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14 December 2009 - Lost at Sea Scheme

Part Two - 10. Recommendations

The Byrne Family

In my concluding remarks in the findings section of this Report I outlined the approach I had taken to the Byrne family’s complaint. As I have stated, my approach to this case was to consider first whether the Byrne family actually met the eligibility conditions of the Scheme 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.

I have found that the Byrne family application did not meet at least two of the conditions of the Scheme, as published and that the family was adversely affected by the decision to refuse their application under the Scheme. I have also found that the design of the Scheme and the manner in which it was advertised was contrary to fair and sound administration. Based on my analysis of all the evidence available to me I am satisfied that these shortcomings were factors in the Byrne family not qualifying for assistance under the Scheme and that they should be granted a remedy for the adverse affect they have suffered as a result of these shortcomings in the Scheme.

Because the Scheme has long since expired and because of subsequent developments in relation to Ireland’s sea-fishing capacity it would be inappropriate to attempt to apply the terms of the Scheme by way of a remedy - even though this is precisely what the Byrne family is seeking. Besides, I could not recommend that the Department apply the terms of the Scheme to the Byrne family in circumstances where their application did not meet at least two of the qualifying conditions. However, as I have said, I am satisfied that the Byrne family’s circumstances were of a type which ought to have benefited under the Scheme and indeed, probably would have, had the Scheme been broader in scope with an appropriate discretionary provision and had it been more widely advertised.

In the circumstances, I consider that the appropriate remedy for the adverse affect suffered is monetary compensation. However, I recognise that were I to recommend a specific figure at this stage this might be seen as arbitrary by either the Department or the complainant, or indeed, both.

Accordingly as a first step and with a view to devising a rational and reasoned approach to the calculation of compensation I recommend that the Department of Agriculture, Fisheries and Food use the calculation methods set out in the 2008 Decommissioning Scheme, as applicable to others who were successful under the Lost at Sea Scheme. The calculated sum should be submitted to my Office for consideration with an explanation as to the methodology used in arriving at the proposed amount. On receipt of the Department’s calculations I will then proceed to recommend a specific compensation figure.

Record Keeping Practices

I recommend that the Department carefully consider my comments and findings about record-keeping practices in this particular case with a view to putting in place improved arrangements to ensure better accountability for decision making, particularly in relation to interactions between Ministers and officials.

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