• You are here:
• Home /
• Reports /
• Investigation Reports /
• 14 December 2009 - Lost at Sea Scheme

14 December 2009 - Lost at Sea Scheme

Part One - Appendix E - Futher letter to the Ombudsman from the Department of Agriculture, Fisheries and Food

30 July 2009

Ms Emily O’Reilly
Ombudsman
Office of the Ombudsman,
18 Lower Leeson St.,
Dublin 2.

Re:  Complaint by Mr Danny Byrne into rejection of application for replacement tonnage under the Lost at Sea Scheme in respect of the fishing vessel MFV Skifjord.

Dear Ombudsman,

I am the  head  of  the  legal  services division in the Department and I have been requested by the Secretary General to reply to your letter of the 5th  June 2009. I should say at the outset that the Department has consulted very closely with the Office of the Attorney General prior to this reply issuing.

I do not intend to revisit the Department’s full and extensive response to the findings made by you in any great detail, as this has been consistently set out in the exchange of correspondence over a long period of time, but wish to set out as clearly as possible a number of points, which are relevant to its decision not to comply with your recommendation concerning financial compensation.

1)     Absence of any legal basis to make a payment to the Byrne family:

The Lost at Sea Scheme (the Scheme) was set up to assist parties, who made a successful  application to participate in the Scheme and most critically met the conditions of the Scheme, to restablish themselves in the fishing industry. It was at all times a Scheme subject to conditions and those conditions were not overly onerous. It was however not introduced to simply provide a means for any party, who tragically lost family members at sea, to obtain compensation from the State for this loss.

It is a matter of fact and one recognised by the Ombudsman in her findings, at page 59 of her report that the Byrne family did not comply with the Scheme conditions in two regards:

1. The Byrne application was out of time by one calendar year from the official closing date of 31st December 2001. The Scheme itself was launched on the 8th June 2001.
2. The boat owned and operated by the late Mr Francis Byrne had not been operated by him for a considerable period of years for sea fishing of a category covered by the capacity rules, prior to its loss at sea. This period was determined by the then Department of Communications, Marine and Natural Resources to be a period of 2 years, prior to being lost at sea.

In relation to the first point, while the Department would contend that the Scheme was extensively advertised, the Ombudsman has taken issue with that position. The finding by the Ombudsman that the advertising was inadequate is a difference of opinion, rather than something based on fact. I would contend that it is reasonable for any Minister and his Department to exercise a degree of discretion in the amount of advertising to be provided for any Scheme introduced by him. What may be described as a technical failing on the part of the Minister and his officials, has given rise in your recommendation of a very substantial monetary award and this on balance appears to be disproportionate.

In relation to the second point, the Scheme conditions were those fixed at the time and with the benefit of hindsight, it is possible to state that had further research been carried out by the Department and had more time been spent in formulating the conditions of the Scheme that they might have been different. That approach could be applied to many schemes operated by Government, but a scheme has to be introduced on some basis and at a particular time.

It is also certainly the case that had the extra time and  research  suggested by the Ombudsman been carried out, the Scheme conditions introduced might indeed have been more onerous and excluded some of those who were  eventually successful. It cannot be said with any certainty that the result of what the Ombudsman claims the Minister failed to do prior to introducing the Scheme, would have resulted in the Byrne family being in compliance with the  terms of any more robust, or more thoroughly researched Scheme that might have been introduced back in 2001.

The thrust of the Scheme was a genuine attempt to assist persons to get back into fishing where there had been a  strong family involvement in fishing, rather than just provide monetary compensation where there was a catastrophic human loss. It is a fact that after the loss of the Skifjord in October 1981, 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. The application made to the Scheme was some 20 years after the tragic loss of Mr Byrne senior.

When these factors are carefully considered, it is not unreasonable of the Secretary General to have written to the Ombudsman in the terms of his letter of the 23rd April 2009 and indicating that the Department is unable to act on foot of the findings made by the Ombudsman.

2)     Wider implications of the Byrne findings:

It is also important, in light of the current national financial position to point out  that the findings of the Ombudsman in the Byrne case could have far reaching implications for the Department and  the  Exchequer. I do not  wish to diminish the standing of the findings of the Ombudsman where she states that elements of the Scheme design “were contrary to fair and sound administration”, but the possible cascade from what might be described as minor  administration failings, may well give rise to a major financial liability, particularly were other cases to be brought to the Ombudsman by other unsuccessful applicants under the Lost at Sea Scheme. What is being suggested is that a substantial sum should be paid out in one particular case where in fact there was no entitlement to a benefit under the administrative Scheme concerned and the terms of the Scheme did not make any provision for payment from the Exchequer or any charge on the State. Once an administrative scheme is applied in accordance with its terms and an applicant falls clearly outside those terms the unsuccessful applicant is in no worse a position than before and his, or her rights are not infringed, see for example the decision of the Supreme Court  in  Bode v the Minister for Justice Equality and Law Reform [2007] IESC 62 which dealt with an administrative scheme for foreign nationals, who were the parents of Irish born children.

The tragic circumstances, which gave rise to application for the Lost at Sea Scheme in this instance, evoke sympathy for the family concerned but this is not a basis to transform a mechanism dealing with tonnage for fishing  vessels into a system for compensation. In light of current circumstances, it would be difficult for the  Secretary General to comply with any recommendation for the payment of compensation in this instance.

I note that it is your intention to bring the matter before the Houses of the Oireachtas in September.

Yours sincerely,

Randall Plunkett
Head of Legal Services Division

Back to contents