(1) Mr. John Smith
59. The issues for consideration here are the following:
- (a) did Mr. Smith call twice to the Department (Oisín House) as he contends?
- (b) if so, what actually hapened there? was he wrongly advised?
- (c) if he was wrongly advised, did he contribute himself to this failure?
- (d) may his failure to apply for pension in 1986/7 be attributed to a failure on the part of the Department?
60. In relation to (a), there is no reason why Mr. Smith's account should not be accepted as broadly accurate. The Department is not in a position to say that the visits did not take place. Mr. Smith's accounts of these visits, as given to my staff, have been consistent, and there are no grounds for doubting his personal integrity. Whereas there is, in my view, some ambivalence within the Department on the matter it would seem that, overall, the Department is not disputing these visits. But the Department finds it difficult to accept that the delay in claiming arose because Mr. Meeehan was misled on two occasions.
61. In relation to (b), Mr. Smith's accounts seem plausible. This is particularly so regarding his contention that he was asked about his former employment and, on informing the officials that he was a retired public servant, that he was advised that he would have no entitlements on that account. It is
possible that an inexperienced official might come to the wrong conclusion and assume that, as a retired public servant, Mr. Smith could not have a record of full-rate social insurance. His account of one of the officials telling him that he was in the same position as herself - a public servant with limited social insurance cover - has the ring of truth. As a person with a very limited grasp of the social welfare system, it is difficult to envisage Mr. Smith fabricating a detail like this. I accept that the Department's general practice in relation to enquiries would be to advise the enquirer to claim a pension in a case of any doubt as to entitlement. However, there is always the risk that standard practice is not adhered to, perhaps because the individual official is inexperienced or insufficiently trained or for other reasons. The Department's own investigation opened up the possibility that Mr. Smith may have gone to a hatch in Oisín House which dealt with general enquiries as opposed to a hatch which dealt with specific benefits eg a pensions enquiry hatch. In any event, it seems entirely implausible that Mr. Smith would have neglected to make a claim if the advice was that he should do so.
62. The general plausibility of Mr. Smith's contentions is strengthened by the contentions of another complainant which are remarkably similar to his. This other complainant reached pension age (66 years) in January 1986. She says she called in person to Oisín House in the second week of January 1986 to enquire as to possible pension entitlement. She says that, after asking some questions, the official told her that as she had not worked for the previous 15 years she would not be entitled to the contributory old age pension. She says the official told her that, if she did not hear further from the Department, then she could take it that she had no entitlement. She did not hear from the Department, she says, and thus concluded that she had no entitlement. In 1995, having read a newspaper advice column, this woman realised that she might have a pension entitlement after all. She applied and was found eligible with six months arrears being paid. Like Mr. Smith, she believes she should be paid arrears. I have reached no conclusion in relation to this other complaint. But the similarity with the account given by Mr. Smith, and the fact that both episodes are said to have occurred within very close temporal proximity to one another, is perhaps more than coincidence.
63. In relation to (c), I have little doubt but that Mr. Smith's inadequate understanding of social welfare matters would have contributed to the failure to advise him properly. The Department has made the point that, as an educated and relatively senior public servant, Mr. Smith should have been better informed. Perhaps so. But when a person of Mr. Smith's position is shown to be confused in relation to social welfare, does this not suggest that the system is inherently confusing for many? For example, in his Annual Report for 1986 my predecessor reported on two cases where widows of civil servants had failed, over lengthy periods, to claim their contributory widow's pension entitlement. The then Ombudsman felt that these cases suggested a wider problem of lack of awareness, among civil servants and their spouses, of their being covered for contributory widow's pension. The Ombudsman drew this to the attention of the Department of the Public Service which made specific arrangements to ensure that civil service widows would be informed of this potential entitlement.
64. It may be that Mr. Smith did not volunteer the type of information which would have guided the officials in the right direction. From the contacts my investigators have had with him, this seems a plausible conclusion. On the other hand, is it not the job of the officials to elicit that information which will lead in the right direction? I recognise that it may well have been difficult to advise Mr. Smith properly, particularly where he may not have had full details available. I also recognise that mistakes will inevitably occur in even the best-run service. If mistakes do occur, for whatever reason, for which the organisation is responsible, it seems reasonable that clients should not suffer as a result of those mistakes. Where mistakes occur for which the claimant is responsible one must carefully consider, in the particular circumstances, whether, or to what extent, the claimant should be penalised.
65. Finally, in relation to (d), and following on from the comments immediately above, I feel it is not unreasonable to conclude that Mr. Smith's failure to claim pension in the 1986/7 period may be attributed to the failure of the Department adequately to advise him. In approaching the Department, as he did, one must assume that his intention was to claim whatever benefit might be available to him. Where, following two visits to the Department, he still had not claimed a pension, one can reasonably conclude that this failure was directly linked to the manner in which he was dealt with by the Department.
(2) Mrs. Ann Brown/Ms. Helen Murphy
66. Again, these two cases may be taken together as the same issues arise in both. The relevant issues are:
- (a) whether the complainants did receive notifications from the Department, before reaching pension age, advising of possible pension entitlement;
- (b) whether the Department should have accepted the claims in payment (for widow's and invalidity pensions, respectively) as satisfying the requirement to have claimed the contributory old age pension.
67. In relation to (a), the fundamental point is that the Department has no specific record that a notification was sent to either complainant. Even if there were a record of its having been sent, this would not necessarily mean that it was received. Both complainants assert categorically that they did not receive any such advice. As a general point, I consider that where entitlements are concerned, the onus is on public bodies to send a reminder to people who have not replied to the original notification. The Department has suggested that Ms. Murphy might have opted not to have claimed retirement pension at age 65 because it would have been to her advantage so to have done. This implies she had a relatively good understanding of social welfare matters. But if this were the case, it is implausible that Ms. Murphy would neglect to claim the old age pension at 66 years - following receipt of the Department's letter, as it contends - since it would have been to her advantage to have done so. There seems no good reason to reject the assertions of these complainants that they did not receive any written advice from the Department in relation to possible pension entitlement.
68. In relation to (b), the main point to note is that the relevant provision at Article 100(1) is sufficiently flexible to allow the Department to accept a claim for one payment as having been made on account of another payment. The sub-article provides that a claim shall be made in the manner "for the time being approved by the Minister or in such other manner as the Minister may accept as suficient in the circumstances". Clearly, it is a matter of judgement as to what are the circumstances in which the Minister may accept a claim made in a non-standard manner. I feel the Department may not have given sufficent consideration to the circumstances which resulted in the failure of these complanants to claim on time. One must take account of the following: their lack of hard information in relation to their entitlements; the fact that the Department may not have advised them of a possible pension entitlement; a presumption on the part of social welfare recipients that the Department will advise them of any alternative, higher rate payment to which they might have an entitlement. It is worth remembering also that the arrears amounts involved in this kind of case are not that substantial from the point of view of the Fund. Finally, one must take account of the nature of social insurance and the implicit contract it involves. Contributors should not, it seems to me, lose out on the basis of a technicality where it is possible to circumvent that technicality.
69. Accordingly, my conclusion in relation to (b) is that the Regulation is sufficiently flexible as to allow the Department to have accepted a claim for widow's pension or invalidity pension - though made some years back - as having been made on account of contributory old age pension. In the circumstances of these cases, it is my conclusion that the Department should have availed of that flexibility in the best interests of their clients.
70. In its response to the draft of this report, the Department informed me that the cases of Ms. Murphy and Mrs. Brown had been reviewed in the light of my draft report "and of the improvements being made to the back-dating situation"(See Appendix1). As a consequence, the Department decided to award arrears of contributory old age pension in both cases back to the pensioners' 66th birthdays. The Department said that it was "deeming the claims in payment at age 66 as claims for Old Age Contributory Pension in the particular circumstances of each case." The Department pointed out that the award of retirement pension retrospectively would not be to the advantage of either pensioner as it would affect other entitlements at that time. On a wider note, the Department informed me that the Minister has now decided that a person in receipt of one weekly payment may have that claim accepted as a claim for another related weekly payment. "This initiative" says the Department, "will give greater flexibilty to the awarding of claims to persons already on the social welfare system."