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Digest of Cases 2008

Chapter 4. Case Reports - Complaints against Civil Service

The Ombudsman can examine complaints against Government departments and a range of offices.

Some typical examples of the types of complaint are as follows:

• Failure to reply to correspondence;
• Income tax;
• Customs and Excise;
• Passports;
• Farm grants, such as, Forest Premium Scheme, Rural Environmental Protection Scheme (REPS), Scheme of Investment Aid for Farm Waste Management, Single Farm Payment Scheme.

The Ombudsman cannot examine complaints relating to:

• terms and conditions of employment in the public service;
• recruitment;
• the defence forces;
• administration of prisons.

Case 7

The Department of Agriculture, Fisheries and Food - Early Retirement Scheme

In the following case, a tragic event led to a situation whereby an elderly couple found themselves in breach of the rules of the Early Retirement Scheme and in debt to the Department as a result. Following my intervention, and with the sympathetic co-operation of the Department of Agriculture, Fisheries and Food and the Department of Finance, the matter was satisfactorily resolved.

A complaint was made to me by a public representative against the Department of Agriculture, Fisheries and Food, on behalf of an elderly couple who were being asked to repay an Early Retirement Scheme pension amounting to €6,990.

The circumstances of the case were quite unfortunate. The couple had transferred their farm to their son under the terms of the scheme. However, he died tragically shortly after this transfer and they returned to farming the family holding. Because they had returned to farming, notwithstanding the very sad circumstances, the Department sought the return of the pension paid, which was a substantial amount for the complainants. They considered that this was unfair as they had, in fact, been absent from farming for the period prior to their son's death and were only returning because of the very exceptional circumstances.

Having considered the details of the case, I agreed that the circumstances were exceptional. I therefore asked the Department to reconsider the case. It agreed to do so but pointed out to me that, as the terms of the scheme, which is part funded by the EU, required the repayment of the pension, special approval would be required from the Department of Finance if the debt was to be ignored.

A case was made by the Department of Agriculture, Fisheries and Food and after some considerable examination of the complaint, the Department of Finance acknowledged the special circumstances and granted permission to write off the debt. I was very pleased that this happened as I considered that it would have been inequitable to pursue the elderly couple.

In this case a humane approach was adopted by both Departments and their response to my intervention was flexible and understanding.

 

Case 8

Department of Agriculture, Fisheries and Food - Single Payment Scheme

The following case involved a dispute about a farmer's Single Payment Scheme application and complications arising from the Foot and Mouth disease outbreak in 2001.

A T.D. referred a complaint to my Office against the Department of Agriculture, Fisheries and Food in connection with a farmer's Single Payment Scheme application. She had sought to have her entitlements under the Single Farm Payment Scheme based on the year 2002 only, as she claimed that her entry to farming was delayed in 2001 by force majeure circumstances which were outside of her control. The basis for her claim was that due to the Foot and Mouth outbreak in 2001, the Department's inspectors were unable to visit her farm and therefore she did not receive her herd number until June of that year. At that stage there was a further delay in the Cattle Monitoring and Movement System in Bandon which meant that the herd number wasn't activated immediately.

The Department explained to my Office that the farmer had submitted a force majeure application on the grounds that, in February 2001, she had applied to the Department for a herd number. However, due to Foot and Mouth restrictions, her herd number was not issued until 27 June 2001. Her application for consideration of force majeure/exceptional circumstances was deemed unsuccessful on the grounds that her circumstances were more applicable to the New Entrant Measure of the Single Payment Scheme. She was, therefore, advised to submit an application form for the New Entrant Measure.

The report indicated that the complainant had submitted a New Entrant application on 14 June 2004. On 5 November 2004 she was notified that her New Entrant application was successful, with the year 2000 excluded for the purposes of calculating her Single Payment. Following this decision, she submitted an appeal to the Independent Single Payment Appeals Committee, which, having examined all aspects of the case, recommended that the original decision taken by the Single Payment Entitlements Unit should be upheld.

The report explained that the farmer had submitted an Area Aid application on 12 April 2001, applied for Special Beef Premium on 25 July 2001 on eighteen 2nd Age animals and slaughtered eighteen animals in September 2001. It was therefore considered that she had control of her holding for that particular year and as production was not adversely affected, her request to have the year 2001 excluded from her Single Farm Payment calculation could not be granted. While I noted the grounds on which the Department had rejected the application, I was of the view that there was a basis for further examination of the complaint. I therefore asked the Department to have another look at the complainant's production figures which, I considered, supported her assertion that she would have purchased earlier in 2001 had she been able to. The Department agreed with my suggestion that it look at the case again. It subsequently adjusted the complainant's Single Farm Payment to remove the year 2001 from the assessment of her entitlements. This resulted in the payment being adjusted to €12,193 i.e. an increase of €4,100 per annum. The complainant was very satisfied with the outcome.

The Law and Systemic Change

In examining complaints, I frequently come across instances where unforeseen consequences of legislation or anomalies in the operation of schemes which adversely affect the lives and circumstances of individuals come to light. In these cases I endeavour to assist the Oireachtas by highlighting the circumstances and suggesting possible improvements to legislation and schemes. The following are a few examples.

Case 9

The Office of the Revenue Commissioners - Tax Relief on Personal Pensions

I received a complaint from a woman concerning a refusal by the Revenue Commissioners to allow her tax relief in respect of contributions to a personal pension plan. The woman in question was a separated person, who was in receipt of maintenance payments from her former spouse. These maintenance payments constituted the main source of her income, and were taxable in her hands. When the taxpayer sought to claim tax relief on the contributions made to her monthly personal pension plan, she was informed by the Revenue that the question of what income could qualify for relief was provided for in law. The legislation in question provides that the relief applies to income from 'relevant earnings', essentially meaning income from an office, employment, trade or profession. Maintenance payments are not considered to come within the definition of 'relevant earnings' and consequently no relief is allowable.

In this instance, the legislation was clear and the Revenue appeared to have interpreted the rules correctly in the case of the taxpayer. However, the complaint does highlight an apparent inequity and the fact that the legislative arrangements in this case may not best serve current social policy in regard to pension provision.

For some years now the public in general, and women in particular, have been encouraged to take personal responsibility for pension provision and reference has been made to the possible tax benefits associated with pension plans. This case highlights the fact that taxpayers, separated persons in this case, whose main source of income derives from legally binding maintenance payments, are lawfully prevented from availing of tax reliefs available to others, while at the same time being liable to income tax on such payments. Any change in the position of separated persons in this area would require a change in the law, and this is a matter for the Oireachtas to consider. The consideration of social policy and the enactment of related legislation is the responsibility of the Oireachtas and, in this context, my role is limited to drawing the attention of the Oireachtas to issues such as this, which may deserve more considered examination.

 

Case 10

The Office of the Revenue Commissioners, Department of Social and Family Affairs -

Treatment of Cohabiting Couples.

Over the years, I have drawn attention in Annual Reports to the difficulties arising from the fact that taxation and social welfare legislation treat cohabiting couples in a different way. My Office continues to receive complaints about this matter, which I find unsatisfactory.

Basically, the law provides that the Department of Social and Family Affairs treats a cohabiting couple as if they are a married couple, accepting a cohabiting partner as a dependent and taking the joint incomes into account in relation to the assessment of means and eligibility for social welfare payments. On the other hand, the effect of the legislation governing the administration of taxation, provides that the Revenue Commissioners treat a cohabiting couple as two separate individuals. Under the taxation code governing the payment of income tax, credits may be allowed in respect of dependent relatives. However, the relevant legislation relating to tax credits specifically, refers to people who are "married or blood relatives". Under current tax legislation, married couples can opt to be treated as two separate individuals, with their own tax credits or have one spouse claim all tax credits, in respect of both of them. Cohabiting couples have no such option, and therefore are prevented from transferring credits or making joint claims for reliefs available to married couples.

The complaints that I received have highlighted how cohabiting couples are disadvantaged. In one case, a woman complained to me that while her cohabiting partner receives the tax credits of a single person, she would be assessed on his means if she applied for unemployment assistance and would in fact, not be entitled to any payment on that basis. In another instance, a cohabiting couple, who had incurred significant expenses arising from IVF treatment, complained that the legislation prevented them from enjoying the tax relief on medical expenses that a married couple, in similar circumstances, could enjoy.

In this case, the Revenue had confined the reliefs to the income tax of the female partner and as her income was taxed at the lower rate, the relief was lower than would have been the case had the couple been subject to joint assessment.

I asked the Revenue to review the case, to determine if any portion of the medical expenses could be attributed to the man, allowing him as a higher taxpayer, to benefit from higher relief and they agreed to do this in this specific case.

However, the fundamental anomaly remains and can be a cause of confusion and resentment in those households maintained by cohabiting couples. Where public bodies are acting within the law, I am limited to drawing attention to the apparent anomalies that may exist between different codes and the clarification of public policy in this area and any attendant legislative changes, are a matter for the Oireachtas to pursue.

 

Case 11

Department of the Environment, Heritage and Local Government

Disabled Persons Grant (DPG) Scheme.

In 2002 my Office wrote to the then Department of the Environment and Local Government, now the Department of the Environment, Heritage and Local Government, concerning difficulties in relation to the payment of grants by local authorities under the DPG Scheme. These difficulties were of a financial nature, in that some local authorities had been advising my Office that they did not have sufficient funds to meet the number of grant applications on hand. The DPG scheme is a statutory one, provided for in the Housing (Disabled Persons and Essential Repairs Grants) Regulations 2001 (S.I. 607/01). The only conditions set out in the regulations for qualification for the grant are:

the worked applied for must be "reasonably necessary for the purpose of rendering a house more suitable for the accommodation of a member of the household", who is either physically or mentally disabled or ill,

the person must also be normally resident in the house.

My Office recognises that, in the absence of sufficient funds, a local authority may have to devise a system for prioritising applicants for such grants. My Office would have no difficulty with such a system of prioritisation, provided it is open and transparent, and that applicants are properly informed of the qualifying criteria, given reasons for decisions and advised of appeal mechanisms. My Office is aware that some local authorities have been using two common priority indicators i.e. medical need and works to be carried out, but others have added a third indicator in the form of a means test. This had led to inconsistency in the application of the scheme throughout the country.

My Office noted that there is no provision in the DPG regulations for the imposition of a means test and I indicated to the Department that, in my view, there is no clear provision in legislation for the imposition of a means test.

In response, the Department advised my Office that it was reviewing the scheme. This process took a number of years. In 2006 the Department advised that it was revising the scheme with the aim of developing a more seamless set of responses to the housing needs of older people and people with disabilities, by ensuring that "the available funding is targeted to those persons in greatest need of such assistance, to improve equity and consistency and to streamline administrative and operational procedures". The Department stated that it had considered administrative aspects of the scheme with a view to maximising transparency and minimising the administrative burden from an applicant's viewpoint.

In March 2007 the Department advised my Office that three new schemes would be introduced during 2007, a Housing Adaptation Grant for People with a Disability, a Mobility Aids Grant Scheme, and a scheme of Housing Aid for Older People. The revised schemes would address the issues previously raised by my Office with the Department, regarding the operation of the current DPG Scheme.

The new grants would be administered in a uniform manner across all local authorities and there will be a statutory means test. There would be no variation in the means test applied to applicants or to the levels of grant aid available. A Housing (Miscellaneous Provisions) Bill, was being drafted, which would include provision for internal local authority reviews of prescribed housing decisions relating to individual households. This provision would provide an appeals process for applicants for the new Housing grants for Older People and People with a Disability.

The introduction by the Department of a uniform scheme of grants for elderly people and for persons with a disability is a significant development and, although long awaited, is very welcome from my perspective. Dealing with complaints from persons who have been subject to differing criteria imposed by different local authorities, which resulted in different outcomes depending on where the person lived, has been somewhat frustrating over the years. I look forward to the implementation, nation-wide, of a more transparent and fairer system of grants for some of the most vulnerable groups in our society.

 

Case 12

Department of the Environment, Heritage and Local Government

Change Urged to Improve Legislation on Planning Administration.

My Office wrote to the Department of the Environment, Heritage and Local Government in August 2005 concerning certain defects, as we saw it, in the planning legislation. Among the issues raised was the lack of provision in the legislation for the correction of errors in planning decisions, where such decisions were unclear or administratively erroneous e.g. missing words that change the meaning, typographical errors etc. It appeared to my Office that in the case of decisions of An Bord Pleanála, it could not correct, invalidate or withdraw its decision once it had issued the decision to the planning authority. In order to rectify the matter, proceedings would have to be initiated in the High Court by the member of the public who had been affected adversely. In certain instances I considered it to be an unfair and unreasonable situation where a third-party objector to a planning application, for example, could end up with an unenforceable planning decision because of error, and his/her only remedy would be by way of judicial review in the High Court.

During 2006 new legislation on planning was enacted. I was very pleased to see that it included a provision for the amendment of a planning decision by the planning authority (local authority) or by An Bord Pleanála. Section 30 of the Planning and Development (Strategic Infrastructure) Act 2006 authorises a planning authority, or An Bord Pleanála, to amend a planning permission granted for the purpose of (i) correcting a clerical error, (ii) facilitating something that was intended but not expressly provided for in the permission or decision, (iii) otherwise facilitating the operation of the permission or decision.

 

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