Presentation by Ombudsman Peter Tyndall to the Assistant Secretary Network Annual Conference

13 May 2016

I am really pleased to be given the opportunity to speak to you here today. I am conscious of the fact that collectively you have the opportunity to shape the future of our public services, and indeed, our country. So when I got your invitation I saw it as a carpe diem moment.

As Ombudsman, I am in a unique position to see when public services are being delivered in a fair and effective manner but I am also able to identify when there are failures leading to adverse effect on individuals or groups of people. In my experience, the public service can learn and improve itself by replicating what is working well but also by ensuring that when errors occur we spot them as quickly as possible, admit that things have gone wrong, provide appropriate redress to individuals and repair any systemic damage that has been identified. I will be dealing with some examples later which will illustrate these general points.

As you know, I also hold the separate statutory role of Information Commissioner so I will be giving you an overview of the work of that Office. As Ombudsman, I am an ex officio member of the Standards in Public Office Commission (SIPOC) which, as well as some electoral and ethics matters, also has responsibility for the Register of Lobbying. Staff from my Office provide the secretariat for SIPOC and also administer the Register of Lobbying. As the Register of Lobbying is in its infancy I would like to say a little about its role and the work it has done to date.

As someone who returned to Ireland having worked in public services elsewhere, I also have had the opportunity to see the contrasts, where things work better here, and where there is room to improve.

Latest Statistics

 

I want to give you a quick snapshot of the pattern of complaints received and dealt with by my Office in 2015. Of the total of 3,641 complaints within jurisdiction received 38.45% of those, a total of 1,397 were against Government Departments and Offices. Of those, 870 complaints were against the Department of Social Protection, 137 were against the Revenue Commissioners and 135 were against the Department of Agriculture and the Marine. The breakdown reflects the overall trends of incoming complaints over the years.  It’s not surprising that those Departments and Offices which received the highest number of complaints are those (broadly speaking) which have the highest number of interactions with members of the public.

In 2015, my Office received 1,006 complaints against local authorities (27.6%) and 634 (17.4%) against the HSE and Tusla. The balance were about third level colleges, private nursing homes and regulatory bodies.

We closed 3,531 cases in 2015.  We closed 86% of those complaints within 3 months and 96% within 12 months.

A total of 397 cases were closed as upheld which means we found that in 11.2% of cases the public service provider was found to be at fault and some form of redress was warranted. Normally this means that a benefit or entitlement was incorrectly refused and in such cases the decision is reversed.  In 1.4% of cases the complaint was partially upheld and in 10.4% of cases assistance was provided to the complainant. In assistance provided cases we normally provide a clearer explanation as to how the service provider’s decision was arrived at and why it was in fact correct. If a complainant comes to my Office before the complaint is made to the service provider we normally ask them to pursue the matter locally and come back to us if they are still unhappy. Such cases are categorised as discontinued/premature. Of the 3,531 complainants closed in 2015 1,032 (29.2%) fell into this category.

How Complaints Are Processed by my Office

 

The Ombudsman Act 1980 provides for two different types of complaint examination processes, a preliminary examination or an investigation. Generally speaking the vast majority of cases, whether upheld or not, are satisfactorily concluded by way of preliminary examination with the cooperation of the public service provider. In a very small number of cases my Office conducts a formal investigation. I can only make formal findings of maladministration and recommendations following an investigation. Such recommendations are not legally binding on public service providers but are normally accepted. I much prefer to arrive at negotiated solutions with the cooperation of the public service provider rather than opening formal investigations leading to published reports. The preliminary examination process can be just as effective, is less time consuming for service providers and my Office and is less legalistic. Sometimes, in more complex systemic cases a formal investigation may be necessary but my Office has also managed to resolve systemic complaints by way of the preliminary examination process.

While Ombudsmen come and go it is fair to say that while each Ombudsman operates under the same statutory framework they each put their own stamp on how the Office approaches the resolution of complaints. It is inevitable that if an Ombudsman takes his or her role in holding the public service to account seriously then there will inevitably be tension between the Office and service providers from time to time. However, I do genuinely seek to work collaboratively with service providers to seek agreed solutions to individual complaints while supporting and encouraging bodies within remit to improve the quality of public administration. A relationship marked by continuous conflict is in nobody's interest.

What Gives Rise to Complaints and How Should we Respond?

The Irish public service makes hundreds of thousands of administrative decisions annually, many of which lead to a denial of a benefit, an allowance, a grant or a service. The vast majority of complaints flow from such decisions. If the complainant is not happy with the service provider’s response to the initial complaint then it may end up on my desk.  Your job is often to ration scarce resources.  Where people don’t get what they want, they will often be unhappy.  Even when they do get a service or a benefit, they may feel it isn’t enough.  Managing people’s expectations at the outset, offering clear explanations about your decisions, and putting things right promptly if you have got it wrong are key elements of good administration.

I want to draw your attention to a new provision in the 2012 Ombudsman (Amendment) Act which imposes a legal obligation on bodies under the remit of my Office (known as reviewable agencies) when making decisions that adversely affect members of the public. This provision adds a new section 4A to the 1980 Ombudsman Act. If a decision penalises or otherwise adversely affects a person then the reviewable agency must, and I quote;

(a) give reasonable assistance and guidance to that person in any dealings of the person with the agency in relation to the action taken by the agency, having particular regard to the needs of the person as a result of any disability,

b) ensure that the business of the person with the agency in relation to that action is dealt with properly, fairly, impartially and in a timely manner, and

(c) provide information to the person on any rights of appeal or review in respect of that action and on the procedures for, and any time limits applying to, the exercise of those rights.

The provision of information on rights of appeal includes the need to signpost my Office in decision letters and any other relevant information material.

So, how do we reduce the possibility of complaints arising in the first place? Based on my own experience as Ombudsman here and in Wales there are some fundamental points that I would like to make. Looking back at Section 4A which refers to giving reasonable assistance and guidance to people and bearing in mind the standards of best administrative practice and fair procedures it is really important that in making and conveying an adverse decision a reviewable agency makes clear the basis upon which the decision was made. A full and clear explanation set against the relevant rules, conditions and eligibility criteria must be given in each case. This enables the individual to understand the decision and if it is clearly correct then a complaint or appeal is less likely. It will also enable someone who may feel the decision is unfair or incorrect to properly frame an appeal. Giving no reasons for such a decision will almost certainly lead to a complaint.

While this may seem to be a self-evident point it is surprising how often service providers fall down on this requirement. Indeed, a number of court decisions underpin the importance of this point and highlight that it continues to happen. I recently read an Irish High Court judicial review judgment, involving and State Examinations and its Independent Appeals Committee (2016 No 141 JR). The case arose arising from a decision to refuse a reader for a dyslexic student sitting the Leaving Certificate. The refusal was not explained. The High Court struck down the decision and in his judgment Mr Justice Noonan made the following observations;

"In the wake of Meadows v Minister for Justice and Law Reform (2010 IESC 3) and Mallak v Minister for Justice and Law Reform (2012 IESC 59) it can no longer be seriously doubted that administrative bodies have a duty to give reasons for decisions that affect rights."

"The extent to which elaboration is required will depend on the facts of the individual case. The essential point, however, is that the person whose rights are affected by the decision in issue must be enabled thereby to comprehend the reason or reasons for it and how and why it was arrived at."

Now I readily accept that in administering large volumes of applications and sometimes very complex schemes mistakes can and do occur, sometimes for very understandable reasons. What is crucial, however, is how a service provider deals with any consequential complaint. Complaints must be approached with an open mind. Unfortunately, I have found in some cases, even when the merits of the complaint are clear and irrefutable, the service provider has responded in a blinkered fashion and has taken a knee jerk defensive position. In the long run this only leads to complaint escalation, reputational damage and a need to commit further time and resources to deal with internal local complaints and appeals and also further complaints to my Office. I want to give you an example of a complaint to illustrate this point.

This complaint was brought to my Office by a public representative on behalf of a constituent. The constituent was the former tenant of a Town Council and had had her rent assessed in accordance with its Housing Rent Scheme 2012. The complainant was a Foster Carer with the Health Service Executive (HSE) and was receiving fostering allowance in respect of two foster children. The Council's Rent Scheme was framed in such a way that the fostering allowance was treated as income for the purposes of assessing the complainant's rent. The Rent Scheme did not allow discretion to set aside the foster allowance for the purposes of the assessment and as a result the complainant's rent was increased from €38 euro to €120 in February 2012.

Under the Local Government Reform Act 2014 the Town Council had been abolished and had been subsumed under a County Council in June 2014. The County Council had reviewed the complainant's rent assessment under its own Rent Scheme and disregarded the fostering allowance in calculating the complainant's income. This was possible under the County Council's scheme. The complainant's rent was accordingly reduced and repayments were made dating back to June 2014. This had happened before the matter came before my Office.

Fostering allowance is used for the care of the children who have been fostered and the payment is used by the foster carers for the benefit of the children for maintenance, school funds, hobbies, therapy etc. Furthermore, fostering allowance is not reckonable income in terms of income tax or social welfare payments. The position of the Revenue Commissioners is that such allowances do not amount to a profit for the Foster Carer and as such it is disregarded for tax purposes. This has been agreed between the Revenue Commissioners and the Irish Foster Care Association. The Town Council was aware of all this but had refused to change its position even after the HSE had written to it to complain as had the public representative and a social worker. I also discovered the matter had been taken up with the Department of the Environment and Local Government as it had overall responsibility for policy and legislation in this area. Questions had also been put down in the Dáil about the matter and the then Minister for Children and Youth Affairs had promised to convey her concerns to the then Minister for the Environment about it. However, the matter had remained unresolved. For its part the Department had indicated that legislation was due to be commenced which would transfer responsibility for making rent schemes from Council officials to elected members and at that stage new schemes would be drawn up and the Department would issue guidelines to bring greater clarity as to how income would be assessed in future for rent payment purposes. The Department felt it could not intervene with a local authority which was implementing a scheme as drafted by it.

The foster allowance scheme is a public policy initiative designed to support and encourage people to become foster parents in order to assist vulnerable children. The HSE administers it in the interests of the public good. On the other hand another public service provider was penalising people who had agreed to become foster parents. In my view the Town Council's rent scheme was unfair and improper and this was an open and shut case of maladministration leading to adverse effect. By not accepting the obvious merits of the case and its own error it led to long running correspondence, caused the involvement of public representatives as well other public bodies and Ministers and questions had been put to the Dáil. It also meant that my Office had to become involved at a later stage. All in all a huge waste of time and resources.

I wrote to the County Council which had taken over the Town Council area and outlined the case in full and asked it to back date the payments to February 2012 when the original decision had been made by the Town Council. I also asked it to check the records to see if other tenants of the former Town Council were in a similar position and to refund them in full. The County Council immediately reviewed the individual case and refunded the woman €10,870 in overpaid rent. The Council also identified another person affected and provided a refund in that case. I personally conveyed my thanks to the Council for its prompt, positive reaction which was in contrast to the way the Town Council had dealt with the matter.

In addition, I wrote to the County and City Managers Association about the general issue and also contacted other individual local authorities to see if they were similarly penalising recipients of foster allowance. I asked that in any such cases the schemes should be redrafted, if necessary, and full repayments made. While one other scheme had to be amended no other person was being penalised by a local authority. If the Town Council had taken the opportunity to check with other local authorities about their practice when they first received the complaint then this would have helped to make it more evident that its own position was not tenable.

I spoke yesterday at a Masterclass for Healthcare Leaders on the topic of the importance of making proper apologies when a public service is not delivered to the required standard. I think it is really important that when it is clear that an apology is required then it should be done in a timely and proper manner. I don't propose to repeat my presentation on the topic here as the full text will be published on my Office's website. In an effort to assist public service providers who need to provide an apology my Office published a guide for public service providers last week on how to make a meaningful apology. I would ask you to draw the attention of your staff to the guide which is available on my Office's website.

Learning from Complaints and Improving Complaint Systems

 

One way of reducing mistakes and complaints in the future is to learn from the mistakes and complaints of the past. It is even better if public service providers avoid mistakes by learning from the mistakes of other service providers. This means we need to be looking outside our own silos and talking and engaging with others. Public service providers need to talk to each other about common solutions to common problems which is why I believe that networks such as yours can play an important role in improving service delivery. The foster allowance case alone illustrates this point about the need to look beyond your own administrative territory when faced with a problem. We can all learn from each other. I think the point was succinctly made by Sir Liam Donaldson, WHO Envoy for Patient Safety and formerly Chief Medical Officer for England when he said ‘To err is human; to cover up is unforgivable; and to fail to learn is inexcusable’

 

I published a major systemic investigation report, Learning to Get Better, in May 2015. This was a detailed examination of local complaints systems in the acute hospital sector throughout the country. The HSE and the Department of Health are undertaking a range of tasks to implement the 36 recommendations contained in the report. These will lead to a more streamlined, consistent, professional and effective complaints handling system. In speaking to service providers and in dealing with individual complaints I constantly stress the importance of not only learning from mistakes but also ensuring that this learning is shared within the organisation and across similar organisations. This needs to be done regularly and in a structured fashion. As one hospital commented to my investigation team during the investigation about the current complaint handling systems in the hospital sector; they said it leads to a situation where every hospital must make the same mistakes themselves. And yet this is a situation that can so easily be avoided.

For example, arising from my investigation some measures are now being put in place by the HSE within the new Hospital Groups which include the training of a cohort of complaint handlers and full time review officers, and putting in place proper recording systems to capture and report on complaint patterns and volumes. These reporting systems will be within and across hospitals, including to senior management and the HSE. I have also pushed for a network of complaints officers to be established and for each Hospital Group to publish a Complaint Casebook on a regular basis to provide a brief summary of complaints dealt with and resolved. We should all be learning from each other’s mistakes and also sharing solutions to common problems. In the case of larger organisations I firmly believe that an investment in appointing and training full time complaint handlers is an investment worth making and in the long run will save more than it will cost and can lead to real systemic improvements if complaints are managed properly and lessons learned.

My own Office publishes a Casebook on a quarterly basis which provides a summary of the majority of complaints closed within the previous three month period. It is broken up into areas of administration such as Local Authorities, Education, Health etc and is aimed at public service providers as a learning tool. Anyone who wishes to be sent a link to each Casebook can do so by logging on to my Office's website and registering. Currently 2,500 recipients take the Casebook.

Single Portal for Complaints

Since being appointed Ombudsman, I have consistently pushed forward the idea of the development of a single complaints portal for all public service complaints in Ireland. This is not an abstract idea as in my previous position as Ombudsman for Wales we ran such a portal for the Welsh public sector and I know it works well.

I have raised this with the Department of Public Expenditure and Reform, the Oireachtas Committee on Public Service Oversight and Petitions and with individual service providers. My Office has also taken a number of initiatives to move the proposal forward.

Broadly speaking implementation would require the introduction of a standard approach to complaint handling across the public sector, setting out clear timescales, standards for responses, a common approach to redress and above all, a focus on tackling most dissatisfaction at the time it arises. This has the potential to lead to greatly improved complaint handling. It would mean that a single investigation can address complaints across multiple providers. It allows for standardised complaint training for staff of all public service providers. It gives complainants certainty about what they should expect and provides a system which is readily accessible regardless of the body being complained about. The system would be streamlined and based on an “Investigate Once, Investigate Well” approach. It would eliminate multiple stage processes which create work and delay resolution. Making it easy for people to complain is essential if we are to improve public services.

I want people to be able to complain in a way which they find convenient, in a language they are comfortable with and in a medium which suits them, whether that is in a letter; filling in a form by hand or on-line; on the phone or in person. A standardised public sector complaint process would also make it easier for the agencies within jurisdiction with no need to reinvent the wheel and ready access to validated training modules, for example.

When my Office got jurisdiction over private nursing homes in August last year I rolled out a model complaints system to be used throughout that sector. Based on that initiative as recently as yesterday my Office launched a model complaints document for the public sector generally. The document comprises a modal complaints system, a model complaints policy and a model complaint form. It is available on my Office's website.  I want to work with you to see this model adopted across the public sector.  By using standard complaints policies we can start to identify problems, compare performance and generate quality information on how our services are delivering for their users.

I know that you will be familiar with the website healthcomplaints.ie which acts as a central information and signposting service for people who wish to make a complaint about the health care sector. My Office has responsibility for the day to day management of the site and I chair the Governance Committee which includes members for a wide range of health sector bodies, including the Department of Health, HIQA and the HSE. As part of a further major initiative work has begun on transforming the website from a signposting service to a complaints portal for the entire publicly funded health care sector. This in turn will provide a model for a public service wide portal.

Office of the Information Commissioner

I want to deal now with my statutory role as Information Commissioner. In this capacity, I review decisions on only a small percentage of the 28,000 or so FOI requests that public bodies receive each year. I know, however, from the 2015 statistics that have been collated for my Annual Report, that last year’s total requests showed an overall increase of 38% on the 2014 figure.  Within that, some Government Departments recorded increases of well over 100%. I suspect also that, if the number of applications for review I have received so far in 2016 is anything to go by, the trend is likely to be upwards.

The likelihood is that the increase is caused by a combination of the elimination of upfront fees for requests and the additional FOI bodies, including An Garda Síochána, the Central Bank, NAMA and the NTMA that the 2014 FOI Act brought in. I know that this large increase puts a strain on the resources of Government Departments and other FOI bodies. Nonetheless, we must not lose sight of the fact that access to information under FOI is a statutory right and FOI functions must receive adequate resources to allow for effective delivery of FOI services. As regards meeting the needs of the people who are seeking the records, it is important to note that while there was a significant increase in requests made for non-personal information in 2015, 64% of requests were for personal information. Thus, the majority of requests come from the clients and staff of public bodies with 20% coming from journalists.  It is of concern to me that some public bodies which have been subject to the FOI Act for many years continue to fall short in meeting their statutory obligations, especially in the area of responding to requesters. This has resulted in an increase in the number of “deemed refusals” owing to non-reply.

The volume of requests combined with the complexities of the Act as regards time limits, fees, the application of exemptions and public interest tests can make dealing with FOI a challenge for decision makers. I observe from reviewing decisions that the quality and timeliness of responses to requesters varies widely as does the decision makers’ knowledge and understanding of the provisions of the Act.  I find it hard to understand why the staff of some FOI bodies appear to make little or no use of the resources – training, guidelines, manuals, sample letters, users’ networks and other supports - available through the Central Policy Unit of DPER. It seems to me that use of such resources would make the process more efficient and focussed by reducing the number of internal appeals and appeals to my Office. In the long run investment in training and staffing yields a net benefit.

My Office has developed and published a series of Guidance Notes which should assist public bodies in the interpretation and understanding of the provisions of the Act. The Notes, which will be updated and amended as required, draw on decisions of my Office and those of my predecessors in giving examples of the approach taken in applying and interpreting the Act. Some of these are already on our website, with more planned during 2016. I hope that these, along with the published decisions and procedures manual will be useful for those dealing with requests and with my Office.  Work is continuing on building additional supports for FOI bodies.

Register of Lobbying

I now want to turn to the recent lobbying legislation. The Regulation of Lobbying Act came into effect on 1 September 2015 and is aimed at enhancing transparency around lobbying activities. The current Head of Lobbying Regulation is Ms Sherry Perreault.

To be considered lobbying for purposes of the Act, communication must meet all components of a three-step test which means that the communication must

1)             Be made by person within the scope of the Act

2)             To a Designated Public Official

3)             About a relevant matter

The legislation defines a Person falling within the scope of the Act as;

Person with more than 10 employees

Representative body with at least 1 employee which represents interests of members

Advocacy body with at least 1 employee which communicates on an issue or cause

Third party professional who communicates on behalf of client in return for pay (can include professional lobbyists, lawyers, accountants etc.)

Anyone communicating about the development or zoning of land.

As you are aware the Minister for Public Expenditure and Reform has made Regulations specifying who are designated public officials for the purposes of the Act and these include Assistant Secretaries.

In terms of the third prong of the three step test the Act defines a "relevant matter" as;

The initiation, development or modification of any public policy or of any public programme;

The preparation of an enactment; or

The award of any grant, loan or other financial support, contract or other agreement, or of any licence or other authorisation involving public funds…

Apart frommatters relating only to the implementation of any such policy, programme, enactment or award or of a technical nature

The Act provides for exemptions for certain matters, sets out the obligations to register and to file returns and the penalties for non-compliance. I don't propose to go into further detail on the various provisions of the Act but I would direct your attention and that of your staff to the website www.lobbying.ie which includes a wide variety of information material, including; guidelines, FAQs, sample returns and instructional videos. You yourself do not need to take any action if you are lobbied, but it helps if you remind the people doing so of their obligation to register and submit returns, and to notify SIPO if you are aware of any non-compliance.  The on-line register gives a fascinating insight into who is lobbying whom about what!

My Wish List

In terms of the development of the Office of the Ombudsman over the coming years we have mapped out a major IT project (which will also involve the Information Commissioner's Office) to improve our case management and record management systems which will greatly improve our service to the public as well as making it more accessible with the emphasis on making as easy as possible to complain. My Office is constantly striving to improve its customer care culture. While much progress has been made in giving my Office a more comprehensive jurisdiction following the enactment of the 2012 Ombudsman (Amendment) Act there are still gaps in the Office's current jurisdiction and upon which we are making progress in dealing with; these including remit to deal with clinical judgement decisions, jurisdiction over the prison service and also over direct provision centres.  I also want to put an increased emphasis in conducting follow up work with service providers to ensure that when recommendations for improvements made by my Office are accepted that we see evidence, not only that they have been implemented but also that they are having the desired effect.

Thank you for your attention.

ENDS