• You are here:
• Home /
• Archived /
• Annual Report of the Ombudsman, 1996

Annual Report of the Ombudsman, 1996

Annual Report of the Ombudsman, 1996

5 June 1997

This is Ombudsman Kevin Murphy's third Annual Report. In the report he provides a summary of the year's work and describes a number of individual cases.

The report also includes The Ombudsman's Guide to Standards of Best Practice for Public Servants. This is a checklist which he has compiled from his experience of dealing with complaints and which explains how to deal properly, fairly and impartially with the public. The Guide, Kevin Murphy suggests, will assist public servants in their efforts to provide a better service to their customers. The Guide is also available in leaflet form and will be distributed to all public servants.

During 1996 Kevin Murphy received a total of 3,181 complaints compared to a total of 2,879 complaints the previous year. This represents an increase of 10.5% in the number of complaints received. Of these, 645 were outside remit leaving a balance of 2,536 valid complaints. In addition to the new complaints received, there was a carry over of 878 complaints from 1995 resulting in a case load of 3,414 to be dealt with in 1996. During the year, 2,466 of these were brought to a conclusion leaving a balance of 948 to be carried forward to 1997.

Of the 2,466 cases finalised in 1996, 444 were resolved and in 547 cases assistance was provided which means that in 991 (over 40%) of cases some form of redress was obtained for the complainant. A total of 943 complaints was not upheld and a further 532 cases were either discontinued or withdrawn by the complainant.

In terms of the overall breakdown of complaints within jurisdiction dealt with during the year 48.5% concerned civil service departments and offices. Of these 50.5% involved the Department of Social Welfare, 19.5% concerned the Department of Agriculture, Food and Forestry and 11% were against the Revenue Commissioners. Of the remaining 51.5% of complaints, 22.5% involved local authorities, 16% related to health boards, 11% concerned Telecom Éireann and 2% An Post.

In his review of the year's work Kevin Murphy comments that the Freedom of Information Act will come into operation in April 1998. It will provide individuals with a legal right of access to information held by public bodies, with certain exceptions to provide for circumstances where access would be likely to be harmful to key interests of the State or personal privacy. Kevin Murphy has accepted an invitation to be nominated by the Government as Ireland's first Information Commissioner, a position he will hold in conjunction with the office of Ombudsman. With immediate effect the Government have agreed that he will act as Information Commissioner designate in order to enable him to make the necessary arrangements so that his Office will be fully operational by April 1998. The Act provides that when investigating possible breaches of the Freedom of Information Act, he will be entitled to examine documents and summon witnesses. He will also be empowered to issue binding decisions which will be appealable to the High Court.

Kevin Murphy also expresses his disappointment and concern at the lack of progress on the proposed extension of his powers and remit. In last year's report he had announced that the Department of Finance was preparing an Ombudsman (Amendment) Bill to increase his powers and extend his remit to public bodies such as FÁS, the Vocational Education Committees, the Health and Safety Authority and the Public Voluntary Hospitals. He points out that proposals of this nature were first put to the Department as far back as 1987. However, in view of the lack of progress in preparing the Bill, he has written to the Department expressing his disappointment. He has also suggested that his remit be extended by means of Government Order. This is a procedure which would allow his remit to be extended relatively quickly and simply pending the preparation and enactment of the Ombudsman (Amendment) Bill.

The full text of the Ombudsman's 1996 Annual Report is available on the Internet (url:http://www.irlgov.ie/ombudsman/). The Ombudsman can also be contacted by e-mail at ombudsman@ombudsman.irlgov.ie

Individual cases reported on include;

q A woman suffering from advanced multiple sclerosis made a number of Disability Benefit claims since 1987 but all had been rejected by the Department of Social Welfare because she had no recent history of social insurance, whether paid or credited. This woman had been out of work since 1975 due to health problems but it was many years later before multiple sclerosis was diagnosed. Because of the unknown nature of her illness, she did not claim either Disability Benefit or Unemployment Benefit, nor did she seek social insurance credits, following her leaving work. Whereas by 1987, when she made her Disability Benefit claim, she was clearly seriously disabled, her social insurance record had lapsed because she had neither received a payment, nor been awarded credits, since leaving work in 1975. The Ombudsman's examination of the matter showed that this woman had, in reality, been incapable of work since 1975. Following a review of the case the Department awarded Disability Benefit together with arrears of almost �20,000. (Annual Report 1996 - Page15)

q A woman, who was widowed in 1965, approached the Department of Social Welfare at that time and was advised that she had no entitlement to Contributory Widow's Pension. In 1983 she applied for the pension on the advice of a friend and was found to be eligible. She was paid three months arrears of pension but was refused arrears back to the date of widowhood in 1965. The Department's position at that time was that, in cases of late pension claims, arrears could be paid only for a period of three months prior to the actual application. This woman had been living in the United Kingdom at the time of her husband's death and qualified for a reduced UK Widow's Pension prior to her returning to Ireland. The Ombudsman suggested to the Department that the provisions of the 1966 Agreement on Social Security between the United Kingdom and Ireland might apply in that a claim for a social insurance payment in one country may be treated as a claim in the other country. The Department agreed and she was deemed to have claimed the Irish Widow's Pension from October 1966 when the Agreement came into effect. On this basis arrears of pension amounting to �14,200 were paid. (Annual Report 1996 - Page31)

q The payment of interest by the Revenue Commissioners on tax refunds arose in two separate complaints. In one complaint, a refund of income tax was made in respect of interest paid on an investment while the other related to a refund of Professional Services Withholding Tax. In each case, the complainants sought interest on the refund for the period in which the tax had been held by the Revenue Commissioners. The Revenue Commissioners held that they were precluded from paying interest as there was no statutory basis for the payment in either case. The Ombudsman's examination revealed that the payment of interest on tax paid and subsequently refunded was confined to certain limited circumstances and, as there was no statutory provision for the payment of interest in the circumstances of either complainant, he could not, in this instance, recommend redress for them. It seemed to him, however, that the principle of treating like cases in a like manner was not being applied as different rules govern the payment of interest on overpaid tax depending on the circumstances of the overpayment. The issue was also referred to in a recent judgment in the High Court. The Ombudsman concluded that the legislation dealing with the payment of interest on tax refunded to taxpayers needs to be re-examined. He wrote to the Department of Finance on the matter and in response it indicated that his views would be fully considered in the context of a review of the relevant legislation. (Annual Report 1996 - Page 19)

q The parents of two autistic children complained that the Department of Health had refused to provide them with a copy of a report by the Department's Advisor on Mental Handicap Services. The report related to a visit made by the advisor to an education and treatment centre for autistic children in the United States which their two children were attending. The parents' health board was contributing about 20% of the very substantial fees involved. A copy of the report had been given to the health board and the parents felt it was in the interests of their children that they should have a copy of the report also.

The Department of Health wrote to the parents to say, among other things, that a copy of the report had been forwarded to the health board. The Department did not make a copy of the report available to the parents. The matter was among a number of issues raised in a Dáil question in January 1996. That part of the Dáil reply which dealt with access to the report said that "there is no formal report published" but went on to acknowledge that the Department's Advisor had visited the particular facility. The parents contacted the Ombudsman in March 1996 arising from their failure to obtain a copy of the report.

The Department informed the Ombudsman that there was "no formal report published" in relation to the visit to the facility. The Ombudsman pointed out to the Department that the complaint clearly related to the report sent from the Department to the particular health board. He asked the Department to say clearly whether or not it intended to make the report available to the parents and, if not, to give the precise reasons for the decision to withhold the report. Eventually the Department agreed to make the report available to the parents, subject to the deletion of certain references which might tend to identify other families. The Ombudsman expressed his concern at the Department's failure to confirm the existence of the report and the delays in clarifying the actual position. (Annual Report 1996 - Page30)

q A farmer complained to the Ombudsman that, without seeking permission, Kerry County Council had widened the road at a bend by cutting into his land by a number of feet. It removed some of the soil and rock and dumped a considerable amount of it on his land on the other side of the road, destroying terraced paths used by sheep. The complainant said that, had he been consulted by the Council, he would have agreed to the road widening works being carried out on condition that the excess material was deposited elsewhere on his own land where he could have used it. The Council had said it had been unable to establish who owned the property; that it undertook the works because shrubs and vegetation were an immediate and serious hazard to road users; that the cost incurred in carrying out this work was �1,000 and that the Council wanted to know if the complainant was prepared to pay this amount without legal proceedings being issued. The Ombudsman's examination showed that the Council's Roads Department had made no effort to find out who owned the land nor did it serve a notice on the complainant as required under the Roads Act, 1993. Eventually, following a meeting with the Ombudsman's Office, the Council agreed, among other things, to withdraw the charge of �1,000 for works done and to pay compensation of �1,500 to the complainant in full and final settlement of all matters. (Annual Report 1996 - Page14)

q A woman, whose son was profoundly deaf, had been receiving Domiciliary Care Allowance (DCA) for him from the Eastern Health Board until he was 16 years old. At that stage he was assessed for Disabled Person's Maintenance Allowance (DPMA) but was refused. He was assessed again over a year later when he was aged 17� and was awarded DPMA. She could not understand why he had been refused 1� years earlier. The Ombudsman examined the Health Board file which appeared to suggest that the reason why DPMA was not recommended was that he was still at school and that he would be able to work in the future. However, attendance at school is not a relevant consideration and the Ombudsman also pointed out to the Board that the DPMA Regulations do not provide for the assessment of a person's future work capability but are based on capacity for work at the time of application for the allowance. The evidence on file also suggested that there had not been any significant change in the extent of the handicap over the period in question. The Board reviewed the case and awarded DPMA, with effect from his 16th birthday together with arrears of �3,593. (Annual Report 1996 - Page27)

Further Information:- Pat Whelan, Tom Morgan - Office of the Ombudsman, 52 St. Stephen's Green, Dublin 2; Tel (01) 6785222; Fax (01) 6610570