As Ombudsman, I investigate complaints from the public about public service providers such as government departments, local authorities, the HSE and third level education bodies. Where I establish that a person has been treated unfairly or there is maladministration, I can recommend redress, such as an apology or compensation. Where a person has failed to obtain a grant, benefit or service to which they are entitled, I can recommend that this is addressed. If the failure has also affected other people, I can ask the body to put things right for them as well, and to make changes to processes or procedures to stop the injustice from happening again.
In the course of my work, I often become aware of issues that can be addressed by the Oireachtas, whether that is to improve services, introduce new legislation or improve the powers and jurisdiction of my Office. As you are planning for the next Oireachtas, some of the key issues arising are set out below for your consideration.
The current system of funding social care services for people who need support is completely unsatisfactory. Many people who have brought complaints to my Office tell me that they want to remain in their own homes as long as possible. International experience has shown that people living in their own home have a better quality of life. It can also serve to take some of the pressure off our hard-pressed hospitals. Funding for supported living needs to be placed on a statutory footing to remove the current financial bias towards nursing home care.
I am currently carrying out an investigation into the situation of some 1,300 people under 65 who are inappropriately placed in nursing home care. There are also people with intellectual difficulties still in institutional care as there is insufficient funding to meet their support needs, even in some instances when appropriate housing has been identified and adapted. Support for people with disabilities inappropriately placed in healthcare settings has never been a priority. Despite the many scandals in institutional care including the Magdalen laundries, there has never been consistent and sufficient funding to support people to remain in, or return to, their own communities. Properly funding a move away from congregated settings to appropriate community provision needs to be a key priority for any incoming government.
To facilitate this, support for social care should be separated from the health service. It has been and will remain a low priority in this context when compared to the pressing needs of emergency admissions and acute care. In addition, the health model of disability is inappropriate and needs to be replaced by a person centred approach which respects the rights and preferences of individuals and allows them to be engaged and respected members of their local communities.
There is an urgent need for statutory reform in the area of transport supports for disabled persons.
I have considerable concerns about the eligibility criteria for the Disabled Drivers Scheme. The criteria are extremely narrowly focused and prescriptive. They only allow for the assessment of applications on six specific medical grounds and do not allow for the exercise of any wider discretion to decision makers to consider cases which do not fall strictly within the narrow confines of the criteria. This means that very many severely and permanently disabled applicants have no prospect of qualifying under the scheme as currently framed. I continue to receive complaints about the scheme, many of which have been brought to me from public representatives from across the political divide.
The Mobility Allowance and Motorised Transport Grant schemes were closed down to new entrants following investigation reports by the then Ombudsman in 2012 which found them to be in breach of the Equal Status Act 2000.
In June 2013 the Government announced that new statutory provisions would be introduced in relation to financial supports for disabled persons with mobility needs. The proposed ‘Transport Support Payment Scheme’ does not appear to have advanced since then. The delay in providing a replacement scheme for new applicants compounds the injustice being suffered by disabled persons who urgently need personal transport and who are also denied support under the Disabled Drivers Scheme because of its unacceptably restrictive eligibility criteria.
Provision of Emergency Direct Provision accommodation
I can investigate complaints relating to services provided to residents of direct provision centres. I have established a comprehensive Outreach programme and my officials have visited, or are in the process of visiting, residents of all direct provision centres to discuss concerns residents might have. Therefore, I believe that my Office is well placed to comment on how aspects of the system could be improved.
One such improvement would be to end the use of emergency accommodation. I understand the reasons why such accommodation has been used. However, developing State-owned facilities to accommodate applicants for protection should, if done correctly:
According to the State’s International Protection Accommodation Service (IPAS) the cost for keeping people in emergency accommodation is roughly €100 per night per person. The cost of accommodating people in a State-owned direct provision centre is just under €22 per person per day. While this figure does not include capital costs, it does include operating costs such as catering, utility bills and insurance.
Such facilities should be provided as a matter of priority.
The ‘National Standards for accommodation offered to people in the protection process’ provide for the establishment of an Inspectorate for direct provision centres. As with almost all other public services I would expect my Office to have jurisdiction over complaints against the proposed Inspectorate.
Decisions on applications for international protection are properly the responsibility of the Minister for Justice and Equality. However, as with other administrative processes there is no reason why my Office should not be able to investigate complaints about the process leading up to those decisions. For example, I have remit over the administrative processes underpinning the administration of the planning process but I do not have remit over actual planning decisions.
Where people are unhappy about time lags and unnecessary delays in the decision-making of public service providers generally, they have the right to complain to my Office. However, that right does not extend to applicants for international protection who currently have no avenue of complaint about the administration of their applications. Most Ombudsman offices internationally have remit in this area.
‘Clinical judgement’ exclusion
Currently I cannot examine complaints about clinical judgement decisions (for example, diagnosis or decisions about the type of care provided) in complaints about the Health Service Executive and private nursing homes. This restriction does not apply in other similar Offices in neighbouring jurisdictions. In the interests of complainants this restriction should be removed.
Many complaints to my Office in the health area involve both clinical and non-clinical issues. The current regime for dealing with complaints about clinical judgement through ‘professional bodies’ such as the Medical Council was fatally undermined in the Supreme Court judgment in the ‘Corbally v The Medical Council’ (2015 IESC 9) case which raised the bar so high that the majority of clinical complaints would not be examined. There is no independent redress for the public.
In recent years there has been an increase in the number of complaints about the care and treatment provided to patients in hospitals and private nursing homes. In particular, I have seen an increase in complaints about the care provided in Emergency Departments. The focus is not about finding fault with an individual doctor or nurse but rather with resolving the individual complaint while generating improvements to patient safety. If I had the power to examine the clinical treatment provided in such instances, it would help to improve patient safety and potentially reduce resulting legal action.
Extension of remit to Prison complaints
In April 2016, the then Inspector of Prisons, Judge Michael Reilly, published a report in which he was highly critical of the current complaints system within the Irish prison service and recommended that the Ombudsman be given jurisdiction to deal with complaints about the prison system. Then Tánaiste and Minister for Justice and Equality, Frances Fitzgerald, welcomed the report and said that prisoners should be able to have their complaints independently investigated by the Ombudsman. In January 2019 the Minister for Justice Charles Flanagan indicated that once the new local complaints system has been introduced and bedded down (which is expected in 2020) and that the Ombudsman’s remit would then be extended. I have had extensive discussions with the Irish Prison Service and the Department of Justice and Equality and the change can be achieved through a Statutory Instrument by the Department of Public Expenditure and Reform.
The ‘Venice Principles’ - Supporting good administration
As a member of the Council of Europe, Ireland voted for the adoption of the ‘Principles on the Protection and Promotion of the Ombudsman Institution (The Venice Principles).
The 25 Venice Principles represent the first, independent, international set of standards for the Ombudsman institution. They are the equivalent of the Paris Principles which set out the standards against which national human rights institutions are judged. The next Government should commit to reviewing the legislation governing my Office to bring it in line with the Venice Principles and international best practice.
Bring all bodies in receipt of significant exchequer funding within the scope of Freedom of Information (FOI) legislation
The Programme for Government for 2011 to 2016 contained a commitment to extend Freedom of Information legislation to ensure that all statutory bodies and all bodies significantly funded from the public purse are covered. While I was very pleased to welcome the significant extension of FOI legislation to all public bodies under the FOI Act 2014, further progress on extending the scope of the legislation to capture those bodies in receipt of significant exchequer funding that are currently outside its scope is needed.
The introduction of regulations making provision for the management and maintenance of records held by public bodies
In 2014 the Department of Public Expenditure and Reform published a Code of Practice for FOI aimed at ensuring the effective and efficient operation of the FOI Act 2014 and at assisting public bodies in the performance of their functions under the Act. The Code acknowledges that records management poses a very significant challenge for public bodies, not least due to the advent and adoption of new information and communication technologies, and that records management relates to a broader set of corporate responsibilities than FOI. It also acknowledges that there is a compelling need for sound record management practices and systems in order to facilitate the smoother operation of FOI in public bodies. I would welcome the introduction of regulations, as provided for under the Act, to make provision for the management and maintenance of records held by public bodies.
A complete review of the FOI Act to determine if it is achieving its objectives and to allow for necessary amendments and recommendations for improving the Act.
Given the complexity of FOI legislation FOI Act and the significant amendments the 2014 Act introduced, I believe it is now opportune to consider if the Act has achieved its intended aims and if it is operating efficiently and effectively. I have a number of specific suggestions for amendment with a view to improving its efficiency and effectiveness and to address technical issues that have arisen.
Introduce a new appeal mechanism
Currently, appeals against my decisions go to the High Court. This is costly and time-consuming, as well as very resource intensive for my Office and public bodies. A new mechanism drawing on international best practice should be introduced to simplify and speed this process.
The role of the Commissioner for Environmental Information is legally independent of the role of Information Commissioner but is carried out with the assistance of staff of the Office of the Information Commissioner. The Commissioner reviews decisions of public authorities
where applicants are not satisfied with the outcome of requests for environmental information under the EC (Access to Information on the Environment) Regulations. There have been positive developments in the areas of resources and reduction in the appeal fee. However, operating two different access regimes can be complicated for the public, public bodies and my Office. I believe that the two regimes should be merged.
Staff from my Office provide the secretariat to the Standards in Public Office Commission. As Ombudsman I am an ex-officio member of the Commission. I make my comments in that capacity and I am not speaking on behalf of my fellow Commission members.
New ethics legislation
The current ethics framework is complex, with a number of bodies responsible for its oversight, including the Standards in Public Office Commission, Oireachtas Committees on Members Interests, and ethics registrars within local authorities. Moreover, it is out of step with international best practice in the area of ethics regulation, particularly as regards rules on disclosure of assets and liabilities, acceptability of gifts and benefits, nepotism and use of influence, and enforcement. Of particular note are criticisms of the Council of Europe’s ethics oversight body, GRECO, which has rated Ireland as “globally unsatisfactory” in its fourth round evaluation.
New ethics legislation is urgently required to produce a simple, proportionate and effective framework of reassurance.
In 2015, the Regulation of Lobbying Act commenced, bringing with it the requirement for those lobbying elected and appointed officials to register and submit returns of lobbying activity. The Register of Lobbying has greatly enhanced transparency in respect of the government’s decision-making processes in respect of policy, legislation and funding decisions. The Standards in Public Office Commission oversees the operation of the Register, and has the authority to investigate and prosecute certain breaches of the Act.
The legislation also introduced a one-year cooling-off period for certain designated public officials once they leave office. For a one-year period, they are prohibited from lobbying, or being employed by someone who lobbies, their former public body or former colleagues.
While the legislation is generally operating well, the provisions in respect of post-employment are not enforceable. The Standards Commission, in its annual report for 2018, reported on a breach of the Act’s post-employment provisions and that it does not have the power to investigate or prosecute breaches of those specific provisions.
A legislative amendment is needed in order to strengthen and enhance the Act’s post-employment provisions, and to bring it in line with the rest of the Act.
The current electoral system faces a number of challenges:
It is therefore recommended that the establishment of an electoral commission be progressed, as well as a comprehensive review of the electoral legislation with a view to bringing it up to date and ensuring it is fit for purpose.