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Annual Report of the Ombudsman 2008 (text version)

Message from the Ombudsman

In good economic times, many people can live their lives to the full from their own resources or with some amount of help from the State. The State itself can respond quickly and adequately to many needs through higher exchequer yields. When a downturn happens, people are forced in greater numbers to seek State assistance and may experience significant stress if that assistance isn’t forthcoming, or if they feel that they are being treated unjustly by the administration. That is where the real value of the Office of the Ombudsman in a time of recession becomes apparent. I cannot increase Government revenue but I can ensure that people are treated fairly and properly and that poor practices by a Government department or other public body do not add to the hardship already caused by the financial downturn.

We constantly strive not only to assist our complainants in getting redress or a remedy to their problem, where we have found maladministration but also to encourage public bodies to bring forward new procedures, policies or management changes to ensure that similar complaints do not recur. Learning lessons from resolved complaints and putting in place systemic change is a key goal of my Office. By identifying and addressing systemic problems the Office is:

1. A low cost agent of change,
2. Bringing about concrete improvements in the operation of the public service, often avoiding expensive consultancy expenditure and external reviews and reports,
3. Providing remedies to complaints which, in the vast majority of cases, are acceptable to the parties involved without the need for costly litigation and court awards, and
4. Enabling the wider public sector to learn lessons from the outcome of a specific complaint resolution which can help the bodies to avoid repeating the same mistake or misjudgement and to maintain a consistent high quality and fair service to their customers.

So, it is not just people who complain to my Office that can benefit but also those who have similar difficulties and who gain as an off-shoot from a particular case resolution. That is the reason why in every Annual Report and, periodically, through the publication of digests of complaints, I take the opportunity to spotlight cases of interest and applicability across the public service. To be fair to public bodies, I find that there is in most cases a genuine willingness on their part to engage with my Office and to resolve grievances in a non-adversarial way. Indeed, those that are committed to best customer relations practice will invariably take on board lessons from case studies which have applicability wider than the complainant. To that end, I have highlighted in this year’s report a number of cases which resulted in systemic change or benefits gained by others, as well as my complainants. This underlines the difference the institution of the Ombudsman can make in improving the day-to-day life of people. In some cases complaints made to me about decisions of public bodies appear to the complainant to be so fundamentally unfair that they cannot fathom the reason behind the rulings. In other cases, it may be that the decisions are based on incorrect or incomplete information, misinterpretation of the rules, or indeed, while seemingly unfair, are caused by strict adherence to governing law. Whatever the circumstances, my Office examines each case objectively and impartially and if we find wrong-doing on the part of the public body, we recommend an appropriate remedy which is designed to ensure a fair outcome for the public body and complainant alike.

In highlighting particular cases like these of systemic value, I hope to shine a light on to the sometimes hidden difficulties faced by people, often in difficult circumstances, who are unable to get fair play and redress from public bodies who have treated them inappropriately. Examples of the cases I am speaking about which demonstrate the value of an oversight include:

Dispute about a tax payment resolved. Revenue Commissioners refund €9,810 late tax payment interest charge to self-employed man. See Chapter 4 - case 4.2. 1

The dispute in this case related to an interest charge for late payment of tax. While the complainant contended that he had lodged the required amount to his bank current account, the electronic transfer to the Revenue failed to go through due to an error in entering the correct paye account number. The case centred on whether there was documentary evidence that the complainant had been notified by the Revenue of the non-payment of tax. My Office sought to establish by reference to Revenue computer records whether there was evidence to show that the two notifications actually issued. Without notification the man could not have been aware that a banking error occurred. Providing documentary evidence did not prove possible as the issue of the letters was by manual process. In the absence of that proof I asked the Revenue to make a refund to the man. I am pleased that the Revenue agreed to my request and that the complainant was paid back the interest charge in full.

Revenue Commissioners’ decision not to allow tax relief on two additional €13,000 voluntary pension contributions in the same year revised. See Chapter 4 - case 4.2.2

Pensions and their value are increasingly of interest to people in these turbulent times and I am glad to highlight a case involving investment in personal retirement savings accounts (PRSA), additional voluntary contributions (AVC) and the Revenue. The upshot of this case demonstrates a lack of clarity on the part of the Revenue on the time limit for claiming AVC tax relief. The welcome agreement of the Revenue to amend the wording of its guide to AVC’s, will without doubt, help others who find themselves in the same type of situation. In this instance, the complainant had invested in AVC’s, with the intention of having the tax relief due refunded in the same year (2006). The initial decision of the Revenue not to allow him to do so was eventually revised.

Council compensates planning objector for error in failing to notify decision. See Chapter 5 - case 5.2. 1

This case highlights a situation where a couple were deprived of their right to appeal a planning permission, due to an administrative error by the council. Initially, the council, while admitting its mistake and apologising for its oversight, was of the view that there was nothing it could do to remedy the consequences of its failure. This left my complainant with no redress. The fact that the council revised its decision and agreed to my suggestion of financial compensation of €1,000 was a good outcome. I welcome the council’s initiative to put in place additional manual checks to prevent a recurrence. However, if such an error can occur in one local authority then it is quite possible that it could happen in another. It would certainly be prudent for all local authority planning offices to check out their own notification processes to avoid the same error happening again.

Councils exceed their authority on parking permits for residents. See Chapter 5 - case 5.2.2

As the spread of regulated parking extends further and further into the suburbs of our cities and towns, residential parking permits are becoming increasingly important to people who wish or need to park near to their homes. In both these cases, the councils involved were, in my view, exceeding their authority. The practices adopted by both councils placed people in an invidious position, having to fight a public body to get fair treatment. The issue of residential parking permits is a nationwide concern, given the difficulty in accessing public transport in some areas and the rise of commuter towns.

Refusal by council to pay disabled persons grant revised - €17,202 paid.  See Chapter 5 - case 5.2. 3

It is important to highlight cases such as this one where public bodies impose restrictions not provided for in law. For the disabled person at the centre of the case, the frustration and disappointment in having his application turned down was daunting. The positive result achieved was especially welcomed by my complainant.

Policy change on access to recycling facilities for landlord of rented properties. See Chapter 5 - case 5.2. 4

This case also has systemic applicability as a lot of tenants in rented accommodation may not have access to transport for bulky domestic waste items. Landlords who invariably do have such access, may want to assist them to keep their properties tidy. Again, it is a case where a county council acted without proper authority and it took the intervention of my Office to persuade the council to change its stance.

Planning site notices not lawful if placed on gates which are left open. See Chapter 5 - case 5.2. 6

People invariably have an interest in planning applications for developments in their locality. It is a cornerstone of planning law, and indeed long-established practice, to inform the public of planning applications by use of site notices, among other requirements. This case throws an interesting light on the need to affix the notices to fixed objects which do not move, so that they are open to view at all times, otherwise, planning applications will be deemed invalid. It is a decision that has applicability for all local authorities.

Playwright / local newspaper contributor gets non-contributory pension after means review of joint house ownership by the Department of Family and Social Affairs - arrears of €37,954 paid. See Chapter 6 - case 6.2.2

The redress involved here was significant, in what was an unusual case. Not all writers are fortunate enough to be Aosdana members, or derive a generous income from their endeavours. This case centred on the inclusion of a jointly owned house in the assessment of my complainant’s means. The fact that the house, although placed on the market, remained unsold, was the critical factor in the revised decision by the department to award a pension and pay substantial arrears, which I am sure, was a boon to a person on a very modest income. In the light of the downturn in the property market, this case may have implications for others in a similar situation with a shared property inheritance.

Contributory State pension increased by Department of Social and Family Affairs for farm worker who left school after primary level, following review of social insurance contributions - arrears of €18,000 paid. See Chapter 6 - case 6.2. 3

The relationship between the validated social insurance contribution and final pension entitlement has become a thorny issue. The records available in the department upon which decisions are based, can be at odds with the applicant’s recollection of their working life and contributions made. In this case, which demonstrates the open and painstaking approach of my Office, the applicant, like a lot of others in his time, had left the education system after primary school but his first recorded insurable employment was not until he was 20 years of age. Following a review by the department, which established his true entitlement, he was awarded extra social insurance contributions, which raised his pension from a 50% rate to a 75% rate. He also got €18,000 arrears paid to him. Other people in his situation who find that their appeal to the department proved unsuccessful might leave it at that and subsist on a lesser pension income than that for which they actually qualified.  There may be others in a similar situation who feel, on the strength of this case and its positive outcome for the pensioner involved, that it might be worthwhile to have a look again at their own circumstances and their working history of social insurance contributions. If so, we would be only too delighted to help.

Decision to halve State pension (contributory) revised by the Department of Social and Family Affairs - arrears of €39,538 paid. See Chapter 6 - case 6.2. 6

This case has resonance for pensioners who have had their pensions revised when their spouse qualified for a pension in their own right. In this instance, the case review disclosed that the man was entitled to a full pension and the decision was revised by the department, with significant financial redress (€39,538).

Community care home resident has in-patient service charge of €96.60 weekly reduced to nil and refund of €8,381 made by the Health Service Executive. See Chapter 6 - case 6.4.2

This case is notable not just because the redress involved was significant, but also because of the concern that there may have been other cases similar to that of my complainant. I therefore asked the HSE to review the circumstances of other residents who were being assessed for in-patient charges in a similar way to my complainant, namely spouses of individuals in receipt of a qualified adult payment. I am pleased that the HSE commenced a further review of in-patient charges to ensure that the charges are being implemented correctly.

Decision not to grant a nursing home subvention revised by the Health Service Executive. Weekly allowance of €238.20 granted and arrears of €16,980.26 paid. See Chapter 6 - case 6.4.3

After the HSE revised its decision in this case, I was concerned that other people could have been adversely affected as a result of their applications for nursing home subvention having been handled in the same incorrect way. I decided to ask the HSE to undertake a review of the matter and to let me have a report. I was pleased to be informed by the HSE that following an extensive national review of its files, it had identified a small number of cases with similar circumstances and that the applicants involved would all benefit from arrears payments.

Three severely disabled children have decisions not to grant domiciliary care allowance (DCA) revised by the Health Service Executive - arrears/compensation €78,000 paid and weekly allowance of €299.60 granted. See Chapter 6 - case 6.4.4

The outcome of these cases was very significant for the families involved not only because the children concerned were severely disabled, but also because my Office delivered significant financial redress for the families.

In response to the recommendation for consistency and understanding in the interpretation of the DCA scheme, the HSE advised me that plans are at an advanced stage to transfer operational responsibility for the scheme to the Department of Social and Family Affairs during 2009.

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