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Annual Report of the Ombudsman 1999

Annual Report of the Ombudsman 1999

24 May 2000

The Ombudsman, Kevin Murphy, has today published his Annual Report for 1999. The Ombudsman reports annually to the Oireachtas, and to the public generally, on the work of his Office and on the issues and cases of interest arising during the year. The full text of the Report is available, in pdf. and html formats, at www.irlgov.ie/ombudsman/report99/pub.htm The main features of the Report are as follows:

o In Chapter One Kevin Murphy re-states the fundamental functions of an Ombudsman: protecting the rights of individuals in their dealings with public bodies; providing redress where necessary; promoting high standards of public administration; acting independently in support of Parliamentary control of the Executive in the interests of fair and sound administration. The Ombudsman points out that his capacity to support the Oireachtas in exercising control of the public service is restricted at present. This is because some significant public service functions are excluded from his jurisdiction e.g. the administration of the prisons and the administration of the law in relation to asylum seekers, refugees, and citizenship. In his Report for 1998 Kevin Murphy made the point that these are areas of public administration which are included within the jurisdiction of the typical national Ombudsman in Europe. He suggests that the Oireachtas might give serious consideration to extending his jurisdiction to include these areas of administration.

o Chapter Two of the Report is concerned with how the Ombudsman deals with complaints and the question of remedies, where complaints are justified. Individual case studies are presented to illustrate the general points. The Ombudsman recognises that the individual complainant can be at a disadvantage in dealing with a large public body and, accordingly, will assist the complainant (if necessary) to present the best possible arguments. However, while discriminating in favour of the complainant in terms of ensuring that the best case is made, the Ombudsman must remain objective in terms of the eventual outcome. As regards remedies, the underlying principle is that a person who has suffered loss as a result of some failing by a public body should, in so far as possible, be restored to the position he would have been in had nothing gone wrong in the first place.

o Kevin Murphy received a total of 3,986 complaints during 1999 compared to 3,779 complaints in 1998. In addition to actual complaints, Ombudsman staff also dealt with 4,776 enquiries from members of the public. Between complaints and enquiries, almost 8,800 people contacted the Ombudsman's Office during 1999. A total of 1,301 (or 33%) invalid complaints was received which left a figure of 2,685 valid complaints for 1999. Adding on complaints carried forward from 1998, which totalled 917, the Office had 3,602 valid complaints on hands for 1999. In all, 2,603 complaints were brought to a conclusion in 1999 by comparison with a figure of 3,052 in 1998. Of the complaints concluded in 1999: 478 (18%) were resolved; 120 (5%) were partially resolved and in 574 (22 %) cases assistance was provided. In effect, 45% of complainants were better off as a result of having contacted the Ombudsman. As regards the distribution by sector of valid complaints received, 51% related to civil service departments and offices, 27% involved local authorities, 14% related to health boards, 4% related to Telecom Éireann and 3% to An Post. Complaint Statistics

o The Report gives details of notices issued by the Ombudsman under Section 7 of the Ombudsman Act. A Section 7 notice is issued to require a particular body to provide a response, or information in relation, to a complaint. These notices are issued only as a last resort where co-operation has not been forthcoming on the basis of requests made. In 1999 there were 27 such notices issued - compared to 45 notices in 1998. The Ombudsman is concerned that 23 (or 85%) of the notices issued in 1999 related to local authorities.Relations with Bodies within Remit

Individual cases reported on include:

• A complainant contended that the North Western Health Board had failed to give him adequate support in caring at home for his sick and elderly parents. He also contended that when he complained to the Board about this, his complaints did not receive proper attention. Specific issues raised related to financial assistance in providing a shower, in buying a washing machine and, following his mother's death, in meeting funeral expenses. He was also upset that the Board had sent his mother a hospital out-patient appointment four months after her death. The Ombudsman was not satisfied with some aspects of the Board's dealings with this family and felt the complainant had been adversely affected. In recognition of these adverse effects, and of the time and trouble taken by the complainant in pursuing his complaints, the Ombudsman suggested a compensation payment of �1,000 be made. The Board agreed to make this payment.
• A complaint against Offaly County Council identified a problem with internal financial control systems which affected at least 14 households and which may also be replicated in other local authorities. The complainant took out a house loan with the Council in 1979 to buy a new house. He qualified for the �1,000 New House Grant which was paid direct to the Council thus reducing his loan amount by �1,000. In 1998 he became concerned that the grant may not have been paid in his case and the Council said it had no record of having received it. Following the Ombudsman's intervention, it was established that the �1,000 grant had been paid to the Council; but in 1988, when the Council's house loan records were being computerised, this credit was omitted and the repayments thereafter were based on the full, original loan amount. This meant that the complainant had overpaid his loan by �1,195 during the period 1988 - 1999. This overpayment was refunded by the Council which, on its own initiative, identified (and refunded) a further 13 similar cases. In one of these cases the overpayment amounted to �4,306. The Ombudsman has asked the Department of the Environment and Local Government to check whether similar problems may have arisen with local authorities generally.
• A complaint against the Department of Social, Community & Family Affairs resulted in the payment of �31,000 arrears of Contributory Old Age Pension. The pensioner was an elderly woman who has been living in a nursing home for many years. She should have claimed the pension in 1980 when she reached 66 years but did not do so until 1996, when her family applied on her behalf. At that stage she was awarded pension but arrears were paid only for the six months prior to the actual claim date. The family contended that the failure to claim pension on time was directly attributable to a long-standing history of ill health and to difficult domestic circumstances which meant she was unable to manage her affairs. The Department, however, did not accept that this was the case. When the family complained to the Ombudsman he advised the family to submit detailed medical evidence in support of its contentions. The pensioner's doctor submitted a report which supported the family's contentions. The Department did not accept that this constituted sufficient evidence to warrant payment of arrears. The Ombudsman was surprised with this response but, in the event, suggested to the family that it provide evidence that the pensioner had been either in a nursing home or in hospital for the majority of the period since 1980. On the basis of this evidence, when provided, the Department agreed to pay pension arrears (almost �31,000) back to January 1984.
• The Ombudsman is critical of a lack of progress in updating provisions for the granting of tax relief on medical expenses. The present arrangements have been in place for more than 30 years and do not, as the Ombudsman sees it, take account of developments over that period. One example relates to the area of psychotherapy where tax relief is available only in situations where the therapy is provided by a registered medical practitioner or on the advice of such a practitioner. In practice, such therapy is frequently provided directly by qualified psychologists without referral from a medical practitioner. But in these cases, tax relief is not available. The Ombudsman believes this distinction is inequitable and fails to have regard to the reality of current medical practice. The Ombudsman drew attention to the issue in Annual Reports for 1993 and 1995. Following more recent contacts, he understood the matter would be addressed by the Department of Finance in proposals for the Finance Bill, 2000. In the event, the Department did not include any such proposals in the Finance Bill, 2000. "Fair administration acknowledges that rules should not be applied so rigidly as to create inequity."
• In a complaint involving Donegal County Council, the Ombudsman was critical of a decision to accept significant modifications to the original plans for a new house - for which planning permission had been granted - as being of only minor significance. The consequence of the Council's action was that the house, as built, differed quite significantly from that for which planning permission had been granted. It was the Ombudsman's view that the modifications were so substantial as to require a fresh planning application and decision. This would have enabled any potential objections to be made and would have enabled objectors the opportunity to appeal to An Bord Pleanála, should they so wish. In the event, the case was handled by the Council in a way which deprived third parties, including the Ombudsman's complainants, of the opportunity to object. The Ombudsman reluctantly accepted that the Council could not take any action against the developer given that the developer had acted on the basis of a written approval from the Council. However, the Council did agree to pay �200 compensation to the complainants in recognition that its actions had deprived the complainants of the opportunity to object to the development. Planning Law - diminution of public's rights

Further Information: Fintan Butler at 01-6785222 , Fax 01-6610570, e-mail: fintan_butler@ombudsman.irglov.ie