The Principle of Proportionality
In any interaction between a public body and a member of the public the principle of proportionality requires that there must be a reasonable relationship between the objective which a public body seeks to achieve and the means used by the public body to attain that objective. It is an issue which arises most frequently when a public body decides to apply some form of penalty for a breach of rules or procedures. The penalty can take the form of a refusal to pay a grant or a benefit or a decision to impose penalties or other forms of sanction.
In individual cases I will consider issues such as the extent of the breach, if any, on the part of a complainant; whether there are any mitigating circumstances which should have been taken into account before deciding on the penalty; whether the penalty itself was in proportion to the breach and, more fundamentally, whether the public body was entitled under law to impose the penalty in the first place. I will also have regard to whether the penalty imposed has implications or adverse effects for other innocent parties. In essence, I assess whether the public body has acted in a disproportionate manner and if I find that it has then I will ask the public body to review the reasonableness of its decision. I would measure the reasonableness of any decision by reference to the terms of the rules, regulations or legislation under which the decision was made, the nature of the breach in the individual case and the consequences of the decision for the complainant.
In my 1995 Annual Report I set out a list of Principles of Good Administration for the guidance of public bodies in their dealings with the general public. Commenting on the principle of proportionality I said:
"public bodies must ensure that an appropriate balance is achieved particularly in relation to any penalties or adverse effect......this may be of particular interest where a body must decide between the needs of the common good and the rights of a particular individual;"
The Provision of Redress
Where I am satisfied that the principle of proportionality has not been adhered to, I bring this to bear in my assessment of the level and form of redress which I consider appropriate in the case. In some cases this has led me to recommend not only the restoration of the benefit or entitlement which was denied in the first place but also additional financial compensation. The provision of an appropriate remedy for a person adversely affected by maladministration on the part of a public body is central to the process of complaint resolution. In this regard it is worth noting that the Ombudsman Act, 1980 allows me to recommend "... that measures or specified measures be taken to remedy, mitigate or alter the adverse affect of the (public body’s) action...". There are in fact no financial or other limits on what I may recommend in an individual case.
In this Chapter I provide details of complaints which I have dealt with in the past year where I concluded that there had been breaches of the principle of proportionality and I outline the redress I obtained for the complainant in each case. I also give details of other cases in which complainants received appropriate levels of redress to remedy adverse effect where public bodies were at fault.
The Revenue Commissioners
Formal apology as a form of redress
In my Annual Report 2001, I stressed the importance of an apology as a remedy and noted that it is often overlooked when attempting to resolve complaints. As I said then, "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". The following case was resolved to the satisfaction of the complainant by the public body issuing an apology for its actions.
The complainant had entered into an agreement with the Revenue Commissioners to repay an amount of money by way of instalments. Although the agreement was that the repayment would be made by post-dated cheques, he paid the amounts by bank draft. He subsequently received a solicitor’s letter indicating that he was in breach of the agreement and demanding payment of the full amount outstanding within seven days. Although he continued to make instalment payments by bank draft, he was distressed and annoyed at the treatment he had received from Revenue. He was also concerned that this matter would affect his application for a tax clearance certificate (he was in the process of setting up in business).
Following contact from my Office, Revenue carried out a review. It accepted that the decision to refer the outstanding liability to its solicitors was disproportionate in the circumstances and that such a referral should not have taken place without first notifying the complainant of the intention to take such action. Revenue acknowledged that an error of judgement occurred in the handling of the case. It extended a formal apology to the complainant who was fully satisfied with the outcome of my examination and the apology from Revenue.
Northern Area Health Board
Compensation for time and trouble
The Chairman of a Residents Association complained to me that he had been treated discourteously by the Northern Area Health Board. He had been approached by the Board to see if it could use the Association’s premises as a day centre for psychiatric patients. He subsequently went to considerable trouble to assist the Board by way of holding meetings of the Association, photocopying deeds, supplying copies of documents and telephoning the Board’s officials. Although the Association voted in favour of the proposal, the Board decided the premises was not suitable for its purposes but did not notify the Association of its decision.
It was only after a number of telephone calls that the complainant learned of the Board’s decision not to use the premises. He was passed from one person to another with promises of meetings, which subsequently never materialised, to explain the decision. No apology was forthcoming from the Board and it was not until almost a year after the decision was made, and following contact from my Office, that the Board eventually met with the complainant and apologised to him.
It is a basic principle of good administration that members of the public be treated courteously. I was concerned that the complainant had not only been treated discourteously by the Board but was also out of pocket as a result of his dealings with it. I put it to the Board that the question of financial compensation should be considered in recognition of the manner in which it had dealt with the complainant. The Board subsequently made an ex gratia payment of €1,000 to the Residents Association which was a very satisfactory outcome to the complaint.
The Department of Foreign Affairs
The principle of proportionality applied to penalties
A sanction or penalty applied by a public body should not only be proportionate to the fault or omission on the part of the complainant, it should also be outlined in the relevant legislation or rules. An action taken without proper authority may be, in effect, an abuse of power.
A case of this type which came to my attention during the year involved the Department of Foreign Affairs. I received a complaint from a man whose passport had been withheld by the Department when he disputed a debt which the Department claimed was owed to it. He had fallen ill while resident abroad. The Irish Embassy assisted him in arranging for his return, paying for his flight home under medical supervision. The Department sought to recover the expenditure of approximately €1,270 from the complainant and withheld his passport while awaiting reimbursement.
At the time of my examination of the complaint, the passport had been withheld for eight years. I was particularly concerned that the Department had no specific statutory authority for its action in withholding the passport in circumstances such as this. I noted that the complainant and the Department were in disagreement in relation to the issue of the debt and I suggested to the Department that it might be more appropriate to pursue the recovery of the debt through normal legal procedures. I also asked that the decision to withhold the passport be reviewed.
The Department agreed that the complainant could reapply for passport facilities. I was pleased that the Department also reviewed its hitherto standard practice of withholding passports until debts incurred during repatriation were repaid. The Department notified all Irish Missions abroad that the practice was to cease and that while they should seek commitments from members of the public to repay debts owing to the Department, passports should no longer be retained.
Department of Agriculture and Food - two cases
Inappropriate and disproportionate penalties
(1) A farmer complained that the Department of Agriculture and Food terminated his participation in the Rural Environment Protection Scheme (REPS) and required full reimbursement of monies paid to him prior to an incident in May 2000 which was in breach of the scheme. He had increased the capacity of a slurry tank as part of the work required under his REPS plan. The tank subsequently collapsed and the slurry discharge resulted in a fish kill for which the farmer was prosecuted and found guilty under the Fisheries (Consolidation) Act, 1959. My examination of the case confirmed that the farmer’s actions did constitute a breach of the scheme which warranted the application of a penalty. However, I did not accept that the appropriate penalty had been applied.
I noted that the terms and conditions of the 1999 scheme, which was the relevant scheme in this case, did not make any reference to convictions under the Fisheries (Consolidation) Act, 1959. The penalty schedule of the scheme set out a penalty in respect of waste discharging into watercourses whereby 100% of the grant due in the year of the breach of the scheme would be withheld. However, a much more severe penalty had been applied in that the Department sought full reimbursement of all monies already paid and in addition, the Department decided to end the farmer’s participation in REPS. This more severe penalty had been provided for in the conditions of an earlier scheme which applied at the time the farmer submitted his REPS plan in 1998, but he had submitted a revised plan in August 1999, which was approved by the Department. The scheme provides that an individual’s REPS plan is governed by the conditions in force at the time the plan is approved by the Department. In other similar cases, the Department had applied the penalty provided for in the scheme in force at the time of the inspection during which the breach was discovered.
I was concerned that there was a departure from the penalty provisions of the 1999 scheme and I asked the Department to review the matter. In its response the Department said that the Minister for Agriculture and Food reserved the right to recoup all monies from participants if they failed to abide by the conditions of the scheme. The Department was of the opinion that the nature of the breach of the scheme in this case was serious enough to warrant recoupment of all funds granted and to terminate participation in REPS.
Water pollution and fish kills are, of course, in total contravention of the spirit of the scheme which is designed to establish good farming practices and protect wildlife habitats. However, in deference to my views on the appropriate penalty in the case, the Department revised its decision and agreed to apply a 100% penalty which entailed withholding the grant for the third year of the agreement only rather than seeking recoupment of all monies paid. It was also agreed that the farmer could continue to participate in the scheme, subject to an inspection by the Department to confirm his compliance with the terms of the agreement.
(2) Another case involving the Rural Environment Protection Scheme (REPS) and an inordinately severe penalty was brought to my attention during the year. The complainant was an organic farmer receiving payments under REPS. Following an inspection of his farm he was found to be in breach of the rules and his organic farming licence was withdrawn with effect from August 1999, by the Irish Organic Farmers and Growers Association. The Department of Agriculture and Food withheld payments for organic farming which had been due to be paid at the time for 1998/99 (his fifth year in the scheme) and requested the farmer to refund payments already made to him for all previous years along with interest on those payments.
The complainant felt that the Department’s stance was unfair, as he had been properly licensed and approved for organic farming for the five years prior to the withdrawal of the licence. He appealed the Department’s decision and, when no favourable response was forthcoming, he complained to me about the matter. I found that the terms and conditions of the 1994 scheme which applied in this case did not provide for the recoupment of monies paid out in previous years for periods where a valid organic licence was held. I asked the Department to explain the basis for the decision to recoup the payments for the years prior to 1999.
The Department reviewed the case and decided to overturn its decision to seek full recoupment of all monies paid to the complainant. The only payment to be withheld was that which was due from the date of withdrawal of the licence in August 1999. The farmer was subsequently paid his fifth year organic payment and two months of the sixth year (up to the date of the withdrawal of the licence). He was also refunded monies which he had claimed under other schemes and which the Department had withheld to offset the REPS overpayment they had raised against him. In addition, the Department reviewed all similar cases to ensure consistency of approach where overpayments had occurred. This had limited application as the 1994 REPS scheme was the only one which did not contain a provision allowing the Department to recoup all monies paid under the scheme where an organic farming licence had been withdrawn. Subsequent schemes did contain such a provision.
Fingal County Council
Acting fairly by applying the correct penalty
I received a complaint on behalf of a woman from Iraq who had lived in Ireland for eight years and who had been struck off the housing list by Fingal County Council after she had refused three offers of accommodation. She claimed that on each occasion when she went to view the accommodation she was subjected to racial abuse and intimidation which led her to refuse the three offers. I examined the accommodation file and Fingal County Council’s Scheme of Letting Priorities which is the scheme governing the allocation of public housing in the Fingal area. It was clear from the files, and indeed accepted by the complainant, that she did refuse accommodation three times. It was also clear from the files that she had been offered accommodation in the locations which she had specified in her housing application to the Council. But there was no evidence on the Council’s files that she told the Council on each occasion of the reasons why she had refused the accommodation offers.
When I examined the file I noticed that at the time she refused the third offer of accommodation, Fingal’s Scheme of Letting Priorities did not state that a person would be dropped from the housing list after three refusals. According to the Scheme as it existed at the time, after three refusals, an applicant’s date of application would change to the date of the third refusal - in other words, the applicant would go to the bottom of the list. The Scheme was changed two months after the complainant’s third refusal. Only from that point did the Scheme state that after a third refusal a person would be dropped from the housing list for two years.
I wrote to the Council pointing out that the complainant had not been informed that she would be removed from the housing list after a third refusal. She had, in fact, been informed that the date of receipt of her application would be changed to the date of refusal. I considered it would be unfair to her if the rules were changed after her third refusal, and then applied to her retrospectively. I asked the Council to review its decision.
Fingal County Council agreed to reinstate the complainant on the housing list at her old position and make her one more offer of accommodation. If she refused this offer of accommodation, she would be dropped from the housing list for two years in accordance with the new Scheme of Letting Priorities. I considered that this was a reasonable response from the Council.