• You are here:
• Home /
• Publications /
• Investigation Reports /
• Investigation Report on the non-payment of arrears of contributory pensions.

Investigation Report on the non-payment of arrears of contributory pensions.

Ombudsman's Powers and Jurisdiction

Ombudsman's Powers and Jurisdiction

11. My powers and jurisdiction, as Ombudsman, are set out in the Ombudsman Act, 1980 (as amended). In the normal course, I do not investigate a complaint unless certain specific criteria are met. Normally there will be a complainant who claims to be adversely affected by an action of a public body listed in the Ombudsman Act, 1980 as being a body subject to investigation by the Ombudsman. I have of course the power to investigate, on my own initiative, general questions of maladministration under Section 4(3)(b) of the Act. Following a preliminary examination of the case, it must appear to me that the action complained of has, or may have, adversely affected the complainant and that the action involved maladministration. In this regard, Section 4 of the Ombudsman Act, 1980 sets out a range of headings which help to determine whether or not there has been maladministration. I must decide whether the action complained of was, or may have been -

"(i) taken without proper authority, (ii) taken on irrelevant grounds, (iii) the result of negligence or carelessness, (iv) based on erroneous or incomplete information, (v) improperly discriminatory, (vi) based on an undesirable administrative practice, or (vii) otherwise contrary to fair or sound administration."

12. I had to give careful consideration to my grounds for investigating complaints involving late claims for contributory pensions. This was mainly because the Department's response at all stages has been to say that the impugned decisions are taken in accordance with law. The inference was

that it is not open to the Ombudsman to be critical of decisions taken in accordance with law. Such an inference is not correct. The separate grounds for maladministration set out in Section 4 (above) may be applied independently of one another. For example, it is possible that an action would be taken with "proper authority" but would nevertheless be found to be "contrary to fair or sound administration". The Ombudsman is , however, faced in such cases with the problem of whether or not it is possible, within the law as it stands, to recommend redress for the complainant. In many cases it is possible; the public body concerned has discretion or flexibility within the law to provide redress in the individual case. In the case of late claims, however, the Department has taken the position that it has no such discretion unless, of course, the Department itself was at fault. This is why no formal investigations have been initiated up to now. Instead, in my Office's Annual Reports the attention of the Minister and of the Oireachtas was drawn to the need to amend the law which was producing effects which were contrary to fair or sound administration by depriving insured people, year after year, and without good cause, of arrears of pension (other than for a maximum of six months prior to the actual date of claim).

13. Despite the Department's position, I decided to investigate these three individual complaints because of the failure of the Department, over a long number of years, to take any action in relation to the issue and also because of the continuing receipt by my Office of a significant number of complaints each year. I was conscious, however, that the investigation would inevitably have to deal with the manner in which the relevant time limits for claims, and the accompanying disqualification for pension arrears, have been set by successive Ministers by regulation. Section 4(2) of the Ombudsman Act, 1980 refers to actions "taken in the performance of administrative functions" and I am advised that I would be precluded from

enquiring into legislative actions. A legislative action is the making of a law; it is not the application of that law to individual cases or categories of cases. A question I may be faced with, therefore, is: may I criticise in an investigation report the particular provisions of statutory regulations? I certainly may if I consider the regulations are ultra vires the primary legislation because in such an event the decisions in individual cases would be "taken without proper authority". But what if the decisions in individual cases were fully in accordance with the provisions of the statutory regulations and did not involve the unreasonable use or withholding of Ministerial discretion? Here the position is more complex but I am satisfied that I may criticise the particular provisions of a statutory regulation if they result in decisions in individual cases which are "contrary to fair or sound administration". By this I mean that, in their application, they have an adverse effect which I consider to be unfair and unreasonable. This still leaves unresolved the dilemma of whether or not it is possible for me to recommend appropriate redress in such cases if redress can only be provided by changing the statutory regulation. There is a growing body of legal opinion that the making of Ministerial regulations is not a legislative action and, accordingly, that I could recommend in a formal investigation report that a regulation be amended. I have set out the arguments for this view in Appendix 2 because they are of general interest and of more particular interest in the context of the on-going review of the Constitution. I accept that there is a different view. In the event, and as the investigation proceeded, I discovered that, in fact, the Minister has considerable extra-statutory discretion. I have, therefore, structured my recommendations in a way which obviates the need to take a position on the legal standing of Ministerial regulations.

Back to contents