asked the Department to check her records. Central Records Section traced an old insurance number, with pre-1953 contributions, which it believed to be the complainant’s. However, before a decision could be made they needed her to verify insurance details recorded at the time the contributions were made. The information provided by the complainant matched that on the record. As a result the Department awarded a pre-1953 COAP together with arrears of €4,734 (£3,728).
Disability Benefit
Over the past year I have received a small number of complaints concerning the entitlement of individuals to retain payment of Disability Benefit (DB), while at the same time engaging in part-time work in the nature of rehabilitation or occupational therapy. One particular complaint provides an example of the problems which can arise.
The woman in question was in receipt of DB from the Department. She was anxious to return to the workplace on a part-time basis, with a view to resuming full-time work as soon as possible thereafter. The regulations governing the payment of DB provide that a person may work part-time and continue to receive DB in certain circumstances, provided the Department has granted exemption from Rule 5 of the Rules of Behaviour governing the receipt of DB. She applied for the exemption but was refused.
Rule 5 of the Rules of Behaviour provides that a person shall not engage in work while claiming DB unless it is, for example, light work for which no remuneration is paid, work undertaken primarily as a part of treatment while an inpatient in a hospital or similar institution or work that is charitable in character and the weekly pay is less than €42.28 (£33.30). Article 15(3)(b) of the regulations provides that a person may, with the prior written permission of an officer of the Minister, be exempted from the operation of Rule 5 for a specified period in which he/she is engaged in part-time work in the nature of rehabilitation or occupational therapy. The nub of the complaint was whether the part-time work which the applicant had undertaken could be classified as being in the nature of rehabilitation or occupational therapy. The decision was one for an officer of the Minister rather than for a Deciding Officer whose decision would be appealable to the Social Welfare Appeals Office.
The position adopted by the Department was that a decision, as to whether any particular work is regarded as rehabilitative or therapeutic in the context of an individual application, is based on the advice of the Chief Medical Adviser (CMA) who is the arbiter of any medical opinion furnished by an applicant. The regulations do not provide any guidance as to how work in the nature of rehabilitation or occupational therapy should be interpreted, nor do they specify that any such interpretation is a matter solely of medical opinion. In my examination of the case, I noted that the administrative staff did not attempt to balance the advice of the CMA against the opinions furnished by the applicant’s medical advisers. The Department’s officials took the view that, as they have no medical expertise, they cannot challenge the advice of the CMA in cases such as this. This appeared to be in conflict with the Department’s guidelines to its staff in the matter which provide that:
“When the completed forms, etc., are received in Disability Benefits Section they are forwarded with the claim papers to the Department’s Chief Medical Adviser for his opinion on the rehabilitative aspect of the proposed employment/training. An Officer in Disability Benefits will then make a decision based on all the facts of an individual case, including advice from the Chief Medical Adviser, the person’s GP, letter from employer/training organisation and any recommendation received from the National Rehabilitation Board. The decision is an administrative one.”
The position adopted by the administrative staff meant that there was no effective independent appeal against a decision to refuse an application for exemption, since any appeal is referred back to the person who effectively made the original decision (the CMA) and the administrative staff, again, accept his advice/decision.
Following an investigation I concluded that the original decision to refuse the application for exemption from the Rules of Behaviour was not unreasonable. However, in relation to subsequent reviews by administrative staff, regard was had only to the advice of the Department’s CMA and did not give adequate consideration to the additional evidence submitted on behalf of the applicant. This appeared to be inconsistent with the procedures set out in the Department’s guidance notes, resulting in the evidence put forward by the complainant, to the effect that the job in question was rehabilitative in character, not being addressed in any convincing manner by the Department.
Following further discussion with the Department, it decided to introduce improved procedures for dealing with such cases. In future, when an applicant seeks a review of a decision to refuse exemption:
- the reasons for the opinion of the Medical Assessor (MA) or CMA will be set out in full and notified to the applicant;
- the applicant’s consent to contact the employer will be sought where appropriate;
- the MA or CMA will contact the applicant’s doctor/consultant in relation to medical reports submitted in support of the application, if considered appropriate;
- if the reasons for the opinion of the MA/CMA are unclear or seem inconsistent, the officer deciding the case will ask for clarification before making a decision.
The Department also reviewed its decision in relation to the complainant and because of the special circumstances of her case, agreed to pay to her DB estimated at €1,778 (£1,400).
Department of Education and Science
Superannuation Rules
My Office examined a complaint against the Department of Education and Science concerning the application of the superannuation rules to a former teacher employed by a particular Vocational Education Committee (VEC). Under the Ombudsman Act, 1980 my Office cannot examine complaints regarding the rules governing superannuation. However complaints concerning the administration of these rules are within remit.
The complainant was a teacher with a VEC who had taken early retirement on health grounds. He was granted 1.043 years of added service for having to retire on grounds of infirmity. Under the terms of an agreement with teacher unions under the Programme for Competitiveness and Work, teachers were granted a Long Service Allowance of €1,270 (£1,000) per annum which the teacher was in receipt of when he retired. As this allowance does not form part of incremental salary its inclusion in pensionable remuneration is subject to averaging, viz. if it has been held for the last three years of pensionable service it is included in full with basic salary; if it has been held for a lesser period the amount included in pensionable remuneration is the amount of the allowance multiplied by No of days held / 1.095.
The complainant argued that, in calculating the number of days he had held the allowance, account should have been taken of the 1.043 years of added service. The Department initially rejected this contention on the basis that the rules did not permit a departure from the requirement that allowances must be averaged over the last three years of actual service even where an officer retires on ill-health grounds. My Office requested that the Department review its position on the basis that Article 84(2)(b)(ii)(II) of S.I. 455 of 1998 (Local Government Superannuation) (Consolidation Scheme, 1998) provides that the annual average of the allowance to be used would be that which ‘would have been so determined if... he or she had continued in office until the attainment of the minimum retiring age’.
The Department accepted this argument and decided to sanction the inclusion of the period between the teacher’s retirement and the date at which he reached the minimum retirement age in the averaging of his entitlements. It advised the VEC of this and it has now issued a comprehensive information booklet about the Vocational Teachers Superannuatiuon Scheme which makes it clear that in the case of a teacher who dies in service or retires on ill health an allowance will not be averaged if the teacher has sufficient potential service to age 60 to avoid averaging.
School Transport
My Office examined a complaint against the Department of Education and Science from the parents of a child who had been refused free school transport on the grounds that the family lived less than two miles from the school. The Primary School Transport Scheme allows free transport to pupils who live more than two miles from the nearest suitable national school.
The parents disputed the Department’s conclusion and maintained that they lived more than two miles from the school. The Department said that the distance had been measured by Bus Éireann, which provides the service, on two occasions with a van and that on both occasions it found that the distance was under two miles. The parents were not satisfied with the accuracy of the measurement. They obtained a calibrated wheel, which they maintained provided a more accurate measurement and informed the Department of the results. The Department informed them that it accepted Bus Éireann’s measurements and that, accordingly, the child was not entitled to free school transport.
I believe that parents are entitled to have confidence that, where a distance is required to be measured in order to determine whether an application meets the eligibility criteria of a scheme, the method of measurement used should be seen to be fair and accurate. Where a dispute arises in relation to a distance which has been measured and is found to have only marginally failed to meet the necessary criterion, as in this case, I consider that any appeal lodged should be dealt with by an independent third party using an accurate method of evaluation. Accordingly, I requested the Department to obtain an independent measurement in this case. I also asked it to apply this procedure in any other marginal cases where the distance involved was in dispute.
The Department responded by saying that, in view of the length of time involved and in order to avoid any further distress to the family, its measurement would be accepted and the children would be deemed to be fully eligible for school transport. The Department also agreed that, where the distance from home to school is marginally under the two mile limit and is the subject of dispute, the services of an independent third party will be used to resolve the matter in the future.
The Revenue Commissioners
Tax credit refused
A man applied for the Home Carer’s tax credit in respect of his wife who was wheelchair bound. This tax credit may be claimed by a married couple where one spouse cares for one or more dependent persons. The complainant was informed by Revenue that he was not entitled to the credit because the dependent in his case was his spouse. The complainant was afforded the opportunity of challenging Revenue’s interpretation through an appeal to the Appeal Commissioners.
The Revenue explained that ‘dependent person’ is defined in section 466A of the Taxes Consolidation Act, 1997 and means a person ‘other than the spouse of a qualifying claimant’ caring for a child, a person aged 65 years or over or a person permanently incapacitated by reason of mental or physical infirmity. I accepted that the ruling of the Revenue Commissioners in this instance appeared to be accordance with the relevant legislation, however I remain concerned that some carers are being discriminated against solely because the dependent person for whom they care is a spouse. I have conveyed my views to the Revenue Commissioners.
Capital Acquisitions Tax.
Two people wrote to me about difficulties they had experienced with regard to Capital Acquisitions Tax. Both individuals had been reared as adopted children but, in one case, a technical problem prevented the child from being legally adopted and, in the other, documentation certifying that he had been adopted could not be found.
Both inherited property on the death of their ‘adoptive’ parents. However, because of the problems associated with the ‘adoption’ in each case they were not entitled to the tax-free threshold entitlement of a child in relation to the inheritance received. In one case this resulted in an Inheritance Tax liability in excess of €63,487 (£50,000). In the other it meant that the beneficiary incurred a liability of €4,315 (£3,398) when he inherited the house in which he had lived for twenty years and in which he continued to live. In the latter case, because of the complainant’s straitened circumstances, the Revenue had already agreed to postpone the collection of the tax but it also advised that it could not postpone the collection indefinitely.
I wrote to the Revenue about both cases and I am pleased to say that, having reviewed the circumstances of each case it agreed that both complainants should be entitled to the full tax free threshold which exempted both from liability to Capital Acquisitions Tax on their inheritance.
Health Boards
Western Health Board
This complaint centred on the care given to the complainant’s mother in Merlin Park Regional Hospital, Galway. There were two aspects viz. a sore which her mother developed while she was in hospital and the manner in which she was discharged from the hospital.
(i) The sore Sores, such as the one in question, generally develop as a result of pressure on vulnerable parts of the body, even in a patient who is not bed-ridden. It is recognised that hospital patients, particularly if they are elderly, are especially vulnerable to pressure sores which can sometimes develop even if the patient is given appropriate care.
An internationally recognised and widely used system for preventing and treating pressure sores is the “Waterlow Pressure Sore Prevention/Treatment Policy”. This involves assessing regularly how likely a patient is to develop pressure sores by reference to recognised risk factors such as age, immobility, being under/overweight, etc. Once the patient’s “risk category” has been established, appropriate pressure relieving aids and nursing procedures can be employed.
The hospital advised my Office that it had detailed procedures in place using the Waterlow system at the material time. It further advised that a Waterlow Scale assessment had been carried out on the complainant’s mother on the day that she was admitted to hospital. Unfortunately, the hospital was not able to locate this assessment. However, the nursing notes, which were provided to and examined by my Office, were very comprehensive and indicated that her skin was inspected when she was admitted and that no broken areas were found. Her pressure areas were subsequently checked and appeared to be satisfactory. Subsequently a water cushion was used as a pressure-relieving aid. Another Waterlow Scale assessment was carried out, a special “Nimbus” mattress was brought into operation and regular dressings were carried out as prescribed by the doctors. The nursing notes for the remainder of her stay show that close attention continued to be paid to the pressure area and prescribed treatment continued to be given.
I understood the complainant’s concern that her mother developed a pressure sore while she was in the hospital, particularly as it continued to cause her problems for a long time after her discharge. However, I was satisfied that the hospital had appropriate procedures in place for the prevention and treatment of pressure sores and that these were properly implemented.
(ii) Discharge from hospital
The complainant considered that her mother had been discharged from hospital before she was medically fit. Decisions about whether a patient is fit to be discharged from hospital are made by doctors in the exercise of their clinical judgment. By law, I cannot investigate actions taken by persons acting on behalf of health boards and solely in the exercise of clinical judgement. However, I considered whether proper procedures had been followed in discharging the complainant’s mother from hospital.
It is good practice to start planning in good time for a patient’s discharge by assessing how well he/she will be able to cope, what support he/she will need and discussing this, as appropriate, with those involved in their care. It appeared from the available evidence in this case that the decision to discharge took proper account of her mother’s mobility, whether the public health nurse would be able to dress her pressure sore, her need for continued medication and was discussed beforehand with her family. In the circumstances I was satisfied that the decision to discharge her mother from hospital was properly made, within accepted procedures, by doctors in the exercise of their clinical judgement.
Northern Area Health Board
This complaint involved interaction between my Office, the Northern Area Health Board (NAHB) and Beaumont Hospital. A man complained to me about the admittance of his wife through the Accident and Emergency Unit (A & E) at Beaumont. He said she had been prematurely discharged and, on the advice of a consultant, had undergone tests at the Mater Private Hospital which resulted in her being charged the sum of €914 (£720). His wife was subsequently re-admitted through A & E at Beaumont on a number of occasions before the cause of her illness was diagnosed. The complainant was a pensioner and was having great difficulty in meeting the costs incurred, or receiving a satisfactory response from either the Hospital or the Board in the matter.
While Beaumont Hospital is a public hospital, being a body set up under the Health (Corporate Bodies) Act, 1961 it is not within the my jurisdiction. Furthermore, although located in its functional area, the NAHB does not have direct management responsibility for the hospital. However, the NAHB is subject to the jurisdiction of the Ombudsman. Furthermore, there has been a shift in responsibilities in relation to the provisions of hospital services in the greater Dublin area following the enactment of the Health (Eastern Regional Health Authority) Act, 1999. The Authority is charged with the strategic planning, commissioning and funding of services through service agreements with the new area health boards, the public/voluntary hospitals and other voluntary agencies. It is also charged with monitoring and evaluating the services provided by these bodies. The NAHB is charged with the delivery, within its functional area, of the services previously provided by the Eastern Health Board. Having regard to the foregoing I approached the NAHB with a request that it review the matter. It responded by confirming that it had investigated the circumstances surrounding the consultation at Beaumont and the subsequent decision of the complainant’s wife to avail of treatment in the Mater Private Hospital. The NAHB also arranged for the Superintendent Community Welfare Officer to visit the complainant. In the light of his report on the personal and financial circumstances of the complainant, the NAHB agreed to refund the cost of the treatment in the Mater, with the proviso that should similar circumstances arise in the future, the complainant should avail of the in-patient care available in the public hospital and comply with arrangements made by the public hospital regarding care or referrals.
While this was a satisfactory outcome insofar as the complainant was concerned, it highlights once again the difficulties faced by any individual in pursuing a complaint with me about publicly funded hospital services provided by hospitals which are outside my jurisdiction.
Local Authorities
Compassionate approach taken by local authority to grant application
Due to her husband’s illness and her own personal circumstances, an elderly woman forgot to apply to Louth County Council for a Disabled Person’s Grant. The grant was for the provision of a bedroom/en-suite at the ground floor level to accommodate her invalid husband. The work was commenced while her husband was alive but he died one week after the work was completed. The complainant applied to the Council for a Disabled Person’s Grant five months after her husband had died. The cost of the project was Ä20,316 (£16,000). The Council refused the application.
Disabled Persons Grant Scheme Article 4 of the Housing (Disabled Persons and Essential Repairs Grants) Regulations, 1993 (S.I. No. 262 of 1993) provides that:
“(1) A housing authority may pay a grant to a person for the provision of additional accommodation or the carrying out of works of adaptation that, in the opinion of the authority, are reasonably necessary for the purpose of rendering a house more suitable for the accommodation of a member of the household who is.. (a) physically handicapped and the works are necessary for his proper accommodation ...”
It was clear that the Council in refusing the grant was complying strictly with the terms of the Disabled Persons Grant Scheme, particularly Article 4 of the Regulations. Notwithstanding this, I tended to the view that the Council, in exercising its discretionary powers, should not lose sight of the human dimension to this complaint.
The facts of the case were that:
- the complainant undertook major capital works to her private house prior to notifying the Council that she intended carrying them out,
- she completed the works prior to having applied to the Council for the relevant grant,
- she seemed to have done this on foot of a suggestion from her doctor, in order to accommodate her ailing husband,
- she did not apply for the grant while the works were underway or immediately the works were completed,
- she applied for the grant five months after her husband had passed away.
There is no doubt about the requirement that capital works, carried out before a prior inspection by a local authority, do not qualify for a grant under the scheme and it is not my intention to have this requirement undermined in any way. However, I feel that the merits of each case should be carefully assessed before reaching a decision and, in my experience, this was a unique case. In the circumstances, I felt that the Council should take a more flexible, compassionate, humane and less legalistic approach in this particular instance.
In this particular case I felt that the complainant:
- acted in good faith and in the best interests of her late husband in undertaking the project,
- simply did not apply in time for the grant due to her mental and physical state, (a fact confirmed by her doctor),
- lost her husband one week after the project was completed,
- was on a very low income,
- in poor health and
- faced extreme economic hardship in repaying a Credit Union loan of €7,618 (£6,000) and the balance of €12,697 (£10,000) due to the builder.
In the circumstances, I asked the Council to review its earlier decision particularly having regard to the economic hardship and the unique conditions which this case presented. The Council agreed and made arrangements to pay the appropriate grant of Ä14,284 (£11,250) to the complainant. This is a clear example of a Council using its discretion to adopt a compassionate approach to a deserving and unique case. I compliment the County Manager and his staff for adopting such a compassionate approach. This is an example of the type of approach I recommended in my Guide to Standards of Best Practice for Public Servants where I encouraged public bodies to acknowledge that rules and regulations, while important in ensuring fairness, should not be applied so rigidly or inflexibly as to create inequity.
Refusal to sell a house to local authority tenants
A family from the travelling community applied to their local authority, in February 2000, to purchase the Council house in which they were living. At that stage, they had been residing in the property for almost five years. They had also carried out extensive improvements to the property at their own expense. These repairs included the installation of new double glazed windows, new driveway, new bathroom and fitted kitchen. The Council refused to sell the house to the family on the basis that it wished to maintain control of the house through the tenancy agreement. The house was located in a rural area.
Houses are sold by local authorities in accordance with the provisions of Section 90 of the Housing Act, 1966, as substituted by Section 26 of the Housing (Miscellaneous Provisions) Act, 1992. Under the relevant legislation the decision to sell a house to a tenant is at the Council’s discretion.
With the assistance of the Council’s files, photographs and a site map, I briefed myself on the history of the tenancy. I noted that, over the years, the tenancy had been the subject of complaints and their previous tenancy in a housing estate had provoked some local disturbances involving other residents in that housing estate. As a consequence of this, the Council wished to retain control of the complainants’ current house through the tenancy agreement. It said that this was to enable it to deal with any issues that might arise. However, I was concerned that the Council did not give any indication as to how long it wished to maintain this control. It appeared to me that, if the Council persisted with this line of argument, the complainants might never be allowed to purchase the house for fear of some future action. I was concerned that the Council’s decision to refuse to sell the house to the complainants could be perceived as being disproportionate when set against the observed and recorded experience of the complainant’s use of the property over the past few years. On this point I noted that the last complaint the Council received about the family was in 1997, three years earlier, and involved the keeping of dogs on the site.
Circular letter HRT6/95 of the Department of the Environment and Local Government provides that local authorities may, at their discretion, exclude houses from the tenant purchase scheme which, in their view, ought not be sold for reasons of good estate management. From my examination of the Council’s file, I had a number of concerns as to whether there was sufficient or reasonable evidence before the Council for it to refuse the sale of the property on estate management grounds. I tended to the view that the investment made by the family in repairing and improving the house, at their own expense, was not the action of a family intent on creating or promoting anti-social activity in its neighbourhood.
In addition, from an examination of the photographs and site location map, it was clear to me that the house is located in a remote rural area, where there is a dispersed settlement pattern and very few, if any, close neighbours. Accordingly, I was concerned that the Council’s decision to refuse to sell the house, for reasons of good estate management, was not soundly based.
Another of my concerns about this case was whether the Council was applying a higher threshold of compliance by the family to the terms of their tenancy agreement than it would apply to tenancies generally. In the circumstances, I arranged for some of my staff to meet with the Council to convey my preliminary views on the case and to explore the various issues which the complaint had highlighted.
Following that meeting, the Council agreed to sell the house to the family, subject to the inclusion of a special condition in the transfer order. This condition stipulated that no animals, including horses, were to be kept on the site. I was satisfied that this condition was not unreasonable having regard to the history of the case.
River erosion
I received a complaint from a woman whose garden was being eroded as a result of work which, she alleged, was undertaken by Laois County Council on the Owenbeg River which runs at the end of her garden.
In 1994, the Council carried out some drainage works on the Boleybeg River Drainage District. The Council indicated that, when this drainage work was completed, there was a surplus in the Council’s budget. It decided to spend this money to remove silt and stones which were blocking two of the opes of the Garrintaggart Bridge, which spans the Owenbeg River. During the course of these latter works, the Council carried out further drainage works 300 to 400 metres up river from the bridge, including that section of river outside the woman’s property. This section of river does not form part of the Boleybeg Drainage District. One of the effects of the Council’s actions was to cause the river water to flow directly towards her property, thus undermining the boundary ditch, her garden fencing and the garden itself where her septic tank and percolation area was located. A major concern was that, if the septic tank percolation area was eroded, there was the possibility of pollution to the river.
It appeared to me that, while the Council had a statutory duty to drain the Boleybeg River Drainage District, it did not have any statutory authority to carry out the specific drainage works to the Owenbeg River in the vicinity of the complainant’s property. This is because the Owenbeg River is outside the Boleybeg Drainage District Area. In the circumstances, having regard to the impact these works were having on the complainant’s garden, I asked the Council to outline the plans it would be prepared to consider, possibly in consultation with the complainant, to minimise the river erosion activity which was affecting her property.
The Council considered my request and stated that the works were carried out in good faith and were specifically designed to alleviate difficulties which were being experienced at the Garrintaggart Bridge at that time. However, it indicated that it was prepared to carry out remedial works on the section of the river alongside the complainant’s garden on a strictly “without prejudice”, once off basis. This involved the restoration of the garden to its original state and the reinforcement of the river bank with large boulders.
I cite this case as an good example of a local authority being prepared to arrive at a mutually agreeable solution to a genuine complaint. In this particular case the objective was to try to match, as carefully as possible, the complainant’s needs and circumstances to the remedy that was most appropriate to the situation while at the same time recognising the Council’s claim that, at all times, it acted in good faith in undertaking the works in the vicinity of the Garrintaggart Bridge.