Lesson 8

1. Lesson 8 The Ombudsman

2. Introduction • Purpose – cheap and accessible remedy • Original ombudsman – public sector redress; pensions, social welfare etc • Devlin Report – proposed Commissioner for Administrative Justice • All party report in 1979 – more support • Ombudsman Act, 1980 • 1983 first O appointed – started 3/1/1984

3. Standing? • President appoints him after joint resolution • Independence required • No qualifications needed – cannot hold other office (which is paid for) and can’t be a public rep of member of defence forces • Removal – like a judge • Salary – on par with HC judge

4. Appointed for 6 years – can serve again – current is Emily O’Reilly • Retire at 61! • Staffing – 52 in 2004 annual report • Previous difficulties over budget cuts – 1987 – 1988 • Must make annual report to the Oireachtas

5. Emily O’Reilly - third Ombudsman appointed on the 1st June 2003 • Also information commissioner…

6. Does she administer justice? • Can only make recommendations • If not followed, he puts that in her report

7. Jurisdiction • Schedule to Ombudsman Act, 1980 • Amended by SI 332 of 1984 • New functions under Disability Act, 2005

8. Act must have been done by a public body • Departments of State • Local Authorities • Included by SI 332/1984 – but that makes clear it does not apply to reserved functions of LA’s – so only executive functions • Health Boards • 332/1984 – not apply to those solely exercising clinical judgment • Functions now with HSE • Eircom? GONE – not any more • An Post

9. Complainant needs to have been adversely effected – not defined – some loss or damage – see case studies • Complainant must have sufficient interest – i.e. directly affected or someone acting on their behalf • Flexible – better than court – think of the elderly – pensions etc

10. Action must have been carried out as part of an administrative function • Admin action is the key (decisions about SW, decisions about pension, used include decisions about billing with Telecom etc) • But some pure policy decisions are included – e.g. if X is entitled to a housing grant • If the law is the problem? No jurisdiction BUT ombudsman can be imaginative – see case studies… • Can report that law is defective…

11. Only jurisdiction to deal with 7 types of defect – s.4(2) 1980 • Taken without proper authority (UV) • Taken on irrelevant grounds • Result of neg or carelessness • Based on erroneous or irrelevant considerations • Improperly discriminatory (Equal Status Act, 2000 also) • Based on undesirable administrative practice • Otherwise contrary to sound or fair administration

12. The Disability Act, 2005, which became law on 8 July, 2005, imposes significant obligations on Government Departments and on Public Bodies to work proactively towards the improvement of the quality of life of people with disabilities. It also gave the Ombudsman new powers to investigate complaints about compliance by public bodies and others with Part 3 of the Act. Specifically the Ombudsman may investigate complaints relating to determinations by inquiry officers and decisions of complaints officers in relation to sectoral plans.

13. The following are typical examples of what people may complain about: • entitlement to old age and retirement pensions administered by the Department of Social and Family Affairs; • disputes about income tax credits granted by the Revenue Commissioners; • entitlement to higher education grants administered by the Department of Education and Science; • entitlement to livestock grants administered by the Department of Agriculture and Food; • entitlement to local authority housing; • disputes about the medical card scheme administered by the Health Service Executive.

14. Discretion • First ombudsman – very non legal • Not really constrained by above • O’Reilly – similar – sees role as to help • Tends also to be coloured by merits of a decision • See example of first Om – page 61

15. Sample case - Cork County Council - Faulty Heating System • The Ombudsman received a complaint from a woman who had been allocated a house by Cork City Council in October 2004. She was unable to reside in the property as the newly installed gas central heating system was not working correctly • Her complaint was that the Council should have inspected the property and ensured it was adequately heated before it was allocated to her – had to rent • When the Ombudsman took the matter up with the Council it acknowledged that there had been a problem with the heating and efforts were made to rectify it. However, the Council refused to accept responsibility for the delays which prevented the complainant taking up occupancy of the house. • Blamed sub-contractors

16. Ombudsman considered that the Council was ultimately responsible for ensuring that the house was in good order before it was allocated to the complainant. • The problem with the heating system was not resolved until April 2005 and the Ombudsman considered the complainant was due some form of redress for the expense, anxiety, time and trouble caused by the delay in making the property ready for occupation and that the onus should not be placed on the complainant to pursue the contractor for redress. • Asked the Council to review the case and to consider what redress might be appropriate, taking into account that the complainant had to pay for alternative and more expensive accommodation for approximately six months. • The Council reconsidered the case, agreed to pay the complainant €1,000 in compensation and also apologised to her.

17. Exemptions - 6 • Where there is a right of appeal to COURT • Distinguish where a REMEDY may lie in court – only an APPEAL matters • Different in England – but UK Om has wider powers – there has no jurisdiction if civil proceedings are in process

18. Main Rule • “Before you contact us you must first try to solve your problem with the public body concerned. In some cases there may be formal local appeals systems which you will have to go through before coming to the Ombudsman, for example, the Agriculture Appeals Office, the Social Welfare Appeals Office etc. If you fail to resolve your problem and you still feel the body concerned has not treated you fairly, contact the Ombudsman.”

19. No jurisdiction where appeal lies to person or tribunal other than a dept of state • So, if appeal lies to anyone other than Minister or civil servant – no jurisdiction • E.g. Bord Pleanála • But in social welfare – the appeals officer is a civil servant – so has jurisdiction!

20. No jurisdiction in actions dealing with national security or matters relation to aliens and naturalisation • Nor in relation to prisons • Or in relation to employment issues in public service – but he can investigate dismissals and can look into terms of commercial contracts entered into by a Depart

21. If of the opinion that complaint is • Trivial • Vexatious • Already being investigated

22. Minister may prevent it – s.55(3) – puts the reasons in writing • Omb must then include this in his report • Never done

23. Time Limits • should complain to the Ombudsman as soon as possible but not later than 12 months after the action you want to complain about occurred or you became aware of it occurring. • Cannot deal with matters pre 7 July 1983 – but maybe if part of continuous process • May ignore time limits if special circumstances make it proper to do so

24. Procedures • Informality is the aim – majority dealt with like this • Two step process – the Review Procedure first – preliminary • Decide if well founded – see if can be dealt with quickly – very informal • Make contact with Dept etc – dialogue – purpose really to encourage internal review

25. If no result – moves to “formal” investigation • Still air of informality – very get this far • Considerable powers • S.7(1) – entitlement to documents and information • 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 • 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.

26. Section 7(3) • A person shall not by act or ommission 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.

27. Fair Procedures • All interviews reduced to writing and submitted for comments • Report (without recommedations) in draft form submitted to head of relevant public bodies

28. Remedies • Recommendations – see s.6(3) • ( a ) that the matter in relation to which the action was taken be further considered • ( b ) that measures or specified measures be taken to remedy, mitigate or alter the adverse affect of the action, or • ( c ) that the reasons for taking the action be given to the Ombudsman,

29. Wide discretion • Has recommended apologies • And recommended money payments • Compensation also • What if body refuses to act on it? • Includes that in a SPECIAL REPORT • Manual says never happened • Uh-oh

30. 6 Nov 2002 – Revenue rejected 3/5 recommendations • Rejected recommendations concerned compensation for loss in value of wrongly delayed tax refunds to certain public service widows and a group of 10 other taxpayers, and a recommendation that Revenue introduce a scheme to compensate taxpayers in cases where refunds were delayed due to maladministration • Minister then said they would be implemented