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14 December 2009 - Lost at Sea Scheme

Part One - Appendix D - Response of the Ombudsman to the Department's letter of 23 April 2009

5 June 2009

Mr. Tom Moran
Secretary General
Department of Agriculture, Fisheries and Food
Kildare Street
Dublin 2

Dear Mr Moran

I refer to your letter of 23 April 2009 in response to my letter of 13 March 2009 regarding my investigation into the Lost at Sea Scheme.

I must record my disappointment at the fact that the Department has fully rejected my recommendation in this case and has indicted its rejection not only of the quantum of the redress recommended but also the suggestion that any redress is warranted in this case.

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. I now wish to advise that I have decided to present a special report on this case to the Houses of the Oireachtas. For the sake of completeness, that report will include your Department’s response to my recommendations and this letter. As a matter of courtesy, I will advise you in due course, in advance, of the date I propose to present the special report.

Arising from your letter of 23 April 2009 I wish to place a number of points on record.

The Department points out that the complainants made a late application under the Lost at Sea Scheme and did not meet some of the criteria of the scheme. It is also stated that once the Minister decided to proceed with the scheme it was scrupulously and fairly administered and all applicants were treated fairly having regard to the terms of the scheme.

As is made clear in my investigation report I had found no evidence to suggest that, once the scheme was launched, that it was not applied equitably. My finding of maladministration arises from my conclusion that, having regard to the nature and purpose of the scheme, its design lacked equity and it was not properly advertised. I was also of the view that the circumstances of the Byrne family were such that they might reasonably be deemed to have fallen into the category of cases deserving of assistance under the scheme, but, due to the way the scheme was designed they were excluded. Furthermore, the lack of proper advertising led to the scheme not coming to the attention of the Byrne family at the appropriate time. Thus, by excluding the Byrne family from benefit, the outcome of the Lost at Sea Scheme was inequitable having regard to the family’s circumstances and the purpose and intent of the Scheme.

The Department states that the application of the Decommissioning Scheme for the purpose of calculating redress was not appropriate and the Department also holds the view that redress is not warranted in any case. The Department indicated that the circumstances of the Byrne family are not comparable to boat owners in the industry applying under the Decommissioning Scheme who had incurred the expense of acquiring vessels and operating them over many years. It also indicated that the Byrne family would not be eligible under the Decommissioning Scheme as only a fishing boat can be decommissioned - the capacity could not be decommissioned on its own.

As you are aware, the outcome sought by the complainant was the granting of tonnage denied to his family under the Lost at Sea Scheme. Based on the reasons outlined by the Department of Communications, Marine and Natural Resources (which previously had responsibility for this matter) I accepted that the granting of tonnage at this point in time would not be possible and I informed the Department and the complainant accordingly. As a general principle, as outlined in my Office’s Guidelines on Redress, in cases where I make a finding of maladministration, as has happened in this case, the outcome which my Office seeks to achieve is to put the complainant back into the position he/she would have been in if the public body had acted properly in the first instance.

Having regard to the foregoing, in this particular case I saw the Decommissioning Scheme as an objective and fair reference point to provide a pathway towards determining an equitable form of redress arising from my findings. The purpose of that scheme was to compensate certain fishermen for leaving the industry, including any suitably qualified applicants who may have been granted tonnage under the Lost at Sea Scheme in the first instance. I note that under the scheme itself payments of €41.1m were made to 46 applicants which amounts to an average payment of over €893,000 per applicant. In the case of the Byrne family the total payment I had recommended was  €245,570. In addition, those qualifying under the Decommissioning Scheme may, in some cases, be eligible for certain tax reliefs which would not be applicable in the case of the Byrne family.

I note that you make the point that the Byrne family did not have to incur the expense of purchasing and operating a fishing boat as would have been the case for those being compensated under the Decommissioning Scheme and as such they could not be compared to the Byrne family. If the Byrne family had been admitted under the Lost at Sea Scheme in 2001 and had been engaged in fishing as a result until 2009 the compensation being recommended by me (€245,570) equates to approximately €30,700 net profit per annum from fishing during that period which appears to me to be a reasonable sum. Furthermore, those who had purchased vessels and who are now leaving the industry under the Decommissioning Scheme would, presumably, have the option of selling on their vessels.

While you point out that the Byrne family obtained insurance payments as a result of the loss of their vessel this does not have any relevance in terms of either their eligibility under the Lost at Sea Scheme or the use of the Decommissioning Scheme as a basis to calculate appropriate redress.

I will be in contact with you again as soon as I am in a position to present my report to the Houses of the Oireachtas.

Yours sincerely

Emily O’Reilly
Ombudsman

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