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14 December 2009 - Lost at Sea Scheme

Part Two - Investigation Report (Section 8. The Byrne Family and the Lost at Sea Scheme)

As already stated, this investigation involves the examination of one complaint only, that of the Byrne family. In carrying out my investigation I did not examine or consider the merits of any other applicants who applied under the Lost at Sea Scheme but were not successful. I should make the point that the present complaint stands or falls on its own merits, having regard to the rationale behind the Scheme and the way it was formulated and advertised. It should not be assumed that the outcome of this complaint would necessarily imply a similar outcome to a complaint to my Office in future by other unsuccessful applicants. In this regard, it should be noted that, with the exception of my comments about the absence of a discretionary element, many of the criteria in the Scheme, as published, appeared to me to be fair and reasonable and consistent with the purpose behind the Scheme. I should point out 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. When I examined those complaints I concluded that their particular circumstances were such that they did not have a reasonable case to suggest that they were entitled to be granted replacement capacity under the terms of the Scheme, as published, and I informed them accordingly. These complaints differed substantially from that of the Byrne family.

In its response to the Draft Investigation Report the Department stated that it was scrupulous in administering the Scheme in that each applicant was treated fairly under the Scheme within specific terms, rules and conditions. I have no evidence to suggest that this was not the case and I accept the Department’s assurances on this particular point.

In drafting the Scheme, even if further background research had been carried out (see paragraph 7.5(b) above), it would not have been possible for the Department to fully anticipate the scale and precise nature of the applications that were likely to be received. The rationale behind the Scheme, as outlined to me by the Department, was that “the purpose of the Scheme was clearly for sustaining or maintaining a family tradition of sea-fishing”. I have concluded that the circumstances of the Byrne family were such that they might reasonably be deemed to fall within a category of cases that would be deserving of assistance under the terms of the Scheme, having regard to its overall purpose.

The apparent reasons why the Department decided the Byrne family’s application could not succeed was a) that it was not submitted by the due date of 31 December 2001 and b) because the application, even if received on time, would not have met condition (c) of the Scheme which requires that “the boat in question is shown, by reference to logsheet returns or other appropriate records, to have been in active and continuous use for a considerable period of years by the person concerned for sea fishing of a category now covered by the replacement policy rules, until its loss at sea”. For the purposes of vetting applications under the Scheme a ‘considerable period of time’ was interpreted by the Department as being a two year period but Mr Byrne only purchased the Skifjord in 1981 and it sank in October of that year. On the face of it, these grounds for rejections were in accordance with the terms of the Scheme as advertised.

However, my view is that due to the way the Scheme was researched and advertised and brought directly to the attention of some potential applicants and not to others (see paragraph 7.5(c) above), rendered it likely that other potential applicants who submitted late applications (including the Byrne family) would be unfairly denied eligibility under the Scheme. I am also of the view, given the stated rationale behind the Scheme and the circumstances of the Byrne family’s case that condition (c), which allowed no discretion, was unduly restrictive and was unfair. The Department itself told me that the overall purpose of the Scheme was to “sustain or maintain a family tradition of sea-fishing.” The fact that the Byrne family, and possibly others, had used a number of boats sequentially to secure livelihood through sea-fishing should not have prompted an automatic exclusion from the Scheme. The timing of the acquisition of the second boat - four months before it sank - did not dilute the family’s involvement in and commitment to sea-fishing. Yet this arbitrary fact, and the non-discretionary rules of the Scheme would have excluded them from it, even if they had met the closing date.

To my mind, the Scheme design was faulty and inequitable as it allowed no leeway to the Department (leaving aside the issue of the late application) to look further at the merits of the Byrne’s application, once it was decided that condition (c) was not met. Given the background to the formulation of the Scheme, good administrative practice would have suggested that an element of discretion should have formed part of the published Scheme so that all applications could have been given due consideration on their individual merits.

While I accept that the advertising campaign did yield 67 applications and the Sea Fisheries Administration Division was only aware in detail of 16 cases initially, I have concluded that the way the Scheme was advertised (see paragraph 7(c) above), was too restrictive and could have been more comprehensive and targeted. It is clear that, apart from the Byrne family, up to seven others sought to be considered after the closing date and there may be others of whom I am not aware and who never made contact with the Department once they realised the Scheme was closed.

At interview, and again in his comments on the Draft Investigation Report,  the former Minister claimed that he did not view the Scheme as being intended to apply to potential applicants such as the Byrne family because as far as he was aware they had left the industry in 1983. Furthermore, in its response to the Draft Investigation Report (see item 3 of Appendix 4) the Department stated that the advertising campaign was aimed at “notifying potential applicants engaged in the sea-fishing industry and who are continuing a family tradition of sea-fishing.” The reality is that, subject to the other criteria, the overall class of persons who could apply, as defined by the published Scheme criteria, were former skippers and owners (but concessions were granted to immediate family member also) who had lost their boats at sea after 1 January 1980 and the Byrne family clearly fell within this class.

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