Lesson 8

The Ombudsman

Introduction

Purpose – cheap and accessible remedy Original ombudsman – public sector redress;

pensions, social welfare etc Devlin Report – proposed Commissioner for

Administrative Justice All party report in 1979 – more support Ombudsman Act, 1980 1983 first O appointed – started 3/1/1984

Standing?

President appoints him after joint resolution Independence required No qualifications needed – cannot hold other

office (which is paid for) and can’t be a public rep of member of defence forces

Removal – like a judge Salary – on par with HC judge

Appointed for 6 years – can serve again – current is Emily O’Reilly

Retire at 61! Staffing – 52 in 2004 annual report Previous difficulties over budget cuts –

1987 – 1988 Must make annual report to the Oireachtas

Emily O’Reilly - third Ombudsman appointed on the 1st June 2003

Also information commissioner…

Does she administer justice?

Can only make recommendations If not followed, he puts that in her report

Jurisdiction

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

Act must have been done by a public bodyDepartments of StateLocal Authorities

Included by SI 332/1984 – but that makes clear it does not apply to reserved functions of LA’s – so only executive functions

Health Boards 332/1984 – not apply to those solely exercising

clinical judgment Functions now with HSE

Eircom? GONE – not any moreAn Post

Complainant needs to have been adversely effected – not defined – some loss or damage – see case studies

Complainant must have sufficient interest – i.e. directly affected or someone acting on their behalfFlexible – better than court – think of the

elderly – pensions etc

Action must have been carried out as part of an administrative functionAdmin action is the key (decisions about SW,

decisions about pension, used include decisions about billing with Telecom etc)

But some pure policy decisions are included – e.g. if X is entitled to a housing grant

If the law is the problem? No jurisdiction BUT ombudsman can be imaginative – see case studies…

Can report that law is defective…

Only jurisdiction to deal with 7 types of defect – s.4(2) 1980Taken without proper authority (UV)Taken on irrelevant grounds Result of neg or carelessnessBased on erroneous or irrelevant

considerations Improperly discriminatory (Equal Status Act,

2000 also)Based on undesirable administrative

practiceOtherwise contrary to sound or fair

administration

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

The following are typical examples of what people may complain about: entitlement to old age and retirement pensions

administered by the Department of Social and Family Affairs;

disputes about income tax credits granted by the Revenue Commissioners;

entitlement to higher education grants administered by the Department of Education and Science;

entitlement to livestock grants administered by the Department of Agriculture and Food;

entitlement to local authority housing; disputes about the medical card scheme administered

by the Health Service Executive.

Discretion

First ombudsman – very non legal Not really constrained by above O’Reilly – similar – sees role as to help Tends also to be coloured by merits of a

decision See example of first Om – page 61

Sample case - Cork County Council - Faulty Heating System

The Ombudsman received a complaint from a woman who had been allocated a house by Cork City Council in October 2004. She was unable to reside in the property as the newly installed gas central heating system was not working correctly

Her complaint was that the Council should have inspected the property and ensured it was adequately heated before it was allocated to her – had to rent

When the Ombudsman took the matter up with the Council it acknowledged that there had been a problem with the heating and efforts were made to rectify it. However, the Council refused to accept responsibility for the delays which prevented the complainant taking up occupancy of the house.

Blamed sub-contractors

Ombudsman considered that the Council was ultimately responsible for ensuring that the house was in good order before it was allocated to the complainant.

The problem with the heating system was not resolved until April 2005 and the Ombudsman considered the complainant was due some form of redress for the expense, anxiety, time and trouble caused by the delay in making the property ready for occupation and that the onus should not be placed on the complainant to pursue the contractor for redress.

Asked the Council to review the case and to consider what redress might be appropriate, taking into account that the complainant had to pay for alternative and more expensive accommodation for approximately six months.

The Council reconsidered the case, agreed to pay the complainant €1,000 in compensation and also apologised to her.

Exemptions - 6

Where there is a right of appeal to COURTDistinguish where a REMEDY may lie in court

– only an APPEAL mattersDifferent in England – but UK Om has wider

powers – there has no jurisdiction if civil proceedings are in process

Main Rule

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

No jurisdiction where appeal lies to person or tribunal other than a dept of stateSo, if appeal lies to anyone other than

Minister or civil servant – no jurisdictionE.g. Bord PleanálaBut in social welfare – the appeals officer is a

civil servant – so has jurisdiction!

No jurisdiction in actions dealing with national security or matters relation to aliens and naturalisation

Nor in relation to prisons Or in relation to employment issues in

public service – but he can investigate dismissals and can look into terms of commercial contracts entered into by a Depart

If of the opinion that complaint isTrivialVexatiousAlready being investigated

Minister may prevent it – s.55(3) – puts the reasons in writing

Omb must then include this in his report Never done

Time Limits

should complain to the Ombudsman as soon as possible but not later than 12 months after the action you want to complain about occurred or you became aware of it occurring.

Cannot deal with matters pre 7 July 1983 – but maybe if part of continuous process

May ignore time limits if special circumstances make it proper to do so

Procedures

Informality is the aim – majority dealt with like this

Two step process – the Review Procedure first – preliminaryDecide if well founded – see if can be dealt

with quickly – very informalMake contact with Dept etc – dialogue –

purpose really to encourage internal review

If no result – moves to “formal” investigation Still air of informality – very get this far Considerable powers

S.7(1) – entitlement to documents and information require any person who, in the opinion of the Ombudsman, is in

possession of information, or has a document or thing in his power or control, that is relevant to the examination or investigation to furnish that information, document or thing to the Ombudsman

and, where appropriate, may require the person to attend before him

Does not apply to information or so much of a document as relates to decisions and proceedings of the Government or of any committee of the Government and for the purposes of this paragraph a certificate given by the Secretary to the Government and certifying that any information or document or part of a document so relates shall be conclusive.

Section 7(3)

A person shall not by act or ommission obstruct or hinder the Ombudsman in the performance of his functions or do any other thing which would, if the Ombudsman were a court having power to commit for contempt of court, be contempt of such court.

Fair Procedures

All interviews reduced to writing and submitted for comments

Report (without recommedations) in draft form submitted to head of relevant public bodies

Remedies

Recommendations – see s.6(3)

( a ) that the matter in relation to which the action was taken be further considered

( b ) that measures or specified measures be taken to remedy, mitigate or alter the adverse affect of the action, or

( c ) that the reasons for taking the action be given to the Ombudsman,

Wide discretion

Has recommended apologies And recommended money payments Compensation also

What if body refuses to act on it? Includes that in a SPECIAL REPORT Manual says never happened Uh-oh

6 Nov 2002 – Revenue rejected 3/5 recommendations

Rejected recommendations concerned compensation for loss in value of wrongly delayed tax refunds to certain public service widows and a group of 10 other taxpayers, and a recommendation that Revenue introduce a scheme to compensate taxpayers in cases where refunds were delayed due to maladministration

Minister then said they would be implemented