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Ombudsman Emily O'Reilly submitted a Special Report to each House of the Oireachtas

Date released: 14.12.2009

Lost at Sea Scheme - Special Report by the Ombudsman to each House of the Oireachtas

The Ombudsman, Emily O'Reilly, has today (14th December 2009) published and submitted a Special Report to each House of the Oireachtas following the decision of the Department of Agriculture, Fisheries and Food to reject her findings in an investigation report, together with her recommendations to pay financial compensation to a complainant.

While the Department is free in law to reject the Ombudsman's recommendations, this is only the second time in the twenty-five year history of the Office that this has happened. The first occasion was in 2002 in a case involving the Revenue Commissioners, which, with the assistance of the Oireachtas, was ultimately resolved to the then Ombudsman's satisfaction.

When the Ombudsman considers that a public body's response to a recommendation is unsatisfactory, her only recourse is to make a special report to each House of the Oireachtas under Sections 6(5) and 6(7) of the Ombudsman Act, 1980.

In this latest case, the complaint was made by the Byrne family from Donegal to the then Department of Communications, Marine and Natural Resources which at the time had responsibility for the fisheries sector. Francis Byrne had been the owner and skipper of a fishing boat, the MFV Skifjord which tragically sank off North West Donegal in October 1981. He and his 16 year-old son lost their lives along with three other crew members. Francis Byrne's widow was left with a young family of five boys and three girls. One of the surviving sons, Mr Danny Byrne, acting on behalf of his mother, complained to the Ombudsman following the Department’s decision to reject the family's application under the Lost at Sea Scheme.

The Scheme was a once-off, time-bound, non-statutory scheme established in 2001. It was aimed at those owners of fishing vessels whose boats had been lost at sea in the period 1980 to 1989 and it allowed them a twelve month window of opportunity to apply for "replacement capacity". The Scheme was intended to facilitate successful applicants to carry on a family tradition of sea fishing which, because of their misfortune, otherwise would have been closed to them by virtue of a new regulatory system for the Irish Sea Fishing Fleet, introduced in 1990, which effectively limited the overall fishing fleet capacity. The Scheme did not provide for financial support but rather replacement capacity, i.e., gross tonnage and engine power granted under the Scheme had to be used by the replacement fishing vessel and could not be sold on or otherwise traded or realised as a financial asset in the tonnage market. A copy of the Scheme is at Appendix 1.

In all, the Ombudsman received six complaints from persons claiming that they were unfairly denied benefit under the Scheme. Following preliminary examinations, five of the complaints were not upheld. The sixth, which came from the Byrne family, was upheld following an investigation.

The Ombudsman's investigation looked at the development and implementation of the Lost at Sea Scheme and described in some detail the role of the then Minister and his officials in that process. The Ombudsman concluded that the Byrne family’s application did not meet at least two of the conditions of the Scheme and that the family was adversely affected by the decision to reject its application. However, the Ombudsman also found that the design of the Scheme and the manner in which it was advertised were contrary to fair and sound administration and that these shortcomings were factors in the Byrne family not qualifying for assistance under the Scheme.

Weaknesses in the design process included a lack of adequate research of files held within the Department regarding vessels lost at sea during the relevant period, lack of documented analysis of the pros and cons of the Scheme’s qualifying criteria and a failure to include provision for the exercise of discretion in the vetting of applications.

As a finite, once-off Scheme, the Ombudsman found that the advertising process should have been more thorough, comprehensive and targeted. She found that some prospective applicants were put in a more advantageous position than others as they were written to directly by the Department and the Minister to inform then about the Scheme when it was launched.

The Ombudsman also found clear evidence of poor record-keeping leading up to the sign off of the Scheme, including a lack of written analysis of the various drafts of the Scheme and limited records of the interaction/directions between the Minister and his officials.

By way of remedy, the Ombudsman recommended that financial compensation of €245,570 be paid to the Byrne family. In doing so she was mindful that the Lost at Sea Scheme had long since expired and that it would not have been appropriate at this point to seek to apply its terms to the Byrne family i.e. to suggest that the Byrne family be granted tonnage.  But recognising that the shortcomings in the Scheme’s design and the manner in which it was advertised were factors in the Byrne family not qualifying under the Scheme, she recommended that the Department of Agriculture, Fisheries and Food use the methodology set out in the 2008 Decommissioning Scheme to calculate a sum of compensation and to submit it to the Ombudsman for consideration. The Department subsequently submitted a calculation amounting to €245,570. However, the Department refused to accept the findings and recommendations.

The Department held to the view that it had handled the Byrne family's application fairly and in accordance with the terms of the Lost at Sea Scheme as published. In its view compensation was not warranted and it also objected to the methodology proposed by the Ombudsman to calculate the compensation. It also suggested that the granting of compensation to the Byrne family would have widespread financial implications for the Exchequer, particularly in relation to other applicants rejected under the Lost at Sea Scheme who might complain to the Ombudsman.

For her part, the Ombudsman re-iterated her view that the circumstances of the particular case were such that compensation is warranted. She also rejected the suggestion that the individual decision would have widespread implications and explained why she considered the methodology for the calculation of compensation was objective, fair and reasonable and the amount recommended was proportionate.

The Department’s decision to reject the Ombudsman’s findings and recommendations is only the second time ever that such an event has happened in the 25 year history of the Office of the Ombudsman and this is the reason why she considers it necessary to present a special report to each House of the Oireachtas on the matter under Sections 6(5) and 6(7) of the Ombudsman Act, 1980.

Part One of the Special Report describes in more detail the reasons why the Ombudsman has decided to notify the Oireachtas of the Department’s decision to reject her findings and recommendations. Part Two is the Ombudsman’s report of her investigation of the complaint. It traces the development and implementation of the Lost at Sea Scheme and describes in some detail the role of the then Minister and his officials in that process together with her conclusions, findings and recommendations.

Further Information:

Tom Morgan at 01-639 5600      Fax 01-639 5674,  e-mail: tom_morgan@ombudsman.gov.ie

For media inquiries contact:

Dave Glynn - Head of Communications    Tel: 01 639 5714  / 087 236 1884    email: david_glynn@ombudsman.gov.ie

Notes for Editors

Here is a link to the Ombudsman's Special Report to the Houses of the Oireachtas concerning the Lost at Sea Scheme

Note 1:

Sections 6(5 and 6(7) of Ombudsman Act 1980:

“6 (5) Where it appears to the Ombudsman that the measures taken or proposed to be taken in response to a recommendation under subsection (3) of this section are not satisfactory, he may, if he so thinks fit, cause a special report on the case to be included in a report under subsection (7) of this section”.

“6 (7) The Ombudsman shall cause a report on the performance of his functions under this Act to be laid before each House of the Oireachtas annually and may from time to time cause to be laid before each such House such other reports with respect to those functions as he thinks fit. The terms of a request under section 5 (3) of this Act and of the statement in writing of the reasons for the request attached to the request shall be included in a report under this section”.

Note 2:

Background to the Lost at Sea Scheme

In 1989 steps were taken to introduce a new Fishing Boat Register, to replace the then existing Register. The introduction of the new Register took place in the light of European Community requirements on the management of Member State fishing fleets, while at the same time tackling the overcapacity situation of the fleets. In order for a boat registered on the old Fishing Boat Register to be entered in the new Register it was necessary for the owner to apply for registration before 31 January 1990. The capacity of all boats entered on the new Register was counted towards Ireland's fishing fleet capacity which was controlled under EU rules. There was no provision for boats registered under the old system, but lost at sea before that time, to be accepted into the new Register. Over the years fishermen and the families of fishermen who had been lost at sea had lobbied for the introduction of a scheme to assist those who, but for their misfortune, would have been able to gain entry to the new Fishing Boat Register.

In late 2000, at the request of the then Minister for Marine and Natural Resources, Frank Fahey, TD, his officials began drawing up a scheme which was subsequently launched as the Lost at Sea Scheme in June 2001 with a specified closing date of 31 December 2001. A total of 67 applications were subsequently received by the Department before the closing date, of which six were ultimately successful.

Successful applicants were granted capacity in their own right which enabled them to carry on a tradition of fishing. The amount of capacity granted to a successful applicant related to the size of the original vessel which had been lost at sea and to the proportion of the applicant's ownership of the vessel. The Scheme did not provide financial support to successful applicants for the acquisition of a replacement fishing vessel itself and the replacement capacity, i.e., gross tonnage and engine power granted under the Scheme had to be used by the replacement fishing vessel. It could not be sold on or otherwise traded or realised as a financial asset in the tonnage market.

Fishing Vessels Lost at Sea - Criteria for Considering Applications for Replacement Capacity

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