Published on 30 September 2021

Statement by Mr Peter Tyndall, Ombudsman, to the Joint Oireachtas Committee on Public Petitions

Cathaoirleach and members of the Committee, thank you for the invitation to come here today to present my Annual Report 2020. As members will be aware, this is my final report as Ombudsman before stepping down at the end of the year.  I would like to take the opportunity to reflect more widely on some issues, with the Committee’s permission.

As Ombudsman, I deal with situations where people are unhappy with the services they have received or decisions made by public bodies.  It would be possible for this to induce cynicism or a jaundiced view of public services generally, so I wanted to open by paying tribute to the staff and leaders of the Departments and public bodies within my jurisdiction, who give ample evidence of dedication, expertise and a strong commitment to public service values.  This has never been more evident than during the pandemic.  We are all in their debt.

I also want to pay tribute to the staff of my own Office for their persistent pursuit of fairness, justice and transparency. I am lucky to have been so well served.

As everyone here today will be aware, 2020 was unlike any year we had seen before.  In my Office we started 2020 with a move to new premises on Earlsfort Terrace and we looked forward to an ambitious programme of outreach throughout the year.  As you will be all too aware, things changed drastically in March 2020 and our plans and ways of working were revised in order to ensure we all stayed safe and well in line with public health guidance. Likewise, during this time our public services continued to run including our health services, our local authorities, educational institutions and Government departments.  My annual report entitled “managing complaints in a pandemic” acknowledges the complexity and challenges that we all faced throughout 2020.

Complaints in 2020

As Ombudsman I consider complaints from users of our public services who believe they have suffered an injustice as a consequence of maladministration by a public service provider. In 2020 my Office responded to 3,717 enquiries, an increase of 1,547 or 70% on 2019.

During this period my Office also received 3,418 complaints from members of the public. Each one of these complaints was examined thoroughly in a fair, independent and impartial way from the perspectives of legality and compliance, as well as fairness and good administration. Of those received 35% were about government departments and Offices, 26% about local authorities and 18% in the health and social care sector.   76% of these cases were closed within 3 months by my Office, 89% within 6 months while, overall, 97.5% of cases were closed within 12 months.

Reduction in complaints from people living in Direct Provision

As I highlighted in my Commentary for 2020 on the sector, there was a significant reduction in complaint numbers from residents of Direct Provision from the 168 we received in 2019 compared to the 61 we got in 2020. I am satisfied that this reduction is a direct consequence of our inability to visit centres due to Covid travel restrictions.  However, with the general easing of restrictions over the past few months I am pleased to inform the Committee that we are recommencing our outreach programme in the sector and my staff will visit a representative sample of centres over the coming weeks.

The total number of complaints received by my Office in 2020 was down 6% on the previous year.  However, we have already seen an increase in the number of complaints being received this year, with a 24% increase to the end of August 2021 compared with the same period in 2020.

Cases in 2020

In 2020 my Office also dealt with new types of complaints, often related specifically to the pandemic.  We took into consideration when examining these complaints both the impact of COVID on individuals and also the pressure it was placing on many of our public services.

We dealt with complaints about new schemes put in place as part of the response to COVID such as the Pandemic Unemployment Payment (PUP).  Most of the complaints about the PUP were about arrears of payments to applicants after the Department of Social Protection received over one million applications, some of which were repeat applications as a result of people moving in and out of employment. After looking at these complaints it became clear that while it had sometimes taken time for the Department of Social Protection to pay the arrears, I was satisfied that appropriate systems were put in place to deal with the issue.

Other PUP cases were more complex. A case highlighted in this year’s annual report involved a complaint from an entertainer, who was resident in Ireland and working overseas when the pandemic hit in 2020. All her engagements were cancelled and she was left with no income.  She successfully applied for the PUP but her payment was then stopped. The Department of Social Protection said the woman was not entitled to the PUP as she had not been working in Ireland.   We reviewed the legislation and could not see any basis for the Department’s decision to stop the payment to the woman who was resident and paying taxes in Ireland. In this case the Department agreed to review its decision, reinstating the woman’s PUP and pay arrears of around €5,600.

I commend the Department on putting this scheme in place so rapidly and effectively.  The number of complaints were modest in the circumstances.

Another case highlighted in my annual report, which garnered some attention, was the case of a woman who was admitted to a hospital’s emergency department for treatment and was given drugs normally prescribed for those with alcoholism or alcohol withdrawal. This was despite the fact that the woman had not consumed alcohol in 10 years. The impact of this treatment was that the woman’s interaction with her family was severely impacted.  After examining the case my Office made several recommendations which were accepted by the body and as a result of the complaint the hospital has taken steps to ensure those prescribing medication are always identified, it has developed an electronic incident reporting system and is delivering an education programme for its staff.  This outcome will hopefully ensure this situation does not arise again for any other patients and illustrates the important role my Office has in driving learning and best practice across the public sector.

“Wasted Lives” Report into people under 65 living in Nursing Homes  

Part of my work as Ombudsman is ensuring that the voices of people which might otherwise be ignored can be heard.  In 2019 I received four separate complaints from people under 65 living in nursing homes. I was deeply moved by their testimony and concerned by the policy, legislation and practice in place which seemed to make it impossible for their circumstances to change and for their will and preference in relation to how they wished to live their lives to be recognised and supported.  I felt compelled to use my powers, as Ombudsman, to initiate a systemic investigation into the current situation for people under 65 living in nursing homes.  I should say at the outset, that many of the findings apply equally to older people in nursing homes.  Our continued over-reliance on institutional provision is a matter of deep concern to me.  Many of those living in nursing homes could, and should, be supported to remain in the community.

Throughout 2020 my Office undertook this investigation and through both individuals contacting my Office, and through outreach to various advocacy groups, we were able to visit 28 people under 65 living in nursing homes as part of this investigation.  The voices of these individuals were strong and clear in their interaction with my Office.  One of the people I met during the investigation told me that he had wasted the best years of his life in an institution. Another, who had suffered his injuries in an assault, said the person convicted would one day leave prison - he had no prospect of leaving the nursing home. 

As with so much other work, the completion of this investigation was delayed by COVID.  However, during the course of the investigation, I wrote to party leaders, to highlight the issue of people under 65 living in nursing homes so that this might be taken into account in preparing the Programme for Government.  I was delighted when this happened and the Programme for Government commits to “Reduce and provide a pathway to eliminate the practice of accommodating young people with serious disabilities in nursing homes”.  Emanating from this commitment the HSE has established a dedicated funding stream of €3 million as part of the National Service Plan 2021 that will enable 18 people under the age of 65 to transition to a more appropriate setting with support. This, I believe, is an important step forward and will provide the opportunity to significantly improve the quality of life for these individuals.  I sincerely hope that funding in Budget 2022 is provided by Government to continue and expand this important work.   

As part of this investigation, the HSE informed my Office that 1,320 individuals under 65 are being supported to live in nursing homes through the Fair Deal scheme. Each of these people deserve to be able to live in a setting that is appropriate to their needs and in line with their will and preference in as much as possible. I have made a series of findings and nineteen recommendations which cover a range of themes including funding, informed consent, quality of life, access to services, navigating the system and policy and human rights.

All of these recommendations have been accepted by the HSE and Department of Health and I understand a Steering Committee has been set up in the HSE to progress this work and develop the required action plan. I am fully aware that 2020 and 2021 have been extremely challenging periods for our health services, however I strongly believe that a society should be judged by the way it treats its most vulnerable citizens and concrete action is now needed to the ensure that as a country we support such individuals to have their wishes and preferences identified and acted upon and to have their voices heard.  It is equally important that appropriate measures are put in place in order to reduce the possibility of other people under 65 finding themselves in the same situation.

We are actively monitoring the implementation of the recommendations by the HSE and the Department. I would urge the Committee also to keep progress under review so that momentum is built and commitments are delivered on in a timely way.

Access to transport for people living with a disability

It is with this in mind, that I would also like the Committee to note my intention to prepare a commentary report in the coming months looking at access to transport for those living with a disability.  In 2012 my predecessor, Emily O’Reilly, issued a special report on the Mobility Allowance and Motorised Transport Grant which indicated that the schemes were in breach of the Equal Status Act 2000.  Following this report the Government made a decision to close these schemes to new applicants. However, the clear indication from Government at that time was that a replacement transport support scheme would be introduced.  Nine years later I can see no evidence of this. 

The situation is further exacerbated by the inadequacy of the current Disabled Drivers and Passengers Scheme. In June 2017, after receiving many complaints about the qualifying criteria for the granting of a Primary Medical Certificate for the purposes of eligibility under that scheme, I wrote to the Minister for Finance to raise my concerns that the existing legislation underpinning the Disabled Drivers Scheme was overly rigid and inflexible, and may cause inequity.  This position was reflected in a Supreme Court decision in 2020. 

To ensure the legality of the scheme the Minister for Finance has brought forward an amendment to the Finance Act 2020 to provide for the existing medical criteria in primary legislation.  This legislation aligned the definition of ‘medical criteria’ with the definition of ‘severely and permanently disabled person’ in primary legislation. In my view this only reinforces the current scheme and does not deal with the unfairness underpinning it.   

It is my understanding that the Department of Finance is looking at the development of a new, more equitable scheme and that the timeline for this is its inclusion in the Finance Bill in 2021.  I welcome this progress if it materialises, however I remain concerned and disappointed at the lack of clear action to date to deal with this clear inequity.

There has been some suggestion that these issues can be addressed by improved access to public transport.  The inadequacy of access to the DART for example, is a matter of great concern to disabled people who use it.  While improving access to public transport is an important issue in its own right, it is nonsensical to suggest that it can address the transport needs of many disabled people, who may live in rural areas, or struggle to get to bus stops or stations. 

Jurisdiction

Before I finish I would like to raise a number of issues regarding the jurisdiction of my Office.  The first is clinical judgement.  By law in Ireland, the Ombudsman cannot consider complaints which relate solely to the exercise of clinical judgement in the diagnosis or care and treatment of a patient.  This exclusion covers all complaints we receive whether that be in relation to the HSE or a private nursing home. The current Programme for Government proposes that these restrictions should be removed and I had hoped to see progress on this matter during my tenure.  This has not materialised, and thinking of our recent experiences during the pandemic, it has only reinforced my belief in the need for this gap in our current system to be filled and for service users to have an avenue to raise issues and complaints of a clinical nature.  People coming to my Office are hugely frustrated when I can only examine part, but not all of their complaint.

The second area is prison complaints.  Progress has been made on bringing these within the jurisdiction of my Office, but has been painfully slow.  The matter needs to be concluded as soon as possible.

I was very pleased that jurisdiction over Direct Provision complaints was given to my Office, and this has been an important area of work for us.  There is a commitment also to bring the administration of the asylum and immigration process into jurisdiction, which I welcome.  Decisions on the granting of citizenship and leave to remain are properly reserved to Ministers.  However, complaints about the administration of the process should be capable of being considered by my Office.  I would like to see this matter progressed expeditiously.

Complaints about water services were considered by my Office until the formation of Irish Water.  Given the commitment to retain Irish Water within the public sector, people should once again be given access to an independent consideration of their complaints by my Office.

The legislation underpinning the Office of the Ombudsman was amended in 2012, but the underlying legislation dates back to 1980.  I was privileged to serve for five years as President of the International Ombudsman Institute, and to participate in the development of the Venice Principles, the global standard for public service Ombudsman institutions, and to help to bring about the adoption of the Principles by the United Nations in December 2020.  I was very pleased that Ireland was a co-sponsor of the motion.  There is an opportunity now to review the legislation and to replace it with a more modern, fit for purpose alternative.  The Venice Commission is committed to reviewing legislation for compliance the Principles where requested.  I hope that this Committee will press for such a review.

Before joining you here today, I thought back to my first engagement with the predecessor of the Committee in 2013.  My approach then and now has always been to focus on listening to people, trying to resolve issues in a non-adversarial way that is fair to everyone and to drive improvement and learning more broadly in the system.  In reflecting on some of the major reports produced since, “A Good Death” on end of life care, “Learning to Get Better” about health complaints, and “Opportunity Lost” on the Magdalen redress scheme to name but a few, I hope that my Office during my tenure has had a lasting impact on improving public services in Ireland.

I would like to thank the members of this Committee for all your support over the last eight years.  The role of Ombudsman, is an intrinsic component of the checks and balances within any state, and I firmly believe that accepting, acknowledging and learning from when things have gone wrong, or have been unfair, is an integral part of building an inclusive, innovative and transparent public sector working for, and accountable to, all. 

It has been a privilege to have held this Office over the last eight years, and I wish my successor (whomever they may be) the very best in taking on this challenging and rewarding role on behalf of the people of Ireland.

 

Peter Tyndall

Ombudsman

30 September 2021