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14 December 2009 - Lost at Sea Scheme

Part Two - Investigation Report (Section 7. Analysis of the Main Issues)

7.1   Putting the Complaint in Context

This investigation relates to one complaint only, which is that of the Byrne family. As with any complaint, whether it is dealt with by way of preliminary examination or formal investigation, there is a number of core issues which I have to consider. A complaint must relate to the administrative actions of a public body subject to my jurisdiction and there must be prima facie evidence that the complainant(s) may have been adversely affected by the actions in question.

Notwithstanding the legal position in relation to the accountability of Ministers and their officials (see paragraph 9 below), under the Ombudsman Act, 1980, administrative actions may encompass either the actions of officials in the relevant department or the actions of the officials and those of the relevant Minister. In probing individual complaints I seek to establish whether the actions complained of may have amounted to maladministration and, if I am satisfied that they do, I then consider whether redress for the complainant is warranted in the case. I always seek to ensure that any suggested redress is appropriate, having regard to the scale and nature of the adverse affect suffered. On the wider front, in examining any given case, I am always alert to any lessons that may be learned from the complaint in terms of highlighting procedural or systemic failures and pointing out how they could have been avoided. This can lead to general improvements within the public body itself and public administration generally and thus avoid repeating similar errors in future.

In this present case, the Byrne family alleged that the rejection of their application under the Lost at Sea Scheme was unfair and unreasonable and they claimed that this stemmed from the way the Scheme was drawn up and advertised. This allegation, the arguments put forward by the Byrne family in support of their case (see paragraph 1.2 above), and my Office’s Statement of Complaint (see paragraph 3.10 above) formed the parameters for my investigation of this case. Given the nature of the complaint I felt it necessary to carry out a forensic analysis of the Scheme from gestation to birth in order to determine if the complaint was justified.

7.2   Scheme or No Scheme?

It is clear from the evidence gathered from the files and from the interviews with the key people involved that, for their part, the officials were adamantly opposed to any concessions to people who had lost vessels at sea and who were not on the Register. The Department was of the view that any concessions in individual cases would lead to a flurry of further claims and an erosion of the Department’s policy of regulation and restriction in relation to the allocation of tonnage and licences, a policy which, in turn, was in line with EU policy on the fishing industry. For instance, Mr. Tom Carroll had indicated in interview that fishing policy in Ireland had been in chaos, but by 1990, the Department had succeeded in establishing a clear policy, based on the replacement concept. The nature of the Irish fishing industry was that this policy was subject to recurring attack and while it would always be very difficult for the Department to hold the line, it would do as much as it could.

Based on his knowledge of individual cases, the Minister was of the view that there were genuine cases which, in the interests of equity and notwithstanding the wider policy considerations, needed to be accommodated. He believed that there was over-regulation without any regard to the difficult circumstances this gave rise to for individual fishermen. He also felt that a tightly constructed and well focused Scheme could accommodate the genuine cases and, at the same time, withstand claims from those who would be considered less deserving of concessions. The Minister saw the cases of Mr Mullen and Mr Faherty as being in the mould of genuine cases and, in dealing with the opposition from his officials, he used those as good examples of the type of cases that he believed needed to be accommodated. Clearly, there were strongly held and contrasting views as to whether a Lost At Sea Scheme was appropriate or justified.

I should make it clear that, in examining the complaint from the Byrne family, my concern and focus is not on the question of whether a Scheme should have been launched or not. At the core of my consideration of the complaint is the way the Scheme was drawn up and launched following the decision in principle to have such a Scheme. Having said that I do believe that the background to the decision to proceed with a Scheme may well have impinged on the way the Scheme was drawn up and launched.

The scale of the economic benefit to be derived by a successful applicant would depend on the scale of the tonnage made available and the licensing arrangements. A successful applicant would, of course, have to incur initial and on-going expenses in order to draw down the net benefits arising from the Scheme i.e. the cost of buying or leasing a boat to use the tonnage and the costs of the normal overheads such as insurance, cost of equipment and maintenance, as well as the costs of crew. The level of income to be derived would also depend on a number of variables in any given period such as weather conditions, fish stock levels and the quality of the catch. The value of tonnage can vary from time to time but the Department estimated (see paragraph 3.2 above) that the price per tonne of capacity varied between €2,000 and €4,000 but it indicated that it did not have an accurate picture of this. It should be noted that persons who were successful under the Lost at Sea Scheme and were granted tonnage as a result, were not permitted to sell on that tonnage, unlike other fishermen on the Register. However, given the scale of the demand for the introduction of a Lost at Scheme over a long period of time and the level of applications after the Scheme was lodged, it is clear that concessions to be granted under any such Scheme were seen as an attractive economic proposition.

7.3   The Drafting of the Scheme

The proposed Scheme was to be aimed at a particular clearly defined class of individuals i.e. those boat owners who lost boats at sea between 1980 and 1989 and who were not included on the Register. Those persons who would ultimately be successful under the Scheme would derive an economic benefit by being granted tonnage to enable them to return to fishing as an owner/skipper of a vessel. This benefit would be denied those who applied under the Scheme but did not meet the eligibility criteria. In other words, there would clearly be winners and losers at the end of the process.

The Sea Fisheries Administration Division, which was responsible for designing and implementing the Scheme, ultimately had detailed information on approximately 16 cases which had come to its attention over the years, for a variety of reasons.

A separate section in the Department, Marine Safety Division had over 500 files which had been created and over 120 of these related to incidents involving fishing vessels (see paragraph 5.3 above). It was clear to Marine Safety Division that over 20 files related to foundering or sinking of fishing vessels. However, in the majority of cases, the titles of the files did not specify the nature of the incident, so a much higher proportion of the 120 files could have related to vessels sinking at sea during the period in question and may have been relevant for the purposes of the proposed Scheme. As outlined at paragraph 5.3 above, when the Sea Fisheries Administration Division was told that more detailed information on the cases was not readily to hand and would take some time to retrieve, it did not pursue the matter further and went ahead at a later stage with drafting a Scheme without seeking any further information on those cases held in the Marine Safety Division.

The decision to go ahead with a Scheme was made by the Minister. From my examination of the Department’s files I found only one very short written instruction from the Minister to his officials conveying his decision. In this short instruction he also attempted to set out the broad parameters on which the Scheme should be drafted. The instruction stated (see paragraph 5.4 above):

“I want to see how we can ringfence the 6 to 8 genuine cases including those before the High Court (if they are in the genuine category) and what the implications are for the MAPGs. I want to licence those boats if we can do this.”

Following further subsequent expressions of concern by officials in relation to the proposed Scheme, the Minister issued one further very short written instruction on 30 January 2001 (see paragraph 5.10 above) stating;

“Go ahead with Proposals subject to conditions laid down in  most recent memo subject to PO’s agreement that there are no further cases in addition to those we are aware.”

There are a number of references in the Department’s files in the period leading up to the finalisation of the Scheme referring to discussions which had been held or which were proposed, involving the Minister and/or his officials. See for instance paragraphs 5.5, 5.6, 5.7 and 5.15 above. I could find no formal records of any such meetings or discussions. This point was raised with the various parties during their interviews and none of them could recall any of the meetings or discussions being documented at the time, although it was acknowledged that there had been a number of discussions in relation to the drafting of the Scheme.

7.4   The Overall Purpose of the Lost at Sea Scheme

In order to assess the merits of the Byrne family’s complaint I needed to clarify the precise overall purpose of the Lost at Sea Scheme. In this regard, the Department’s report of 20 December 2005 (see paragraph 3.8 above) to my Office indicated that the purpose of the Lost at Sea Scheme was “clearly for sustaining or maintaining a family tradition of sea fishing.” The Scheme as published (see Appendix 1) stated that replacement capacity will only be granted under the Scheme for licensing purposes “only if it is used for the purposes of sustaining or maintaining a family tradition of sea fishing.”

When the Minister wrote to the industry organisations on 2 February 2001 (see paragraph 5.11 above) asking for their views on the draft Scheme he described it as “a limited and fully ringfenced concession.”

7.5   Issues of Concern

(a) Interaction Between the Minister and his Officials

The Lost at Sea Scheme was an ad hoc non-statutory administrative scheme designed to convey a benefit to eligible boat owners from within a particular category. The officials drafted the eligibility criteria under which applications would be vetted but did so under a process of close and regular consultation with the Minister. On the run-up to the decision to proceed with a scheme, the Department’s officials had been vehemently opposed to its introduction and had spelled out in detail in written memos the reasons why they were so opposed. It is also clear from the documentation on file and the investigation interviews that once the decision to proceed with a Scheme was made, the focus was to make the Scheme as narrow and restrictive as possible in order to deal with the concerns about setting precedents and opening the floodgates. Indeed, the Minister was also conscious of this problem and it was clear from his letter to the industry representatives (see paragraph 5.11 above) that he wished to have a very confined Scheme. No doubt, many of the industry organisations, which were also opposed to the idea of the Scheme, would have shared that view.

In relation to the specific eligibility criteria which were put in to the Scheme, there are no records indicating the precise reasons why those particular criteria were selected and no written analysis of the potential pros and cons of including or excluding particular criteria. There are no records of any meetings where the criteria were discussed or analysed. It is clear from the redrafting that was carried out that the main thrust was to make the Scheme as confined as possible. This lack of written records contrasts sharply with the extent to which the reasons for opposing the proposed Scheme were spelled out in detail in a number of written submissions.

At interview, the officials were at pains to point out that they did not take particular known cases as their reference point in devising the Scheme. I take this to mean, in the words of Mr Tom Carroll, former Secretary General, that “it was not a matter of trying to include or exclude anyone” (see paragraph 6.4 above). The officials say the Scheme was drafted from their general knowledge of the industry and Departmental and EU policy and a desire to make the Scheme quite confined. I return to this issue in Paragraph 9 of my Report.

For his part, the Minister wanted a Scheme which would  “ringfence the 6 to 8 genuine cases including those before the High Court”. In relation to this instruction he indicated at interview (see 6.5 above) that the reference to  “6 to 8 cases” was based on information given to him by the Department.

In my Draft Investigation Report I had expressed the view that it was clear to me from his interview and the documentation on file that the Minister would have been anxious to ringfence the cases of the MFV Joan Patricia and the MFV Spes Nova and that of the Kreis An Avel, which was the subject of the High Court case. These cases were ultimately successful under the Scheme. In his response to my Draft Investigation Report the former Minister took issue with my suggestion that he wished to ring-fence the MFV Joan Patricia, the MFV Spes Nova and the Kreis An Avel cases or that he had a particular number of cases in mind when he mentioned the desire to ring-fence. He said he was anxious to ring-fence genuine cases and if this meant 50 cases ending up being eligible then he would not have been concerned as long as they were genuine. He stated that his reference to “6 to 8 genuine cases” was simply a reiteration of what he had been told by his officials and these were indicative numbers only. He also stated that he had looked at the case of the MFV Joan Patricia and the MFV Spes Nova (both ships sank in the same accident) to assist him in deciding whether a change in policy was merited. I return to this particular issue in my Concluding Remarks (see paragraph 9 below).

It is not entirely clear from the documentation on file precisely which other cases the Minister had in mind - the Minister claims he had no particular cases in mind - as the Department appeared to have detailed knowledge of different numbers of cases at different stages. For instance, in the memo of 19 July 2000 (see paragraph 5.2 above) a departmental official, Mr Donegan, listed details of 9 vessels (including the three cases which were ultimately successful) which were lost at sea between 1980 and 1989. Two other cases were also mentioned but those boats sank outside the time frame of the Scheme. Ms White’s memo of 11 November 2000 (see paragraph 5.4 above), in relation to the three cases which were ultimately successful, referred to “6 others we know about...”. Mr Ryan’s memo of 12 December 2000 (see paragraph 5.5 above) indicated that “We know of around 10 cases of boats which sank between 1980 and 1989”. When the final draft Scheme was presented to the Minister a table was attached which listed details of 16 vessels.

While the Minister had referred to “genuine cases” the officials who were interviewed indicated that they did not have a clear understanding of what precisely the Minister meant by this. There is no written evidence on file of any attempts to clarify this during the drafting of the Scheme. I note that in his memo of  18 December 2000 (see paragraph 5.6 above) Mr Ryan indicated that the draft Scheme being submitted at the time to the Secretary General was “designed to address any genuine cases of hardship...”.

In its response to the Draft Investigation Report (see item (5) of Appendix 4) the Department pointed out that there is now a statutory regime in place since the enactment of the Fisheries (Amendment) Act 2003. The Department pointed out that the Act was introduced to set up an independent licensing authority to decide on individual applications for the licensing and registration of sea-fishing boats. The Department indicated that it was set up so that decisions could be made in a transparent way and removed from political influence.

(b) Research or the Lack of it

The Sea Fisheries Administration Division was responsible for drafting the Lost at Sea Scheme. As I have indicated, it was a Scheme aimed at a particular class of individuals. Immediately prior to the launch of the Scheme,  the Division itself only had detailed background knowledge of about 16 cases but it was clear that the Marine Safety Division would have had records on most, if not all, incidents of fishing vessels which sank at sea between 1980 and 1989. When the Marine Safety Division indicated that the detailed information on the contents of its files was not readily available, the Sea Fisheries Administration Division did not pursue the matter further.

It is worth noting in this context that the officials drafting the Scheme were certain that other cases would emerge about which they did not have detailed knowledge, once the Scheme was launched. So for instance, the submission dated 19 July 2000 (see paragraph 5.2 above) warned that if a Scheme was published it would “open the floodgates to other claims.”

In his memo of 10 November 2000, Mr Joe Ryan (see paragraph 5.4 above), stated, inter alia, that;

“Any concession to the owners of lost or sunk vessels could be expected to lead to demands from owners of other fishing vessels which were not for various reasons (inactivity, unseaworthiness, late application etc.) put on the new Register. Such approaches would be difficult to refuse, as these owners could claim to have as good a case as owners of vessels which no longer existed when the new Register came into operation.”

Ms Sarah White, Assistant Secretary, agreed with Mr Ryan’s views and stated, inter alia;

“The overriding problem is where would it stop. In addition to the 6 others we know about) & I’m not sure how well supported those cases are) plus the vessel involved in the High Court case, you can safely assume that there will be any number of individuals clamouring for the same treatment.”

In a further memo dated 12 December 2000 (see paragraph 5.5 above), Mr Joe Ryan warned , that “it is possible that the owners of other lost vessels will present themselves when the policy change becomes known.”

In the note attached as Appendix 3 to this Report (see paragraph 5.10 above), the writer states that “Piecemeal changes in policy in response to special pleadings from individuals where these changes would run totally contrary to policy objective, give large unrequited gains to these individuals and open up equally “meritorious” claims, cannot be recommended.”

The proposed Scheme was to be a once-off opportunity for a segment of a clearly defined class of people to benefit once they met the stated criteria. It was absolutely clear that cases would emerge other than those 16 which had become known to the Sea Fisheries Administration Division.

As it happens, 67 applications were eventually received and a total of 6 were successful. The officials stated that they were designing a Scheme on the basis of their knowledge of the industry and with a desire to keep it as tight and focused as possible. They knew they did not have the full picture in terms of the precise type and nature of all the applications that were likely to emerge but it was entirely predictable that further cases would emerge other than those they knew about in detail. The Department knew there was more detailed information available on other cases in a separate Division (Marine Safety).

In framing the qualifying conditions, I believe it was incumbent upon the Department to carry out extensive research in order to fully inform themselves to the greatest extent possible about the type and nature of the applications that were likely to be received and to design the Scheme with that full knowledge in mind. This would have provided material which would have enabled a more considered analysis of the likely impact of the Scheme and to weigh up the pros and cons of the various eligibility criteria which were to be inserted. In my view, given the backdrop as outlined here, it would have been particularly important, and in the interests of equity, to stitch in some form of discretionary element in to the Scheme so that the Department could give due consideration to any applications which would emerge which might not meet all the criteria set down but which, nonetheless, would be seen as falling within the confines of the overall purpose of the Scheme.

I want to make it clear that my comments about the absence of a discretionary element in the Scheme are not made with the benefit of hindsight, based on what we now know about the Byrne family case, or as some sort of attempt to now accommodate the Byrne case within the parameters of the published Scheme. Rather, my comments relate to a shortcoming in the Scheme in that it fails to properly meet fundamental principles of good administration.

As described in my Office’s Annual Report for 1995, the Principles of Good Administration to which I refer were set out as far back as the 1980s in a series of recommendations from the Committee of Ministers of the Council of Europe which were endorsed by the individual member states. In exercising their powers, including those of decision making, whether discretionary or otherwise, public bodies should ensure that they adhere to these Principles which include, among other things, the need to ensure objectivity and impartiality, the avoidance of unfair discrimination, the need for proportionality in the application of penalties, the avoidance of unfair discrimination and the exercise of discretionary powers in a reasonable manner. The principle relating to the exercise of discretionary powers reads as follows:

“...where discretionary powers are involved, public bodies must ensure that they are exercised in a reasonable manner having regard to the foregoing principles, all the circumstances of the particular case and without any undue fettering of their actual discretion e.g., by exclusion of classes of persons from eligibility for services or otherwise.” (My emphasis).

Based on these Principles, my Office developed the Ombudsman’s Guide to Standards of Best Practice for Public Servants which was first published in 1997 and updated and republished in 2003 (See my Office’s website www.ombudsman.gov.ie). The following extract from that Guide is relevant to the present case.

“Dealing “fairly” with people means -

• treating similar people in similar circumstances in like manner;
• accepting that rules and regulations, while important in ensuring fairness, should not be applied so rigidly or inflexibly as to create inequity;
• avoiding penalties which are out of proportion to what is necessary to ensure compliance with the rules;
• being prepared to review rules and procedures and change them if necessary;.........”

While it may have been administratively convenient and in line with the stated intention of publishing a ring-fenced and narrow scheme, it was not fair and was not in line with best administrative practice to allow no discretion under the Scheme at the vetting stage. In this regard it is important to note that the Scheme was self-limiting from the outset in that only persons who owned boats which sank at sea within the specified time frame could apply in the first instance so it could not be argued that an element of discretion built in to the Scheme would have had the potential to greatly expand the cohort of people who would be eligible for consideration. Furthermore, it was inevitable that further applications would have emerged other than the 16 cases which were known about in detail by Sea Fisheries Administration Division and it would not have been possible to predict how deserving those other cases were likely to be in the absence of more thorough research of the Marine Safety files before the Scheme was launched. This strengthens the case for introducing some form of discretionary element in to the Scheme. Such discretion could have been attached to individual eligibility criteria within Scheme or a general clause on discretion could have been inserted allowing for special consideration of exceptional cases at the vetting stage.

Because of the contrasting views of the Minister and his officials about the decision whether or not to have a Scheme my overriding impression is that once the decision was taken by the Minister to proceed, all those involved (officials and the Minister) lost sight of the broader need to bring principles of equity to bear in framing the Scheme criteria.

I should make the point here that, in my view, a number of the published Scheme’s criteria were fair and reasonable, given that the Scheme was a departure from normal policy and had to have limits and conditions. The Minister made the point at interview that his decision to amend the provision in relation to the subsequent sale of tonnage by successful applicants (see paragraph 5.16 above), was a response to particular concerns expressed by his officials. However, as stated above, in terms of its overall purpose, the Scheme lacked equity.

(c) The Way the Scheme was Advertised

The Scheme was advertised in the Fishing News of 22 June 2001, the Irish Skipper of July 2001 and the August 2001 issue of The Marine Times. This was in addition to the notifications which were sent on 8 June 2001 to the Producer Organisations. The Department also wrote directly to the people involved in 16 cases the details of which were held in the Sea Fisheries Administration Section of the Department, notifying them of the launch of the Scheme.

The officials who were interviewed said they were satisfied with the scale and type of advertising which was undertaken at the time. The view was expressed that there was an onus on the Fishing Organisations to spread the news. It was indicated that the fishing community was very tight knit and that the fishing trade papers were the equivalent of The Farmer’s Journal for the farming community.

Clearly, the advertising campaign worked to a considerable extent in that 67 applications ultimately came before the Department but, of course, the campaign did not succeed in alerting the Byrne family. In addition, I note from the Department’s records that two other requests for inclusion in the Scheme were received after the closing date. The Department also received an estimated further 5 phone calls from other potential applicants after the closing date, seeking to be considered under the Scheme.

It is quite apparent that a number of the Producer Organisations objected to the idea of the proposed Scheme and it is clear from the Minister’s note of 30 January 2001 (see paragraph 5.10 above), that if a Scheme was to go ahead at all, they wished it to be as restrictive as possible. In addition, during the consultation process, these organisations were asked to give their views on the suggestion that only a limited number of vessels would be likely to qualify under the proposed Scheme, but it seems that they provided no feedback on this point. All in all, I think it is reasonable to conclude that following the launch of the Scheme, it is unlikely that the Producers Organisations would have actively promoted the Scheme or would have sought to bring it to the attention of prospective applicants. It was individuals rather than representative organisations who had lobbied over the years for the introduction of a scheme, whereas the role of the Producers Organisations was to protect the interests of those boat owners who were on the Register and already had fishing capacity in their own right. For their part, the Department’s officials were of the view that the Scheme had the potential to undermine a long established policy to restrict fishing capacity and as such any published scheme should be as restrictive as possible.

Clearly, by writing directly to the people involved in the 16 cases (see above), the Department was putting them in a more advantageous position than other prospective applicants to the extent that they were made fully aware of the Scheme from the outset and could decide whether or not they wished to apply.

I also see a connection between the issue of Department’s lack of research (see section 7.5 (b) above), and the adequacy of the advertising campaigns. An analysis of the files in the Marine Safety Division would have yielded more information which could have assisted in a more targeted information campaign. For instance, files may have yielded names and contact details or simply the names of particular vessels and where and when they sank. Such information could have been used in the advertising campaign or through direct correspondence from the Department to alert a wider group of prospective applicants. The need for a comprehensive advertising campaign together with a well-researched and directly targeted information campaign would have been all the more important in this case in view of the fact that it was a once-off finite Scheme with a limited time-bound window of opportunity for the submission of applications.

Here again, the Ombudsman’s Guide to Standards of Best Practice for Public Servants is relevant as the following extract demonstrates:

“Dealing “openly” with people means -

•  making available and keeping up to date, comprehensive information on the rules and practices which govern public schemes and programmes;
• ensuring people know what information is available, where to get it and know of their right to access it in accordance with the Freedom of Information Act, 1997 and otherwise;......”

In its response to the Draft Investigation Report (see Appendix 4) the Department said it was its explicit view that the scheme, as with most schemes, correctly reflected a definite closing date or deadline. It went on to say that the Draft Report appeared to suggest that the scheme should have been launched on an infinite or immeasurable basis. It added that the application from the Byrne family was received over 12 months after the closing date, and did not, in any event, meet all the qualifying conditions of the scheme and the Department’s clear view was that it was correctly refused.

I accept that the Byrne’s application did not meet all the qualifying conditions of the scheme. I also accept that the criteria applying to schemes generally should be precisely drawn. This helps to ensure fairness and consistency in how individual applications are assessed. But, as I have already said, it is also important to ensure that the rules and regulations applying to schemes are not applied so rigidly or inflexibly as to create inequity. 

Turning specifically to the Lost at Sea Scheme, the point I would emphasise again is that as this was a once-off time bound Scheme which would convey benefits to persons among a narrowly defined class of potential applicants, then the importance of a very thorough and targeted advertising campaign became all the more crucial. Furthermore, it would have been administratively prudent and it would have been more equitable, in the context of this particular Scheme, to build in an element of discretion in relation to the assessment of applications received. There is a strong argument to suggest that the Byrne application was one that was deserving of benefit under the Scheme but the way the Scheme was advertised and the lack of discretion in the Scheme criteria prevented their application from being approved.

(d) Record-keeping Practices

My investigation of this complaint would have been greatly facilitated if the Department had prepared contemporaneous written records of the various discussions that took place between the Minister and his officials, between the officials themselves and written comments relating to the analysis of the various drafts of the Scheme. Good record-keeping goes hand-in-hand with good administration and on many occasions I have drawn attention to the importance of good record-keeping in ensuring proper accountability of public bodies. Record-keeping is particularly important at the political-administrative interface - a key consideration in this case and, indeed, in some other cases which gave rise to public controversy in recent years (see also my comments on this matter in paragraph 7.6 below). Fortunately, the records that were created on file and the level of cooperation I received from the Minister and the departmental officials has, nevertheless, enabled me to come to come to firm findings and recommendations in relation to this particular complaint.

In its response to the Draft Investigation Report (see Appendix 4), the Department said it disagreed with my finding (Number 4) in relation to record-keeping and commented as follows:.

“The Department is strongly of the view that there is clear and unambiguous record keeping with regard to the required objective of the scheme, the clear decision of the Minister to launch the scheme, the clear rules and conditions of the scheme, the equitable administration of the scheme and the outcome of the scheme”.

I do not fundamentally disagree with the Department’s statement. However I do not accept that it is either an accurate or complete refutation of my finding. As is clear from my comments above, my criticism of the Department in finding no. 4 relates principally to its failure to prepare records of discussions/meetings between the Minister and his officials and between the officials themselves.

7.6   The Scheme Preparation Process and Broader Issues of Public Administration

Looking at this case from the broader perspective of public administration generally, I was prompted to revisit the Report entitled “Certain Issues of Management and Administration in the Department of Health and Children associated with the Practice of charges for Persons in Long-Stay Care in Health Board Institutions and Related Matters” (known as the Travers Report), which was published in March 2005. It occurred to me that the Report covered ground and issues of relevance to this present case. In the aftermath to the publication of the Travers Report the then Tánaiste and Minister for Health and Children, Mary Harney, TD, issued a statement which expressed the view that the report “has wider relevance for all involved in the administration of health services and for the civil service...”

While the Travers Report related to the Department of Health and Children and was published after the events in this case, it has a clear resonance when looked at in the context of this current case and some of the points raised in that Report bear repeating here. In Chapter 6 (page 79) Mr Travers looked at the administrative lessons which should be learned from the nursing homes controversy. In this regard, he recommended certain changes to the practices and procedures of the Department. Among these were the following:

“(2) Analytical Capability: Ensure that the analytical input into important decisions taken at the level of the Department, Minister and Government is commensurate with the policy and operational importance of the decisions being taken.

(3) Transparency: Ensure that briefings for Ministers on important issues of policy or operations are comprehensive, fully inclusive of all (emphasis in report) relevant facts and adequately recorded.

(4) Records: Ensure at least a de minimus recording of decisions at official level and Ministerial level within the Department.

(6) Decision Making: Ensure that decisions are taken and recorded in a clear, transparent and timely way.... Bring reviews of policy and operational issues to a clear conclusion and record decisions taken and their rationale.

(8) Issues of Political Sensitivity: Be aware of issues of political sensitivity. Be responsive in dealing with them but do not allow issues of political sensitivity to compromise the integrity of the analysis undertaken and brought forward, the options for any associated decisions that require to be taken or the full articulation of the likely consequences of alternative decisions.”

The application of the foregoing guidelines in this present case would have yielded the following outcomes:

• A comprehensive analysis of all relevant files available in the Department;
• A detailed written analysis of the aims, purpose and pros and cons of the Scheme and its individual criteria;
• Adequate written records of all major interactions, including meetings and discussions, between officials and between officials and the Minister.

In terms of this present case, I also take the view that in formulating schemes, public servants should have regard to the principles of equity and proportionality and should seek to provide the necessary scope for discretion to allow for due consideration of cases which might not fit neatly within the confines of eligibility criteria but may, nonetheless, have merit having regard to their particular circumstances. Of specific relevance here, and as mentioned earlier, are the Principles of Good Administration and the Ombudsman’s Guide to Standards of Best Practice for Public Servants.

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