The role of the Ombudsman is to examine complaints from the public alleging maladministration against certain public bodies within her jurisdiction, including local authorities Where she finds evidence of such maladministration she seeks to have the matter rectified and/or that redress is offered, where appropriate. In carrying out her functions, the Ombudsman is dependent upon the co-operation of the bodies concerned with regard to providing the necessary reports and information and, where a resolution is agreed, that it is put in train within a reasonable time frame. To this end liaison arrangements have been entered into with all public bodies within the remit of the Ombudsman and reasonable time frames agreed with regard to co-operation with the Ombudsman.
When a breakdown in these arrangements occurs, there can be long delays in dealing with complaints and this, in turn, adds to any grievance a person who has complained might have against the public body concerned. Liaison arrangements between the Office of the Ombudsman (the Office) and all local authorities have been in place for over twenty years and, in general, work satisfactorily from the perspective of the Office. (Details of the arrangement agreed in relation to local authorities is set out at Appendix 3 to this report)
When the Ombudsman receives a complaint it is screened to ensure that it is valid within the meaning of the Ombudsman Act, 1980 (the Act). The complaint is, generally, referred to the Council for a report. Usually, specific information is sought based on the details given concerning the complaint and on the previous experience of the Office in the examination of similar matters. It is important, therefore, that in responding to such requests, the local authority concerned should do so in a timely fashion and take care to ensure that it addresses all of the issues raised by the Office.
The Office allows four weeks for a response to a request for a report. Should a report not be received within four weeks, a reminder is issued giving a further three weeks to respond. Should a response still not be received a further reminder is issued giving an additional two weeks. Where the report is not provided by the end of this period (nine weeks) a warning letter under Section 7 of the Act (known as a pre S.7 letter) is issued reminding the Council of the provisions of Section 7 (1)(a) of the Act. Should a response still not be received after a further two weeks a Section 7 notice (S.7 notice) is issued. (A Section 7 notice usually requires a named person to provide the report requested by a specific date, otherwise, the person would be required to attend at the Office of the Ombudsman to provide the information or report, in person.)
The period, therefore, from the request for a report to the issue of a S.7 notice is about eleven weeks. (The eleven week time frame before a Section 7 notice is issued is being reviewed at present). The full text of Section 7 of the Act is set in Appendix 2 to this report. It should be emphasised that the majority of local authorities provide reports to the Ombudsman in a four to six week timeframe.
Complaints from the Ombudsman can be viewed as an opportunity to review decisions and for the body complained of to take a proactive approach to resolving the matter. Where a dismissive or defensive approach is adopted, however, an opportunity for a constructive outcome can be lost, and an issue can escalate from what might have been a minor matter into something more serious.
Good complaint handling procedures provide an opportunity to put things right. They also have an equally important role in planning and improving services to the public and are a useful means of monitoring the quality of service being provided. Constructive comments and suggestions can provide a helpful insight into existing problems and offer new ideas on how services can be improved. Effective complaint handling procedures provide an opportunity to establish a more positive relationship with the complainant and to develop an understanding of his/her needs. In the experience of the Office, people who make complaints are not usually motivated by ill will or malice and, generally, do not expect or seek financial compensation. They do, however, expect an explanation and a sincere apology together with some assurance that the matter giving rise to the complaint will not re-occur. Where a complaint is seen to be ignored, or is handled inadequately, the situation can rapidly deteriorate and lessen the prospects of a resolution.
This is why, in addressing those bodies within the jurisdiction of the Ombudsman, the Office has stressed the importance of installing good internal complaint handing procedures as set out in The Ombudsman's Guide to Internal Complaints Systems which can be viewed on our website: www.ombudsman.ie. It is important, therefore, that local authorities have an efficient complaint handling system in place, not just in relation to complaints received directly from the public, but also to deal with those referred by the Ombudsman.
A major source of complaint is delay or failure on the part of the body concerned to respond to a person. This leads to frustration on the part of the complainant as a result of which the matter may be referred to the Ombudsman. In the context of maladministration, delay or failure to respond, is regarded as an "undesirable administrative practice" and contrary to "sound administration". It is worth bearing in mind that the concept of good administration is a constantly changing one.
Good administrative practice develops alongside that which it gauges; the ideal relationship between the individual and the administration. Good communications are also an integral part of any sound administrative system. Failures in communications between officials on the one hand, and users of services on the other, can lead to delay or inaction which, in turn, become a source of complaint. It is particularly worrying therefore when complaints regarding delay, for example, are compounded by further delay because of poor communications or complaint handling systems in the body complained of.
A survey of complaints received by the Ombudsman against Kildare County Council (KCC) since 2003 identified delay on the part of the Council as a very significant problem for the Ombudsman in processing complaints. These delays mainly concern the provision of reports and responses to the Ombudsman in relation to complaints referred to the Council. In the course of 2005 it was necessary to issue a Section 7 notice to the Council on twelve occasions. This should be viewed in the context of a total of 27 complaints received against the Council in that year. In 2006, seven Section 7 notices issued in the context of 28 complaints received.
In the period 2003 to 2006 inclusive, eighty nine complaints were received against Kildare County Council as the following table illustrates:
Total Complaints against KCC
In Appendix 1 to this report, details are given of a selection of complaints received in that period in order to demonstrate the difficulties the Office has encountered in processing them with the Council. At a wide ranging meeting with the County Manager on 14 May 2003, staff of the Ombudsman were advised that any communications difficulties between the Council and the Ombudsman would shortly be resolved because it was proposed to incorporate Ombudsman complaints in the Council's newly installed electronic tracking system. It was hoped that this would eliminate some of the difficulties in the liaison arrangements between the respective offices. From Appendix 1, it is clear that, unfortunately, performance has not improved in the manner envisaged by the County Manager in 2003.
The Office does not take an inflexible approach to the difficulties that bodies within remit may have from time to time in terms of resources and staff. In the course of seminars and meetings held in various local authorities throughout the country over recent years, the Office has stressed the need for local authorities to advise the Ombudsman if difficulty and/or delay is likely to arise in relation to the Ombudsman's request for a report on any particular complaint and that the response of the Office to such difficulties would be fair and reasonable. Neither does the Office issue Section 7 notices lightly, without first having given the body concerned ample opportunity through reminder letters and phone calls to deal with the matter. It should be noted that the number of Section 7 notices issued to a body is published in league table format in the Annual Report of the Ombudsman.
The following table sets out the picture in recent years with regard to the issue of Section 7 notices, generally, and to local authorities, including KCC:
Total Section 7 notices issued - all bodies in remit
Total Section 7 notices issued - local authorities
Total Section 7 notices issued - KCC
The fact that no Section 7 notices are recorded against KCC in 2003 and 2004 does not mean the Ombudsman was satisfied with the level or speed of response from the Council to complaints being processed in those years. The history of the Council's dealings with the Office in the period 2003 to 2006 is set out in Appendix 1 and demonstrates that, perhaps, the issue of Section 7 notices was stalled by the submission of a report/information at the eleventh hour. It is also likely that having observed the history of the Office's dealings with the KCC in 2003 and 2004, patience was lost with the Council and Section 7 notices issued more routinely in 2005 and 2006, once the agreed time limits had been exceeded without a valid explanation. The number of Section 7 notices (12) issued to KCC in 2005 is unprecedented for a single body when taken in the context of the total number of complaints to the Ombudsman against the Council in 2005 (27).
The Ombudsman Act, 1980 provides at section 7 (3) that:
(3) A person shall not by act or omission obstruct or hinder the Ombudsman in the performance of his functions or do any other thing which would, if the Ombudsman were a court having power to commit for contempt, be in contempt of such court.
The provision in the Act, as set out above, makes it very clear that any action by a public body within the jurisdiction of the Ombudsman which could be regarding as hindering the Ombudsman in the performance of her functions is a very serious matter. Therefore, failure to provide the Ombudsman with information requested in a timely way is viewed by this Office as a serious matter and the Ombudsman would be very concerned about a trend that might suggest that the authority of her Office was being undermined by the failure of some bodies to co-operate in a proper manner with her examinations/investigations by (i) engaging in delay in providing reports/information or (ii) providing reports that are inadequate leading to further delay.
This report did not set out to analyse the reasons why Kildare County Council has provided a less than adequate service to the Ombudsman, as illustrated in Appendix 1. It may be a matter of internal communications rather than any systemic inertia in dealing with the Ombudsman's correspondence. Whatever the reason, it is for the Council to address the matter and ensure its internal communication systems are such that correspondence from the Ombudsman does fall into a "black hole" and that its liaison procedures are sufficiently robust to ensue that information/reports are provided to the Ombudsman in an appropriate and timely way.
Evidence of improvement by KCC is imperative in 2007 and beyond. KCC, needs to demonstrate that it takes notification of complaints from this Office seriously, as the vast majority of local authorities do, and that it is prepared to provide the Ombudsman with the information requested in an appropriate and timely manner.
While she would be reluctant to do so, the Ombudsman may, in the absence of significant improvement, have no alternative but to make a report to the Oireachtas and, if she considers it appropriate, to the Minister for the Environment, Heritage and Local Government, on the performance of Kildare County Council in providing responses/reports on complaints from the Ombudsman.
|1||Planning Enforcement||A report received in November 2003 advised that the developers had provided compliance submissions which had been forwarded to the Council's legal advisors. In January 2004 we sought further information. The report was finally received in May 2004 (4 months later) following the issue of a pre S.7 letter. According to that report, the Council considered that no further action was warranted following receipt of a compliance letter in September 2003. The case was closed until the complainant contacted the Office again. A further report was requested in September 2004. The Council did not provide the report until August 2005 following the issue of a S.7 Notice|
|2||Failure to Reply||The Council was requested to provide a report in June 2003. Despite reminders, and two pre S.7 letters, the report was not received until October 2003 (almost 4 months later).|
|3||Disabled Persons Grant||The report in this case was requested in November 2003. Despite reminders, it was not received until March 2004 (4 months later).|
|4||Road Flooding||A report requested in October 2003 was received in January 2004. There did not appear to be any real justification for this delay as the report contained essentially historical information|
|5||Acquisition of Land Rights||A report was requested in November 2003 but was not received until May 2004 (6 months later) following the issue of a pre S.7 letter. As this report did not fully address the matters raised, the Council was asked for comprehensive report on all the issues raised in the initial request in November, 2003. By July 2004, when the report had still not been received, a further pre S.7 letter issued and the report was finally received in August 2004, almost 9 months after the original request.|
|6||Signatures on Letters||The Council was asked to provide a report in July 2003. This was not received until December 2005 (5 months later) following the issue of a pre S.7 letter. This case also showed long delays in obtaining a further report which was requested in June 2004 and not received until October 2004, despite written and telephone reminders.|
|7||Planning Enforcement||The first report was requested in July 2003 but was not received until November (4 months later). In June 2004 further information was requested. By August, when the information had not been provided, a S.7 Notice issued and the report was received later that month.|
|8||Transfer of Title||A report was requested in October 2003. A pre S.7 letter issued in January following which an interim reply was received. A further interim reply was also received in February 2004. By October it became necessary to issue a further pre S.7 letter and the report was finally received in November 2004, over a year after the initial request.|
|9||Housing Allocation||A report requested in November 2004 was not received until February 2004 (3 months later) following reminders and a pre S.7 letter. The information requested and provided was quite basic, yet it took almost 3 months to provide it.|
|10||Failure to Reply||The complaint concerned the Council's failure to reply to the complainant. Our request sought the reasons for that failure and a copy of the response that had, or would issue. It took almost 4 months to get a response from the Council following reminders and a pre S.7 letter.|
|11||Housing Repairs||This complaint arose out of difficulties created as a result of work carried out by the Council's agents. A report was requested in March 2005 but not received until June 2005 (3 months later). As the person dealing with the matter had been ill, there were understandable reasons for the delay at that stage. Further information was requested in June 2005. Two reminders were issued and the Council subsequently advised in September 2005 that it had no record of our correspondence. The response which was finally received in October 2005, contained four lines which included an apology for the delay and an offer of redress to resolve the matter. Three pre S.7 letters issued in this case before the responses required were received.|
The request for a report in this case issued in September 2004. In December 2004 the Council telephoned to say that it had no record of the complainant and the report subsequently received in December confirmed this. However, in February 2005, an acknowledgement was received from the Council to the effect that the Council was awaiting a detailed report and would contact us again.
The Council's responses in this case resulted in the Ombudsman giving the complainant incorrect information. We subsequently went back to the Council to establish the position, and it took a further 2 months to get the response.
A report was requested in June 2004. However, an Enforcement Notice subsequently issued in November 2004, but this Office was not provided with a report until 14 January 2005 (7 months later) following the issue of a S.7 Notice in January 2005.
Further information was sought in February 2005 and an interim report received in April 2005. As the report had not been received a further S.7 Notice issued in August 2005 and the response was received later that month. However, the matter had not been finalised. The case was brought to the attention of the new SEO in Planning in the course of a meeting on 8 December 2005 and a follow up letter issued to the Council on 13 December 2005. The report which was finally received in March 2006, stated that the complainant had been advised on 4 November 2005 that the developer was now in compliance. However, there was no explanation for the delays and no reason was given as to why the Ombudsman could not have been advised at the same time as the complainant. It was unsatisfactory from the Ombudsman's point of view, to be writing to the complainant months after the matter had been finalised.
It was necessary to issue two S. 7 Notices in this case.
|14||Planning Administration||A report was requested in August 2004. It was not received until January 2005 (5 months later) following the issue of a S.7 Notice.|
|15||Planning Enforcement||Case was the subject of two pre S.7 letters due to long delays in providing information requested|
|16||Planning Enforcement||The complaint was referred to the Council for a report in May 2005 but the report was not received until August 2005 following the issue of a S.7 Notice|
|17||Housing Repairs||A report was requested in April 2005 but not received until July 2005 following the issue of a S.7 Notice. Once received, it was possible to close the case within a very short period.|
|18||Planning Enforcement||Report requested in May 2005. The report was received in August 2005 following the issue of a pre S.7 letter.|
|19||Waste Charges||Report requested in March 2005 but not received until June 2005 following the issue of a pre S.7 letter. Case concerns a refusal to grant a waiver. A further report was requested in November but not responded to until February 2006.|
|20||Planning Administration||A report requested in October 2005 was not received until March 2006 (6 months later) following the issue of a pre S.7 letter and a further letter in January 2006.|
|21||Access to Information on the Environment||Report requested September 2005 but was not received until May 2006 following a pre S.7 letter, a meeting with the Council and a follow up letter.|
|22||Waste Charges||Report requested December 2005 and not received until February 2006 following a pre S.7 letter.|
|23||Planning Enforcement||Report requested May 2005 seeking some very straight forward information was not received until August 2005 following a S.7 Notice.|
|24||Housing Repairs||Report requested August 2005 but not received until November 2005 following the issue of a S.7 Notice.|
|25||Road Repairs||Report requested October 2005 but not received until January 2006 following the issue of a S.7 Notice. This was quite a straight forward case with no obvious reason for such a delay.|
|26||Planning Enforcement||Report requested January 2006 but was not received until June following the issue of a S.7 Notice. .|
|27||Planning Administration||Report requested November 2006. A pre S.7 letter issued 31 January 2007. The report was received on 14 February 2007.|
|28||Planning Administration||Report requested October 2006. A S.7 Notice issued 15 January 2007 and the report was received on 5 February 2007.|
|29||Planning Enforcement||Report requested August 2006. Report not received until January 2007 following the issue of a S.7 Notice.|
|30||Roads/Traffic||Report requested September 2006 and not received until January 2007 following the issue of a S.7 Notice.|
|31||Planning Administration||Report requested July 2006 and received in November 2006 following the issue of a pre S.7 letter.|
|32||Planning Administration||Report requested August 2006. S.7 Notice issued 29 December and report received 8 January 2007.|
|33||Planning Enforcement||Report requested November 2006. A S.7 Notice issued on 2 March 2007 and a response was received on 16 March 2007|
|34||Housing Loans & Grants||Report requested on 1 November 2006 but not received until 28 February 2007 following the issue of a pre S.7 letter.|
|35||Derelict Sites||Report requested July 2006. S.7 Notice issued 8 December 2006 and report received 8 January 2007.|
7.(1) (a) The Ombudsman may, for the purposes of a preliminary examination, or an investigation, by him under this Act, require any person who, in the opinion of the Ombudsman, is in possession of information, or has a document or thing in his power or control, that is relevant to the examination or investigation to furnish that information, document or thing to the Ombudsman and, where appropriate, may require the person to attend before him for that purpose and the person shall comply with the requirements.
(b) Paragraph (a) of this subsection does not apply to information or so much of a document as relates to decisions and proceedings of the Government or of any committee of the Government and for the purposes of this paragraph, a certificate given by the Secretary to the Government and certifying that any information or document or part of a document so relates shall be conclusive.
(2) Subject to the provisions of this Act. a person to whom a requirement is addressed under this section shall be entitled to the same immunities and privileges as if he were a witness before the High Court.
(3) A person shall not by act or omission obstruct or hinder the Ombudsman in the performance of his functions or do any other thing which would, if the Ombudsman were a court having power to commit for contempt of court, be contempt of such court.
(4) Any obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or furnished to a Department of State or civil servant imposed by the Official Secrets Act, 1963 shall not apply to an examination or investigation by the Ombudsman under this Act, and, subject to section 9 (2) of this Act, the State shall not be entitled in relation to any such examination or investigation to any such privilege in respect of the production of documents or the giving of evidence as is allowed by law in legal proceedings.
(5) The Ombudsman may, if he thinks fit, pay to the person affected by an action in respect of which an investigation is held by the Ombudsman under this Act and to any other person who attends or furnishes information for the purposes of the investigation--
(a) sums in respect of travelling and subsistence expenses properly incurred by them, and
(b) allowances by way of compensation for loss of their time,
of such amount as may be determined by the Minister.
(6) A statement or admission made by a person in a preliminary examination, or investigation, under this Act by the Ombudsman shall not be admissible as evidence against that person in any criminal proceedings.
(7) Nothing in subsection (3) of this section shall be construed as applying to the taking of any such action as is mentioned in section 4 (7) of this Act.
1. Each Manager should nominate an officer at senior level to act, for the local authorities for which the Manager has responsibilities, as Liaison Officer with the Ombudsman's Office. The name, official address and telephone number(s) of that officer and, in the future, any change in that information, should be notified both to the Department of the Environment and to the Ombudsman's Office.
2. It is envisaged that the Liaison Officer's main functions will be:-
- to act as the first point of contact in any particular case between the Ombudsman's Office and the local authority;
- to ensure that any written or oral enquiries from the Ombudsman's Office are immediately directed to the appropriate section(s) of the local authority for attention;
- to ensure that all time limits applying to requests for information, etc., from the Ombudsman's Office are met;
- to ensure that all relevant files and documents are readily available for inspection when requested by the Ombudsman's Office;
- to ensure that the Ombudsman's staff are provided with suitable facilities on their visits to the local authority.
3. In nominating an officer for liaison duties regard should be had to the above functions, and also the following aspects:-
- the need for ready access to the Manager;
- the status required to process complaints quickly and effectively within the local authority, and.
- accessibility to the staff of the Ombudsman.
4. It is not anticipated that the functions of Liaison Officer will occupy the full time of the nominated officer.
5. The attached guide to the main provisions of the Ombudsman Act, 1980 gives details of the types of cases which the Ombudsman may, and those which he may not, investigate under the Act. The Ombudsman is empowered to fix whatever procedures he considers appropriate for conducting an investigation. It is hoped, however, to keep formalities to a minimum and, indeed, to dispose of as many complaints as possible by telephone. To this end, if the Ombudsman's Office initiates enquiries into any complaint by means of telephone contacts with a local authority, but subsequently decides to undertake a Formal investigation of that complaint, that investigation will commence with a written communication to the local authority (see paragraph 7) and the earlier telephone conversations will not form part of the Ombudsman's investigation. Local authorities are expected to co-operate fully in such investigations and to support the aim of avoiding unnecessary formalities.
6. In the case of the preliminary enquiry the first person to be contacted by the Ombudsman's Office will be the Liaison Officer. He should, in the case of an enquiry by telephone, indicate what section of the local authority is involved. If possible, he should also supply the Ombudsman's Office with the name of a particular officer who should be in a position to respond to the enquiry, so that the Ombudsman's Office can then contact the officer involved and attempt to resolve the matter. He should ensure that any letter from the Ombudsman's Office is directed to the appropriate section. The Liaison Officer should have an important role to play in resolving any difficulties that may arise.
7. Where the Ombudsman decides to investigate a complaint formally under the Act, the Ombudsman's Office will write to the Manager of the local authority enclosing a written summary of the complaint and requesting written observations on it. Such enquiries should be dealt with as a matter of priority and a reply should issue within 14 days of receipt of the enquiry. The Liaison Officer should be kept informed of developments arising from all enquiries and copies of all replies from the local authority should be sent to him. If a local. authority does not accept that a complaint has properly been referred to it (e.g. if it is of the view that the subject matter is not one for the Ombudsman or if it feels that the complaint is not appropriate to the local authority), the Manager should convey the local authority view in writing to the Ombudsman within 7 days.
8. The Ombudsman may, for the purposes of a preliminary examination or an investigation require that any information or document or any other thing relevant to his examination or investigation should be furnished to him. Where appropriate, the Ombudsman may require any person who, in his opinion, is in possession of any such information, document or other thing to attend before him for the purpose of furnishing it to him. Local authorities must comply with the Ombudsman's requirements in this respect. Subject to the Ombudsman's agreement and to notification of the person concerned, the Liaison Officer may attend any interview between the Ombudsman (or his staff) and the person concerned.
9. In some cases, a complaint may be directed against the administrative action of an individual officer or employee or the Ombudsman may find it necessary, in order to complete his examination or investigation, to scrutinise in detail the actions taken by an individual officer or employee. In such cases, the officer or employee concerned should be informed immediately that his actions are under scrutiny and he should be given an opportunity or examining, and suggesting amendments to, any draft reply to the Ombudsman in respect of this aspect of the examination/investigation. If the officer or employee is not satisfied that his position has been adequately reflected in any reply which issues to the Ombudsman, he may wish to submit his own comments directly to the Ombudsman. An officer or employee who wishes to make such a submission should be afforded all reasonable facilities to assist him in preparing the submission, including access to the relevant files, if necessary. The time limits applicable to personal submissions to the Ombudsman will be 14 days from receipt of the enquiry from the Ombudsman.
10. In the case of officers or employees who are required to attend before the Ombudsman as described in Paragraph 7 above, it is presumed that attendance will be regarded as part of his official duties.