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14 December 2009 - Lost at Sea Scheme

Part One - Special Report to each House of the Oireachtas - the reasons why.

I hereby submit a special report to each House of the Oireachtas under Section 6(5) and 6(7) of the Ombudsman Act, 1980.

This is only the second special report presented to Dáil and Seanad Éireann following a rejection by a public body of a recommendation by the Ombudsman. The Oireachtas appointed me to hold public bodies to account and to ensure fair play in their dealings with the public. Following my investigation in this case, I regret to say that the Department of Agriculture, Fisheries and Food has failed to meet the standards required by fair or sound administration in their dealings with the family covered by this report.

This investigation arose from a complaint made to my Office by Mr Danny Byrne on behalf of his family. Danny Byrne’s father, Francis, was the owner and skipper of a fishing boat, the MFV Skifjord, which tragically sank in a storm off North West Donegal in October 1981. Francis Byrne lost his life along with his 16 year old son Jimmy and three other crew members. Francis Byrne’s widow was left with a young family of five boys and three girls.

In June 2001, a special scheme called the Lost at Sea Scheme was launched by the then Department of Communications, Marine and Natural Resources, the purpose of which was to grant replacement capacity to qualifying applicants in respect fishing boats lost at sea in the period 1980 to 1989. The granting of such capacity enabled the successful applicant to return to fishing in his/her own right. The Byrne family’s application was rejected by the Department and, following my investigation, I found that the design of the Scheme and the manner in which it was advertised were contrary to fair and sound administration. I concluded that these shortcomings were factors in the Byrne family not qualifying for assistance under the Scheme and I recommended that they be granted a remedy for the adverse effect they had suffered as a result of these shortcomings.

In my investigation report (see Part Two), which I issued in November 2008 to the Department of Agriculture, Fisheries and Food (which had taken over responsibility for the functional area from the Department of Communications, Marine and Natural Resources) and which I copied to the then Minister for the Marine and Natural Resources, Frank Fahey TD, I recognised that it would be inappropriate to attempt to apply the terms of the Scheme by way of a remedy because the Scheme itself had long since expired and because of subsequent developments in relation to Ireland’s sea-fishing capacity. Accordingly,  I recommended that financial compensation should be paid to the Byrne family. I asked the Department to calculate the appropriate figure based on the approach set out in the 2008 Decommissioning Scheme for Fishing Boats and to submit it to my Office.

On 11 February 2009 the Department submitted a calculation to my Office in the sum of €245,570 (see Appendix A). I considered the amount to be reasonable and the method by which it was calculated to be fair and by letter of 13 March 2009 I recommended that the Department make the payment to the Byrne family (see Appendix B). To put the recommended compensation in context, I was aware that under the Decommissioning Scheme a total amount of €41.1 million was paid to 46 successful applicants which yielded an average payment of over €893,000 per applicant. In addition, that Scheme provided for some tax concessions to successful applicants.

On 23 April 2009 the Department responded to my recommendation and indicated that financial redress was not warranted given the circumstances of the case. Neither did it accept that the method of calculating the compensation figure was appropriate. The then Minister, Frank Fahey TD also objected to the payment of financial compensation. The Department claimed that it had handled the Byrne family’s application fairly and in accordance with the Lost at Sea Scheme (see Appendix C).

On 5 June 2009 I responded to the Department and recorded my disappointment at its rejection of my recommendation (see Appendix D).  I pointed out that under Section 6(5) of the Ombudsman Act, 1980, if I find that the response of a public body to recommendations in an investigation report is not satisfactory it is open to me, if I think fit, to present a special report on the matter to the Houses of the Oireachtas and I signalled my intention to do so in this case. I reiterated my view that compensation was merited in this case and explained why I felt that the Decommissioning Scheme provided an objective and equitable method by which appropriate compensation could be calculated.

The Department submitted a further letter to my Office on 30 July 2009 (see Appendix E). It again raised a number of points which I had already dealt with in my Investigation Report. The Department also suggested, inter alia, that there was no legal basis to pay compensation to the Byrne family because the Lost at Sea Scheme does not provide for the payment of compensation. I would make the point that the legal authority for the payment of compensation in this case does not flow from the Lost at Sea Scheme but rather from the statutory authority granted to my Office under Section 6(3)(b) of the Ombudsman Act, 1980. This provides that, following an investigation, I may recommend to a public body that “measures or specified measures be taken to remedy or alter the adverse affect of the action...”.

The Department’s letter of 30 July 2009 suggested that my findings and recommendations in this case will “give rise to a major financial liability” arising from claims from others who were unsuccessful applicants under the Lost at Sea Scheme. I do not accept this suggestion. My investigation involved only one complaint, that of the Byrne family, and my analysis, conclusions and findings flowed from the particular circumstances of that case alone. My recommendation for compensation applies solely to the Byrne family and has no implications for other unsuccessful applicants. The Scheme itself related only to boats which sank at sea between 1980 and 1989 and clearly only a certain number of potential applicants was likely to emerge following the launch of the Scheme. By upholding the Byrne family’s complaint I did not suggest that all persons who failed in their applications were treated unfairly. To illustrate the point I indicated in my Investigation Report (see Section 8 - "The Byrne Family and the Lost at Sea Scheme")  that, in addition to the complaint made by the Byrne family, my Office has dealt with five separate complaints from persons claiming that they should have been entitled to benefit under the Lost at Sea Scheme but, having regard to the circumstances of those cases and the terms of the Scheme, I did not uphold those complaints.

The letter also pointed out that the Byrne family did not go back into fishing, or buy a replacement boat, which they might have done out of the insurance monies received from the loss of the boat. It is my understanding that in the immediate aftermath of the tragedy Mrs Byrne, perhaps understandably, was very resistant to the idea of any of her surviving young  family going back into fishing. When the Byrne family subsequently became aware of the Lost at Sea Scheme many years later, it was the intention, if the application was successful, that one of the Byrne family would use the replacement tonnage to return to fishing with a family relative. Furthermore, I am aware that in at least one other case an applicant was deemed successful under the Lost at Sea Scheme who had never been involved in sea fishing and whose husband had been lost when his boat sank in 1986. It subsequently emerged that, due to the fact that none of her immediate young family members could use the tonnage, she could not draw down the tonnage awarded.

The fact that insurance had been previously granted to applicants for the Lost at Sea Scheme was not of itself a barrier for accepting and approving such applications.

The letter of 30 July 2009 also suggested that, notwithstanding the tragic circumstances of the case, it did not provide a basis to transform a mechanism dealing with tonnage for fishing vessels into a system for compensation. I fully accept that successful applicants were granted replacement tonnage under the Scheme, rather than compensation. I also accept, for the reasons outlined in my investigation report, that following my recommendation that redress was warranted in this case, it was not possible to grant tonnage to the Byrne family at that stage. It was in those circumstances, and having regard to the power of my Office to recommend appropriate redress in a given case, that I recommended that financial compensation should be paid.

The Department also suggested that the Supreme Court judgment in Bode v The Minister for Justice, Equality and Law Reform [2007] IESC 62 case had implications for this present case. I do not accept this. In the Byrne case my finding was that  the design of the Scheme and the manner in which it was advertised were contrary to fair and sound administration. As a consequence of these shortcomings the Byrne family did not qualify for assistance under the Scheme. I concluded that appropriate redress was warranted to remedy the adverse effect suffered in this particular case. I should also point out that in every case I take great care to ensure that my recommendations for redress are both appropriate and proportionate. The Ombudsman Act imposes no restriction on how I choose to formulate a remedy in any particular case.

The Office of the Ombudsman relies on the authority which comes from its independence, impartiality and competence to gain fair play for people who have been wronged by public bodies. As Ombudsman I do not make binding decisions. The Department is free in law to reject my recommendations. My only recourse, when I consider that a public body’s response to a recommendation is unsatisfactory, is to make a special report to each House of the Oireachtas under the Ombudsman Act, 1980. This is such a report.

I respectfully ask the Houses to consider my report and to take whatever action they deem appropriate in the circumstances.

Emily O’Reilly
Ombudsman

December 2009

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