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Annual Report of the Ombudsman 2006

CHAPTER 2: Getting it right

Public servants make decisions on a daily basis which may impact in a significant way on individual members of the public. For example, an application for a local authority house may be granted or denied, a planning permission may be granted or denied, an assessment on the level of tax due from the individual may be made or an entitlement to a nursing home subvention may be determined. In arriving at these important decisions, public servants cannot operate in a vacuum and they cannot act in an arbitrary fashion. Their decisions must be based on some form of authority, whether it be statutory or otherwise.

The authority underpinning a particular decision may be derived from primary or secondary legislation, which in some cases may, in turn, be based on EU legislation. In some cases, the decision may derive from a non-statutory circular letter or rules or guidelines on the implementation of a scheme or the granting of an entitlement. Such rules or guidelines may have been drawn up internally by the public body in question or, for instance, in the case of public bodies such as the Health Service Executive or local authorities, may have been drawn up by a central Government Department for implementation locally. In the latter case, this gives rise to the danger of different approaches being adopted locally by different public bodies following the same rules or guidelines. In particular, where a public servant is enabled to exercise discretion under the relevant rules or guidelines, this may give rise to inequitable treatment of some of the public body’s clients. My Office has valuable experience in dealing with common issues across a range of public bodies and this helps to identify inconsistencies of approach at local level, which my Office can highlight at central level and thus help to bring about systemic improvements for the benefit of the public at large.

There is a fundamental question that is addressed by my Office in the case of every complaint received. Do the administrative actions or inactions complained of amount to maladministration? The term maladministration is not used in the Ombudsman Act, 1980 because to define the term is to limit it. Section 4 of the Act, however, very clearly lists certain actions or inactions, which if they adversely affect someone, may be considered as maladministration. Interestingly, the very first action listed in the Act is one which is “taken without proper authority”.

More often than not, on first receiving a complaint, the starting point for my Office in the complaint examination process is to examine the extent and nature of the authority which underpins the action in question. If I find that the public body has exercised its authority improperly or unfairly, has exceeded its authority, or, indeed, had no authority to take the action complained of, then I will consider whether appropriate redress is warranted in any particular case where the complainant has been adversely affected. This Chapter includes a number of cases of interest which I dealt with over the year which illustrate the foregoing approach.

In this first case, involving the Department of Education and Science, the interpretation of the terms of a Departmental Circular Letter had serious implications for a complainant. The matter was satisfactorily resolved following my intervention.

I received a complaint from a teacher regarding her eligibility to compete for the position of Deputy Principal under the terms of Circular Letter PPT 06/02- “Revised Arrangements for Eligibility for Promotion Posts in Vocational Schools and Community Colleges to Include Certain Non-Permanent Teaching Service”. The circular states that “Candidates for appointment to the post of Principal and Deputy Principal will be required to have a minimum of five years’ whole-time teaching service or its equivalent.”

When the complainant applied for the competition, she was deemed ineligible to compete on the basis that she did not have five years “fully-qualified” service. She pursued the issue with the Department but, while the Department acknowledged that the circular did not contain a specific reference to “fully qualified” teaching service, it had been consistently interpreted by the Department as requiring fully qualified teaching service. The Department indicated that, in view of this, it had no basis for departing from the current arrangements in the case of an individual teacher.

I considered it unfair that the complainant was deemed ineligible to compete in the competition on the basis of conditions which are not specified in the circular. Furthermore, I noted that in previous Departmental circulars, it was specifically mentioned when “fully qualified” was intended. I therefore requested the Department to review its decision in this case and to allow the complainant to compete in the competition. Following my intervention, the Department reversed its decision in this case and the complainant was deemed eligible to compete for the post in the school. She subsequently advised that she was successful in securing the post of Deputy Principal.

In this next case, relating to the Department of Social and Family Affairs, a change in eligibility conditions for Deserted Wife’s Benefit had considerable financial consequences for a complainant. Substantial arrears were paid as a consequence of her complaint to my Office.

A woman contacted my Office regarding her entitlement to Deserted Wife’s Benefit (DWB). She had initially applied for DWB in 1988, and her claim was awarded. She continued to work during this period, as the legislation permitted claimants to simultaneously work and receive DWB. In 1993 she returned her DWB books to the Department as her husband had returned to live with her on a temporary basis, while recuperating from a road traffic accident. He left again a few weeks later following his recuperation and she re-applied for DWB. One of the conditions for payment at that time, if the applicant was under forty years of age, was that she should have a qualified child/children (i.e. under the age of 18 years) residing with her. The woman was under the forty year age limit at that time. However, whilst she had a qualified child living with her when her husband returned, she did not have when he left again (the child having reached the age of eighteen years in the intervening period). Consequently, her application was refused. As the qualified child condition did not apply to applicants over the age of forty she re-applied on reaching that age in 1994, and her DWB was restored by the Department.

In 1992 a new condition was applied to DWB, in that an earnings limit was introduced for all new claims made on or after 31 August 1992. In effect, the rate of DWB was reduced on a sliding scale where a claimant was working and had earnings of over £10,000 (€12,697.38). Where a claimant’s earnings exceeded £14,000 (€17,776.33) their right to a DWB was extinguished. Of some importance in this regard was the fact that the new condition did not apply to claims which had been lodged with the Department prior to 31 August 1992.

In 2004 the Department conducted a review of the woman’s earnings, on the basis of the revised legislation, and as her earnings had exceeded the prescribed amount of €17,776.33 her DWB was terminated. She appealed this decision to the Social Welfare Appeals Office, but lost her appeal. She subsequently made a written complaint to my Office about this decision.

I examined the Department’s files and discovered that a Social Welfare Officer (SWO) had visited her when she re-applied for DWB in 1993. In her report, the SWO was of the opinion that as the reconciliation was only a short term event the original desertion was still relevant. I presented a case to the Department that, on the basis of this SWO report, it should reconsider that the marriage tie had not re-formed and that a restoration of the original DWB 1988 claim would have been proper in the circumstances. In these circumstances, the income limits introduced in 1992, should not apply to her claim. The Department accepted my argument and duly restored the woman’s DWB with effect from the date of review in 2004. My intervention resulted in the payment of over €25,000 in arrears to the woman.

The following complaint against the Department of Social and Family Affairs concerned a reduction in the value of an Invalidity Pension arising from the application of EU Regulations which worked to the disadvantage of the complainant. Following my Office’s intervention, her full pension was restored and substantial arrears paid.

A woman complained to me about a decision by the Department of Social and Family Affairs to reduce the payment of her Invalidity Pension (IP) when she became entitled to receive a small UK Retirement Pension at age sixty.

The complainant had been in receipt of full rate IP based on insurance contributions she had in Ireland and the UK. Such an arrangement is provided for under EU Regulations. On reaching sixty years of age she became entitled to receive a UK Retirement Pension. However, she worked in the UK for a relatively short time and, as this pension was calculated by reference to her UK insurance record alone, the value of the pension was only about £8 sterling per week.

As a consequence of her receiving the UK pension, the Department of Social and Family Affairs was obliged, under a separate section of the EU Regulations, to re-calculate her entitlement to IP on a pro rata basis by reference to a combination of both her Irish and UK insurance records. This resulted in a reduction of about €47 per week in her IP entitlement and a net loss of about €35 per week in her overall income. There is a provision in UK pension regulations which allows pensioners to either defer or relinquish their entitlement to a pension. If the complainant had exercised this option the Department would not have been obliged to re-calculate her entitlement to IP. She claimed, however, that she was never informed of this option.

When I approached the Department I raised my concerns that the operation of the EU Regulation, which is designed to protect the social security rights of people who move within the EU, had actually disadvantaged the complainant. However, the Department informed me that there were no provisions in Irish social welfare legislation on the overlapping of benefits from other EU Member States. Additionally, no provisions existed to compensate the complainant for the reduction in her entitlement. Following my examination of the matter the Department agreed to write to the Department of Work and Pensions in the UK to suggest that one option open to both administrations would be to allow the complainant defer or relinquish her entitlement to the UK Pension retrospectively, which would place her in the position she would have been in, had she not opted to claim her UK Pension. This would allow the Department to restore her full rate IP retrospectively and to repay any overpaid pension to the UK authorities.

The UK authorities agreed to this arrangement and the complainant was restored to full rate IP. She also received arrears of IP in excess of €9,600. In recognition of the situation the Department sponsored an amendment to the domestic legislation which now provides that a person who qualifies for an Irish IP under EU Regulations will not suffer a reduction of pension if he or she subsequently becomes entitled to a survivor’s pension or a retirement pension from another EU Member State.

In the following case, involving the Health Service Executive: Eastern Region, Northern Area and the Health Service Executive: Eastern Region, South Western Area, my Office discovered that the two local offices adopted different approaches to the payment of Domiciliary Care Allowance which had been claimed by the mother of a child with disabilities. My Office’s examination of the case resulted in significant arrears being paid to the complainant.

A young separated mother approached my Office regarding her eldest son who was suffering from Asperger’s Syndrome and who had been refused Domiciliary Care Allowance (DCA), by the Health Service Executive (HSE): Eastern Region, South Western Area, on medical grounds. DCA is a monthly payment made in respect of eligible children from birth to the age of 16 who have a severe disability requiring continual or continuous care and attention which is substantially in excess of that normally required by a child of the same age. The medical reports indicated that the child had difficulties interacting with other children at pre-school level, and although he was exceptionally bright, he needed the support of a Special Needs Assistant in school, and constant supervision from his mother at home. When the family moved house to their current address the complainant re-applied for DCA for her son and was awarded it by the HSE: Eastern Region, Northern Area. The medical information which was submitted was identical to that which the child’s mother had provided as part of her original application to the HSE: Eastern Region, South Western Area. Once DCA was granted, the complainant applied for backdating of the allowance, but this was refused by the HSE: Eastern Region, South Western Area, on the grounds that the child was not deemed to be medically eligible.

In examining the manner in which both applications had been handled by the two different HSE areas, I noticed that the medical staff in the area in which the complainant had originally lived had focused on the positive information contained in the medical reports about the child’s condition. These reports stated that the child was exceptionally bright and that he had a high level of awareness of some of the difficulties that he was experiencing. It appeared to me that this positive information was used to refuse the application.

In contrast, the medical staff who approved the payment of DCA had focused on the actual impact the disability had on the child and his mother, and although they acknowledged the child’s positive attributes, they accepted that he did require a level of care and attention which was significantly in excess of that which a normal child of his age would need.

I wrote to the Director of Customer Services and requested that an independent review be undertaken in relation to the case. I also wrote to the Department of Health and Children, outlining the general lack of consistency in relation to the assessment of children for DCA throughout the HSE. Dealing impartially with people means that we should ensure that where a service is based on a scheme of priorities, that this scheme is open and transparent. The young mother at the centre of this complaint was at a loss to understand how one area of the HSE could award the DCA to her son and another could refuse it. Following review, the Director of Customer Services accepted that while there were two opposing medical views governing eligibility in this case, she was satisfied that the HSE could take the favourable opinion and allowed backdating of DCA to the date the child became eligible. Approval was initially granted for arrears amounting to approximately €3,000, based on the date on which the original application was made in November 2002. However, I pointed out to the HSE: Eastern Region, South Western Area, that the Circular governing the scheme allowed for arrears to be granted back to the date from which it was accepted that continuous care and attention commenced, which in this case was 1999. Approval was subsequently granted for additional arrears of €8,000 on this basis, which resulted in total arrears of approximately €11,000.

This complaint against the Health Service Executive: Eastern Region, Northern Area led to my Office identifying an error in the assessment of means for the purposes of the payment of nursing home subvention. When my Office pointed out that the error arose due to the incorrect application of the relevant regulations, full nursing home subvention was awarded to the complainant’s mother.

A man approached my Office regarding his mother’s entitlement to nursing home subvention. An application had been made by his mother in August 2003 but had been refused on means grounds because she held two joint bank accounts with her son, the complainant. In calculating her possible entitlement to subvention, the Health Service Executive (HSE) correctly assessed half the balance on both accounts against her, and advised the complainant to re-apply once his mother’s savings had depleted. The remaining funds in both accounts belonged to the complainant.

In January 2005 the complainant re-applied because all of his mother’s savings had been spent on her nursing home care. As a result of this second application, his mother was awarded a reduced subvention because the HSE continued to assess the remaining balance of funds in the joint accounts, which rightfully belonged to the complainant. Following an approach from my Office, the HSE reviewed this woman’s entitlement, and agreed to award her full nursing home subvention together with an enhancement with effect from January 2005. This was the second case which my Office dealt with in 2006 in which two different areas of the HSE incorrectly assessed an applicant for nursing home subvention where joint savings were held. While the relevant regulations provides for the assessment of half of these savings, they do not allow for the continued assessment of the remaining half when calculating entitlement.

In the next case, relating to a decision by the Health Service Executive: Eastern Region, South Western Area to refuse nursing home subvention, I concluded that extreme hardship had been caused by an overly rigid exercise of discretionary powers. The decision was reversed and significant arrears paid.

I received a complaint from a man whose mother, a resident in a private nursing home, had been refused a subvention by the Health Service Executive (HSE), towards the payment of nursing home fees. The subvention is a means-tested payment made to persons who go into registered private nursing homes in Ireland.

The complainant’s mother was 85 years of age, a medical card holder and had been a resident in the nursing home since 2004. She suffered from a series of age-related illnesses and was in need of twenty-four hour nursing care. The annual cost of her nursing home care was €34,000 and her annual income from pensions was €12,000, leaving a bill for the balance of her nursing home fees of €1,900 per month.

For two years her son’s family had, with extreme difficulty, paid the balance of the nursing home fees due from their own resources but now found themselves unable to continue to do so. An application for a nursing home subvention had been made on her behalf by her son but was refused. The reason for the refusal was that his mother was deemed to have assets deriving from the sale of property formerly owned by her. The property had been sold in 2004 for €402,000 and her portion of the proceeds was €267,091. This sum was used, along with the proceeds of the sale of her son’s house, to purchase another house. It was the intention of her son and his family to look after his mother in the new home. However, after a short period, her condition deteriorated to the extent that the family was forced to arrange full time private nursing home care for her. Despite the fact that her portion of the receipts from the sale of her home had been used to purchase the new house and was no longer available to her, the HSE deemed it to be an asset in its assessment of her means. As a consequence, her income exceeded the relevant threshold for entitlement to the subvention. As a result, the subvention was refused. The family was experiencing extreme hardship in meeting the nursing home fees. They appealed the decision to the HSE but without any success at which point they wrote to me.

In relation to the provision of in-patient services by the HSE it is my view, and that of my predecessors, that medical card holders should be provided with in-patient services, including services such as the long-stay care of the elderly, directly by the HSE in one of its own institutions, in other publicly funded institutions or by way of a contracting out arrangement between the HSE and a private institution. In this instance, the complainant’s mother was a medical card holder and therefore should, to my mind, have had full entitlement to publicly-funded care, free of charge. However, because of the shortage of public nursing home beds, when her health deteriorated the family was left with no option but to seek private nursing home care.

Under the Regulations in place at the material time, subject to which nursing home subventions were payable, provision was made for the consideration of the exercise of a discretion by the HSE, to disregard certain assets in assessing the means of subvention applicants. The exercise of this discretion would, in this instance, have allowed a subvention to be paid. However, the HSE had chosen not to do so and as a consequence the family was experiencing severe hardship in meeting the shortfall in nursing home fees. It seemed to me that there were good grounds to conclude that the HSE’s decision not to exercise the available discretion, was unreasonable and contrary to fair or sound administration. In this context, I asked the HSE to undertake a full review of the case. Having conducted a review of the case the HSE agreed to the payment of a subvention of €70.86 per day from a current date and arrears of almost €18,000.

The exercise of this discretion has been considerably restricted by the provisions of the Health (Nursing Homes) (Amendment) Act 2007. In addition, the Department of Health and Children has indicated that these provisions will be further amended in the Nursing Home Care Support Scheme which it proposes to introduce in 2008.

I received the following complaints against the Health Service Executive: Mid-Western Area and the Health Service Executive: Southern Area relating to a dispute about health service entitlements for retired Irish public servants now living abroad. The resolution of the cases will benefit all others who fall in to a similar category in future.

I received complaints from two individuals, both of whom were former public servants (one, a retired teacher, the other a former Health Service employee). Each was in receipt of a pension in respect of their former employment and both now lived outside Ireland but within the EU (France).

Both made application in France to register with their local health services provider there in order to avail of health care services. However, they were advised that unless they could furnish an E121 form it would not be possible for them to avail of these services. Form E121 is issued under the provisions of Regulation (EC) 1408/71 and entitles Irish citizens who become habitually resident in another European Union/European Economic Area, Member State or Switzerland to health care benefits in kind under the legislation of that State. The cost of these services is funded by the Irish State.

The complainants applied to the Health Service Executive (HSE) for an E121 form but were advised that under the relevant Regulation, only persons in receipt of a contributory pension from the Department of Social and Family Affairs were entitled to a Form E121. They were informed that, on the advice of the Department of Health and Children, there was no provision made in the Regulation for persons in receipt of public/civil service pensions to qualify for an E121. In their letters of complaint to me they claimed that this was discriminatory as, for example, UK citizens who were former public servants and went to live in other EU/EEA states, qualified for an E121.

Entitlement to contributory pensions from the Department of Social and Family Affairs is dependent on individuals fulfilling specific social insurance contribution requirements. These contributions, known as Class A, apply to people in industrial, commercial and service type employment. It also includes civil and public servants recruited after 6 April 1995 but civil and public servants recruited prior to that date have their own occupational pension schemes and pay a different class social insurance contribution which does not incorporate a contributory social welfare pension entitlement.

In the course of my examination of these complaints I discovered that, in May 1998, the then Department of Social Welfare, had sought clarification on the issue of the extension of Regulation (EC) 1408/71 to cover pension schemes of Irish public servants who entered the public service before April 1995. The advice then given to the Department, by the European Commission Directorate, indicated that the Commission’s view was that Irish former civil and public servants, who entered the public service before April 1995 and who were now in receipt of occupational pensions, did not fall within the scope of Regulation (EC) 1408/71. However, the Commission also noted that the Irish Government could make a ‘declaration’ on the public service pension schemes thereby bringing recipients of these pensions within the scope of Regulation (EC) 1408/71.

In this regard, I sought clarification from the Department of Health and Children on a number of issues, to see what steps, if any, had been taken since 1998 to have a declaration of the type referred to by the Commission made. If a decision had been taken not to proceed with such a declaration, what was the reason for this; if no such action was taken was it now proposed to do so; and if not, why not. At a subsequent meeting between my staff and officials from the Department of Health and Children and the Department of Social and Family Affairs, the Department of Health and Children indicated that it had undertaken a review of this issue specifically with regard to health service entitlement of persons in circumstances similar to those individuals who had made complaints to me. As a consequence of this review, the Department decided that while there was no specific regulatory basis clarifying the issue it was felt, on balance, that these persons were entitled to the Form E121 as they were essentially in receipt of state pensions. Consequently, the complainants, and other former civil and public servants in similar circumstances, were entitled to be issued with the Form E121 on the same basis as those in receipt of contributory social welfare pensions. The complainants were subsequently issued with Form E121.

This following complaint was against the Health Service Executive: Western Area regarding the way it calculated in-patient fees. I found that national guidelines which had been drawn up were not compatible with the relevant parent legislation on which they were based and as such the fees had been calculated incorrectly. As a result of this individual complaint arrears were paid to fifty-one families.

I received a complaint from a woman who felt her husband was being overcharged by the Health Service Executive (HSE) for in-patient services in a nursing home. It appeared that, in calculating the fee for her husband, the HSE took the wife’s income into account also.

The complainant indicated that her husband’s sole income was я96.10 per week but that he was being charged €120 per week for in-patient services. This was €23.90 in excess of his weekly income. She felt that, in calculating the fee, the HSE should only have assessed her husband’s income and it should not have taken her income into account.

On receipt of the complaint, I examined the legislation governing charges for in-patient services, namely the Health (Amendment) Act, 2005 and the Health (Charges for In-Patient Services) Regulations, 2005. I also studied the National Guidelines on Long Stay Charges which were issued by the HSE in July 2005. From my examination of the governing legislation and regulations, I was satisfied that it is the income of the person to whom the in-patient services are provided that is assessed when determining the correct weekly charge. In summary, I found no provision in the parent legislation permitting the income of the wife to be taken into account when calculating the fees for the husband.

However, it would appear that, in drawing up the National Guidelines on Long Stay Charges, dated July 2005, the HSE provided that, in respect of married couples, the income of the spouse should be taken into account in calculating the charges levied. As I was not convinced that this was the correct interpretation of the parent legislation, I asked the HSE and the Department of Health and Children to review the position.

In response, the Department agreed with my interpretation. It clarified that it is the income of the person to whom the in-patient services are provided that should be assessed when determining the weekly charge. It also acknowledged that the original National Guidelines on Long Stay Charges which, in respect of married couples, took into account the income of the spouse when determining the charges levied, were not consistent with the provisions of the Health (Amendment) Act, 2005 or the Health (Charges for In-Patient Services) Regulations, 2005.

In response to my concerns, the HSE prepared revised national guidelines which provided that, in the case of a married couple, only the income which can be attributed to the person to whom the services were provided should be assessed, and, in cases where no income can be attributed to that person, no charge should be levied.

Accordingly, I asked the HSE to re-examine my complainant’s case and to let me have details of:

• when it proposed to refund the overpayment,

• the total amount involved, and

• to consider the question of an apology to the complainant.

I also suggested that, in calculating any compensation due, and to cater for the loss of purchasing power, the HSE should use the Consumer Price Index to update any refund due. Given the systemic issue which this complaint highlighted, I also asked the HSE to review all other individuals who were assessed in similar circumstances and to let me know the outcome of that review.

Following my request, a total refund of €1,126 was made to the complainant. In addition, the HSE explained how this refund was calculated. It also apologised to the complainant and her husband for the inconvenience which she experienced as a result of its mis-interpretation of the parent legislation and regulations.

In addition, the HSE confirmed that refunds of €131,000 were made to fifty-one families who were deemed to have been overcharged in the short period July 2005 to July 2006. This represented an average refund of over €2,500 per family. This refund included an adjustment for changes in the Consumer Price Index.

This particular complaint identified a systemic ongoing administrative failure which was having a serious adverse financial effect on many economically vulnerable families across the whole country and once I realised this, I was more than happy to pursue the issue to ensure that:

• refunds were made,

• appropriate compensation paid,

• National Guidelines changed, and

• apologies issued.

Finally, I would like to commend the Department of Health and Children and the HSE for the swift manner in which they addressed this problem, once I brought it to their attention.

The following complaint was against Bray Town Council regarding the way it valued a house which was being bought by a Council tenant. I discovered that the Council had not followed the correct procedures as set out in a Departmental Circular Letter. When, as a result of my Office’s intervention, the correct procedure was followed there was a considerable saving on the purchase price for the complainant.

I received a complaint from a woman who applied to purchase her house from Bray Town Council in 2005 under the 1995 Tenant Purchase Scheme (TPS). The Council had the house valued by two separate auctioneers and, following discounts for length of tenancy and improvements carried out to the house by her over the years, they offered to sell her the house. She queried the valuation as she felt the offer price was a big increase on the price quoted when she had previously applied to purchase the house in 2003.

The woman initially made contact with my Office by telephone and was advised to request Bray Town Council to submit the matter to the Valuation Office, who would give a definitive decision on the open market value of the house. However, when she approached the Council she was wrongly informed that it was up to her to submit it to the Valuation Office.

When I took up the matter with the Council it was clear that Bray Town Council had not followed the proper procedures for selling a house under the 1995 Tenant Purchase Scheme. These procedures are set out in Circular HRT 6/95 issued by the Department of the Environment on 18 May 1995. In relation to the valuation of houses, Paragraph 10 of the Circular stated:

“Claims from an applicant that the market value of his/her house is less than the value determined by the authority should only be considered if supported by a valuation certificate from another qualified valuer. The extent, if any, to which an authority revise their original valuation on receipt of such a certificate is a matter entirely for the authority, but where the counter valuation differs significantly from that of the authority, the case should be referred to the Valuation Office, 6 Ely Place, Dublin, 2 for a definitive valuation.” [my emphasis]

As the Council was already in possession of two valuations of the property, with a significant difference in market value (€29,550) between the two, I suggested to the Council that there was no need to require the applicant to furnish a third valuation. The Council subsequently agreed that the complainant had been misinformed regarding the procedure for asking the Valuation Office to arbitrate and undertook to submit the matter to that Office for a decision. The outcome was that the Council, having received a definitive valuation from the Valuation Office, reduced the sale price of the house by €21,700.

This case illustrated that Bray Town Council had not been following the correct procedures for dealing with tenant purchase applications where the valuation of the property was disputed. The outcome in this case will be of benefit, not only to my complainant, but to other tenants of Bray Town Council who may wish to purchase their homes in the future.

In this next case, a T.D. complained that Dublin City Council was following incorrect procedures for keeping written records on planning files. I found that the relevant statutory procedures were not being followed and, as a result, new procedures were put in place by the Council.

I received a complaint from a T.D. on behalf of a constituent concerning the manner in which Dublin City Council was implementing Section 247(5) of the Planning and Development Act, 2000. She had previously expressed concern about the fact that the Council had failed to implement this section which concerns the keeping of a written record of any consultations that relate to a proposed development, prior to the submission of the planning application. Following my contact with the Council it accepted that the correct procedure was not being followed, and advised that revised procedure were put in place.

However, the T.D. contacted me again and explained that, notwithstanding the procedural changes, the Council was still not implementing the particular section. She referred to two specific cases where pre-planning consultations had been held, but the minutes were not available on the planning file. She pointed out that the pre-planning minutes were, theoretically, available to members of the public under the new system, but only on request. In her view, this was contrary to the letter and spirit of the legislation, and for it to have any relevance, a paper copy of the minute would have to be placed on the paper file and be available at the public counter. She also noted that the Council had started to place documentation associated with planning applications on its website. She felt that pre-planning minutes should also be available in this way.

The Council explained to my Office that revised procedures had been put in place, but were under review, and were to be amended to take into account the difficulties that had been encountered. It also pointed out that a record of pre-planning applications was available on the website, and as part of the review, it was proposed that the minutes would also be available when the planning application is lodged. The Council subsequently provided me with details of the revised procedures. I was satisfied that if the protocols are followed, the minutes of any pre-planning consultation should be available with the planning file.

I received two separate complaints against Kildare County Council about the way it was levying service charges for refuse collections in respect of rented properties. The complaints were resolved when I found that the Council did not have the statutory authority to levy the charges in the way it was doing so. It also agreed to review its policy in relation to such charges.

I received complaints from two landlords. In the first case, the landlord was seeking a retrospective waiver of service charges incurred by tenants of his house. The house had been sold and the tenants had moved. An amount of €766.76 had been withheld from the proceeds of the sale by his solicitor on the advice of Kildare County Council. Despite providing evidence to show that the tenants would have been entitled to the waiver, it was refused by the Council on the grounds that each waiver application had to be processed in the financial year to which it related. However, following contact from my Office, the Council stated that it would consider a waiver of the charges on grounds of hardship (as provided for in its Waiver Scheme) if the tenant completed an application form and provided certified details of income for the relevant years.

In the second case, the new tenant of a house contacted the Council with a view to arranging a refuse collection service. The service was refused on the grounds that there were arrears of charges at the address. The Council advised that the arrears were the responsibility of the landlord. On hearing this, the complainant challenged the legal basis for the Council’s view.

The legislative basis for the charges is contained in the Local Government (Financial Provisions) (No 2) Act, 1983. This provides that a charge is payable by and recoverable from the person for whom the service is provided, or, where the service is provided in respect of premises which comprises more than one dwelling, by the owner of the premises. In other words, the occupier is liable for the charge if it is a single dwelling, as in the two cases referred to here, whereas the owner is liable if it has more than one unit.

When the matter was referred to the Council it responded that while there is no specific legislation with regard to the liability of landlords, it was the Council’s policy to pursue the owner of a property to settle outstanding service charges i.e. the landlord. Following discussions and argument from my Office, the Council sought legal advice on the matter. On the basis of the legal advice obtained, it satisfied itself that it did not have legal grounds for pursuing the owner of the property in either case.

While my complainants were satisfied with the outcome, it remains a matter of concern to me that a local authority would seek to recover charges from a person without having the appropriate legal authority to do so. I understand that Kildare County Council may not be the only local authority engaging in a similar practice. While it is understandable that a local authority would seek, as a matter of policy, to recover arrears of service charges, it must, however, act within the law. However, as a result of these particular cases, Kildare County Council said it would review its policy in relation to refuse charges and rented property.

In this final case, relating to a complaint against Mayo County Council, I found that in its locally drawn up Essential Repairs Grant Scheme it had fettered its discretion in a manner which was not compatible with the relevant legislation governing such schemes. This resulted in a substantially higher grant being paid and an undertaking by the Council to review its scheme.

An elderly man applied to Mayo County Council for an Essential Repairs Grant to carry out necessary repairs to his house. The Council approved him for a grant of €6,350 in respect of the repairs, which included the replacement of the roof and the replacement of two external doors in his house. The Council estimated the total cost of the works to be €13,900. The complainant maintained that he was unable to meet the shortfall of €7,550 between the amount of the grant and the estimated cost of the works. The Council offered to consider him for a loan under the Improvement Works in Lieu of Local Authority Housing Scheme in order to fund the shortfall. At almost 70 years of age, the complainant indicated that he was unwilling to take out a fifteen year loan as proposed by the Council. In correspondence with my Office, the Council maintained that in awarding the maximum grant possible for the relevant works under its Essential Repairs Grant Scheme, it had fulfilled its obligation to assist the complainant.

The Essential Repairs Grant scheme operated by Mayo County Council sets out strict limits on the maximum amount of grant which can be paid in relation to specific repairs and does not afford the Council discretion to award grants in excess of these limits, regardless of the circumstances. I pointed out to the Council that the legislation governing the operation of the Essential Repairs Grant scheme sets no upper limit on the level of such grants which a local authority may award, thereby enabling local authorities to award grants of up to 100% of the cost of repairs covered by the scheme. By imposing strict limits on the levels of grant payable, without a provision for the exercise of discretion in exceptional circumstances, I considered that the Council was, in effect, fettering its discretion.

A local authority is entitled to have a general policy on how a discretion will be exercised. However, such a policy must not be allowed to become so rigid in its administration that it blinds the Council to the possible merits of an individual case. While schemes and services administered by public bodies must have in-built eligibility criteria and other standard conditions, it is equally important that the administration of such schemes and services is capable of accommodating unusual cases or unforeseen circumstances. Therefore, in exercising its discretion a public body must take into account all the circumstances of the case before making a final decision.

It seemed to me that in this case the Council’s Essential Repairs Grant scheme, as constructed, fettered the Council’s ability to exercise its discretion by imposing strict limits on the amount of grant payable and did not afford the Council sufficient latitude to award grants in excess of the limits as provided for in the Housing (Disabled Persons and Essential Repairs Grants) Regulations, 2001. As a consequence, in deciding the level of grant payable in this case, the Council failed to respond adequately to the circumstances of this case i.e. the very poor condition of the dwelling, the applicant’s disability, age and limited means, and the significant shortfall between the amount of the grant and the estimated cost of the works.

I requested the Council to review its position. I am glad to say that, in view of the exceptional circumstances, the Council decided to award the applicant a grant of €13,900 i.e. the estimated cost of carrying out the repairs. The Council also undertook to carry out a review of its Essential Repairs Grant scheme and I will monitor the outcome of that review in 2007.

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