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14 December 2009 - Lost at Sea Scheme

Part Two - Investigation Report (Section 9. Findings)

Concluding Remarks

This is an unusual case in many respects. When I receive a complaint from a person who has been denied a benefit under a scheme (for example, a medical card or unemployment benefit), my examination of that complaint is usually, but not always, limited to a consideration of the terms and conditions of that scheme and an analysis of whether the complainant did or did not meet the relevant criteria.

In this case, I have had to consider, not just the Department’s decision to refuse the Byrne family’s application under the Lost at Sea Scheme, but also questions pertaining to the purpose, design and publication of the Scheme. The latter questions are relevant in this particular case because of the nature of the Scheme. It was a non-statutory, once-off scheme, designed to benefit a specific class of persons and, most importantly, was time-bound. Applicants had a once-only opportunity of qualifying for, and benefiting from the terms of the Scheme. In essence, my approach to this case was to consider first whether the Byrne family actually met the eligibility conditions of the Scheme - and it is clear from this report that they did not meet at least two of the stated conditions - and second, given the circumstances of the family’s tragic loss and the stated purpose of the Scheme, to consider whether from the outset, it was properly designed and later, adequately published. In other words, my investigation considered not just the question of whether the Byrne family met the conditions of the Scheme, but also whether the design of the Scheme and the publication arrangements were factors in their not qualifying under the Scheme in the first place.

The case is also unusual in that it embraces the actions both of a Minister and those of his officials. Most of the complaints I examine, relate solely to the actions of officials. This is hardly surprising. One only has to think of the myriad decisions made by civil and public servants as they go about the daily business of delivering services to the public. In terms of the overall number of transactions, the actual number involving Ministers, and, in turn, the potential number of complaints relating to their actions, will always be relatively low. Of course, in law, insofar as civil servants are concerned, all acts of a Department and of its officials are the acts of the Minister by virtue of the legal status of a Minister as a corporation sole. This remains the position despite the changes to the accountability of Secretaries General and senior civil servants provided for in the Public Service Management Act, 1997.

The Ombudsman Act, 1980, also recognises the legal position of Ministers vis-à-vis their Departments but specifically states that references in that Act to any Department - for example, where a complaint is made about the actions of a Department - include references to the Minister, the Minister(s) of State and the officials of the Department. This allows the Ombudsman the freedom to scrutinise the administrative actions of officials separately from those of the Minister or Minister of State and thus recognises the reality that many actions, in practice, are carried out by officials rather than by Ministers. But, of course, the Act does not limit the Ombudsman to scrutiny of the actions of officials only.

The usual dynamic between officials and Ministers is that the officials provide policy advice, Ministers make policy decisions and policy implementation is a matter for the officials. In contrast to most cases that I examine, the present case demonstrates clear evidence of the active participation of both the Minister and his officials throughout the Scheme formulation process. He and his officials were deeply involved in defining the objectives of the Lost at Sea Scheme, in designing it, (for example, the Minister amended certain elements of the Scheme criteria which restricted its overall scope and protected it from being abused (see 5.16 above)), developing the eligibility criteria and bringing the Scheme to the attention of some prospective applicants.

It is also clear that the Minister and his officials held opposing views about the desirability of introducing such a scheme in the first place. While the Minister was clearly determined to introduce a scheme and saw it as desirable, based on his first-hand knowledge of a number of hardship cases which had come to his attention. By contrast, the officials were concerned that it would be difficult to limit the Scheme to the genuinely deserving cases, that this would open the floodgates to other claims and, in turn, erode the Department’s policy on regulation and the allocation of tonnage and licences.

There is nothing intrinsically wrong with this approach to designing a scheme. In essence, the approach encapsulates how government works. Considerations ranging from political imperatives, known hardship cases, a desire to address an injustice, protection of the regulatory process in relation to the allocation of tonnage and licences and the public interest, all coalesce and the task of balancing these competing interests results in compromise. Nonetheless any compromise cannot lose sight of the principle of equity in relation to everyone potentially affected by that compromise.

As I have outlined in this report, there is very clear documentary evidence from the Department’s files in relation to the Minister’s determination to proceed with a scheme. There is also clear evidence, again outlined in my report, of the reasons why the officials were opposed to the introduction of a scheme. However, the Department’s files contain little or no evidence as to how the Minister and his officials reconciled these opposing views and arrived at a compromise and the specific criteria which became the basis for the published scheme. What is clear is that the actions of both the Minister and his officials resulted in a scheme which was too focused on known cases and which wrongly excluded some deserving cases. Its overall design was faulty, it left no scope for the exercise of discretion in the event of further deserving cases coming to light following the receipt of applications and paid insufficient attention to the basic Principles of Good Administration and the Ombudsman’s Guide to Standards of Best Practice for Public Servants.

In its response to the Draft Investigation Report (see Appendix 4), the Department objected to my contention that the actions of the Minister and his officials resulted in a scheme which was “too focused on known cases and which wrongly excluded some deserving cases”. It added that the Department and the officials interviewed had indicated that the Scheme was not drafted by reference to those known cases, but was, rather, designed from first principles, in the context of overall licensing policy. For his part, the Minister stated (see 7.5(a) above) that while he made references to ring-fencing 6-8 cases under the Scheme he did not have particular cases in mind and these were indicative figures provided to him by the Department. 

With regard to the comment that the Scheme was not drafted by reference to known cases, as I have already said (see paragraph 7.5(a) above), 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. While I can accept that this was the case, it is clear from my examination of the files that the officials were aware of the details of several individual cases which might potentially benefit from any scheme that was introduced. I would be surprised if knowledge of these cases did not, at some level, inform the design of the scheme. After all, there is nothing improper with using real cases to test the purpose and intent of a proposed scheme - indeed, it is usually desirable to do so from a good administration point of view - provided the final version of the scheme allows for all similar cases to be treated in like manner. In this particular case, it seems to me that the officials set about designing a scheme which was fair and equitable and which potentially would allow for other cases to qualify above and beyond those cases which had already come to their attention. The Minister, too, seemed to be of similar intent; he is on record as stating that he was anxious to ring-fence genuine cases and if this meant that 50 cases ended up being eligible then he would not be concerned as long as they were genuine. However, my fundamental point is that the Scheme as implemented did not, in fact, properly reflect its purpose and intent. More thorough research on lost at sea cases should have been carried out, throughout the Department, for the reasons I have set out at 7.5(b) and 7.6 above. As a result, the criteria did not capture every deserving case and there was no room to exercise discretion in relation to those small number of cases with unforeseen circumstances which did not meet the criteria but which, nevertheless, fell into the category of cases that the Scheme was intended to cover. I believe it would have been possible to administer the Scheme on this basis while at the same time confining it to those cases that it was intended to cover.

In its comments on the Draft Report (see Appendix 4), the Department said my Report appeared to suggest that the Scheme should have been launched on an infinite or immeasurable basis. It should be clear from my comments above that the Department is mistaken in this view.

Having regard to my remarks above, my findings below apply to both the Minister and his officials.

In commenting on the Draft Investigation Report, the former Minister said it was unfair and inequitable to apply my findings to both the Minister and his officials. Among the arguments which he put forward was that the Public Service Management Act, 1997 provides a distinction between the responsibilities of the Secretary General of a Department and the Minister and in particular, provides that the Secretary General of the Department “shall, subject to determination of matters of policy by the Minister of the Government,...have the authority, responsibility and accountability for carrying out” a number of duties, including “implementing Government policies” (emphasis added by the former Minister). He said he had at all times acknowledged that the introduction of the Scheme was a policy decision of his as then Minister, but its implementation and administration was carried out by his officials within the Department.

With regard to the Public Service Management Act, I have already set out the legal position in the preceding paragraphs. While the Act does, indeed, set out the responsibilities of the Secretary General of a Department these are not in law mutually exclusive from those of the Minister. In law, despite the changes in accountability provided for in the Act, all acts of a Department and its officials are acts of the Minister by virtue of the legal status of a Minister as a corporation sole. However, while that is the strict legal position it should be clear from my Report that there was clear evidence of active participation by both the Minister and his officials throughout the scheme formulation process.

I find that:

1. The Byrne family application did not meet at least two of the conditions of the Lost at Sea Scheme, as published. The family was adversely affected by the decision to refuse Ms Winifred Byrne’s application under the Scheme.
2. The way the Lost at Sea Scheme was designed was contrary to fair and sound administration. The specific weaknesses in the design process included, lack of adequate research, lack of thorough documented analysis of the pros and cons of the various criteria and a failure to include provision for discretion in the vetting of applications.
3. Given that this was a finite, once-off Scheme, aimed at a specific class of individuals the Scheme was not advertised adequately. The advertising process should have been more thorough, comprehensive and targeted. In addition some prospective applicants were put in a more advantageous position than others as they were written to directly by the Department and the Minister to inform them about the Scheme when it was launched. Overall, the manner in which the Scheme was advertised was contrary to fair and sound administration.
4. There is clear evidence of poor record-keeping practices leading up to the sign-off of the Scheme, including a paucity of records, lack of written records of meetings and deliberations, a lack of written analysis of the various drafts of the Lost at Sea Scheme and limited records of the interactions/directions between the Minister and his officials.

With regard to finding number 3 the former Minister, in responding to the Draft Investigation Report, objected, inter alia, to the suggestion that he was responsible for the advertising campaign. He said that this was a matter for the civil servants in the Department. Having said that, he also expressed the view that the advertising campaign was reasonable and satisfactory. While I accept that the media campaign was planned and executed by the Department’s officials I note that the Minister wrote to some prospective applicants (see paragraph 5.17 above) at the time of the launch of the Scheme in order to alert them to it. To that extent, finding number 3 applies to the Minister as well as the officials. Let me add that I am not calling into question the long-established protocol whereby Ministers communicate directly with their constituents. What I am concerned about is the advantage conferred on some prospective applicants who were notified of the Scheme by the Minister and the Department as compared to others who were not so notified.

In relation to other comments made by the former Minister, (see Appendix 5), where appropriate, I have amended my Report or included his comments in the body of the Report.

For its part, the Department also made a number of comments in relation to my findings (see Appendix 4). Where appropriate, I have amended my Report or included these comments in the body of the Report.

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