Transcript Lesson 8 - Brian Foley

Lesson 8
The Ombudsman
Introduction
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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?
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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
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Emily O’Reilly - third Ombudsman
appointed on the 1st June 2003
 Also information commissioner…
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Does she administer justice?
Can only make recommendations
 If not followed, he puts that in her report
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Jurisdiction
Schedule to Ombudsman Act, 1980
 Amended by SI 332 of 1984
 New functions under Disability Act, 2005
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Act must have been done by a public body
 Departments
of State
 Local Authorities
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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
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 Eircom?
 An
Post
GONE – not any more
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Complainant needs to have been
adversely effected – not defined – some
loss or damage – see case studies
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Complainant must have sufficient interest
– i.e. directly affected or someone acting
on their behalf
– better than court – think of the
elderly – pensions etc
 Flexible
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Action must have been carried out as part
of an administrative function
 Admin
action is the key (decisions about SW,
decisions about pension, used include
decisions about billing with Telecom etc)
 But some pure policy decisions are included –
e.g. if X is entitled to a housing grant
 If the law is the problem? No jurisdiction BUT
ombudsman can be imaginative – see case
studies…
 Can report that law is defective…
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Only jurisdiction to deal with 7 types of
defect – s.4(2) 1980
 Taken
without proper authority (UV)
 Taken on irrelevant grounds
 Result of neg or carelessness
 Based on erroneous or irrelevant
considerations
 Improperly discriminatory (Equal Status Act,
2000 also)
 Based on undesirable administrative
practice
 Otherwise contrary to sound or fair
administration
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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.
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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
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Sample case - Cork County Council - Faulty Heating System
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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
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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
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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.
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Blamed sub-contractors
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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
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Where there is a right of appeal to COURT
 Distinguish
where a REMEDY may lie in court
– only an APPEAL matters
 Different in England – but UK Om has wider
powers – there has no jurisdiction if civil
proceedings are in process
Main Rule
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“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.”
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No jurisdiction where appeal lies to person
or tribunal other than a dept of state
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if appeal lies to anyone other than
Minister or civil servant – no jurisdiction
 E.g. Bord Pleanála
 But in social welfare – the appeals officer is a
civil servant – so has jurisdiction!
No jurisdiction in actions dealing with
national security or matters relation to
aliens and naturalisation
 Nor in relation to prisons
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public service – but he can investigate
dismissals and can look into terms of
commercial contracts entered into by a
Depart
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If of the opinion that complaint is
 Trivial
 Vexatious
 Already
being investigated
Minister may prevent it – s.55(3) – puts the
reasons in writing
 Omb must then include this in his report
 Never done
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Time Limits
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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 – preliminary
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if well founded – see if can be dealt
with quickly – very informal
 Make contact with Dept etc – dialogue –
purpose really to encourage internal review
 Decide
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If no result – moves to “formal” investigation
Still air of informality – very get this far
Considerable powers
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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
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and,
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where appropriate, may require the person to attend before him
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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)
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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
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Recommendations – see s.6(3)
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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
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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
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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