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Annual Report of the Ombudsman 2006

CHAPTER 3: Selected Cases

CIVIL SERVICE

Department of Agriculture and Food - Dispute About REPS Entitlements

A complaint was made to my Office about the administration, by the Department of Agriculture and Food, of the Rural Environment Protection Scheme (REPS). The complainant had returned from abroad to take over her father’s modest family farm at his request. Her husband, in agreeing to return home, did so on the basis that he would also buy a modest farm in his own right. In doing so, he intended to keep livestock and also enter REPS. To keep costs down they had the farm put in both their names until they could sort out legal issues relating to the complainant’s father’s farm.

Before the farm could be transferred to the complainant, a series of tragic events began to unfold. This included the death of her father, intestate, which resulted in difficulties in the farm being transferred to the complainant. A legal error, which was only uncovered after the subsequent death of her mother, meant that she did not, in fact, inherit the farm. As a result, she had to make a settlement with the other members of her family to purchase the farm by way of a mortgage.

The complainant, on the understanding that she was taking over the family farm, had continued to farm to REPS standards on the basis of her late father’s REPS plan. After a considerable period, it was discovered that the complainant would, in fact, be required to submit a separate plan in order to qualify for REPS payments in her own name. Around this time it became apparent to the couple that the Department considered that they should not be allowed to farm separately for the purposes of REPS. They appealed this decision to the Department, on the basis that they were, in fact, farming separately and had put themselves in debt to do so.

The Department decided that the decision that they would be required to submit a joint (and therefore, less financially worthwhile) REPS plan should stand. The couple could not understand how and why this decision was reached. They then asked the independent Agricultural Appeals Office (AAO) to examine their case, which it did. Having examined the case, the AAO decided that the Department’s decision was correct. Additionally, it decided that the complainant should repay a REPS payment of over €6,000 made to her late father’s estate. There was no evidence whatsoever that she had, in fact, ever received this money and was deeply offended by the suggestion that she might have done so.

There is a provision whereby an appeal can be made to the Director of the AAO against decisions of the Appeals Officers and the couple decided to do so. The Director of the AAO examined the case and decided that the Department had "erred in law" in refusing to allow the couple to make separate REPS applications. He did, however, again confirm that the complainant should repay the REPS payment made to her late father’s estate. Crucially for the couple, while finding in their favour in relation to their REPS applications, no recommendation was made that they should be compensated for the Department’s refusal to allow them entry to REPS. When they queried this aspect of the decision they were advised that they should have made separate REPS applications "under protest".

Following a very detailed examination of this complex case, I concluded that there was no evidence to support the decision that the complainant should be forced to repay the payment made to her father’s estate. More importantly, I formed the view that the way in which their REPS applications had been considered by the Department in their entirety was indicative of maladministration. I therefore recommended that an amount of €35,000, to make up for "lost" REPS payments and the trauma the couple had endured, should be paid. I also recommended that the Department should not pursue the return of the €6,000 REPS payment made to the complainant’s father’s estate.

There was an initial reluctance on the part of the Department to agree to my recommendation but, after some lengthy discussions with the Department and with the Department of Finance, the payment was made to the couple. I considered this to be a very significant complaint in that the couple had gone through the various layers of the appeals process and still were not, in my opinion, given the correct decision. It took a considerable amount of effort on the part of my Office to ensure that they were finally given what I considered to be fair treatment.

Department of Foreign Affairs - Failure in Customer Services

A student lost her 10 year passport which had been valid until 2012, while abroad in 2004, and was issued with a "temporary" passport by the appropriate Irish Consulate. She paid a fee for this temporary passport which expired in April 2005. She then applied for a new passport using An Post’s Passport Express Service. However, this could not be processed in time to allow her travel abroad so she was issued with a new emergency/temporary passport and on this occasion the fee of €50 was waived by the Passport Office. When she returned home she received her new 10 year passport.

However, from 1 March 2004 revised regulations applied to the issuing of passports which meant that the woman would be required to pay a fee for her new 10 year passport. Previously, once she had paid the fee for her temporary passport from the Irish Consulate she would not have been subject to a further fee when this temporary restricted passport expired. She was unaware of this change and believed that the passport following her temporary restricted passport issued abroad would be free of charge. Although a fee of €75 was now due she received conflicting advice from officials in the Passport Office as to whether this was so and eventually, the fee was deducted from her credit card.

She was very disappointed and sought a refund of the fee as a gesture of goodwill for all the confusion and the time she had to spend pursuing the matter. She was also very concerned about the fact that a number of her telephone calls were not returned.

I focused my examination on the customer service aspect of the complaint. I was concerned that there was confusion within the Passport Office regarding new charges, which at the time of the complaint in 2005 had been in place for some time. I was also concerned that telephone calls not been returned to the complainant when she had a reasonable expectation from assurances given by the Passport Office that this would be done. I suggested that a formal written apology was warranted in this case.

The Passport Office acted on my advice and admitted that they had failed in their customer service duty to provide the complainant with correct and accurate information regarding the passport fee and that in this instance some members of staff in their Customer Care section were not aware of "well established policy". The Passport Office also pointed out that a key element of their Customer Charter was to respond as quickly as possible to all telephone calls and that in this case they did not meet this obligation.

The Passport Office, however, was willing to learn from the mistakes that had been made in this case. It reminded all staff of its fee policy by way of internal notice and through training programmes and it used this instance as a case study for staff in Customer Care section to illustrate how a member of the public can be frustrated and inconvenienced when the Office fails to deliver the level of service it aspires to. The Passport Office sent a formal apology to the complainant and as a gesture of goodwill, refunded her the full fee of €75. I was particularly pleased to see the way the Passport Office used the complaint as a positive learning experience for its staff.

Department of Social & Family Affairs - Arrears of Disablement Benefit Refused

A man complained about a refusal by the Department of Social & Family Affairs to pay him arrears of Disablement Benefit. This is a benefit which is payable to persons who, as a result of an accident at work or a prescribed disease contracted at work, suffer loss of physical or mental ability. The amount of payment depends on the degree of the disablement which is assessed by the Department’s Medical Advisers.

In this instance, the man had an accident at work in 1979 severely injuring his back, following which, he was paid Disability Benefit, a short term payment to people who are incapable of working. He said he was examined some months later by one of the Department’s Medical Referees (periodic examinations are carried out on Disability Benefit recipients to check on their continued entitlement) and his payment was maintained. In 1982, with the help of his local public representative, he submitted a successful application for Invalidity Pension. This is a payment for people who are permanently incapable of work because of illness or incapacity and who satisfy certain PRSI contribution conditions.

The man had been in contact with the Department on a number of occasions from 1982 about matters concerning his claim. However, when he telephoned the Department in February 2003 an official asked him why he was not in receipt of Disablement Benefit. He indicated that he was unaware of this payment and set about submitting an application which required corroborative evidence from a former colleague who had witnessed his accident in 1979. He was subsequently examined by one of the Department’s Medical Assessors who determined that he had suffered a loss of faculty amounting to 80%, all of which was attributed to his occupational accident. He received payment of Disablement Benefit which was backdated for three months prior to his application as provided for in the regulations governing the scheme.

He then applied for arrears of Disablement Benefit on the basis that he was never made aware of the existence of the scheme; he had had a number of contacts with the Department between the time he originally applied for Disability Benefit in 1979 up to the time he was made aware of the scheme in 2003. His application was rejected by the Department’s Deciding Officer on the basis that his claim was late and that he had received the appropriate arrears (three months) as provided for in the Department’s Claims and Payment Regulations governing the submission of late claims. He appealed the matter to the Social Welfare Appeals Office. An oral hearing of the appeal was convened following which the Appeals Officer expressed the view that it was extraordinary that the man’s entitlement to Disablement Benefit had not been identified, particularly as his claims for Disability Benefit and Invalidity Pension had been processed for so long, without the root cause of his injuries coming to light. She referred the matter back to the Department for review. However, the Department indicated that only records from 1996 were available. The Appeals Officer made the comment that the previous papers would have been helpful in determining whether the man had enquired about or had been informed by the Department about his entitlements. She concluded, however, on the basis of the available evidence, that she could not recommend payment of any further arrears and she disallowed the appeal.

Following my detailed examination of the available records and the evidence presented to me by the man, I put it to the Department that it was clear that he had been adversely affected by the loss of his entitlement to Disablement Benefit over a twenty-four year period from 1979 to 2003. While there was no evidence to suggest that the Department had tendered incorrect information/advice to the man about his entitlements in his contacts with various officials over the years, it was clear, given his circumstances, that information as to the possibility of entitlement was not provided to him, otherwise he would certainly have made a claim at the appropriate time. I also pointed out that it would seem that the Department had the opportunity to consider and review his case on a number of occasions when he had been in contact with those officials. While it was unfortunate that the papers relating to his original application for Disability Benefit and his subsequent transfer to Invalidity Pension were no longer available, I felt that there were strong reasons for asking the Department to carry out a complete review of the man’s entitlement to further arrears.

The Department subsequently agreed to backdate payment of Disablement Benefit to the date of original entitlement in 1979 and the man received an arrears payment of €92,213.

Office of the Revenue Commissioners - Complaint Regarding Poor Customer Service

A solicitor complained to my Office on behalf of a taxpayer about the manner in which a tax liability had been managed in the Revenue and about the poor service that had been given to him in the course of his professional communications with Revenue on the issue on behalf of the taxpayer. The complaint concerned the assessment of Stamp Duty on a deed of conveyance and the decision to refer the case for audit.

In the course of the initial exercise, on the basis of the documentation supplied, Revenue decided that no tax was payable and conveyed this to the solicitor. He responded and explained that incorrect documentation had been supplied and that the property fell into a different category. He enclosed the appropriate documentation at that point and requested that the tax be assessed. However, in view of the contradictory information supplied, the case was automatically referred for audit. Revenue’s communications in regard to the audit were undertaken with the taxpayer’s accountant and the solicitor was not made aware of this decision until more than six months later.

During the examination of the case, I identified certain weaknesses in regard to communication both within the operational branches of Revenue concerned with this case, and in relation to the Revenue’s communication with the taxpayer and her agents. I also queried the decision to automatically initiate an audit and questioned whether a more flexible response could have been made, given the facts and Revenue’s discretion in regard to such cases. In particular, it seemed to me that the solicitor’s action in drawing attention immediately to the error that he had made should have been taken into account before referring the matter for audit, and the inevitable burden that this imposed on the taxpayer. I recommended that Revenue review its management of cases such as this to see if improvements could be made.

Revenue reviewed its procedures and the relevant branches agreed that all the known circumstances surrounding a Stamp Duty case will be fully taken into account before a decision to initiate an audit is taken in future and that a reasonable degree of flexibility and pragmatism will inform the process. In addition, Revenue undertook to improve communication with taxpayers and agents, ensuring that they will be notified if an audit is to be initiated.

HEALTH SERVICE EXECUTIVE

Health Service Executive: Eastern Region, East Coast Area - Dispute About Refund of Nursing Home Costs

A woman contacted my Office regarding her late mother whom she had looked after for many years prior to her mother’s admission to nursing home care in 1992. Her mother, who suffered from depression and ultimately Alzheimer’s, was a medical card holder and she died in 1996. Although the complainant’s mother occupied a health board subvented bed in a private nursing home, she had to pay all of her pension to the nursing home and did not receive a pocket money allowance. The complainant herself also had to pay a fee to the nursing home each month, in addition to what her mother paid, to cover the costs of nursing home care. At that time, an arrangement existed between some health boards and private nursing homes whereby a certain number of beds would be made available to public patients at an agreed daily rate, and this rate was claimed by the nursing home from the health board, less the amount contributed by patients by way of contribution from their pensions. It was the practice to allow "comforts money" to the patient which normally amounted to one fifth of their pension. In April 2000 the complainant sought payment of the comforts money allowance on behalf of her late mother (who had never received it) together with a refund of the contributions she herself had made. She was advised by the Health Service Executive (HSE) that no arrears were due in relation to the comforts money issue since the former health board had always allowed one fifth of the Non-Contributory Old Age Pension to be subtracted from income prior to assessing the applicant for subvention. The complainant was also advised that the issue of family contributions was being examined but might take some time before the process was completed.

In 2005, some four years later, the complainant contacted my Office because she had heard nothing further from the HSE. Following contact by my Office, it was established that the HSE could not locate any records relating to the complainant’s late mother. My Office, with the complainant’s help, forwarded copies of correspondence which the complainant herself had kept relating to her late mother’s nursing home payments. Following protracted discussions with the HSE, it agreed to make an ex gratia payment of €7,246 to the complainant in recognition of the fact that no comforts money had been paid to her late mother during her care from 1992 -1996, and this payment encompassed family contributions also made by the complainant towards the nursing home costs.

Health Service Executive: Midland Area - Domiciliary Care Allowance Refused

The mother of a young girl approached my Office following the refusal of her application for Domiciliary Care Allowance (DCA) in respect of the child by the then Midland Health Board (now Health Service Executive (HSE): Midland Area). The young girl, aged nine, had been involved in a road traffic accident and had been admitted to hospital suffering from head injuries and breathing problems. She had subsequently been transferred to the National Rehabilitation Hospital (NRH) in Dœn Laoghaire for assistance with her speech and mobility, and had been assessed as having a mild learning disability. The criteria for eligibility for DCA is that a child must be suffering from a mental or physical handicap that is so severe that they require from another person constant care or supervision substantially greater than that which would normally be required by a child of the same age. As this young girl was assessed as functioning within the range of borderline ability, the application for DCA was refused, and the appeal made by the child’s mother had also been refused on medical grounds.

In examining this complaint, I noted that the child, who had returned to school following her accident, had the assistance of a special needs assistant, and a resource and remedial teacher which was organised for her by the NRH. She also needed to attend physiotherapy and speech and language therapy on a regular basis. The child had ongoing difficulties with social skills, attention and concentration, impulsivity, behavioural and sleeping problems. It seemed logical to me that if the child required such a high level of assistance in school, then equally she must require a substantial degree of extra care and attention in the home.

Her mother, who was separated from her husband and had three other children to look after, sought practical support from the HSE via the "In Home Care Relief Service", and this request was supported by the NRH. However, despite this request nothing had actually been done to provide practical support and assistance for the family.

I asked the HSE to review this complaint to see what support could be put in place for the child and her mother, and to re-examine the issue of the child’s eligibility for DCA. Up-to -date medical reports were submitted by the Senior Clinical Psychologist caring for the child in the NRH which stated that she was experiencing major behavioural problems, and that the damage caused to her brain following the accident was likely to cause her lasting problems in all spheres of her life. Following a full review of the most recent medical reports on the child, the HSE decided to deem her eligible for DCA and agreed to back date the allowance to February 2002. I was very pleased with this outcome and also to learn that the HSE had agreed to make in-home care relief and family counselling available, particularly when the child was in her final year in national school and would benefit significantly from this practical support.

Health Service Executive: Western Area - Motorised Transport Grant Refused

I received a complaint from a mother whose severely disabled daughter had been refused a Motorised Transport Grant. A Motorised Transport Grant is a means tested Health Service Executive (HSE) payment, for people with disabilities, to assist with their mobility. The grant is normally paid to persons who need a car or other vehicle in order to obtain/retain employment but may also be considered in exceptional circumstances for people with severe disabilities who are over 17 years and under 66 years, who live in remote locations and who have difficulties using public transport.

The application was refused on the grounds that the complainant’s daughter did not live in a remote location and was not in employment. On the question of employment I pointed out to the HSE that she was engaged in training programmes appropriate to her level of disability in a sheltered environment and had a long-term involvement there. This was open to an interpretation that she was employed at a level compatible with her disability. While she did not reside in a geographically remote area, (she lived on the outskirts of a county town), the fact that she was wheelchair bound, lived at the top of a hill and was totally dependent on other persons to help push her chair, meant that she was isolated, not because of geographical considerations, but more as a consequence of actual social and physical restrictions which impeded her mobility.

In this context, and given the fact that there was no suitable public transport available, it seemed to me that there were strong grounds to support the claim for payment of the grant due to the existence of exceptional circumstances. I asked the HSE to review the decision. Having done so, the HSE agreed to approve the payment of the grant which amounted to €4,807.

LOCAL AUTHORITIES

Kildare County Council - Dispute About Site Notice

One of the requirements of the Planning & Development Act, 2000 is that the applicant for planning permission is required to erect a site notice which must remain in position for a specific period of time. The purpose of the notice is to inform the public and alert them as to the nature and extent of the development. Third parties can then examine the file at the planning office and lodge a submission or objection if they so wish. Unless a person has made a submission, he/she will not be entitled to make an appeal to An Bord Plean‡la, should they be unhappy with the planning authority’s decision.

In this particular case, the complainant maintained that he had not seen a site notice. In addition, the report of the Area Engineer in relation to the inspection of the site, which was contained in the planning file, did not make reference to the site notice being in place.

The Council pointed out that the site notice had not been an issue, as the report did not indicate that the site notice was not in place. It was also the custom that the Area Engineer would only comment if the site notice had not been in place at the time of the inspection. The Council pointed out that following the receipt of information from the applicant, which was deemed significant, he was required to erect a revised site notice, and a submission was then received from the complainant.

In correspondence with the Council, my Office drew its attention to a High Court decision concerning Arklow Town Council. This particular case established that the failure to inspect a site within the statutory period invalidated the planning authority’s subsequent decision. My Office put it to the Council that it would be more appropriate, if, at the time a site is inspected, the Engineer recorded the fact that the site notice was actually in place. This would ensure that there was no dispute or possible doubt on the matter in the future. The Council subsequently agreed and advised that it was making the necessary arrangements to change its practice and ensure its staff adhered to the new practice.

South Dublin County Council - Dispute About Tenant Purchase Scheme

A woman complained to my Office in March 2006 that South Dublin County Council should not have sold the family home to her brother under the Tenant Purchase Scheme (TPS) because she had a right of residence there. Her brother had been awarded tenancy of the house in 1996 and at the time signed an agreement stating that his sister and their mother would always have a right of residence. Having purchased the house from the Council, her brother then sold it privately and asked his sister, with a child, to leave. She claimed that the Council was aware that she had a right of residence and sold the house to her brother without consulting or informing her. She applied for housing to the Council in November 2003 but received a letter in January 2004 advising that as she had a right of residence she couldn’t be considered for housing. The woman wrote several letters to the Council and following a review of her correspondence it placed her on the housing list and gave her the full benefit of housing points retrospective to her initial application in November 2003.

I wasn’t happy with the Council’s response because it failed to explain why it sold the house to the family member, a brother, when it knew she had a right of residency. I contacted the Council again and I was advised that the information on the right of residency was maintained in Allocations Branch and that Allocations Branch had nothing to do with the sale of the house. Housing Sales Section said it was unaware of the right of residency until after the sale. As a result of poor communication systems within the Council, the complainant’s right of residency was not taken into consideration with the result that she and her child had to leave the family home. The Council then used the right of residency agreement as a reason for not including her on the housing list.

Following further discussion with the Council, it agreed to offer the complainant a new 2 bed apartment in her area of preference by way of remedying the complaint. The complainant was happy with this solution. I asked the Council to put in place new procedures to ensure that a similar situation would not arise in the future.

Wexford County Council - Faulty Planning Administration

I received a complaint from a woman on behalf of herself and a number of her neighbours in relation to the manner in which Wexford County Council dealt with their query in relation to a particular planning application. She and her neighbours wished to object to a proposed development beside their homes. When they tried to view the planning application they were informed that the Council had received no such application. Some time later the application was found but it was too late to allow for objections to be made as the time limit had expired. The Council had explained the delay in locating the planning application. Although the postal address of the proposed development was given on the planning application form, on the site notice and in the newspaper notice, the Council entered the details on the computer system in the Planning Office under the electoral address, as is the Council’s normal practice.

In its initial response to my Office the Council accepted that (i) the file should have been available for public inspection on request and (ii) that it was not located because a thorough search for the file had not been carried out. It accepted that the Planning Department was negligent in the matter and that the Council was responsible for my complainant and her neighbours losing their statutory right to object to the planning application, and to make an appeal against the grant of permission to An Bord Plean‡la. The Council explained that it has been the custom and practice to use the townland and electoral division rather than the townland and postal address when registering planning applications for ease of administration in assigning planning applications and for easier identification of planning applicants.

I considered that the complainant and her neighbours had been deprived of their statutory right to object to the planning application and, while the Council had accepted this, it had not offered them any redress. It also emerged that the Council had, mistakenly, advised the complainant to apply to An Bord Plean‡la for leave to appeal, as is provided for in legislation in specific circumstances. The application, which was accompanied by a fee, was turned down by An Bord Plean‡la and the Council accepted responsibility for the costs involved. I, therefore, asked the Council to consider what redress it would provide and also queried whether the Council was still recording planning applications under the electoral address and, if so, what safeguards it would put in place to ensure a similar situation would not occur again.

In its response, the Council agreed to provide financial redress in the sum of €1,000 to my complainant and to each of her neighbours in recognition of their loss of statutory right to appeal, and, in addition, it agreed to refund the fees incurred in seeking leave to appeal to An Bord Plean‡la. With regard to its procedures for dealing with queries at its public counter about planning applications, the Council has made changes. Staff are required to wear name badges and if a search is unsuccessful it must be recorded. It also records the postal address on the computer system.

I considered that a fair outcome had been achieved and that the new procedures introduced by the Council should ensure that a similar situation would not occur again.

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