Ombudsman Procedures for conducting an investigation

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1. Introduction

1.1. The Ombudsman is an independent office holder, appointed under the Ombudsman Act 1980 (the “Act”) . The Ombudsman investigates complaints from members of the public who believe they have been unfairly treated by certain public service providers (“PSPs”). The Ombudsman also conducts investigations on his own motion where it appears to him, having regard to all the circumstances, that such an investigation would be warranted. The Ombudsman may also investigate complaints about non-compliance with Part 3 of the Disability Act 2005 . 

1.2.  How we deal with complaints

1.3. While the Act sets out some of the procedures that apply to investigations, it also provides that “the procedure for conducting an investigation shall be such as the Ombudsman considers appropriate in all the circumstances of the case”. This document sets out the procedures which the Ombudsman and his office will generally follow when conducting an investigation. However, the procedures followed in a particular case may vary depending on the circumstances, and will be proportionate to the nature and circumstances of that case.

1.4. Our goal in every case is to try to resolve complaints and to complete investigations as fairly and effectively as possible. Our overall approach is to seek solutions at the earliest appropriate stage and to avoid legal adversarialism, unless warranted by the specific circumstances. Cases may be resolved at the very beginning of the process (e.g. where the complaint is outside our remit), at an early stage in the process (e.g. where it is clear from an initial report from the PSP that a legislative scheme was applied fairly) or following a longer and more detailed investigative process. Where we cannot assist, we aim to explain why at the earliest stage possible and to signpost the complainant to the most relevant body for their needs. 

1.5. We recognise that those who make complaints to the Ombudsman may already feel that their engagement with a public service body has been unsatisfactory. Mindful of this, we have set out in our Customer Service Charter what complainants can expect from engagement with our office when they make a complaint.

1.6 The Ombudsman Act 1980 was substantially amended by the Ombudsman (Amendment) Act 2012 and has also been amended or modified by a small number of other pieces of legislation. As with other public bodies, the Ombudsman also has duties under section 42 of the Irish Human Rights and Equality Commission Act 2014. For further information about the legislation governing the Ombudsman, see here.

1.7 For further information about the Ombudsman’s functions under the Disability Act 2005, see here

2. Making a complaint 

2.1. The Ombudsman primarily receives complaints through an online form, which is designed to assist complainants to structure their complaint and to provide the relevant information that we need to progress it. However, complaints may also be made by email, by post, by telephone or in person at our offices. The Ombudsman also receives complaints from marginalised groups as part of its Outreach Programme. For our contact details see here.  

2.2. When making a complaint, a complainant should explain: 

  • What they believe the PSP has done wrong
  • How they have been adversely affected as a result
  • What they are looking for to put the matter right.

2.3. Complaints may be made to the Ombudsman by one person on behalf of another person who has been adversely affected by the action of a PSP. For example, a person may make a complaint on behalf of a relative. In such cases, we will seek to obtain the consent of the person who has been adversely affected to deal with their representative on their behalf, if they have the capacity to give such consent. For further information, see our consent policy here.

2.4. If anything makes it difficult for a complainant to use our service, for example, if a complainant has a disability, we will make all reasonable efforts to adapt the way we communicate with the complainant. The Office has also has a designated Access Officer who examines queries and complaints about accessibility to our services, they can be contacted by email at  accessofficer@ombudsman.ie or by telephone at 01 639 5625.

2.5. All new complaints will be acknowledged when received. We aim to acknowledge all complaints within 5 working days. 

3. Initial screening of complaint

3.1. When a complaint is received it will be registered on the Ombudsman’s digital case management system (known as the CRM). Initially the information recorded will comprise the personal details of the complainant, details of the PSP and a copy of the complaint. However, throughout the process all relevant information in respect of the complaint will be included on the CRM. 

3.2. All complaints received will be screened in the first instance. The purpose of the initial screening of complaints is to establish whether complaints fall within the remit of the Ombudsman, whether the Ombudsman must or may decline to investigate the complaint, and to deal with other relevant administrative matters. For further information on who and what the Ombudsman can investigate, see here and here. 

3.3. In general, complaints will be dealt with in the order in which they are received. However, if initial screening identifies an urgent issue (e.g. emergency homelessness), this matter may be dealt with as a priority. Additionally, complaints may be dealt with earlier, for example, where they may be grouped with other complaints on a similar theme. 

3.4. When carrying out initial screening, further information may be required from the complainant or the PSP. We may contact the complainant by email, telephone or letter as appropriate, although hard-copy letters will only be used if no other contact details are available or the complainant has specifically requested correspondence in this form. In the interest of prompt resolution of complaints, we may specify a time limit for the provision of additional information. If that information is not forthcoming and it is not possible to progress the complaint as a result, the complaint may be closed at this stage.  

3.5. If further information is required from the PSP to carry out initial screening, we may contact the PSP by email or telephone, as appropriate. We may require any information, document or thing from the PSP which is, in our opinion, relevant to the investigation, specifying a time limit for response . 

3.6. Following initial screening, a decision may be made to close the complaint on the basis that: 

  • the complaint is outside the remit of the Ombudsman,
  • the Ombudsman must decline to investigate the complaint
  • the Ombudsman has exercised his discretion to decline to investigate the complaint (including where the complaint is premature).

3.7. If a complaint is closed at this stage, a written decision will be provided to the complainant, and where appropriate to the PSP, setting out the reasons for deciding not to investigate. If a complaint is closed on the ground that it is premature, we will explain that the complainant can revert to the Ombudsman if they are not satisfied with the response they receive from the PSP.

3.8. Once it has been established that the complaint can be investigated it will be transferred for investigation (see section 5), unless it can be resolved quickly through early resolution (see section 4). 

3.9. The Ombudsman has statutory powers to require information, documents and things under section 7 of the Ombudsman Act 1980.

4. Early resolution of complaints 

4.1. Our overall approach is to seek solutions at the earliest appropriate stage, in the interest of both the complainant and the PSP. 

4.2. For example, in some cases, we may take the view that there is an action that the PSP could take quickly to resolve a complaint to the satisfaction of the complainant. For example, where the complaint relates to a failure to reply to correspondence, the PSP could reply to the correspondence. Similarly, where the complaint relates to delay, the PSP could deal with the delay. In such cases, we will contact the PSP involved to explain what we think might be done and seek its agreement to take that forward. 

4.3. In other cases, we may be able to provide further information to a complainant based on our knowledge and experience of a PSP or its sector. In such cases, we may consider that it is not proportionate to progress the complaint with the PSP any further. 

4.4. In any case where an early resolution is achieved, we will write to the complainant to explain what has happened and to set out the reasons why their case has been closed. 

5. Investigation of complaints

5.1. Once a complaint has been transferred for investigation, it will be assigned to the next available and suitable caseworker. Assignment of caseworkers to complaints is a matter for the Office to determine. The caseworker will review the complaint, as well as any other similar complaints from the complainant or any other active, related cases, before considering the appropriate  approach to follow in progressing the investigation. 
Engagement with the complainant

5.2. The caseworker will write to the complainant to introduce him/herself, to outline the caseworker’s understanding of the complaint and to advise them of our complaint handling procedures. 

5.3. The caseworker will also: 

  • seek information from the complainant, as appropriate, to understand the complainant’s view of the key issues in the complaint and their expectation of potential outcomes;
  • inform the complainant of the aspects of the complaint that will be considered in the investigation, any aspects which  may or may not be investigated by the Ombudsman and the potential outcomes that are available. 

Engagement with the PSP

5.4. The caseworker may write to the PSP, outlining the aspects of the complaint under investigation. The caseworker may:
• Request a detailed report from the PSP responding to the aspects of the complaint under investigation.
• Require any information, document or thing from the PSP which is, in our opinion, relevant to the investigation . This may include, for example, copies of relevant documents such as the applicant’s file, clinical records, or a complaint file containing copies of letters and emails. 
• Having regard to our public sector duty, request information as to how the body had regard to the need to protect human rights in coming to its decision.

5.5. The PSP will usually be provided with a 3 week period within which to provide a detailed report and/or any relevant information. However, in appropriate cases an extension to the time limit may be allowed in recognition of the time it can take to gather the relevant information. Additional information, documents or things may also be required from the PSP.

5.6. The Ombudsman is independent and impartial in investigating complaints about PSPs. It is acknowledged that caseworkers may build up professional relationships with liaison officers in PSPs about whom complaints are regularly received, which helps progress to be made on cases. However,  this does not impact on the independence and impartiality of the Office. . 

5.7. The manner in which it is appropriate to progress an investigation beyond this initial stage will vary from case to case. For example, in some cases it may be necessary to request a meeting with the PSP to obtain an explanation of its position whereas in others an investigation may be conducted through the examination of documents alone.
Exchange of documents

5.8. The Ombudsman will afford the PSP the opportunity to comment on the complaint under investigation, consistent with section 8(2) of Act and in accordance with fair procedures. However, in general, a copy of the complaint or documents provided by the complainant will not be provided to the PSP as part of the investigation process. 

5.9. Similarly, where appropriate the Ombudsman may afford the complainant an opportunity to address any new issues raised by the PSP if they are material to the Ombudsman’s decision and are matters on which the complainant may be able to comment. However, in general, copies of correspondence or documents provided by the PSP will not be provided to the complainant as part of the investigation process. 

5.10. The Ombudsman aims to have a frank and detailed engagement with all relevant persons. However, documents provided to the Ombudsman by either the complainant or the PSP might contain confidential or irrelevant material. Furthermore, the Ombudsman also notes the provisions as to the secrecy of information under section 9 of the Act. Should a complainant or the PSP request a copy of a document provided by another person, the request will be considered in line with section 9 as well as the circumstances of the particular case.
Time taken to complete investigation

5.11. We investigate complaints as speedily as possible. The time taken to investigate a complaint will depend on how complex it is. In around 75% of cases we make a decision on a complaint in less than 3 months.  In around 90% of cases we reach our decision within 6 months. More complex cases can take longer.

Preliminary views

5.12. When an investigation is nearing its conclusion, and a decision may include a finding or criticism adverse to the PSP, the PSP will be provided with a preliminary view as to the outcome of the investigation and any recommendations that may be made. The purpose of providing a preliminary view is to provide the PSP with an opportunity to comment on the proposed findings and recommendations within a reasonable timeframe, consistent with section 6(6) of the Act. Any response received by the Ombudsman will be carefully considered before reaching a final decision. Should no response be received within the timeframe the case will move immediately to decision.

Reaching a decision

5.13. Decisions of the Ombudsman may be made by caseworkers based on delegated authority . The nature of the case will determine if a recommendation is required in each case and whether the recommendation is made by the caseworker, the Senior Investigator or the Ombudsman personally.

5.14. In broad terms, there are four possible outcomes to an investigation: 

  • Complaint upheld: This is where the Ombudsman finds that the action complained of falls within one of the grounds in section 4(2)(b) of the Act.
  • Complaint partially upheld: This is where the Ombudsman finds that some, but not all, of the action complained of falls within one of the grounds in section 4(2)(b) of the Act.
  • Complaint not upheld: This is where the Ombudsman finds that the action complained of does not fall within one of the grounds in section 4(2)(b) of the Act. 
  • Assistance provided: This is where the complaint has been closed through the provision of assistance or further information by the Ombudsman, without the need to come to a formal determination as to whether the complaint has been upheld or not upheld. 

5.15. Where a complaint is upheld or partially upheld, the Ombudsman may make recommendations to the PSP that the matter be further considered, that measures be taken to remedy, mitigate or alter the adverse effect of the action, or that the reasons for taking the action be given. Whether recommendations are appropriate in a given case will vary depending on the circumstances.

5.16. In reaching a decision, the Ombudsman will observe the principles of fair procedure, natural justice and proportionality.

Notification of decision

5.17. When a decision is made on the complaint, the complainant will be notified in writing, with a statement of the reasons for the decision reached.

5.18. If a complainant is not satisfied with the manner in which the Ombudsman has examined a complaint, or with the outcome of the complaint, a review of the decision reached may be requested within one month of the decision. A review may be carried out by the Review Manager, Investigator or by the Senior Investigator. For further information about the review procedure see here.

5.19. If no review is requested within one month, or where a review has been requested once the review procedure has concluded, the PSP will be notified in writing of the decision made, with a statement of the reasons for the decision. 

5.20. Once a decision has been made by the Ombudsman and communicated to the complainant and the PSP, the case will be closed.

5.21. While the Ombudsman monitors compliance with his recommendations by PSPs, and will raise non-compliance by PSPs using a wide variety of methods, the Ombudsman has no legal powers of enforcement.

5.22. The Ombudsman has statutory powers to require information, documents and things under section 7 of the Ombudsman Act 1980.

5.23. Section 10(3) of the Ombudsman Act 1980 provides for the delegation of the Ombudsman’s functions to any of his officers.

6. Reporting of decisions on complaints

6.1. Investigations by the Ombudsman are conducted “otherwise than in public” (Section 8(1), Ombudsman Act 1980.), meaning that the process of investigation is not a public process. However, the results of the Ombudsman’s investigation may be included in a report by the Ombudsman. In general, the Ombudsman issues a report on all systemic investigations. In addition, the Ombudsman may include in his annual report a selection of interesting or notable cases.

6.2. The Ombudsman will make every effort to ensure that individual complainants are not identified in his reports.  The aim of these reports is to improve public services.

7. Systemic and ‘own initiative’ investigations

7.1. Where a series of similar complaints have been received, or the Ombudsman has identified a recurring issue when dealing with a series of complaint, the Ombudsman may consider it appropriate to bring those complaints together to conduct a single, systemic investigation. 

7.2. Assuming that the statutory prerequisites for investigation have been met, the following are some of the broad considerations that may be relevant in deciding to conduct a systemic investigation, although these are not exhaustive: 

  • the extent of the adverse affect and whether it concerns very fundamental rights (e.g. hospital services) or less serious matters (e.g. poor communication or discourtesy); 
  • whether the action complained of affects just one person or a number of people or people generally; 
  • whether other similar complaints are currently in hand or whether the case raises a recurring issue not previously addressed in an investigation; 
  • whether the issue raised has wide implications for the particular PSP, for public administration generally, or for a particular scheme or type of scheme; 
  • whether the case, in effect, constitutes a “test case” whose outcome is likely to be applied to other similar cases, whether in the same PSP or in other, related PSPs (e.g. the outcome in an investigation of one local authority may well be applied to all other local authorities); 
  • whether it is possible to resolve informally;
  • whether, even if redress could potentially be achieved informally, the matter is sufficiently serious that the Ombudsman prefers to make recommendations and/or public comment by way of an investigation;
  • the likely timescale and the extent of resources needed in the conduct of the investigation; 
  • whether the conduct of the investigation will require some external expertise (e.g. professional advice on legal, clinical, or planning issues); 
  • whether the issue raised in the complaint fits well with any current Ombudsman strategy to target specific issues or areas of public administration (e.g. concerns about people who are particularly vulnerable such as residents of direct provision centres or congregated settings);
  • whether the matter has been the subject of widespread public debate and concern;
  • whether the matter has a particular urgency and has the potential for serious adverse affect (e.g. there is evidence to suggest that an individual or individuals may be coming into harm’s way in institutional settings and no appropriate action is being taken).

7.3. The Ombudsman may investigate an action where it appears to the Ombudsman on his own motion, having regard to all the circumstances, that an investigation into the action would be warranted. Such investigations are known as ‘own initiative investigations’. As own-initiative investigations often relate to systemic issues, the broad considerations above often apply. However, in addition, the Ombudsman may consider: 

  • whether the issue raised is being, has been, or is likely to be investigated by any other statutory body; 
  • whether the issue proposed for investigation is of sufficient significance, and whether the Ombudsman's contribution is likely to be of sufficient weight, to merit the commitment of the significant level of resources required in an "own initiative" investigation;
  • whether the proposed investigation serves to develop the role of the Ombudsman into new areas or to deal with groups which (in practice) have not hitherto been served by the Ombudsman.

7.4. Systemic investigations and own-initiative investigations are carried out in accordance with the requirements of the Act and with fair procedures. They often follow the same process as complaints. The principal difference is that a systemic investigation will usually have a terms of reference document which outlines the scope of the investigation and will have a lead investigator assigned to it. Such investigations are often more resource intensive than other investigations, but that may vary from case to case. 

8. Records management, data protection and corporate governance

8.1. The Ombudsman is committed to reducing reliance on paper files and so, where possible, records will be created and maintained in electronic format. Where original documents are provided to the office by the complainant or by a PSP, the documents will be scanned to the CRM and returned to the complainant or the PSP by registered post. Original documents will not be retained. 

8.2. The Ombudsman may also request documents to be sent via a secure Filecloud system. This information will be stored on our server in a secure Government Data Centre in Ireland. The Office implements the appropriate technical and security measures as required by Data Protection legislation.

8.3. Records created and held by the Office of the Ombudsman are kept in accordance with the internal Records Management Policy of the office.

8.4. Information regarding the personal data held by the Office of the Ombudsman in accordance with Data Protection Legislation is available here.

8.5. Information regarding the strategy and corporate governance framework of the Office of the Ombudsman is available here.