• You are here:
• Home /
• Archived /
• Annual Report of the Ombudsman 2001

Annual Report of the Ombudsman 2001

Annual Report of the Ombudsman 2001

16 May 2002

The Ombudsman, Kevin Murphy, has today published his Annual Report for 2001. 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 or concern arising during the year. The full text of the Report is available, in pdf and html formats. In conjunction with the publication of his Annual Report, Mr Murphy has this year also published an information leaflet entitled 'Redress - Getting it wrong and putting it right' . This is the Ombudsman's Guide to the provision of redress when public bodies make mistakes in their dealings with the citizen. While primarily aimed at public bodies it should also be of assistance to all organisations in their dealings with the public. The main features of the Report are as follows:

In Chapter Two Kevin Murphy again comments on the planning system in local authorities and the coming into force of sections of the Planning and Development Act, 2000 relating to planning control and enforcement. The new Act will call for a considerable shift in the mindset of local authorities who will be obliged to respond within six weeks of receipt of representations or a complaint about enforcement. Any decision concerning an enforcement notice issued under the Act, must be entered in a planning register which will be available to the public. This will bring greater transparency to the process. Mr Murphy says that where a local authority decides to issue an enforcement notice under the new Act, it must, unless it withdraws the enforcement notice, be prepared to see the process through to the end including court action where there is non-compliance with the enforcement notice.

He also refers to the level of complaint against bodies in the health sector noting that the low level probably reflects the exclusion of clinical judgement and the fragmented nature of his remit in relation to hospital services. In this regard he notes that while he can examine complaints against health board hospitals, e.g., Cork University Hospital and Galway University Hospital, he cannot examine similar complaints against public voluntary hospitals e.g. Beaumont Hospital or St James's Hospital in Dublin, even though they are all publicly funded.

Public voluntary hospitals and a whole range of health bodies are now within Mr Murphy's jurisdiction as Information Commissioner. However, notwithstanding the reference to the issue in "Quality and Fairness - A Health System For You", the new national health strategy, the same bodies have yet to be brought within the jurisdiction of the Ombudsman. Thus, when things go wrong, a patient within a health board hospital, can complain, free of charge to the Ombudsman. Complaints against Tralee General Hospital and Merlin Park Regional Hospital are described at pages 11 and 27 of his Report. However, if a patient is admitted to a public voluntary hospital, the Ombudsman cannot be of assistance. Such patients have to consider the prospect of costly litigation before the courts.

In Chapter Three of the Report, the Ombudsman offers some thoughts on the principle of redress and its importance in contributing to better public administration. He says that when errors occur and mistakes are made by public bodies which are to the detriment of the client some bodies are afraid to admit that an error was made and are reluctant to apologise fearing, often unreasonably, that litigation may ensue. Their defensiveness further fuels suspicion and mistrust on the part of the aggrieved client. When things go wrong there is an obligation on the public body to take appropriate action so as to restore the client, in so far as this is possible, to the position he/she would have been in if the error or mistake had not occurred. Citizens need, and good public administration demands, a public sector which is responsive to the demands of its clients and which engenders a sense of confidence among those it is required to serve.

Kevin Murphy received a total of 2,539 valid complaints during 2001 compared to 2,136 complaints in 2000. In addition to actual complaints, Ombudsman staff also dealt with 15,459 enquiries (4,441 in 2000) from members of the public. Between valid and invalid complaints and enquiries, almost 19,000 people contacted the Ombudsman's Office during 2001 compared to 9,500 people during 2000. Adding on complaints carried forward from 2000, which totalled 1,060 , the Office had 3,599 valid complaints on hands for 2001. Of the 2,085 complaints concluded in 2001: 424 (20%) were resolved; 62 (3%) were partially resolved and in 602 ( 29%) cases assistance was provided. In effect, over 50% of complainants were better off as a result of having contacted the Ombudsman. As regards the distribution by sector of valid complaints received, 42% related to civil service departments and offices, 34% involved local authorities, 22 % related to health boards, and 2% to An Post.

Individual cases reported on include: Complaints from two people about difficulties they had experienced with the Revenue Commissioners with regard to Capital Acquisitions Tax. Both individuals had been reared as adopted children but, in one case, a technical problem prevented the child from being legally adopted and, in the other, documentation certifying that he had been adopted could not be found.

Both inherited property on the death of their 'adoptive' parents. However, because of the problems associated with the 'adoption' in each case they were not entitled to the tax-free threshold entitlement of a child in relation to the inheritance received. In one case this resulted in an Inheritance Tax liability in excess of �63,487 (�50,000). In the other it meant that the beneficiary incurred a liability of �4,315 (�3,398) when he inherited the house in which he had lived for twenty years and in which he continued to live. In the latter case, because of the complainant's straitened circumstances, the Revenue had already agreed to postpone the collection of the tax but it also advised that it could not postpone the collection indefinitely.

Mr Murphy wrote to the Revenue about both cases and having reviewed the circumstances of each case it agreed that both complainants should be entitled to the full tax free threshold which exempted both from liability to Capital Acquisitions Tax on their inheritance.

A complaint from a family from the travelling community who had applied to their local authority to purchase a council house but were refused. They had been residing in the property for almost five years. They had also carried out extensive improvements to the property at their own expense. The Council refused to sell the house to the family on the basis that it wished to maintain control of the house through the tenancy agreement. The house was located in a rural area.

The tenancy had been the subject of complaints and their previous tenancy in a housing estate had provoked some local disturbances involving other residents in that housing estate. As a consequence of this, the Council wished to retain control of the complainants' current house through the tenancy agreement. It said that this was to enable it to deal with any issues that might arise. The Ombudsman was concerned that the Council did not give any indication as to how long it wished to maintain this control and it appeared to him that, if the Council persisted with this line of argument, the complainants might never be allowed to purchase the house for fear of some future action. He was concerned that the Council's decision to refuse to sell the house to the complainants could be perceived as being disproportionate when set against the observed and recorded experience of the complainant's use of the property over the past few years. On this point the last complaint the Council received about the family was in 1997, three years earlier, and involved the keeping of dogs on the site.

Local authorities may, at their discretion, exclude houses from the tenant purchase scheme which, in their view, ought not be sold for reasons of good estate management. However the Ombudsman was concerned that the Council's decision to refuse to sell the house, for reasons of good estate management, was not soundly based. Another of his concerns about this case was whether the Council was applying a higher threshold of compliance by the family to the terms of their tenancy agreement than it would apply to tenancies generally. Following his intervention the Council agreed to sell the house to the family, subject to the inclusion of a special condition in the transfer order. This condition stipulated that no animals were to be kept on the site. Mr Murphy was satisfied that this condition was not unreasonable having regard to the history of the case.

Two complaints regarding the failure of the Department of Social, Community and Family Affairs to advise claimants fully of the negative implications of switching from one social welfare payment to another. In both cases, the complainants had asked the Department to transfer them from Deserted Wife's Benefit (DWB) to One Parent Family Payment (OPFP) in order to allow them participate on Community Employment (CE) schemes, as DWB was not a qualifying payment for participation.

Both women lost their entitlement to OPFP when their youngest child reached 18 years of age, as they were no longer in full-time education. They argued that this was unfair, as their DWB payment was awarded because they were deserted, and this remained the position. Both complainants found themselves without financial support for their unchanged status for over a year. They said that they would not have transferred to OPFP if the Department had provided them with full information on the adverse consequences of the transfer.

Mr Murphy pointed out to the Department that the only reason why the complainants had transferred from DWB to OPFP , was to meet the requirements of the CE scheme. As a result they had been adversely affected by virtue of having to satisfy these requirements, and by the failure of the Department to advise them in advance of the implications of the transfer from DWB. The Department reviewed both cases and re-instated their DWB entitlement from the date they transferred to OPFP. The arrears amounted to �4,773 (�3,759) and �3,681 (�2899) respectively. In addition the Department advised that it would review any other similar cases and also pay appropriate arrears to those individuals . A complaint against the Department of Education and Science concerning school transport, from the parents of a child who had been refused free school transport on the grounds that it had concluded that the family lived less than two miles from the primary school. In order to qualify for free school transport pupils must live more than two miles from the nearest suitable primary school.

The parents disputed the Department's conclusion and maintained that they lived more than two miles from the school. The Department said that the distance had been measured by Bus Éireann, which provides the service, on two occasions with a van and that on both occasions it found that the distance was under two miles. The parents were not satisfied with the accuracy of the measurement. They obtained a calibrated wheel, which they maintained provided a more accurate measurement and informed the Department of the results. The Department informed them that it accepted Bus Éireann's measurements and that, accordingly, the child was not entitled to free school transport.

The Ombudsman holds that parents are entitled to have confidence that, where a distance is required to be measured in order to determine whether an application meets the eligibility criteria of a scheme, the method of measurement used should be seen to be fair and accurate. Where a dispute arises in relation to a distance which has been measured and is found to have only marginally failed to meet the necessary criterion, as in this case, any appeal lodged should be dealt with by an independent third party using an accurate method of evaluation. Accordingly, he requested the Department to obtain an independent measurement in this case. He also asked it to apply this procedure in any other marginal cases where the distance involved was in dispute. The Department responded by saying that the family's measurement would be accepted and the children would be deemed to be fully eligible for school transport. The Department also agreed that, where the distance from home to school is marginally under the two mile limit and is the subject of dispute, the services of an independent third party will be used to resolve the matter in the future. Further Information: Matthew Merrigan at 01-6395600, Fax 01-6395674, e-mail:matthew_merrigan@ombudsman.gov.ie