Office of the Ombudsman 1999 Annual Report

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Contents

Foreword ................................................................................................................................................. 3

Introduction ............................................................................................................................................ 3

Chapter One: A Changing Public Service ................................................................................................. 4

Chapter Two - Protecting Rights and Delivering Remedies .................................................................... 7

Chapter Three: Selected Cases and General Issues .............................................................................. 22

Chapter Four - The Year in Review........................................................................................................ 35

Chapter Five: Statistics .......................................................................................................................... 43

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Foreword

I hereby submit my sixth Annual Report to the Dáil and Seanad pursuant to the provisions of

Section 6(7) of the Ombudsman Act, 1980. This is the 16th Annual Report submitted in relation

to the work of the Office of the Ombudsman since it was established in 1984.

Introduction

The Ombudsman's Office has been in existence now for 16 years and in that time it has evolved in

terms of the type of complaint received, how it approaches its work and also in terms of the

principles and values which inform its work. Any institution which does not change with time is in

danger of stagnating. While the fundamentals of the Office remain fixed, there is plenty of scope for

new thinking and for new approaches to meeting the essential Ombudsman task. My Office learns

from its own experience but is also influenced by developments in the public service generally, in the

wider Irish society and also by contacts with Ombudsman Offices internationally.

In Chapter Two of this Annual Report I try to convey the range of approaches, working methods, and

the forms of remedy or redress sought, which characterise the Ombudsman's Office at present. I

understand the Oireachtas will, in the near future, be considering the first substantive amendment

of the Ombudsman Act since its enactment in 1980. This will, it is proposed, extend my jurisdiction

to public voluntary hospitals, non-commercial state bodies and some other publicly funded bodies.

Accordingly, I hope members of the Dáil and Seanad will find this Report helpful in considering

legislative proposals for my Office.

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Chapter One: A Changing Public Service

The extent of the changes in Irish society since 1984, when my Office began operations, is well

documented. The concomitant changes in the Irish public service may be less well understood but

are none the less significant. The environment in which the public service operates is now one of

unprecedented economic growth, budget surpluses, very significant reductions in unemployment

and massive public infrastructural development. Internally, the Irish public service continues with

the implementation of the Government's modernisation programme which includes the

development of new styles of management, an emphasis on openness and accountability as well as

the delivery of public services in a client-friendly manner. The Freedom of Information Act, in

relation to which I have a direct interest in my capacity as Information Commissioner, is undoubtedly

having a real influence on the style of public administration in Ireland - though inevitably some

public bodies are more readily influenced by that Act than are others!

Economic success creates its own problems and the public service is now facing challenges on a scale

which would have been unthinkable ten years ago. These include issues of traffic management,

planning conflicts, shortages in public housing, growing expectations in relation to public healthcare

and, not least, the growing number of those seeking asylum in Ireland. I expect that many of these

areas will increasingly become the subject of complaint to my Office. Indeed, this is already evident

in the case of complaints relating to planning enforcement and planning administration which have

increased considerably in recent years - 165 such complaints were received in 1999. As a result, in

1999 for the first time, complaints against the local authorities exceeded those against the

Department of Social, Community & Family Affairs (see Chapter Five for details).

Fundamental Functions

However, the fundamental functions of the Ombudsman remain intact. These may be summarised

as:

- protecting the rights of individuals in their dealings with those entrusted with the exercise of public

power;

- providing redress where it is found that these rights have been infringed;

- promoting high standards of public administration generally;

- acting independently in support of Parliamentary control of the Executive in the interests of fair

and sound administration.

I regard this latter function, acting in support of the Dáil and Seanad, as extremely important. In

addition to my Annual Reports, I hope to be able to continue the practice of submitting occasional

reports to the Oireachtas on specific issues or areas of public administration. I began this practice in

1999 with the publication of the Lost Pension Arrears report (which looked at how the Department

of Social, Community & Family Affairs dealt over the years with late applications for contributory

pensions). Within the next month or so, I hope to publish a report on the role of the Department of

Health & Children, and of the health boards, in relation to nursing home care for the elderly. I also

hope to publish individual investigation reports in full where the subject matter so warrants. I have

already done this in the case of investigations involving the Department of Social, Community &

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Family Affairs and the Department of Education and Science. I will shortly be publishing a report, in

the case of all the local authorities, in relation to overpayments on housing loans retained by the

authorities.

My capacity to act in support of Parliamentary control of the Executive is restricted by the fact that

significant areas of operation of the Executive are specifically excluded from my jurisdiction by the

1980 Act. In my Report for 1998 I drew attention to these omissions and pointed out that these are

areas of administration which are within the remit of the typical national Ombudsman throughout

Europe. The excluded areas include the administration of the prison service (and of people in

custody generally) and the administration of the law in relation to refugees, asylum seekers,

citizenship and naturalisation. This means that those adversely affected by decisions in these areas -

taken by the Department of Justice, Equality & Law Reform or by other responsible bodies or appeal

mechanisms - may not complain to me if they consider that the decisions were taken in a way which

was improper, unfair or otherwise unsound. In such cases, the only forum in which to seek redress is

the courts.

In principle, as well as in practice in most European countries, the Ombudsman is available to

everybody and, indeed, acts as a guarantor of fair treatment for prisoners and their families and for

non-nationals living in that country. The Irish public would seem to be overwhelmingly supportive of

measures designed to ensure fairness for all within our society. An Irish Times/MRBI Poll, conducted

in January 2000, found that 97% of respondents believed the aim of making Ireland a fair place to

live for all sections of the community was either very or quite important. Removing the exclusions,

mentioned above, from the Ombudsman Act would be a positive step in helping to ensure that level

of fairness which the public clearly supports.

The Ombudsman does not make binding decisions, but does have the powers to conduct in-depth

and relatively informal investigations leading on to recommendations. These investigations, and the

cumulative experience in a particular area which they provide, enable the Ombudsman to provide

the Oireachtas with views and conclusions which are informed and independent. In considering

whatever legislative proposals for my Office are put before the Oireachtas, serious consideration

might perhaps be given to extending the Ombudsman's jurisdiction to the full range of public

administration as is the norm throughout Europe.

Use of the Term 'Ombudsman' For some years now there has been concern among Ombudsmen across the world at the misuse of

the term Ombudsman and the resulting confusion among the public at large. The Office of the

Ombudsman is a mechanism for ensuring that public bodies are accountable to parliament for fair

and sound administration. Increasingly, however, the term is being applied incorrectly to a huge

variety of dispute resolution mechanisms. In the USA in particular the term is being applied to

company appointed mediators or facilitators dealing with internal staff problems or sometimes with

customer complaints.

The Board of Directors of the International Ombudsman Institute (IOI), which represents

Ombudsmen world-wide, recently passed a resolution affirming that the term Ombudsman should

only be used when the office meets specified criteria including:

- constitutional or statutory underpinning to guarantee its independence of any public authority

within its jurisdiction;

- adequate powers to investigate the actions of public bodies and to propose remedies or redress

where maladministration, violation of rights or unfairness is found.

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In previous reports I have drawn attention to the statutory protection given to the term

Ombudsman in other countries.

This Report This Report covers my fifth full year, which is also the last full year, of my term as Ombudsman.

Chapter Two illustrates the variety of roles and methods of operation of the Office, as well as the

range of redress or remedies attained in appropriate cases. Chapter Three presents accounts of a

range of complaints dealt with during 1999; it also identifies some issues of general significance as

well as attempting to highlight some principles of good administration. Finally, Chapters Four and

Five set out details of the work of the Office during 1999 including statistical data and analysis of

cases handled.

I wish to express my gratitude to the staff of the Office, to my Director, Pat Whelan, and to Patricia

Doyle, Fintan Butler and John Doyle for their work in the preparation of this Annual Report.

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Chapter Two - Protecting Rights and

Delivering Remedies

Protecting Rights and Delivering Remedies The Ombudsman Act, 1980 confers considerable powers on the Ombudsman to examine and

investigate the actions of public bodies. It also allows the Ombudsman to conduct his investigations

in whatever manner he �considers appropriate in all the circumstances of the case� and subject

only to the requirements of constitutional justice.. Equally, where the Ombudsman considers that a

person has been adversely affected by an action, the Act allows quite a degree of latitude as to the

remedy which the Ombudsman may recommend. It is the hallmark of Ombudsman offices

internationally that they operate flexibly and informally within a range of working methods, and with

a range of possible remedies. The Ombudsman Act, 1980 enables my Office to operate in this

manner and allows for evolution and development in line with best international Ombudsman

practice.

Accordingly, my Office does not consider complaints solely on the basis of whatever the two sides

put forward. Such an approach will not necessarily result in outcomes which are fair. Because of the

unequal positions of the two sides, viz. usually an individual against a large public service body, the

complainant is not always able to present the best possible case. For this reason, my staff will

generally make the benefit of their own expertise and knowledge available so that complainants can

better describe the adverse effect on them and the alleged shortcomings in the public body's

decision making process.

To this extent my Office acts, in a sense, on behalf of the complainant in presenting or articulating

the perceived maladministration by the public body. However, we have to be entirely objective as

regards the ultimate outcome of the complaint. It is not my role to make representations on behalf

of complainants but rather to assess whether the public body has acted properly, fairly and

impartially in the particular case. I believe it is reasonable, in effect, to discriminate in favour of the

complainant in terms of ensuring that the best case is made while at the same time remaining

objective in terms of the ultimate outcome. This can be a difficult balance to achieve but, in general,

I believe that public bodies accept the legitimacy of this approach.

As with most Ombudsman Offices, my office variously finds itself acting as conciliator, as facilitator,

as investigator, as presenter of complainants' cases, as enablers (where a complainant cannot

develop and articulate the relevant arguments); and of course, ultimately, my Office must take a

view on the merits of the particular complaint. In seeking solutions to the problems presented in

complaints, the ultimate step is a written investigation report with formal findings and

recommendations. This arises in a small minority of cases only. The vast majority of complaints are

concluded on the basis of a relatively informal, but none the less fair, procedure. The methodology

of the Office, in seeking the conciliatory resolution of disputes where possible, is in sharp contrast

with the adversarial nature of the courts. In addition, where the complaint centres on an issue of

fairness rather than of legality, the Office may provide a remedy not available at law.

In principle, a remedy is called for where a member of the public has suffered loss ('adverse effect')

because of the actions (or inaction) of a public body. The loss may be a direct, financial loss and thus

quantifiable (e.g. a grant wrongly refused); or it may be in terms of time, effort and perhaps money

lost in coping with the consequences of a bad decision; or it may be in terms of an opportunity lost (

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e.g. to object to a planning application) or it may be a loss in terms of anxiety and upset resultant on

a bad decision. Or, indeed, the loss may involve any combination of these elements.

Not surprisingly, the resolution of complaints is not always black and white and this is reflected in

the range of remedies achieved. Remedies can range from an apology given, the payment of a

disputed grant or allowance, the payment of compensation and/or changes to the rules or

procedures governing a particular scheme. Where a complaint is only partially upheld, for example

where a compromise settlement has been achieved between the parties, then the remedy will

reflect this compromise. The cases outlined in this chapter have been chosen to illustrate the range

of working methods of my Office including the approach pursued in relation to remedies. However,

public bodies themselves need to be much more active in offering remedies, on their own initiative,

where their actions have caused loss for a client. Such an approach is entirely consistent with the

Quality Customer Service Initiative currently underway within the civil service and with the

development of internal complaints systems across the public service generally.

Remedies In a case involving the North Western Health Board (NWHB) the complainant was aggrieved with the

Boards failure, as he saw it, adequately to support him in caring at home for his ill and elderly

parents. He was also unhappy with the way in which the NWHB dealt with complaints he made on

the matter. On examination, I concluded the case warranted a payment of �1,000 in recognition of

the cumulative effect of a series of NWHB decisions and of the upset caused to, and the time and

effort expended by, this man in his dealings with the Board.

The complainant had been unsuccessful in a number of separate applications made to the NWHB:

He applied for assistance under the Housing Aid for the Elderly Scheme for the provision of a shower

as his parents had difficulty in using the bath. The application was refused for two reasons. Initially

the NWHB said that the provision of a shower was not covered under the Scheme; subsequently the

NWHB said that, as they had received a Gaeltacht grant to carry out other work on the house, his

parents did not qualify under the Scheme.

He applied for help under the Supplementary Welfare Allowance (SWA) scheme for the purchase of

a washing machine. The complainant had to wash his own and his parents' clothes by hand. Due to

his parents' ill-health, their clothes, including bed clothes, had to be changed and washed a few

times each week. This application was refused on the grounds that total household income was in

excess of SWA guidelines.

After his mother's death, he applied to the NWHB for a SWA payment to help cover her funeral

expenses. The application was refused on the grounds that the funeral account had been paid by the

time the application was made and the NWHB felt that no exceptional need existed. The

complainant said that he had to borrow money from his brother to pay the bill and that he also had

other expenses arising from his mother's death.

In addition to these decisions which he disputed, the complainant was also otherwise aggrieved with

the NWHB's actions. He found it upsetting, and an indication of carelessness on the part of the

NWHB, that his mother was sent a hospital outpatient appointment four months after she had died.

He also complained that his mother, in his view, had not received proper care and treatment while

in Letterkenny General Hospital or following her discharge from the hospital.

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The NWHB arranged for an external Public Health Medicine Specialist to look into these complaints.

He found:

- that the applications in relation to the shower and washing machine had been appropriately

refused; - that there had been certain shortcomings in relation to the discharge of the complainant's

mother from hospital; - that a failure of communication within the hospital resulted in the issuing of

the out-patient appointment.

No opinion was given in relation to the funeral expenses application. The NWHB then apologised to

the complainant for the shortcomings identified. However, he was not happy with this and,

accordingly, he complained to my Office.

On examining the case, there were some aspects of the NWHB's dealings with the complainant with

which I was not satisfied. It seemed to me that, given the flexibility of the Housing Aid for the Elderly

Scheme, the shower application could have been granted. In considering the washing machine

application, no consideration seemed to have been given to the exceptional circumstances within

the household viz. a single man caring for ill and elderly parents, or to the applicant's financial

circumstances (he was repaying a loan related to the cost of house repairs). While an apology had

been given in relation to the treatment of the complainant's mother, and for the issuing of the out-

patient appointment, there was no acknowledgement of the cumulative effect on the complainant

of all of the problems encountered or of the time and trouble involved in his pursuing these matters.

I asked the NWHB to review the case in its totality. I also asked it to acknowledge in some way the

upset suffered, and the time and trouble taken, by the complainant in pursuing his complaints with

the Board. Following discussions with the NWHB, it decided to offer an ex gratia payment of �600

to the complainant in acknowledgement of the time, effort and expenses incurred in his dealings

with the Board. The complainant rejected the NWHB offer. Having reviewed the complaint fully, I

expressed the view that the complainant had been adversely affected by the actions of the NWHB

both before and after the death of his mother. I felt the NWHB should make a �gesture� in

acknowledgement of this and I suggested that a payment of �1,000 to the complainant would

represent an appropriate remedy. The Board agreed to make this payment. The complainant

accepted this resolution on the basis that it represented my views on the complaint and that he

would accept my independent conclusions.

In a complaint against the Revenue Commissioners I found there had been significant departures

from good administrative practice to the detriment of the complainant. In the particular case, I

concluded that an apology to the complainant, coupled with assurances of improvements in

Revenue�s procedures, represented a satisfactory remedy.

The complaint arose from an incident in a public house in 1994 in which, it is claimed, an Inspector

of Taxes made derogatory remarks about a businessman and his tax affairs. The businessman felt

that these remarks were defamatory and that they constituted a breach of confidentiality.

Subsequently, he commenced civil proceedings against the Inspector.

Some months later his solicitor wrote to Revenue to complain about the incident. The initial

Revenue response, after two months, was that it had �no comment to make on the matter�.

Coincidentally, the Inspector resigned from the Revenue to take up another position shortly after

the complaint was made. Some months later the solicitors again wrote to Revenue seeking a full

report on its investigation of the complaint. Revenue's response did not clarify whether or not it had

conducted an investigation, but it did say that it had no reason to believe that the Inspector had

breached Section 163 of the Income Tax Act in relation to the confidentiality of personal and

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business information provided to the Revenue Commissioners. A further enquiry from the solicitors

elicited the fact that Revenue had not conducted any enquiry into the allegations.

The complaint considered by me related to the apparent failure of the Revenue adequately to

investigate the complaint made on behalf of the businessman. The civil court action arising from the

incident was heard in 1999 and my complainant was awarded damages. (Revenue was not a party to

the action.) I concluded that Revenue had failed adequately to investigate the complaint made; that

it had not dealt with the complaint in a manner consistent with good administrative practice; and

that these failures were contrary to the requirements of fair and sound administration. Revenue

agreed to apologise to the businessman for these failings and also assured me that their procedures

had been revised, taking into account the facts of this case.

I gave very careful consideration to the question of whether a financial remedy was also appropriate

given that the complainant had, as I saw it, been adversely affected. My guiding principle in relation

to remedies generally is that they should seek, where possible, to restore the complainant to the

position he would have been in had the action complained of not occurred. Ultimately, I decided in

the particular circumstances of this case (which including a successful civil action against the former

Inspector) that an apology, coupled with the assurance from the Chairman of the Revenue

Commissioners of improved procedures within Revenue, represented a satisfactory remedy. This

case highlights once again the tendency of public bodies to adopt adversarial attitudes to

complainants where they fear litigation may be a possibility.

The operators of a coffee shop complained that the Eastern Health Board (EHB) had given them

incorrect information regarding compliance with the Food Hygiene Regulations; the operators relied

on this information and incurred unexpected financial costs as a result. The remedy in this case was

compensation for the financial costs incurred.

In late 1992 the complainants were completing the purchase of the lease on a coffee shop premises.

They understood from the vendor that the premises were registered with the EHB for the purposes

of the Food Hygiene Regulations. Before completing the purchase, they met with a local

Environmental Health Officer (EHO) seeking confirmation of the registration. The EHO confirmed

that the registration was in order and my complainants proceeded with the purchase. However, in

September 1994 my complainants discovered that, contrary to the information given by the EHO in

late 1992, the premises were not registered at the time the lease was purchased. Furthermore,

while the EHB then issued a provisional registration, full registration depended upon the

implementation of a list of alterations specified by the Board.

During 1995 and 1996 the complainants set about meeting the registration requirements. This

proved difficult as some of the alterations were infrastructural and required the consent of the

landlord. At the same time, they complained to the EHB in relation to the incorrect information

given and sought compensation for the extra costs incurred by virtue of reliance on the EHBs

information. In 1997 they complained to my Office following the refusal of the EHB to accept any

liability arising from the incorrect information. The complainants contended that they would never

have proceeded with the lease purchase had they known that the premises were not currently

registered. Furthermore, they would have avoided the financial and other costs arising from the

registration requirements notified in September 1994. In contacting my Office, the complainants

said they hoped they could avoid a court action and the high costs likely to be associated with such

an action.

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In examining the case I was unable to resolve a difference between the parties as to whether - as

contended by the EHB - the complainants were made aware by the EHO, at the meeting in late 1992,

of the need to undertake some remedial measures in order to continue to comply with the

registration requirements. However, I was satisfied that the EHO had given incorrect information

regarding registration and that my complainants had relied on it in good faith. I felt that the EHBs

mistake had adversely affected my complainants both financially and in terms of the interference

which resulted to the operation of their business. The complainants were seeking financial

compensation on the basis (a) that they would not have entered into the lease agreement had the

EHB given correct information, (b) that they had incurred unexpected costs arising from the

registration requirements and (c) on the grounds of general disturbance and loss.

My approach was to seek to base compensation on the actual adverse consequences of the EHBs

mistake. Primarily this related to the extra costs incurred in the process of implementing the

alterations required by the EHB itself. I felt that compensation in the region of �5,000 - �6,000

would be reasonable in the circumstances of the case. The EHB was agreeable to this, subject to

some conditions, but the complainants felt a higher figure was warranted. In the event, I suggested

to the two sides that they meet and seek to resolve their differences. The parties did meet and

subsequently informed me that the EHB would pay compensation of �7,000 subject to certain

conditions which were acceptable to the complainants.

Sometimes the remedy achieved in a particular case can have consequences for all similar cases and,

indeed, result in an amendment of the relevant legislation. This is what happened in the case of two

complaints against the Department of Social, Community & Family Affairs (DSCFA) involving

Deserted Wife's Benefit (DWB).

The Social Welfare Act, 1996 provided for the abolition of DWB with the exception that existing

recipients would continue to be paid �for the duration of the woman's continuous entitlement� to

the benefit. This provision was put into effect on 2 January 1997. In early 1997 both complainants,

whose cases are otherwise entirely unrelated, returned their DWB payment books to the

Department as they were going abroad to visit family for a few months. Both women were aware

that DWB was not payable for the duration of any absence from the State. On their return, in July

and August respectively, they applied unsuccessfully to have their DWB restored. In both cases the

DSCFA said that their absence from the state for a few months meant they had ceased to have

�continuous entitlement�; thus both women were affected by the abolition of DWB which came

into effect on 2 January 1997. Both women disputed these decisions and ultimately complained to

my Office.

Neither of my complainants knew in advance that going abroad would mean the permanent loss of

Deserted Wife's Benefit. Indeed, one of them contended that she had telephoned the DSCFA in

advance of her departure and was given to believe there would not be a problem with the

restoration of the benefit. However, the key issue was whether there was a sound legal basis for

deciding that a temporary absence from the State breached the period of �continuous

entitlement� and thus prevented the restoration of benefit. It was clear that absence from the

State disqualified a DWB recipient from payment for the period of the absence; but there did not

seem to be any basis for deciding that such a disqualification effectively breached the period of

�continuous entitlement�.

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I suggested to the Department that this key issue was not dealt with in the legislation and, in the

context of a temporary absence from the State, the decisions taken were unreasonable. Arising from

these two complaints, and the apparent lack of a specific legislative provision, the DSCFA undertook

a re-examination of its policy in this area. The Department's policy review resulted in a decision that,

in the case of DWB recipients, the period of �continuous entitlement� would not be broken by an

absence from the State of less than 12 months. So, while a DWB recipient would not receive

payment for any period of absence from the State, DWB would be restored on return provided that

the absence did not exceed 12 months. On this basis, both complainants had DWB restored with

appropriate arrears being paid, amounting to approximately �7,500 and �5,700 respectively. In

addition, the Department's policy decision was given a statutory basis by virtue of Section 23 of the

Social Welfare Act, 1999. In this way, the remedy obtained for the two complainants was

incorporated into legislation for the benefit of other such cases in the future.

A complaint involving the Department of the Environment and Local Government, arising from a

claim for a refund of motor tax, resulted in a remedy which will be of benefit to all similar cases in

the future.

In June 1998 a Galway woman had her car stolen. The car was not recovered and she claimed on her

insurance in the normal way. She applied to the local Motor Tax Office for a refund of the motor tax

which was paid up to March 1999. She discovered that, under the procedures laid down by the

Department of the Environment and Local Government, a motor tax refund would not be payable

until the end of the period for which the car was taxed (March 1999 in this case). In order to settle

her insurance claim, she was required to transfer ownership of the car to the insurance company.

However in this event, the tax refund, when eventually made, would go to the insurance company as

the procedures only allowed for a refund to be paid to the person registered as the owner when the

refund was being made. The woman felt these procedures were unfair and inflexible and she

complained to my Office.

It was clear that the Motor Tax Office had acted in accordance with instructions from the

Department and in accordance with the relevant regulations. When I contacted the Department it

acknowledged that the procedures were unfair and it arranged to have a refund of motor tax paid to

my complainant. In addition, the Department issued revised instructions to all motor tax offices

advising that refunds should be made as soon as possible after application in this kind of case. The

new procedures mean that motor tax refunds will be made to the registered owner of the car at the

time of application rather than to the insurance company which ultimately acquires ownership of

the car. In this way the remedy achieved in this particular case has resulted in a general

improvement in procedures which will benefit all such cases in the future.

In some situations financial compensation is the obvious remedy if the person affected is to be

restored to the position he would have been in had the problem complained of not occurred. This is

the case where cash entitlements have been withheld or delayed over a lengthy period or where

income tax has been overpaid, and not refunded, over a period.

A formal scheme of compensation for delayed social welfare payments has been in existence since

1986. The scheme was established in response to a particular complaint to my Office at that time.

The Department of Social, Community & Family Affairs (DSCFA) will pay compensation for loss of

purchasing power in cases where it was solely or significantly to blame for the delay in making the

payment. The DSCFA accepts that it should itself identify cases to which the scheme applies and pay

compensation on its own initiative. Indeed, in a recent case the DSCFA agreed to my suggestion that

it should pay additional compensation for its delay in paying compensation! This case involved a man

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who was paid eight years arrears of Invalidity Pension in 1996 but who was not paid compensation

under the scheme. In 1998 he learned that compensation should have been paid and was eventually

awarded almost �4,000. Of course this �4,000 should have been paid in 1996 so the DSCFA paid a

further �112 in compensation for the delay in paying the �4,000.

The Department of Education and Science has also paid compensation in a number of cases where

higher education grants or scholarships were wrongly refused (see Pages 15 and 26).

In 1998/9 I dealt with two similar complaints relating to delays in making superannuation payments

to retired public servants. In the first case Fingal County Council delayed the payment of a lump sum

by more than one month. The Council accepted that it had benefited financially because of the delay

and agreed to pay compensation of �287 for a 34 day delay in making the payment. In the second

case, involving the North Eastern Health Board, a retired employee discovered that his lump sum

and pension had been underpaid for a period of two years. In addition to paying the arrears due, the

Board agreed to pay compensation of �635 for the loss involved. In both cases the compensation

was based on the rate of investment interest available at the time.

Arising from a particular case of benefit delay in the Eastern Health Board in 1998, I suggested that it

should adopt a scheme similar to that of the Department of Social, Community and Family Affairs.

The EHB paid compensation in the particular case and also agreed to have the introduction of a

compensation scheme considered at national level by all eight health boards. Agreement from the

boards followed very shortly and a national scheme was drawn up. The boards are currently

awaiting sanction from the Department of Finance to implement it.

By way of contrast, the Revenue Commissioners refuse to pay compensation for loss of value in the

case of overpaid income tax. In a small number of court decisions, Revenue have been required to

pay interest in such cases. However, they argue that they would need a specific statutory authority

to pay compensation in all such cases. In fact, I have been in regular contact with the Revenue on

this issue and my Annual Report for 1996 carried a detailed piece on the subject. It is regrettable

that the issue remains unaddressed and, as a consequence, I am currently investigating eight

separate complaints against Revenue on the matter.

Working Methods Flexibility is an essential characteristic of my Offices approach. This includes the capacity to identify

and pursue an issue even where the complainant has not specifically raised it as a problem. The

following complaint involving the Department of Education and Science (DES) illustrates this

approach.

The complaint made against the DES related to the assessment of means for the purposes of a

Higher Education Grant even though the student had by now completed a six year medicine course

in Cork. Some months into the examination the Dáil Deputy, who had made the complaint on behalf

of the student, sent on a letter he had received from the students mother. This letter was primarily

about the means assessment but mentioned, in passing, that her daughter had been discriminated

against previously when she was unable to avail of a Trí Ghaeilge Scholarship. [This is a scholarship

available to students whose second level education has been through Irish and who, at that time,

proposed to study one of a list of approved courses at University College, Galway (UCG).] The

mother mentioned that, when her daughter began in university in 1991, medicine was not (but is

now) one of the approved UCG courses for the purposes of the Scholarship. The daughter opted to

study medicine in Cork, which was nearer home, because she understood the Trí Ghaeilge

Scholarship would not be tenable were she to study medicine in Galway.

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My Office was aware from other complaints (see 1995 Annual Report, P. 13) of inconsistencies over

the years in the administration of this scholarship scheme. Specifically we were aware that, whereas

medicine was not listed as an approved UCG course, scholarships had been awarded to students

doing medicine in Galway. It was clear that this student had assumed, quite reasonably, that as

medicine was not on the list of approved UCG courses then she could not avail of the scholarship to

study medicine in Galway. In practice, had she approached the DES on the matter it was most likely

that it would have awarded the scholarship even though medicine was not on the list of approved

courses. In effect, it seemed that this student had suffered because she was unaware of an

unwritten rule governing the scholarship scheme.

I felt it was wrong that this student should have lost out on a substantial scholarship, over six years,

because she had taken the written scholarship rules at face value. Fortunately, the DES accepted this

position and decided to give her the benefit of the scholarship even though she had studied in UCC

rather than in Galway. The DES paid the student scholarship arrears of �10,319 and an additional

�1,273 in compensation for the delay in awarding the scholarship.

The experience of one complainant is sometimes enough to suggest a general problem affecting

many others. My Office has the capacity to move from the examination of a specific instance of a

problem to a wider examination of whether that same problem is adversely affecting others. In last

year's Annual Report I gave details of a particular case, involving Meath County Council, where

house loan repayments continued to be accepted long after the loan had actually been fully repaid.

This single case led me to investigate the extent to which this same error might be occurring in other

local authorities. The report of this wider investigation will be published shortly; it will show that the

practice identified in the Meath case was widespread and that local authorities retained significant

amounts in overpaid loans. During 1999 a complaint against Offaly County Council has identified a

problem in internal financial control systems which may be replicated in other local authorities.

The complainant took out a loan with the Council to buy a new local authority house in 1979. As a

first time purchaser of a new house, he was entitled to a �1,000 grant from the Department of the

Environment. He understood this grant had been paid directly by the Department to the Council,

thus reducing the loan amount and the repayments. In 1998 the complainant sought confirmation

that the �1,000 grant had actually been paid and credited to his loan account. The Department

confirmed that the grant had been paid to the Council but the Council had no record of having

received it. At this point he complained to my Office.

Following detailed examination of its records, the Council eventually confirmed that it had received

the grant. However, in the process of computerising its loan accounts in 1988, the payment of the

�1,000 grant was omitted and the repayments thereafter were based on the full, original loan

amount. This meant that this man had overpaid his loan account by �1,195 during the period 1988 -

1999. The Council refunded this overpayment and corrected the complainant's loan account record.

The Council itself decided that a similar mistake might have been made in other such cases and

undertook to check these cases. The Council's checking has revealed 13 other such cases to date. In

one of these cases the amount overpaid on the loan was �4,306.

I am continuing my enquiries with Offaly County Council as to how precisely this problem came

about and also to get a definitive figure on the number of cases affected. A related issue, raised by

one of the 13 cases so far identified, is whether the Council should pay some compensation for its

miscalculation of the loan repayments due. Finally, as it is possible that similar mistakes may have

15

been made by other local authorities, I have asked the Department of the Environment and Local

Government to ensure that each local authority does a thorough check of its records to identify any

such cases.

Sometimes it is necessary for my Office to develop and articulate the argument which the

complainant wishes to make. This is illustrated by the following complaint, against the Department

of Social, Community & Family Affairs (DSCFA), which raised issues regarding the application in

Ireland of the European Union social security regulations.

The complainant and his wife are nationals of another EU member state but have been living in

Ireland for some years. His wife is incapacitated and requires a high level of care from her husband.

The couple's only income was a social security disability payment to the wife from their own

country. In December 1993 the husband applied to the DSCFA for the Carer's Allowance but was

unsuccessful as his wife's income was assessed against him. He appealed this decision unsuccessfully

and a subsequent application was also unsuccessful. Eventually in June 1995, following an easing of

the means test rules, he qualified for a reduced rate of Carer's Allowance. However, he continued to

dispute the validity of the earlier refusals and in 1996 complained to my Office.

The letter of complaint referred in a general way to EU social security regulations and to the notion

that EU citizens living outside their own country should �receive the same treatment in social

security matters as the citizens of the country where they live�. Had his invalid wife been receiving

an Irish social security payment then it would have been excluded in its entirety from the means

assessment for Carer's Allowance. According to the complainant, EU social security law required that

the disability payment to his wife from their own country (which was more generous than the Irish

equivalent) should be treated in the same manner as would an Irish payment i.e. it should be

excluded from the means test. He suggested that this was an instance in which EU law took

precedence over Irish domestic law. He complained that this argument had �been consistently

ignored by everybody involved�.

On examination, there was no evidence that the DSCFA or the Appeals Office had given detailed

attention to the EU law argument. On the other hand, it was clear that the argument had not been

fully articulated and supported. I felt that the EU law argument had potential and should be explored

further. On consideration it seemed that the provision in the Irish Social Welfare Acts, which

excluded Irish social security payments (but not social security payments from other EU countries)

from the Carer's Allowance means test, might - at least in the manner of its application - run counter

to the relevant European social security provision i.e. Article 3 of EC Regulation 1408/71. Article 3.1.

requires that �persons resident in the territory of one of the Member States to whom this

Regulation applies shall be subject to the same obligations and enjoy the same benefits under the

legislation of any Member States as the nationals of that State�.

I felt that the exclusion from the means test of income from an Irish social security source amounted

to indirect discrimination against other EU nationals who are less likely to be recipients of such

payments. Accordingly, I put it to the DSCFA that there was a good case for believing that the Irish

provision breached Article 3 of the Regulation. Between May 1997 and June 1999 I engaged in

discussion with the DSCFA on this issue. Some of this delay is attributable to the complexity of the

issues raised, including the question of whether the complainant was someone who came within the

scope of the EU regulation. In the meantime, the Social Welfare Act of 1998 resolved the issue on a

current basis. It provided that where the carer's spouse has a social security payment from another

member state, which equates to Invalidity Pension, then an amount of that payment, equal to the

maximum rate of Irish Contributory Old Age Pension, will be disregarded in the Carer's Allowance

16

means test. This meant that there was no longer any discrimination in favour of situations where the

spouse had an Irish payment as opposed to a payment from another member state. However, my

complainant's entitlement for the period prior to June 1998 remained to be resolved.

In June 1999 the DSCFA notified me that, on the basis of legal advice, it now accepted that the

practice complained of did amount to a breach of Article 3 of EC Regulation 1408/71. This breach

had been put right in the Social Welfare Act, 1998 but my complainant was entitled to arrears of

Carer's Allowance retrospective to December 1993. These arrears amounted to �2,360 and the

DSCFA also paid compensation for the delay in making this payment.

Some complainants are unsuccessful in their dealings with a public body because they do not

understand that a specific type of evidence is required to support their case. When such a complaint

reaches my Office my main intervention may be to advise the complainant on how best to present

their case to the public body concerned. In the past few years there have been many examples of

this involving, in particular, pensioners who failed to claim their pension on time and who lost

substantial arrears of pension as a consequence. The following complaint, against the Department of

Social, Community & Family Affairs (DSCFA) is just one such example.

The complaint was made on behalf of an elderly woman who should have claimed the Contributory

Old Age Pension in 1980 but, in fact, did not claim until 1996. She was awarded the pension and six

months arrears were paid. In line with the DSCFA's practice at that time, arrears back to 1980 were

not paid. The woman's family contended that the failure to claim in 1980, or in the following years,

was directly attributable to the fact that she had a very long history of serious ill health, coupled

with traumatic domestic circumstances, which meant she was unable to manage her affairs. My

Office's advice to the family was to seek payment of the arrears under the terms of an extra-

statutory arrangement which took account of a delay in claiming pension because of medical

incapacity. In support of this claim, my Office suggested that detailed medical evidence should be

sought from the pensioner's doctor.

In due course the pensioner's doctor wrote a detailed medical report outlining a range of chronic

illnesses which, in his opinion, �caused a marked premature cognitive decline as well as significant

intellectual and memory impairment�. The doctor also referred to her difficult home situation as an

additional relevant factor. However, the DSCFA response to this was to say that its medical advisor,

having considered the medical evidence provided, had concluded that the pensioner �was not so

incapacitated as to be unable to make a claim to pension on time�. I was surprised with this

conclusion, given the apparent strength of the pensioner's medical evidence, the fact that the DSCFA

medical advisor had not ever met the pensioner, and the fact that neither the medical advisor nor

the DSCFA had taken up the doctor's suggestion that he be contacted if any further details were

required.

On examining the DSCFA file I discovered that the medical advisor's view appeared to be influenced

to some extent by the fact that the pensioner had continued to be involved with her small business

during some of the period to which the doctor's report related. The inference was that a person who

is capable of work is likely to be capable of handling his or her affairs. In general, this may be a

reasonable inference to draw but it is not necessarily valid in each individual case. Indeed, the DSCFA

itself in a number of individual cases has accepted that people who managed to continue in

employment were, at the same time, incapable of managing their affairs. In this particular case the

family felt that the pensioner had been only nominally in charge of her business for the last few

years of its existence, that she had relied entirely on employees to manage it for her.

17

In its initial contacts with the DSCFA, the family had made the point that the pensioner had been

incapable of independent living throughout most of the period (1980 - 1996) to which the arrears

claim related. The family mentioned that since 1984 she had been living in nursing homes. The

DSCFA had never reacted to this statement and the family had done nothing to verify it or to explore

its relevance. I suggested to the family that this fact, if verifiable, taken in conjunction with the

existing medical evidence, must considerably strengthen the case for payment of the arrears. In due

course the family produced evidence of the pensioner's residence in various nursing homes and, in

addition, details of frequent hospital admissions between 1979 and 1993. The DSCFA looked at the

case again in the light of this evidence and decided to award pension arrears from January 1984 viz.

from when the pensioner effectively became institutionalised. The arrears paid amounted to almost

�31,000 (a separate amount of �4,800 had already been paid in December 1998 in line with

general arrangements to pay a proportion of outstanding pension arrears in such 'late claim' cases).

Issues arising in some current Complaints I am required to report annually to the Dáil and Seanad on the performance of my functions. In

doing so I report on individual cases of interest or concern and I identify themes emerging from

them. My Annual Report is also an opportunity to highlight systemic failures which I have identified

and to put forward suggested remedies. From time to time I also comment on cases which serve to

clarify my jurisdiction as this can be important from the point of view of prospective complainants.

My Annual Report presents an opportunity to look back over the past year but also to highlight

issues of on-going concern which will be receiving particular attention in the coming year.

In this Chapter I deal with the particular difficulties which planning complaints pose for my Office. I

also clarify my jurisdiction in relation to the examination of complaints regarding certain fines. I then

comment on the hardship being suffered by certain families with high interest local authority loans

and my efforts to relieve the situation. Finally, I identify what I see as unacceptable policies being

adopted by some local authorities in their handling of representations made to them on behalf of

members of the public.

Local Authority Planning Complaints Ireland is experiencing a building boom at present. For instance, in 1989 local authorities received

41,924 planning applications. By 1999 this had risen to 80,261 applications. The boom has resulted

in increasing numbers of planning complaints arriving in my Office as well as an increase in the

number of day to day planning queries which my staff deal with over the telephone. My remit

confines my role in planning matters to the examination of the administration of the planning

process by local authorities and to their enforcement of the planning laws in instances where

planning breaches arise. I cannot question decisions to grant or refuse planning permission as An

Bord Pleanála provides an independent statutory appeals mechanism in relation to planning

decisions. From my point of view there are a number of factors which make it increasingly difficult to

resolve planning complaints satisfactorily. The thrust of economic and political pressure is towards

the completion of developments in as short a time frame as possible. In my view, what is being lost

sight of is the very real adverse effect that building development can have on persons living in the

neighbourhood of such developments. Industrial developments which are not tightly controlled can

cause noise and air pollution. Unauthorised developments can encroach on the privacy of

neighbouring properties. Unfinished housing estates can cause years of disruption and annoyance

for householders. The individual cases I have seen confirm the extent and variety of the adverse

effects which can arise.

18

To compound the difficulties faced by persons objecting to unauthorised developments, or

developments which allegedly do not comply with planning permission, it is becoming all too

apparent that very many local authority planning sections are understaffed. As a result the emphasis

is on processing applications for planning permissions as opposed to policing breaches of planning

permissions which have been granted or pursuing developers who have carried out unauthorised

developments. Where it is evident that a breach has occurred or an unauthorised development is in

place, I find that there is a marked reluctance on the part of local authorities to take developers to

court. More often than not a hands off approach is adopted with developers being encouraged to

apply for retention to regularise existing breaches, as opposed to being subjected to enforcement

proceedings. While local authorities have discretion as to whether or not to take enforcement

proceedings in individual cases, it seems to me that this discretion is very frequently exercised in

favour of the developer. This, in turn, creates a climate which encourages developers to continue to

breach the planning laws, particularly where full compliance is more costly and inconvenient for the

developer. It also undermines public confidence in the planning process and increases public

cynicism and the tendency to give credence to unfounded allegations of corruption and conflicts of

interest on the part of public officials and public representatives.

Even the most basic elements of the services provided by planning sections are deteriorating. The

public tell me that they are unable to make contact with staff to discuss their complaints, that it is

increasingly difficult to arrange meetings with planning officials and that letters are not

acknowledged or replied to. I am also concerned about the very considerable delays on the part of

local authorities in furnishing reports to my Office on planning complaints. My overall impression is

one of a system which is in a state of collapse.

The new Planning and Development Act, 2000 consolidates and revises all of the previous Planning

Acts and introduces a range of new provisions, including some in the area of planning enforcement.

These provisions are being brought into force over time and the full impact of the new Act is not yet

clear. Our growing economy requires a fully functioning planning process which recognises and

encourages balanced and integrated planning, on the one hand, while respecting the rights and

quality of life of persons living adjacent to new developments. Legislative change alone will not bring

this about without the provision of sufficient staff and other resources on the ground. I intend to

monitor this area closely over the coming year and, if necessary, to highlight any systemic flaws I

identify in the planning process as the new legislation takes full effect.

The Ombudsman's Jurisdiction and certain Fines From time to time I receive complaints which do not clearly fall within my jurisdiction. Jurisdictional

issues arose during the year in relation to three separate pieces of legislation. The common aspect of

all three was whether or not I could deal with the imposition of fines/penalties by bodies within my

jurisdiction. I decided to take legal advice on the matter.

The first case related to a decision by An Post to prosecute three tenants whom it believed did not

have television licences. An Post advised the residents that each of them was to be summarily

prosecuted under Section 77(b) of the Postal and Telecommunications Act, 1983. An Post argued

that its actions in the matter did not come within the scope of Section 4(2) of the Ombudsman Act,

1980 and "were taken for the purpose of the enforcement of the criminal law and not in the

performance of an administrative function." Section 4(2) of the Ombudsman Act, 1980 permits me

to examine the administrative actions of bodies within my remit.

19

The advice I received in relation to this case was that the matter did fall within my jurisdiction and,

with the co-operation of An Post, I am proceeding with my examination of the complaint.

The second complaint related to a decision by Dublin Corporation to impose a fine for an alleged

breach of Section 3(1) of the Litter Pollution Act, 1997. The matter was appealed by the complainant

to Dublin Corporation but he was informed that the fine would not be waived. He was informed that

the Corporation would grant him a time extension to pay the fine before it referred the matter for

legal proceedings.

The purpose of fixed penalty notices (or "on the spot fines") is to avoid the cost and effort of court

proceedings for rather obvious and not too serious offences. A person to whom a notice applies may

pay the "fine" within a period of 21 days, on a voluntary basis, and thereby avoid a prosecution for

the alleged offence.

Arising from the second case, I also decided to seek legal advice on my jurisdiction in relation to

complaints about "on the spot" fines which are imposed by local authorities under the Road Traffic

Act, 1994 for less serious offences, particularly parking offences, and for the non-display of a valid

motor tax disc. An Garda Síochána is listed in Part 11 of the First Schedule to the Ombudsman Act,

1980 as being one of the bodies outside my remit and so I cannot examine complaints in relation to

fines issued by the Gardaí.

Apart from the question of whether the actions in question could be deemed to be administrative

actions, my legal advisors also had to take into consideration Section 5 (1)(a)(ii) of the Ombudsman

Act 1980 which provides that I cannot investigate any action where a person has a right of "appeal,

reference or review to or before a court...".

The legal advice I received in relation to the second case and also in relation to the particular road

traffic fines was that the actions in question were administrative in nature and also that such cases

would not fall within the terms of the exclusion in Section 5 (1)(a)(ii) of the Ombudsman Act 1980.

Accordingly, I proceeded with my examination of the complaint against Dublin Corporation. The

Corporation subsequently waived the fine.

Local Authority Housing Loans During the year a number of complaints I received highlighted the difficulties which have arisen for

certain families who had taken out high interest rate local authority mortgages with no mortgage

protection. An interest rate of 12.5% was applied to some local authority fixed rate house purchase

loans issued in the late 1970s and early 1980s. The interest rate was related to the then prevailing

cost of long-term funding and the rate was fixed for the life of the loan. In some cases loans were

made available at slightly lower rates but the rates applied were still significantly higher than the

interest rates prevailing in recent years.

Since July 1986 mortgage protection has been a mandatory part of such local authority loans. In

examining one complaint I discovered that, when the mortgage protection requirement was first

introduced, it only applied to loans taken out on or after 1 July 1986. Persons with local authority

mortgages prior to that were not allowed the option of buying into the mortgage protection scheme

at the time and were not informed that such a scheme was being introduced for new applicants. As

a result most would not have realised the potential benefits of mortgage protection and were not

advised to seek their own cover. Indeed, over the years many of them assumed wrongly that they

had mortgage protection until circumstances arose which led them to make enquiries with the local

authority.

20

I asked the Department of the Environment and Local Government to request local authorities to

alert all mortgagees with outstanding loans who had taken out their loans before 1 July 1986 that

they had no mortgage protection as part of their local authority loans and to advise them to make

their own enquiries about obtaining such protection. The Department duly contacted the local

authorities. I believe the number of families in this position is quite considerable. Indeed Cavan

County Council has over 1000 such mortgagees and Wexford County Council has nearly 300.

The financial impact of high interest rates combined with a lack of mortgage protection has resulted

in very serious consequences for some families. In one case a couple took out a local authority loan

in 1981 of £9,000 (€11,427.64) to be repaid over 30 years. The loan was at a fixed interest rate of

12.5%. The amount outstanding as of March 2000 was £7,306.99 (€9,277.96) and monthly

repayments amounted to £96.29 (€122.26). The husband died in tragic circumstances in 1998

leaving the widow to fend for two young children. Her income was £110 (€139.67) per week. By the

end of 2000 repayments on the loan amounted to £19,987 (€25,378.25). Over the full period of the

loan repayments will amount to £34,578 (€43,905) which includes £25,578 (€32,477.36) in interest.

Because the loan in question was taken out before 1 July 1986 it did not include mortgage

protection and she did not realise this until she contacted her local authority following the death of

her husband.

In another case a couple took out a loan of £12,000 (€15,236.86) in 1985 to be repaid over 30 years.

The loan was at a fixed interest rate of 12.0%. The husband fell seriously ill in 1998 and had to leave

his employment. Shortly after his wife brought her complaint to my Office, her husband died. The

widow was left with four children. Monthly repayments on the loan amounted to £129 (€163.80). By

the end of 2000 total repayments on the loan amounted to £21,116 (€26,811.79). Over the full

period of the loan repayments will amount to £44,435 (€56,420.81), which includes £32,435

(€41,183.95) in interest. Again, she did not realise she had no mortgage protection until she

contacted her local authority.

I am concerned that these cases may reflect a more widespread problem affecting many other

families caused by the particular combination of factors. I am sure that, unlike other mortgage

holders, the option of converting their mortgages by switching to another mortgage provider, is not

available to many families with local authority mortgages because of their low or uncertain incomes.

I have written to the Department outlining my views and asked it to consider some form of relief

scheme to provide assistance for such genuine hardship cases. One must periodically review

schemes to see if they are achieving their objectives. The scheme of local authority housing loans

was originally designed to assist those who would not be in a position to obtain loans on the

commercial market.

Local Authorities Refusal to Reply to Correspondence The life blood which sustains a vibrant, healthy and fully functioning democracy is the free flow of

information from public bodies into the public domain. Public bodies have a duty to explain their

decisions and to give information to the public on their rights and entitlements. It should be possible

for every citizen to make representations either personally, through a public representative, through

a group of which they are a member e.g. a residents' association or with the assistance of a third

party of their choice e.g. a priest, doctor, social worker etc. Legislation and recent public service

initiatives underpin these principles from a number of perspectives. The most obvious examples are

the Freedom of Information Act, 1997 and the Strategic Management Initiative (SMI) which is now

beginning to permeate the local authority sector. Indeed, in the context of the SMI process, the

Department of the Environment and Local Government's publication Modernising Government - The

21

Challenge for Local Government refers to the need for "pro-active information dissemination to

customers".

Public bodies which seek to operate in a climate of secrecy, which provide partial information to

citizens or which disseminate information on a selective basis, undermine these basic principles of

openness and transparency. If a public body consciously erects barriers which serve to prevent or

obstruct the free flow of information to the public then this has to be a cause for concern. Yet this is

what I encountered in dealing with a number of complaints against Galway County Council and

Leitrim County Council. I have been dealing with the individual cases for some considerable period of

time and it has been suggested to me that the problem may not be confined to these two local

authorities. In view of this I have taken up the matter with the Department of the Environment and

Local Government.

Leitrim County Council had adopted a policy of replying only to representations from elected

members of the Council and other elected persons representing the constituency of Sligo/Leitrim or

Ministers and Ministers of State. The effect of the policy was that it would not reply to

representations from, for example, community activists who had failed to become elected members

of the Council, doctors, priests etc. Following my intervention the Council set aside this policy.

Galway County Council has adopted a policy of replying in writing only to those representations

which come from elected members of the Council or members of the Oireachtas on behalf of

individuals or groups. The effect of the policy was that the Council would not reply to

representations from an elected Town Commissioner and prospective County Councillor, from

within County Galway, acting on behalf of his constituents and others. In my view this is an

unacceptable policy. It was introduced specifically to confer an unfair advantage on elected

Councillors and is an abuse of the democratic process in that it is an attempt to force constituents to

channel their representations through those Council/Oireachtas members who already hold power. I

have no doubt that one of the main purposes of the policy is to reduce competition from would-be

Councillors. I have communicated my concern both to the Department and the Council but to date

the Council has not set the policy aside. My examination of the issue is continuing.

22

Chapter Three: Selected Cases and General

Issues

The range of responsibilities of public bodies is vast and so also is the potential scope for complaint

to my Office arising from the discharge of these responsibilities. Each year new issues are raised

alongside the well-established complaint categories. In this chapter I set out details of cases dealt

with during 1999 which raised interesting issues of law and/or of good administrative practice. Some

of these issues, for example the protection of public rights of way or difficulties associated with

planning application notices, have not featured in recent Annual Reports; other issues, for example

problems in the administration of the Higher Education Grants Scheme or with the various headage

payments to farmers, tend to recur each year.

A public body's actions must be clearly authorised in the relevant legislation or rules. Actions taken

without proper authority are, in effect, an abuse of power.

Department of Education and Science

In two separate cases people complained that their children had been refused Higher Education

Grants for a year in which their actual income was within the limit for grant eligibility. In both cases a

previously unemployed parent had returned to work and this resulted in an increase in parental

income. However, rather than decide on eligibility by reference to the actual parental income for the

year, the Department assessed a notional income based on what would have been the case had the

parent been in employment for the full year. This notional income brought the parental income over

the eligibility ceiling in both cases. But in both cases the actual income for the year was below the

income ceiling. Needless to say, the parents concerned were quite aggrieved with this approach and

they complained to my Office.

The Department said that, in cases where there was an increase in income which was likely to be

permanent, it was policy to �annualise� the higher weekly income and apply the resulting

assessment to the year in question. This policy is not mentioned in the grants scheme

documentation. The Department, however, pointed out that a similar practice is followed where

there is a drop in income and in these cases the practice benefits students. For example, where a

parent becomes unemployed in the course of a year, and where the actual income for that year

exceeds the income ceiling, a notional income based on the annualised �new� income (usually a

social welfare payment) is applied and this is generally to the student�s advantage.

I certainly support the application of flexibility where this is in the interests of students and where

the outcome is generally regarded as fair. However, I felt that the outcome in these cases was

neither fair nor in accordance with the published rules of the grants scheme. Following discussion,

the Department agreed to decide the cases by reference to the actual income rather than a notional

income. This resulted in grants being awarded in both cases. The Department also agreed to

discontinue the practice of annualising an increase in income where a positive change in parental

income takes place. However it will continue to annualise income, where a negative change takes

place, in order to benefit students in this category.

23

Eastern Health Board A national scheme, which is based on primary legislation and administered on a regional basis,

should be administered in a uniform way across the country. Regional variations in the

administration of national schemes result in inconsistency and inequity.

A man applied under the drugs refund scheme (DRS) for a refund of expenses incurred in the rental

of an oxygen machine. The Eastern Health Board (EHB) told him that the DRS did not cover such

expenses but that it might be able to assist financially, under a separate scheme, if meeting these

expenses was causing financial hardship. This would involve conducting a means test. The applicant

was not happy with this as he believed the DRS - which is not means-tested - did in fact cover his

situation.

In complaining to my Office this man made the point that, in at least one of the health boards, the

DRS covers the expense of renting an oxygen machine. He complained that he was �being treated

less favourably [by the EHB] than a person in similar circumstances living in another health board

area�. I checked the practice in all of the other health boards and found that the complainant was

correct; they each covered oxygen machine rental under the drugs refund scheme. Indeed, my

Office had dealt with similar complaints in the past and found then that an oxygen machine,

obtained on the prescription of a registered medical practitioner, is a medical appliance covered by

the Health Act, 1970. The DRS was clearly intended to cover the ongoing costs of medical appliances.

Surprisingly, the EHB itself had been correctly including such expenses in refund claims as far back as

1985 when my Office first had occasion to enquire into the issue. Following discussion, the EHB

accepted that the rental of an oxygen machine constituted medical expenditure which was eligible

for a refund. However, the EHB refused to backdate the refund to 1997 when the man began to use

the machine. I advised the complainant to appeal this decision to the EHB's internal appeals office.

He did so, arguing in particular that �[t]here is an obligation on all public sector organisations to

treat like cases in a like manner.� His appeal was upheld and his refund application was backdated

to 1997.

It is an accepted principle of good administration that public bodies be open and transparent in their

dealings with people. Furthermore, where an agreement is made between a public body and an

individual, it is important that the public body does not abuse its position as the more powerful

party to renege on the original terms of the agreement.

Kildare County Council A woman complained that she had applied to Kildare County Council for housing and, despite

frequent contact with the Council, had been unable to find out where she was placed on its housing

list.

The Council told my Office that its Scheme of Letting Priorities for allocating housing did not operate

on a �points system�. For this reason it was not in a position to advise the complainant of when

she might be housed or of her relative position on the housing list. I drew the Council's attention to

the contents of a 1993 Circular from the Department of the Environment on the subject which

provides: � ..[housing] authorities should have all their approved housing applicants listed in order

of priority and be in a position to advise any applicant, accordingly, of their position on the list�.

According to the Circular, housing authorities were to have arrangements in place to meet this

requirement by September 1993.

I felt that applicants for housing are entitled to know the criteria used in determining housing

allocations and, in addition, how these criteria affect their own applications i.e. where they stand on

24

the housing list. Following a number of contacts from my Office, the Council agreed to introduce a

system which would enable it to inform applicants of their approximate position on the housing list.

Eastern Health Board Mrs. A. was asked by the EHB to provide a short-term foster placement for a six year old girl in need

of emergency care. She agreed and was presented with a contract which provided that the EHB

would pay her a standard allowance and that any additional costs in looking after the child would be

paid by the Board. Mrs. A. complained to my Office that, in practice, the EHB was paying only a

portion of the costs of bus fares incurred in sending the child to school. Mrs. A. felt this practice was

contrary to the terms of her contract with the Board.

When I examined the matter I discovered that, whereas the EHB was actually refunding the costs of

school transport for the child, it was also deducting an amount of �3 per week from the standard

weekly allowance. (In the case of children attending secondary school, the deduction was �5 each

week.) This meant that Mrs. A. was effectively paying the first �3 per week of the school transport

costs. To my surprise, I discovered that had Mrs. A. been living beside a suitable school, and where

there would be no school transport costs, she would have been paid the full standard allowance of

�60.25 per week. This meant that Mrs. A.'s standard allowance was reduced by �3 per week on

the apparently arbitrary grounds that her foster child had to travel to school by bus. All of this,

according to the EHB, arose from a policy decision it had taken some years previously.

I was most concerned that in the foster care contract, the terms of which were drawn up by the EHB,

there was no reference to this policy. The agreement stated that the EHB would pay Mrs. A. an

allowance and �such additional financial or other assistance ....as the Health Board considers

necessary to enable foster parents to take care of the child�. Mrs. A. quite reasonably supposed

that, on foot of this contract, she would receive the standard allowance paid to foster parents and,

furthermore, that any additional costs in looking after the child would be met by the Board.

I felt, for a number of reasons, that the EHB's actions were not justifiable. Its policy on school

transport costs was not transparent; it had not adhered to the ostensible terms agreed with Mrs. A

and its actions, accordingly, resulted in unfair and inequitable treatment. Following contacts with my

Office, the EHB agreed to change its practice and decided to pay the full transport costs for children

in foster homes with effect from early 1999. The EHB initially refused to pay arrears of transport

costs to Mrs. A. but, following contact from my Office on this point, it relented and she received full

arrears. The EHB also paid appropriate arrears to other foster parents who had lost out under the

same practice.

Mayo County Council In 1994 a couple bought a house along with Mayo County Council under the Shared Ownership

Scheme. The Council billed the couple for legal fees incurred by it, amounting to �340, which the

couple paid. Three years later the couple received a further legal bill, amounting to �950, from the

Council in relation to the house purchase. They disputed this additional legal bill as they believed

their obligations in relation to legal costs had been fully covered by the payment of �340 in 1994.

However, the Council sought to recover the additional �950 in legal costs by increasing the rent

element in the repayments being made by the couple to the Council. The couple complained to my

Office both about the additional bill for legal costs and also about the manner in which the Council

was attempting to collect these costs.

25

My examination showed that the Council's solicitors provided the additional bill to the Council in

1995 but the Council did not notify the couple of it until 1997. I also established that the couple

were not told at the time of purchase that there would be other legal costs in addition to those

billed at the outset. I felt it was a reasonable expectation, on the couple's part, that no other legal

costs would arise following their payment of the 1994 account. I was unhappy with the Council's

attempt to recover the amount by a unilateral increase in the couple's repayments. It appeared that,

having failed to be open in its dealings with the couple, the Council was using its position as the

more powerful partner in the Scheme to obtain an additional and unagreed payment.

For the Council's part, it argued that the legal fees already paid did not represent the actual legal

costs incurred. It also pointed to the fact that the information leaflet on the Scheme clearly referred

to there being legal costs (though the leaflet gave no indication of the amount of such costs). The

Council maintained that it had told the couple at an early stage that the legal costs would amount to

�1,200. However, the couple totally rejected this assertion and I could not find any documentary

evidence to support it. Ultimately, the Council accepted that there were difficulties with its

administration of the Scheme and agreed to waive the additional charge of �950.

A public body's actions may well be authorised, in terms of having a clear statutory basis, but this

does not always mean that such actions are fair and equitable. Fair administration acknowledges

that rules and regulations should not be applied so rigidly as to create inequity. When instances of

inequity arise, involving either the rigid application of rules or inadequacy of the rules in meeting

particular situations, administrators must be prepared to review and amend rules and regulations to

meet the demands of equity.

Department of Education and Science The rules governing the Higher Education Grants Scheme frequently give rise to complaints of

inflexibility in decision-making resulting in unfairness. This Scheme does have a legislative basis but

the detailed rules are drawn up by the Department of Education and Science. In some instances the

rules require that decisions are based on irrelevant circumstances rather than on the actual

circumstances of the applicant student and her family. Inevitably, the public finds it difficult to

accept that decisions may be taken which ignore the reality of the student's actual circumstances.

One such complaint became the subject of an investigation under Section 4 of the Ombudsman Act,

1980.

The complaint concerned the handling of a grant application from a mature student. A mature

student is defined as a person of 23 years, or older, on January 1st of the year of entry to a third

level institution. The grant entitlement of a mature student is subject to a means test and the nature

of the means test, in turn, depends upon whether the mature student is regarded as being

�dependent� or �independent�. In the case of a �dependent� mature student, the means

test takes account of the means of the parents as well as of the student herself. In the case of an

�independent� mature student, the means test is based only on the student's own means (except

where the student is married or cohabiting, in which case the partner's means are also taken into

account). The problem in this case arose from the method used in determining whether a mature

student is dependent or independent.

The legislation does not define the term �dependent�. The Department's administrative rules

however define it, in the case of mature students, by reference to place of residence in the year

prior to going into higher education. Where, in the year prior to starting college, the applicant lived

with her parents then she will be treated as being �dependent� for grant purposes; and, where

the applicant lived away from home in that year, she will be treated as being �independent� for

26

grant purposes. The issue of dependency is relevant not only in determining which means test

applies but also, in many instances, in determining whether the student will get the higher, �non-

adjacent�, rate of grant or the lower, �adjacent� rate of grant. (This refers to the practice of

paying a lower rate of grant to those who live �adjacent� to the college - defined as within 15

miles - and a higher rate in �non-adjacent� cases, i.e. more than 15 miles from college.) The

residence of a mature, �dependent� student is taken to be that of her parents irrespective of

where she actually lives; and the residence of a mature, �independent� student is taken to be

where she is actually living.

The mother of a 24 year old mature student complained that the lower �adjacent� rate of grant

was being paid to her daughter. The student had been financially independent prior to entering a

Dublin college but became dependent on her mother, who lives in Mayo, on becoming a student.

The student lived in rented accommodation, for which her mother paid the rent and otherwise

supported her. Under the rules of the Scheme, the student was treated as being independent (which

had actually been the case prior to going to college) and, as she lived within 15 miles of the college,

was awarded the lower rate of grant. The Department, which dealt with the case on appeal, refused

to assess the student as being dependent on her mother. Had this been accepted, and given that the

mother's means were within the limit for grant eligibility, the student would have qualified for the

higher, �non-adjacent� rate of grant. This is on the basis that her normal residence would have

been taken to be that of her mother who lived more than 15 miles from the college. The

Department did not dispute that, in fact, this student was dependent on her mother. However, it

contended that under the rules of the Scheme, the sole factor determining her dependency status

was that she had been living in Dublin during the year prior to going to college. Other factors were

irrelevant.

My investigation showed that, whereas the rules of the Scheme had been applied in the usual way,

this resulted in an unfair and inequitable decision in the particular case. Furthermore, the outcome

was somewhat absurd in the context of the family involved. The student's younger sister also lived in

rented accommodation while attending college and at one point the two girls even shared

accommodation. They both lived within 15 miles of their colleges, yet the younger sister, as she was

not classified as a mature student, received the higher rate of grant. This was on the basis that the

younger sister was treated as being normally resident with her mother in Mayo and thus entitled to

the higher, �non-adjacent� rate of grant. The difference between the higher and lower rates of

grant amounted to a total of �2,932, over three years, in this case.

The rationale for the distinction between the two rates of grant appears to be based on an

acceptance that students, whose normal place of residence is more than 15 miles from college, are

likely to have to pay for rented accommodation. Nevertheless, the Department defended its

handling of this case even though it did not dispute that the student was dependent on her mother

and had to rent accommodation because her mother lived in Mayo. In other words, the higher rate

of grant was designed to benefit this type of case but, because of the way the Scheme was

constructed, this rate could not actually be paid in some of these cases.

During the course of my investigation, the Department decided to pay the higher rate of grant to

eligible, mature students regardless of their distance from college. This change was made with effect

from the 1999/2000 academic year. However this general improvement, while very welcome, did

not deal with the earlier years of this student's college career. Accordingly, I proceeded with my

investigation of the complaint.

At the conclusion of the investigation I found that:

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(1) the definitions of �dependent� and �independent� mature students, contained in the

administrative rules, do not correspond with the provisions of the legislation. The legislation

provides that grants be made to mature students subject to certain conditions relating to means.

However, the definitions in the administrative rules are expressed by reference to the student's

place of residence rather than by reference to financial status as a dependant or otherwise. The case

investigated showed that this system results in decisions based on irrelevant factors and which,

ultimately, are contrary to fair or sound administration.

(2) the rigid application of the rules in this case resulted in inequity for the student involved in that

she was paid a lower rate of grant than other students who were in similar financial circumstances.

I recommended that the student's grant application be re-assessed on the basis that she was a

mature student dependent on her mother, with normal residence at her home in Mayo. I also

recommended that the Department review the Higher Education Grants Scheme with a view to

ensuring the equitable treatment of mature students with decisions based on their actual financial

circumstances rather than on notional, or out of date, circumstances.

The Department accepted my recommendations. The student has since been paid �3,028 which

comprises arrears of grant and compensation for the delay in making the payment.

The implications of my investigation extend beyond the cases of mature students. For example, I

have come across cases of young people, under the age of 23, who are living independently and,

indeed, may have families of their own, yet who are assessed as dependent on their parents. In

these cases, the parents' address is used to determine the rate of grant payable. There are also cases

of students, over the age of 23 years, who were dependent on their parents when they commenced

their studies but who marry while still at college. The Department, however, continues to regard

such students as being dependent on their parents. This is unacceptably inflexible administration

and needs to be addressed without further delay.

I understand that the Department is undertaking the review, which I recommended, of the Higher

Education Grants Scheme. I look forward to seeing significant changes for the better in this area in

the coming year.

Department of Agriculture, Food and Rural Development I received two similar complaints regarding the date from which the Farm Retirement Pension

should be paid. Normally, these pensions are paid from the date of receipt of a valid application.

However, in cases where applications are submitted without the required specified documentation

(e.g. evidence of land transfer), the Department does not regard the application as being valid until

that documentation is supplied. The problem raised in these two complaints was that the

Department, having received applications which did not have all the necessary documentation, was

very slow to point out that the applications were defective. This meant that the applications were

not treated as valid until the farmers had supplied the missing documentation. Thus, it was from this

later date that the pensions were actually paid.

For example, in one of the cases the farmer lodged the application in February 1997. In June 1997

the Department wrote to say that certain documentation was missing. The additional material was

supplied in August and the Department decided to treat the application as having been made in

August 1997. This meant that the pension was payable from August 1997 rather than from February

1997.

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In the two cases I examined, the original applications were undoubtedly incomplete. However, I felt

that there had been undue delay on the part of the Department in informing the applicants of this.

In fact four and five months, respectively, had elapsed before the Department informed the farmers

concerned that their applications were incomplete. In both cases it then took a further five weeks

for the applicants to supply the documents required. While the applicants should have known that

these documents must accompany the application, the Department should have notified them of

the defect much earlier.

I felt that the Department�s practice in relation to these cases amounted to an unreasonable and

inflexible reliance on its own rules. I pointed out to the Department that its own 1995 Charter of

Rights for Farmers actually anticipated this type of problem. The Charter promised that the

�response time to farmers when problems with applications arise will be improved considerably in

1995 and, from 1996, farmers will be informed in writing within 2 - 4 weeks of problems that

arise.� Had this commitment been met in these cases, the applicants could have had complete

applications re-submitted very much earlier than was actually the case. I felt that, where the

Department fails to check such an application within one month of its receipt, and where it

subsequently transpires that the application is incomplete, the farmer should not be penalised,

beyond the initial one month, for any delay on the Department�s part in checking the application.

The Department reviewed its position on these two cases and agreed to apply the logic of my

general argument to them. This resulted in the award of the pensions from earlier dates, three and

four months respectively, than had been the case. Because I believe that all such applications

should, at the very least, be capable of being screened by the Department within one month of

receipt, I have asked the Department to apply the procedure eventually accepted in these two cases

to all such cases in the future. In this way, farmers will not suffer unreasonable financial loss because

of delays within the Department.

Department of Finance Another area, in which the failure of legislation to keep pace with actual circumstances may give rise

to unfairness, is that of tax relief for medical expenses. I am greatly concerned that no apparent

progress has been made by the Department of Finance in terms of proposals to modernise this

legislation. My predecessor, Michael Mills, drew attention more than seven years ago to the need to

update the law in this area. It was apparent at that stage that the system in place does not take

account of the developments in medical practice since it was introduced over 30 years ago. This was

shown to be the case in a number of complaints about tax relief for the treatment of mental health

problems. In Annual Reports for 1993 and 1995, my Office drew attention to complaints about the

refusal of tax relief for the cost of psychotherapy. Tax relief only applies where the psychotherapist

is a registered medical practitioner or where the therapy is provided on the advice of such a

practitioner. In 1995 my Office withdrew from an examination of a specific complaint in this area on

the understanding that the relevant legislation was being reviewed within the Department of

Finance and that it was reasonable to anticipate legislative changes thereafter.

In 1995/96 a review of the legislation was undertaken by the Department of Finance, in consultation

with the Revenue Commissioners, but no provision was made for tax relief. During the last year the

issue was again raised and I looked into the matter once more with the Revenue Commissioners. My

examination showed that the review of legislation which had taken place was inconclusive and no

action was taken on foot of it.

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In my view it is inequitable that income tax relief is available for fees incurred for psychotherapy

treatment when provided by, or on the advice of, a registered medical practitioner but not when the

same treatment is provided directly by a qualified psychologist. I again suggested to the Department

of Finance that it should be possible to amend the relevant legislation to provide income tax relief in

this area. Initially, the Department said that it would look at the issue constructively in the context of

the Finance Bill, 2000. However, the recently published Finance Bill, 2000 does not contain any

proposal in this area. The Department commented as follows on the reasons for not including such a

proposal in the Bill:

� While the Department of Finance agrees in principle that tax relief should be available for

treatment by a qualified psychologist, it believes this would not be possible in the absence of a

suitable register of psychotherapists. The Department of Health and Children ...had stated that they

were considering producing such a register. However, they indicated recently that they do not

expect to have such a register before the end of 2000.�

This is quite similar to the position adopted by the Department in 1996. It is disappointing to find

that this issue has not been comprehensively reviewed in the light of developments over the past 30

years. As a consequence, entitlement to tax relief for medical expenses continues to be determined

on the basis of a system which may have been appropriate to the 1960s but is hardly appropriate for

the year 2000.

Department of Social, Community and Family Affairs The continued application of old and out-of-date legislation can give rise to unfairness and several

examples of this have been reported in Ombudsman Annual Reports over the years. One such

instance, on which my predecessor Michael Mills reported in detail in his Annual Report for 1987,

relates to the social insurance treatment of part-time workers. It is disturbing to see the same type

of problem still arising 12 years later.

A man who was employed for one day a week claimed an unemployment payment for the rest of

the week. This situation prevailed over a number of years. Social insurance legislation did not allow

him to be covered by the full Class A contribution as he was not mainly dependent on his earnings

from the employment. However, neither was he entitled to a Class A credited contribution, along

with his unemployment payment, as he was not unemployed for the full week. This meant that he

was excluded from the protection of social insurance with all the implications this carried

particularly in relation to old age pension and invalidity entitlements in the future. The matter came

to a head when this man claimed Invalidity Pension and was refused because of an inadequate social

insurance record.

It was clear that the decisions taken in this case were in accordance with the relevant regulations.

However this man was actually worse off, from the point of view of accruing title to benefits, by

virtue of having worked one day a week than if he had been completely unemployed. This seemed

an inequitable situation and I asked the Department if it could be remedied by way of an

administrative decision. The Department agreed to allow credited social insurance contributions for

each week the man had registered as unemployed. On this basis the man qualified for Invalidity

Pension. However, while this particular case may now have been resolved, the general legislative

position remains unchanged.

In his 1987 Annual Report my predecessor, in this context, commented: �... in the light of new and

changing work practices there is need for a constant review of legislation and administrative

30

procedures'. In 1987 the Department's position was that appropriate legislative provisions were

being considered in order to deal with this type of anomaly. However, by 1999 the Department's

consideration of the need for amendments to the regulations appears not to have advanced greatly.

In responding on this present complaint, the Department told me that �... the legislative and policy

implications associated with the treatment of part-time workers vis à vis unemployed workers,

insofar as entitlements under the social insurance system are concerned, are being considered by

the Department...�. I find it unacceptable that the Department's response on this issue in 1999,

essentially that the matter is under consideration, is identical with its response 12 years earlier in

1987. I have informed the Department of my views on this.

Department of Agriculture, Food and Rural Development The principle of force majeure is a feature of European Union law and generally applies in the case of

EU schemes relating to agriculture. The principle may be invoked in circumstances where there has

been a failure to act within a specified time frame and where this failure carries with it a penalty (for

example, in terms of lost benefit). Force majeure relates to circumstances which are outside the

control of an individual and where the consequences cannot be avoided. This principle is related to

that of proportionality which operates to provide that any penalty imposed is in proportion to the

detriment caused by, for example, any failure to act on time. These principles enable flexibility in the

application of rules with a view to avoiding the creation of an inequity. Whereas good administration

requires consistency in decision-making, this should not be at the cost of failing to have regard to the

discretion provided, in the interests of fairness, by these principles. I understand that the

Department invokes the force majeure concept rarely and only in exceptional cases. In a complaint

concerning the Area Aid scheme, the Department advised my Office that �force majeure ...can only

be used in cases where unforeseen circumstances prevent an applicant from submitting an

application on time. Unfortunately, the addition of land to an application cannot be covered by force

majeure.�

In this case a farmer had failed to include a parcel of land in his Area Aid application. This would

result in a reduced level of payment to him. He realised his error only after the date for submitting

amendments had passed. He asked the Department not to impose a penalty in his case as, he

contended, his failure to amend the details in time was directly related to problems within his

family. He contended that his family had undergone great distress as his mother, who lives with him,

had been diagnosed as suffering from Hepatitis C, an illness which was the subject of much media

attention at the time.

It appeared that the Department had not taken the unusual circumstances of the case into account

and had not considered the application of the force majeure principle in this case. It had evolved a

practice of limiting its use to certain types of cases, which appeared to amount to a fettering of its

discretionary power. Following contact from my Office, and receipt of medical evidence in relation

to the farmer's mother, the Department agreed that the late amendment to the application could be

accepted in view of the exceptional circumstances of the case. The farmer was then paid the full

range of grants on foot of this new decision.

Local authorities have long had a responsibility for ensuring the protection of public rights of way.

This is currently provided for in the Roads Act, 1993. I received complaints from people who believe

that their local authority has failed to protect such public rights of way.

31

Mayo County Council Access to Uggool Beach in Co. Mayo was effectively closed in 1989 with the erection of fencing by a

local landowner. The County Council received complaints that the fencing was an unauthorised

development and it was asked to ensure that access to the beach was restored to the public. The

complainants believed there was a public right of way to the beach. The landowner, on the other

hand, claimed that there never had been such a right of way. Complaints were eventually made to

my Office that the County Council had not taken action to resolve the situation.

Under the Planning Acts local authorities have discretion in deciding whether to take enforcement

action in cases of alleged breaches of planning legislation. In deciding whether or not to take

enforcement action, they take into account the extent of the breach as well as the likelihood of

success in going to court. In this case, the Council contended there would be difficulties in obtaining

a successful resolution through the courts. Enforcement action of this kind must be taken within five

years of the event and, by the time the Uggool issue was raised with my Office, this five year period

had or psed. This meant that Mayo County Council was already legally precluded from taking

enforcement action. However, I was not happy with the Council's handling of the issue and,

accordingly, I decided to pursue the matter.

The Council was aware of the fencing of the beach in 1989 and my examination of its files showed

that it received over 25 complaints on the matter from individuals and organisations, including semi-

state bodies. The fencing is of such an extensive nature, continuing at certain points on to the

foreshore and beach, that it is difficult to see it solely as a means of protection of agricultural land.

The conclusion that the fencing was intended to prevent access to the beach is unavoidable - nor did

the Council dispute this conclusion. The landowner was contacted by the Council on a number of

occasions since 1989. In 1992 the Council sought legal advice on the case; however, no action was

taken either then or in the following years.

Following detailed contacts with my Office over a period, Mayo County Council gave me an

assurance in 1999 that it was now determined to ensure safe public access to the beach. The Council

says it intends to do this either by a compulsory purchase order or by the compulsory creation of a

public right of way. I welcome this development. However, I am disturbed that it has taken ten years

to reach this point and I am greatly concerned that this delay on the Council's part has resulted in

the loss of access rights for members of the public over a ten year period. I trust that the Council will

now act resolutely and speedily to restore access to the beach for the public.

Bray Urban District Council I received a complaint from a residents' association that Bray Urban District Council intended to

extinguish a public right of way across a field in its area. When I contacted the Council it maintained

that the paved footpath in question was not a public right of way and, consequently, that the terms

of the Roads Act, 1993 did not apply. (The Roads Act provides for a public consultation mechanism in

the event that a local authority plans to extinguish a public right of way.)

When I examined the complaint, including a visit to the site involved, I found it difficult to

understand why the Council maintained there was no public right of way at the location. The

pathway was a physical structure, in place for more than ten years, on which public moneys had

been spent and was habitually used by the public. I was concerned by the Council's contention that

the Roads Act did not apply as this would mean that the statutory right of appeal, available under

the Act, would not apply. I asked the Council to review the case, taking into account a number of

different factors, including relevant case law. The Council reconsidered its position and eventually

decided, at a meeting of elected members, that the issue of the public right of way should be dealt

32

with under the mechanism provided by the Roads Act, 1993. A notice of its intention was published

in the local newspapers which gave the public the right to object to the proposal.

I am satisfied that this procedure, currently underway, means that the views of the public will be

taken into account before any decision to extinguish the public right of way can be taken.

A number of cases have brought to light difficulties in the implementation of planning regulations

which have led to the loss of, or diminution in, the public's statutory rights of notice and appeal.

South Dublin County Council Mr. B. lodged an objection in connection with a planning application submitted for a development in

his neighbourhood. Permission was granted by the Council and Mr. B. appealed the decision to An

Bord Pleanála. While the appeal was being considered, the Council accepted a second, but identical,

application from the developer. Mr. B. was unaware of this second application. South Dublin County

Council granted permission for the second application, as it had done with the earlier one. The

appeal on the first application was successful - permission for the development was refused by An

Bord Pleanála. However, this had no practical effect as a valid planning permission still existed

consequent on the second application. By the time Mr. B. discovered the existence of the second

planning application, it was too late to appeal to An Bord Pleanála. Mr. B complained to my Office

regarding the Council's handling of the second application.

The Council acknowledged it was aware that the applications were identical; it was also aware, when

processing the second application, of the nature of Mr. B's objections. The Council pointed out that

there is no provision in current legislation requiring that objectors to a first application be notified

when a second, identical application is received. Accordingly, it felt that it had acted correctly in the

matter. The Council mentioned that it had itself written to the Department of the Environment and

Local Government (DOELG) suggesting that a change in the regulations is needed to prevent a

recurrence of this type of situation. I am aware that the Minister subsequently commented on the

matter in the Seanad and gave a commitment that the regulations will be amended.

I am seriously concerned about the implications of this case. I consider that the strict, legalistic

approach of the Council, in dealing with the second application, may have facilitated a blatant

circumvention of the planning regulations. This complaint is only one of a number I received relating

to difficulties with the planning regulations and, in particular, the adequacy or otherwise of site

notices displayed as required by the regulations. For example, the site notice in this case is unlikely

to have alerted Mr. B. to the fact that a second planning application had been made in relation to

the site. I wrote recently to the DOELG giving details of some problems encountered with site

notices which, in addition to the present case, include:

- a Kilkenny case where the site notice for a communications mast was placed in the top section of a

window behind frosted, reinforced wire glass at a Garda station, thus rendering the notice

effectively unreadable;

- a Cork case where the planning authority twice inspected the site and found no site notice in place

but nevertheless proceeded to grant planning permission for the development;

- a Fingal case in which an objector felt that the completed development was considerably different

from that described in the site notice;

33

- a Drogheda case in which it is alleged that a site notice was completely covered with an aluminium

shutter at 6.00 p.m. each evening and that the notice was covered all day on Sundays.

In writing to the Department, I made specific proposals for the display of site notices which, if

included in the regulations, should make circumvention of the planning law less likely while also

making the procedures more open and transparent for the public.

Donegal County Council In another case involving planning regulations, the actions of Donegal County Council had the effect

of depriving members of the public of their statutory right to appeal to An Bord Pleanála. This was a

complex case in which a developer was given permission in 1992 to build a house in accordance with

a particular plan. However the house, as planned, was not built. In 1996 the developer submitted an

application for a different design of house on the same site. The Council granted permission; but this

decision was appealed to An Bord Pleanála which upheld the appeal. It appears that in making its

appeal decision, An Bord Pleanála was under the mistaken impression that the 1992 planning

permission had lapsed.

The developer then contacted the Council to say that he proposed to build in accordance with the

existing 1992 permission, but that he wished to modify the plans. The revised plans, which proposed

a house very similar in type to that for which An Bord Pleanála had refused permission, were

accepted by the Council as being a non-material amendment to what was permitted in 1992. The

Council told the developer that he had permission to build in accordance with the modified plans.

The Council's decision to accept revised plans was not made under the planning regulations but was

based on the so-called de minimis rule, viz. that the law does not concern itself with trivialities.

Under this rule, local authorities permit the alteration of accepted plans where the alterations are

seen as minor.

When I examined the case in detail, I concluded that the application of the de minimis rule was

inappropriate. In effect, I believed the Council was wrong to have consented to the building of the

house on the basis of the modified plans. The extent of the modification of the 1992 plans was such

that they bore little resemblance to the original; rather, they quite closely resembled the 1996 plans

which had been rejected by An Bord Pleanála. I also concluded that, while a planning authority may

decide not to take enforcement action against a developer where development is unauthorised, it

has no statutory authority to approve such a development - as happened in this case - without the

grant of planning permission. I asked that the Council review its position in relation to this practice

and it agreed to do so.

I reluctantly accepted that, as the Council had given written approval to the development, its

chances of success in an action to prevent the developer from proceeding would be weak. In any

event, the house had been substantially completed by the time my examination began. But as a

result of the Council's decision, third parties, including the complainants, were deprived of their

statutory right to object to the development and to appeal to An Bord Pleanála. As it was not

possible to restore these rights to the individuals concerned, the Council offered compensation of

�200 to them, a figure which I accepted as reasonable in the particular circumstances involved.

Notwithstanding the outcome, I am very concerned about the procedures followed by Donegal

County Council in this particular case. Financial compensation cannot adequately compensate where

the opportunity to object to a proposed development - which is a fundamental aspect of our

planning system - has been lost. I will take a very critical approach in future if similar practices come

to light in this or any other local authority.

34

35

Chapter Four - The Year in Review

The Year in Review I am pleased with the way in which my separate statutory offices of Ombudsman (under the

Ombudsman Act, 1980) and of Information Commissioner (under the Freedom of Information Act,

1997) have complemented one another in practice during 1999. In addition to these two offices, the

secretariat to the Public Offices Commission (of which I am currently Chairman) is provided by

Ombudsman staff and, in effect, three separate but linked bodies now operate from our premises at

18 Lower Leeson Street. Each of the three bodies benefits from its links with the other two, not least

in terms of the very tangible benefits derived from shared services (e.g. in the administration,

personnel, finance and IT functions). The challenges inherent in managing three separate, but linked,

statutory functions were addressed during the year with the assistance of an external facilitator. In

effect, this process is the first step in developing detailed business plans for each of the statutory

functions.

Chapter 10 of Partnership 2000 for Inclusion, Employment and Competitiveness set out the

governing principles and approach to the modernising of the civil service. It provided for the

establishment, in each Department and Office, of effective partnership structures to engage

management, unions and staff in developing and implementing action programmes to progress the

Strategic Management Initiative (SMI).

In my own case a Partnership Committee, under the chairmanship of my Director and representative

of all three Offices, was created early in 1999 and is now well established. In addition to SMI related

issues, the Committee also serves a useful role in involving staff in identifying and addressing

organisational and work-related issues and challenges generally.

Ombudsman (Amendment) Bill I am very disappointed that the promised Ombudsman (Amendment) Bill was not published during

1999. Since my appointment in November 1994 I have been in regular contact with the Department

of Finance regarding the need to update the Ombudsman Act, 1980 and to extend the range of

public bodies subject to the Ombudsman's jurisdiction. In my Report for 1995 I mentioned that the

drafting of an Amendment Bill was then underway. In virtually every Report since then I have

expressed the hope that this Bill would be published and enacted shortly. Unfortunately, the present

position seems to be very similar to that in 1995 i.e. the drafting of a Bill is currently underway.

The present Ombudsman Act was enacted in 1980 and since then major changes have occurred

within the public service. The Ombudsman Act has not kept pace with these changes with the result

that the public is confused as to what exactly falls within the Ombudsman's remit and what does

not. The fact that the Freedom of Information Act, 1997 covers a much wider range of public bodies

- with which I deal as Information Commissioner - adds to this confusion. The public can be forgiven

for expressing surprise on being told that the Ombudsman cannot deal with, for example, the

Environmental Protection Agency or the public voluntary hospitals but that the Information

Commissioner can. In 1999 my Office received 1,301 invalid complaints, or 33% of the total

complement. This very high invalid figure must to some extent reflect confusion as to what the

public expects the Ombudsman can, or should, cover. I very much hope that the Ombudsman

(Amendment) Bill will be published and enacted before very much longer.

36

Public Access and Awareness People wishing to complain to my Office may do so either in writing (including by e-mail), by

telephone or by calling to our premises in Dublin. In order to facilitate people from outside Dublin

we have, for some years, been operating monthly visits to certain Citizens Information Centres (CICs)

as well as one-off visits to other towns and cities around the country.

During 1999 my Office paid monthly visits to CICs in Limerick, Galway, Cork, Waterford, Portlaoise

and, from October 1999, to Coolock in Dublin. The purpose of these monthly visits is to enable

members of the public to present their complaints directly to members of my staff. The CIC visits

continue to prove most useful with a total of 566 new complaints made in 1999; of these, 388 were

valid complaints and 178 (or 31%) were invalid.

Staff from my Office also made one-day visits to Tralee, Castlebar, Youghal, Roscommon, Longford,

Kilkenny and Wexford. These visits are well advertised in advance to ensure that there is an

awareness of the sort of work my Office does and to encourage people to present complaints which

they might find difficult to put in writing. A total of 474 new complaints were made at these visits, of

which 388 were valid complaints and 86 (or 18%) were invalid. Between the monthly CIC visits and

the one-day visits a total of 776 valid, new complaints were received.

I am conscious of the need to make my Office as available as possible to the public and to ensure

that, where a person lives, or the capacity to present a complex complaint issue in writing, should

not unduly inhibit potential complainants. In this context I will be continuing during 2000 with the

programme of monthly CIC visits as well as with a series of one-day visits to other towns and cities.

Information on the Office, including details of the programme of regional and CIC visits for 2000, is

published at www.irlgov.ie/ombudsman/ on the Internet.

Relations with Bodies within Remit Relations with the public bodies within my jurisdiction continue to be generally good. This is not

something which I take for granted and I am happy to record my appreciation of the genuine efforts

made by the majority of public bodies in their dealings with my Office.

I reported last year on the number of times my Office was obliged to invoke Section 7 of the

Ombudsman Act in order to have the body concerned provide a response or documentation on a

complaint. A Section 7 notice requires the provision of the requested information by a specified

date. I invoke this power only as a last resort and, ideally, I would prefer not to have to invoke

Section 7 at all. Details of Section 7 notices issued during 1999 are in the table across:

Body No. of Section 7

Notices Issued

Civil Service

Dept. Agriculture, Food &

Rural Development

3

Dept. Education & Science 1

37

Local Authorities

Ballina Urban District

Council

1

Birr Urban District Council 1

Buncrana Urban District

Council

1

Dundalk Urban District

Council

1

New Ross Urban District

Council

1

Wicklow Urban District

Council

1

Clare County Council 1

Cork County Council 3

Kildare County Council 3

Laois County Council 1

Louth County Council 1

Roscommon County Council 1

Wexford County Council 1

Dublin Corporation 2

Galway Corporation 2

Limerick Corporation 1

Wexford Corporation 1

Total 27

38

Overall, the total of such notices is down to 27 instances for 1999 compared to 45 for 1998.

However, I am concerned to note that local authorities now account for 85% of notices issued. In

1998 there were 13 notices issued against the Department of Agriculture & Food - the most notices

for any individual body. During 1999 this figure was reduced to three, in the case of that

Department, and all three issued in early 1999 prior to the publication of my 1998 Annual Report. I

am glad to report that 1999 saw an improvement on the part of that Department in providing

information to me and I acknowledge the high level of co-operation from the Department's

Ombudsman liaison officer and its Customer Services Officer.

Contacts with other Ombudsman's Offices My Office continues to maintain a high level of participation in its membership of the International

Ombudsman Institute (IOI) and of the British and Irish Ombudsman Association (BIOA). In May I was

pleased to host the 1999 Annual General Meeting of the BIOA as well as participating in other BIOA

events during the year. As one of the four Regional Directors for Europe, I participated in the IOI's

Board of Directors meeting in Pretoria in November 1999.

I feel it is very important that my Office should keep up with best practice internationally and one

way of achieving this is to maintain contacts with other Ombudsmen. During the year I was delighted

to receive visits from the UK Ombudsman (Parliamentary Commissioner), Mr. Michael Buckley, the

Ombudsman for Northern Ireland, Mr. Gerry Burns, the Norwegian Ombudsman, Mr. Arne Fliflet

and from Dr. Marten Oosting, National Ombudsman of the Netherlands. These visits provide my

staff and myself with an opportunity to hear at first hand of interesting developments in the

jurisdiction and working methods of other Ombudsman Offices.

These contacts also facilitate work-related co-operation between Ombudsman Offices. During the

year I was pleased to be able to deal with a complaint on behalf of a French national, who had

returned to France after a period of employment in Ireland and who had difficulty in obtaining

details of his employment record in Ireland. The complaint was sent to me by the French

Ombudsman (Le Médiateur de la République) who had received the original complaint. For my own

part, I had occasion to refer a complaint to my Spanish counterpart (El Defensor del Pueblo)

concerning alleged inaction by the Spanish authorities in dealing with the death of an Irish citizen in

Spain. I also referred an issue to the European Ombudsman arising from a complaint made against

the Department of Agriculture & Food and which also involved Teagasc (the Agriculture and Food

Development Authority) and the European Commission. I understand the European Ombudsman

subsequently initiated an �own initiative� investigation of the European Commission arising from

this referral.

Telecom Éireann Following its privatisation, Telecom Éireann (now Eircom) ceased to be within my jurisdiction from

15 July 1999. Between 1984 and 1999, my Office handled over 11,600 complaints against Telecom

Éireann. In over 28% of the cases, the complaints were resolved in the customer's favour and a

further 13% received assistance in dealing with their problem. The company attracted an extremely

high number of complaints in the 1980s which peaked in 1987 when over 2,000 complaints were

received. The numbers of complaints declined dramatically during the 1990s with the introduction of

itemised billing and the Customer Charter.

In 1998 I received 227 complaints against Telecom and there were 113 complaints for the first six

months of 1999. These more recent complaints have centred mainly on disputes concerning the

39

charging of calls to �entertainment lines� and on difficulties in the provision of service. Both of

these, I believe, are likely to continue to be a source of problems for the elecommunications

companies and their clients in the future. Regulation of the telecommunications industry, including

handling individual customer complaints, is now a matter for the Office of the Director of

Telecommunications Regulation.

I would like to acknowledge the co-operation afforded my Office by Telecom Éreann over the years

and, in particular, the work of those Telecom staff who were assigned to the �Ombudsman's

duty�.

On-going Complaint Issues The Department of Education and Science is responsible for a number of administrative schemes,

with the School Transport Scheme being among the most important. This Scheme continues to be

the subject of complaint to my Office and I have suggested to the Department on a number of

occasions that it be put on a statutory basis. The advantage of operating on a statutory basis is that

the objectives and governing criteria of the scheme are likely to be made clear and the likelihood of

arbitrary decision-making is reduced.

My suggestion has not been accepted. The Secretary General of the Department has argued that the

School Transport Scheme does not lend itself to being placed on a statutory footing. I cannot agree. I

have come across instances of discriminatory decision-making in relation to this Scheme in the past -

see in particular my 1998 Annual Report (at Page 9-10) - and the possibility of recurrences remains.

My experience suggests that having a clear statutory basis for schemes does not necessarily impair

flexibility. I urge the Department to reconsider this question.

In the case of the Department of Agriculture, Food and Rural Development there appears to be an

on-going problem caused by delays in the headage and premia appeals unit. To be effective, an

appeals system must not only give the appellant a fair hearing but must do so within a reasonable

timespan. If a farmer succeeds in his appeal but must wait a year or more for the appeal decision,

the delay alone is likely to have caused him hardship. However, I note the establishment of the

Department's Customer Complaints Procedure and I welcome its declared intention to establish, on

a statutory basis, a comprehensive appeals system for all of its clients.

Other Issues in Brief - In November 1999 my Office hosted a seminar on complaint handling in a hospital environment.

The seminar was held in conjunction with the Irish Society for Quality in Healthcare. I have a number

of complaints on hands from hospital patients and/or their families and one of these complaints is

currently the subject of an investigation under Section 4 of the Ombudsman Act, 1980. - I continue

to receive a small number of complaints regarding failure to provide service in the Irish language. In

recent Annual Reports I referred to the desirability of having a Language Act which would define the

rights of Irish speakers as well as defining the obligations of state bodies in relation to these rights.

Certainly, reliance on policy statements as a means of ensuring action in this area seems misplaced.

This is borne out by one of the findings of a survey which I conducted in my capacity as Information

Commissioner and which will be published later this year. The survey related to the publication of

the information manuals (known as �Section 15 manuals�) required to be published under the

Freedom of Information Act. Under Government Guidelines in relation to the use of Irish by public

bodies, these manuals should be available in Irish as well as in English. The survey showed that, of

169 public bodies which had produced such manuals, only 12 (or 7%) had produced them in Irish as

40

well as in English. - I responded early in 1999 to some suggestions that there is a need in Ireland for a

tax Ombudsman, separate from my Office. The suggestions arose in the context of the granting of

additional powers to the Revenue Commissioners and the related need to monitor how these

powers are being used. To some extent the suggestions may have been based on lack of information

on the existing jurisdiction and powers of my Office. The notion of having separate Ombudsman

Offices for specific areas of public administration in a small country is, I feel, counterproductive and

contrary to general international practice. Among the decided advantages of a single national

Ombudsman is the significant range of powers which the Oireachtas has bestowed on that Office

and the capacity such an Office has to take an overview of public administration and to develop and

apply common standards of practice to all public bodies. It is of interest that the operation of public

sector Ombudsmen in the United Kingdom is currently the subject of a major review involving

consideration of a unified public sector Ombudsman scheme for England. (Indeed, as part of this

review, officials from the UK Cabinet Office visited my Office to inform themselves about my

functions and operating procedures.)

Complaint Statistics I received a total of 3,986 complaints during 1999 compared to a total of 3,779 complaints in 1998.

In addition to actual complaints my staff also dealt with 4,776 enquiries from members of the public.

These are predominantly telephone enquiries and they typically involve giving basic information in

relation to public bodies or in relation to the schemes and services of such bodies. In most instances

the enquirer is referred to the appropriate agency for further assistance. My staff have always dealt

with a high level of enquiries of this nature but in 1999, for the first time, we have actually recorded

the extent of this activity. Taking complaints and enquiries together, almost 8,800 people contacted

my Office during 1999.

Of the 3,986 complaints received in 1999 a total of 1,301 (or 33%) proved to be outside jurisdiction

leaving a figure of 2,685 valid complaints received. The proportion of invalid complaints received has

been increasing in recent years despite our best efforts at publicising the actual jurisdiction of the

Office.

There have been some interesting changes in the distribution of valid complaints received within the

main public service sectors. The table overleaf illustrates these changes:

Valid

Complaints by

Sector

1986 1996 1997 1998 1999

Civil Service 2,247 1,228 1,632 1,396 1,375

Local

Authorities

483 569 761 690 737

Health Boards 422 411 403 482 387

Telecom

Éireann

1,775 272 262 227 113*

41

An Post 69 56 68 81 73

*Telecom Éireann fell outside my remit from 15 July 1999

Whereas 1999 saw a small decline in complaints against the civil service overall, there are some

significant changes within that sector. For example, complaints against the Department of Social,

Community & Family Affairs (DSCFA) in 1999 were down 15% on the previous year; and within this

DSCFA decline, there was a drop of 44% in complaints relating to unemployment payments.

Undoubtedly, the DSCFA changes reflect the reduced unemployment figures of the past two years. A

1997 survey showed that three bodies [DSCFA, Department of Agriculture & Food and Revenue

Commissioners] account for over 90% of public contacts with the civil service. As the table below

shows, these three bodies taken together account for about 80% of all civil service complaints to my

Office:

Valid

Complaints

against the

Civil Service

1986 1996 1997 1998 1999

Social,

Community &

Family Affairs

1,408 653 1,007 786 665

Agriculture 99 220 223 198 284

Revenue 335 138 135 123 132

Total 1,842 1,011 1,365 1,107 1,081

% of total

complaints

against the

Civil Service

82% 82% 84% 79% 79%

Complaints in the health board sector fell by 25% as between 1998 and 1999. Given the on-going

debate about hospital services in Ireland, this drop may seem unusual. However, it must be borne in

mind that my jurisdiction does not yet extend to the public voluntary hospital sector which provides

about 40% of public general hospital beds in the country. A small, but perhaps interesting, statistic

relates to complaints regarding access to medical records. Such complaints fell from 22 cases in 1998

to two cases in 1999 and this presumably reflects the impact of the Freedom of Information Act

which now extends to health boards and to public voluntary hospitals.

During 1999 a total of 2,603 complaints were finalised leaving 999 complaints to be carried forward

to 2000. Of the complaints completed, 18% were resolved (meaning that the complaint was upheld);

5% were partially resolved; in 22% of cases assistance was provided and in 39% of cases the

42

complaint was not upheld. The remaining 16% of complaints dealt with were either withdrawn or

the examination process was discontinued. (Beginning in 1999, my Office has introduced a new

result category, �Partially Resolved�, to reflect outcomes in which a complaint is partly upheld

and/or the complainant has received some tangible redress.) In effect, 45% of complainants were

better off as a result of contacting my Office either on the basis that their complaint was resolved or

partially resolved or on the basis of assistance provided.

Full statistical details on the activity of the Office in 1999 are set out in CHAPTER 5.

43

Chapter Five: Statistics

1. Overview of 1999 complaints

Complaints Numbers

Received in 1999 3,986

Outside Jurisdiction 1,301

Total within Jurisdiction 2,685

Carried forward from 1998 917

Total on hand for 1999 3,602

Completed in 1999 2,603

Carried forward to 2000 999

Ten Year Trend of Valid Complaints Received - Overview

1990 2727

1991 2603

1992 2637

1993 2419

1994 2489

1995 2250

1996 2536

1997 3126

1998 2876

44

1999 2685

Total 2,685

45

5. Civil Service - Valid Complaints in

1999

Brought forward from

1998

Received in

1999

On hands for

1999

Social, Community and Family Affairs 176 665 841

Agriculture and Food 126 284 410

Education and Science 52 123 175

Revenue 37 132 169

Environment and Local Government 9 29 38

Health and Children 7 34 41

Land Registry 3 17 20

Marine and Natural Resources 12 22 34

Justice, Equality and Law Reform 3 16 19

Enterprise, Trade and Employment 6 5 11

46

Office of Public Works 5 6 11

Others 26 42 68

Total 462 1375 1837

6. Local Authorities - Valid in

1999

Brought forward from

1998

Received in

1999

On hands for

1999

Carlow 1 6 7

Cavan 4 5 9

Clare 2 14 16

Cork Corporation* 4 24 28

Cork County* 14 45 59

Donegal 8 18 26

Dublin Corporation 12 72 84

Dún Laoghaire - Rathdown 7 19 26

Fingal 9 31 40

Galway Corporation* 8 23 31

Galway County* 13 29 42

Kerry 5 49 54

Kildare 11 20 31

Kilkenny 3 24 27

Laois* 9 17 26

Leitrim 4 5 9

47

Limerick Corporation* 7 23 30

Limerick County* 5 18 23

Lonford 2 12 14

Louth 4 15 19

Mayo 18 50 68

Meath 7 14 21

Monaghan 4 4 8

Offaly 2 13 15

Roscommon 4 19 23

Sligo 7 8 15

South Dublin 9 21 30

Tipperary (NR) 4 12 16

Tipperary (SR) 4 13 17

Waterford Corporation* 3 16 19

Waterford County* 3 12 15

Westmeath 6 11 17

Wexford 10 38 48

Wicklow 9 37 46

TOTAL 222 737 959

Complaints received against Borough Corporations, Urban District Councils and Town Commissioners

are included in the County figures.

*Monthly CIC visits were made to this County during 1999 and this is likely to have affected the

number of complaints received.

7. Health Boards - Valid Complaints in 1999

48

Brought forward from 1998 Received in 1999 On hands for 1999

Eastern 32 149 181

Midland 15 29 44

Mid-Western 8 26 34

North Eastern 5 18 23

North Western 6 20 26

South Eastern 14 40 54

Southern 23 45 68

Western 14 60 74

Total 117 387 504

8. Telecom Éireann and An Post - Valid Complaints in 1999

Brought forward from 1998 Received in 1999 On hands for 1999

Telecom Éireann 96 113 209

An Post 20 73 93

Total 116 186 302

*Telecom Éireann fell outside my remit from 15 July 1999

9. Department of Social, Community and Family Affairs Breakdown by Main Categories of

Complaint Received in 1999

49

Total 665

10. Department of Agriculture, Food and Rural Development Breakdown by Main Categories of

Complaint Received in 1999

Total 284

11. Department of Education and Science

Breakdown by Main Categories of Complaint Received in 1999

50

Total 123

12. Revenue Commissioners

Breakdown by Main Categories of Complaint Received in 1999

Total 132

13. Environment and Local Government

Breakdown by Main Categories of Complaint Received in 1999

51

Total

29

14. Department of Health and Children

Breakdown by Main Categories of Complaint Received in 1999

Total 34

15. Local Authorities Breakdown by Main Categories of Complaint Received in 1999

Housing 279

Allocations and Transfers 117

Loans and Grants 68

Repairs 62

52

Sales 19

Rents 13

Planning 165

Enforcement 111

Administration 54

Delay - Failure to Reply 79

Roads and Traffic 63

Sewerage & Drainage 29

Waste Disposal 20

Service Charges 16

Water Supply 15

Motor Tax & Driver Licence 8

Rates 7

Access to Information on the Environment 7

Acquisition of land/rights 5

Parks/Open Spaces 5

Miscellaneous 39

Total 737

16. Health Boards Breakdown by Main Categories of Complaint Received in 1999

Supplementary Welfare Allowance 130

Exceptional Needs payment 46

Rent and Mortgage allowances 22

53

Back to school - clothing and footwear

allowance

16

Miscellaneous 46

Health Services (General) 76

Medical Cards 41

Drugs, medicines and appliances 9

Access to medical records 2

Miscellaneous 24

Hospital Services 51

Nursing homes/Long Stay 29

Miscellaneous 22

Cash Payments (other than SWA) 28

Delay / Failure to Reply 23

Provision of Service 15

Childcare / Social Work Services 12

Hospital Charges 11

Dental Services 9

Services for the Elderly - Housing Aid 8

Administration of Superannuation

Schemes

8

Miscellaneous 16

Total 387

54

17. Valid Complaints Received by County in 1999

Carlow 34

Cavan 36

Clare 60

Cork 247

Donegal 77

Dublin 617

Galway 150

Kerry 173

Kildare 59

Kilkenny 60

Laois 64

Leitrim 26

Limerick 122

Longford 56

Louth 43

Mayo 173

Meath 49

Monaghan 12

Offaly 42

Roscommon 95

Sligo 37

55

Tipperary 107

Waterford 84

Westmeath 49

Wexford 113

Wicklow 60

Outside Republic 40

TOTAL 2685

18. Analysis of Complaints Completed in 1999

New Result Category introduced in 1999

19. Civil Service - Complaints Completed in 1999

Resolved Partially

Resolved

Assistance

Provided

Discontinued With-

drawn

Not

Upheld

Total

Completed

Social,

Community and

Family Affairs

90 36 170 91 4 303 694

Agriculture,

Food, Rural

Development

29 5 41 36 4 115 230

56

Education and

Science

22 6 19 22 1 48 118

Revenue 18 4 39 25 3 33 122

Environment and

Local

Government

3 9 3 14 29

Health and

Children

4 13 3 1 4 25

Land Registry 7 1 3 1 3 15

Marine and

Natural

Resources

2 1 9 2 1 5 20

Justice, Equality

and Law Reform

4 2 4 10

Enterprise, Trade

and Employment

1 1 3 2 7

Office of Public

Works

1 3 3 7

Others 4 21 6 14 45

Total 181 53 332 194 14 548 1322

20. Local Authorities - Complaints Completed in 1999

Resolved Partially

Resolved

Assistance

Provided

Discontinued With-

drawn

Not

Upheld

Total

Completed

Carlow 1 1 4 6

Cavan 2 1 1 1 3 8

Clare 4 1 2 1 2 10

Cork

Corporation

4 3 3 4 14

57

Cork County 10 4 6 8 14 42

Donegal 5 2 3 1 1 3 15

Dublin

Corporation

20 2 14 9 17 62

D�n Laoghaire

- Rathdown

4 2 2 7 15

Fingal 10 2 4 3 1 8 28

Galway

Corporation

6 3 3 2 7 21

Galway County 5 6 9 7 27

Kerry 4 4 5 10 16 39

Kildare 7 7 3 17

Kilkenny 9 1 4 2 1 17

Laois 4 2 5 4 7 22

Leitrim 3 1 2 6

Limerick

Corporation

6 3 6 1 5 21

Limerick

County

1 2 1 2 8 14

Longford 2 1 2 2 2 9

Louth 2 3 4 1 10

Mayo 12 8 5 15 40

Meath 4 6 1 2 13

Monaghan 1 2 2 5

Offaly 2 2 2 6

58

Roscommon 3 2 3 3 11

Sligo 4 3 1 8

South Dublin 5 4 3 3 15

Tipperary (NR) 5 1 1 2 2 11

Tipperary (SR) 3 1 2 2 4 12

Waterford

Corporation

7 1 4 2 1 15

Waterford

County

5 4 2 11

Westmeath 5 1 1 4 3 14

Wexford 11 4 6 2 3 26

Wicklow 13 3 4 5 5 30

TOTAL 189 35 118 114 7 157 620

Complaints received against Borough Corporations, Urban District Councils and Town Commissioners

are included in the County figures

21. Health Boards - Complaints Completed in 1999

Resolved Partially

Resolved

Assistance

Provided

Discontinued With-

drawn

Not

Upheld

Total

Completed

Eastern 11 3 16 11 1 113 155

Midland 8 6 10 2 10 36

Mid-

Western

3 3 3 3 6 18

North

Eastern

6 3 4 8 21

North

Western

1 5 2 1 1 9 19

59

South

Eastern

6 1 6 7 1 12 33

Southern 6 4 15 4 1 22 52

Western 9 18 11 1 11 50

Total 50 13 69 51 10 191 384

22. Telecom �ireann/An Post - Complaints Completed in 1999

Resolved Partially

Resolved

Assistance

Provided

Discontinued With-

drawn

Not

Upheld

Total

Completed

Telecom

�ireann*

40 16 30 11 4 95 196

An Post 18 3 25 3 3 29 81

Total 58 19 55 14 7 124 277

*Telecom �ireann fell outside my remit from 15 July 1999

23. Analysis of Invalid Complaints Received in 1999

Private Companies 344

Banking/Insurance 318

Public Bodies outside remit 195

Pay and Conditions 86

Courts/Garda� 126

Miscellaneous 232

Total 1301

60