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Annual Report of the Ombudsman 2006

Date released: 20.06.2007

The Ombudsman, Emily O'Reilly, has today published her Annual Report for 2006. This report covers her third full year in office since taking up duty as Ombudsman on 1 June 2003. The Ombudsman reports annually to the Oireachtas and the general public on the work of the Office and on issues and cases of interest arising during the year.

During the year Emily O'Reilly identified a high proportion of cases which could be grouped around a single issue, viz., the failure of public bodies to act correctly in accordance with the law and any other rules and regulations. She has devoted Chapter 2 of her report to this issue and gives details of a number of relevant cases under the title "Getting it Right" .

 The full text of the Annual Report is available at http://www.ombudsman.gov.ie

 Main features of the Annual Report:

Chapter 1 - Introduction

 In the Introduction the Ombudsman comments as follows on how the scope of her jurisdiction has not kept pace with changes that have occurred in recent years in the Irish public service.

 "Over the years there has been a hiving off of functions which were traditionally within the remit of Ministers and their Departments and the creation of new single-purpose agencies, for example, FÁS, the Environmental Protection Agency and the Health and Safety Authority. The practice of creating new agencies has accelerated in more recent times. There are now over 450 such bodies in existence, only a handful of which come within my remit as Ombudsman even though, paradoxically, many do come within the scope of freedom of information legislation. Other accountability mechanisms are also lacking in that they are subject to little or no parliamentary oversight and there has been a diminution in Ministerial responsibility and control over functions which formerly were part of the relevant department. The need for legislation to correct this accountability deficit and to allow users of the services of these public bodies to complain to the Ombudsman, is long overdue."

Chapter Two

: "Getting it Right".

Commenting on the theme of her Report the Ombudsman makes the following observations;

"More often than not, on first receiving a complaint, the starting point for my Office in the complaint examination process is to examine the extent and nature of the authority which underpins the action complained of. If I find that the public body has exercised its authority improperly or unfairly, has exceeded its authority, or, indeed, had no authority to take the action complained of, then I will consider whether appropriate redress is warranted in any particular case where the complainant has been adversely affected."

She reports on a number of complaints which illustrate the theme of her Report including the following case:

A woman felt her husband was being overcharged by the Health Service Executive (HSE): Western Area for in-patient services in a nursing home. It appeared that, in calculating the fee for her husband, the HSE took the wife's income into account also. Her husband's sole income was €96.10 per week but that he was being charged €120 per week for in-patient services. This was €23.90 in excess of his weekly income. She felt that the HSE should only have assessed her husband's income and it should not have taken her income into account.

The relevant legislation is the Health (Amendment) Act, 2005 and the Health (Charges for In-Patient Services) Regulations, 2005. The Ombudsman also examined the National Guidelines on Long Stay Charges which were issued by the HSE in July 2005. The Ombudsman was satisfied that it is the income of the person to whom the in-patient services are provided that should be assessed when determining the correct weekly charge. There was no provision in the parent legislation permitting the income of the wife to be taken into account when calculating the fees for the husband.

However, in drawing up the National Guidelines on Long Stay Charges the HSE had provided that, in respect of married couples, the income of the spouse should be taken into account in calculating the charges levied. This provision was not in harmony with the parent legislation. The Ombudsman asked the HSE and the Department of Health and Children to review the position.

The Department agreed that it is the income of the person to whom the in-patient services are provided that should be assessed when determining the weekly charge. It also acknowledged that the original National Guidelines on Long Stay Charges, which in respect of married couples, took into account the income of the spouse when determining the charges levied, were not consistent with the provisions of the Health (Amendment) Act, 2005 or the Health (Charges for In-Patient Services) Regulations, 2005.

Arising from the complaint the HSE prepared revised national guidelines which provided that, in the case of a married couple, only the income which can be attributed to the person to whom the services were provided should be assessed, and, in cases where no income can be attributed to that person, no charge should be levied.

The Ombudsman felt an apology and compensation were warranted in this case. She also suggested that, in calculating any compensation due, and to cater for the loss of purchasing power, the HSE should use the Consumer Price Index to update any refund due. Given the systemic issue which this complaint highlighted, she also asked the HSE to review all other individuals who were assessed in similar circumstances.

A total refund of €1,126 was made to the complainant. It also apologised to the complainant and her husband for the inconvenience which she experienced as a result of its mis-interpretation of the parent legislation and regulations. In addition, the HSE confirmed that refunds of €131,000 were made to fifty-one families who were deemed to have been overcharged in the short period July 2005 to July 2006. This represented an average refund of over €2,500 per family.

Individual cases reported on in

Chapter Three include:

Department of Social and Family Affairs

A man complained about a refusal by the Department of Social & Family Affairs to pay him arrears of Disablement Benefit. This is a benefit which is payable to persons who, as a result of an accident at work or a prescribed disease contracted at work, suffer loss of physical or mental ability.

The man had an accident at work in 1979 severely injuring his back, following which, he was paid Disability Benefit, a short term payment to people who are incapable of working. He said he was examined some months later by one of the Department's Medical Referees (periodic examinations are carried out on Disability Benefit recipients to check on their continued entitlement) and his payment was maintained. In 1982, with the help of his local public representative, he submitted a successful application for Invalidity Pension. This is a payment for people who are permanently incapable of work because of illness or incapacity and who satisfy certain PRSI contribution conditions.

The man had been in contact with the Department on a number of occasions from 1982 about matters concerning his claim. However, when he telephoned the Department in February 2003 an official asked him why he was not in receipt of Disablement Benefit. He indicated that he was unaware of this payment and set about submitting an application which required corroborative evidence from a former colleague who had witnessed his accident in 1979. He was subsequently examined by one of the Department's Medical Assessors who determined that he had suffered a loss of faculty amounting to 80%, all of which was attributed to his occupational accident. He received payment of Disablement Benefit which was backdated for three months prior to his application as provided for in the regulations governing the scheme.

He then applied for arrears of Disablement Benefit on the basis that he was never made aware of the existence of the scheme; he had had a number of contacts with the Department between the time he originally applied for Disability Benefit in 1979 up to the time he was made aware of the scheme in 2003. His application was rejected by the Department's Deciding Officer on the basis that his claim was late and that he had received the appropriate arrears (three months) as provided for in the Department's Claims and Payment Regulations governing the submission of late claims.

He appealed the matter to the Social Welfare Appeals Office. An oral hearing of the appeal was convened following which the Appeals Officer expressed the view that it was extraordinary that the man's entitlement to Disablement Benefit had not been identified, particularly as his claims for Disability Benefit and Invalidity Pension had been processed for so long, without the root cause of his injuries coming to light. She referred the matter back to the Department for review. However, the Department indicated that only records from 1996 were available. The Appeals Officer made the comment that the previous papers would have been helpful in determining whether the man had enquired about or had been informed by the Department about his entitlements. She concluded, however, on the basis of the available evidence, that she could not recommend payment of any further arrears and she disallowed the appeal.

The Ombudsman put it to the Department that it was clear that he had been adversely affected by the loss of his entitlement to Disablement Benefit over a twenty four year period from 1979 to 2003. It was clear that information as to the possibility of entitlement was not provided to him by the Department, otherwise he would certainly have made a claim at the appropriate time. The Department also had the opportunity to consider and review his case on a number of occasions when he had been in contact with those officials.

The Department subsequently agreed to backdate payment of Disablement Benefit to the date of original entitlement in 1979 and the man received an arrears payment of €92,213.

Health Service Executive

The mother of a young girl complained about the refusal of her application for Domiciliary Care Allowance (DCA) in respect of the child by the then Midland Health Board (now Health Service Executive (HSE): Midland Area). The young girl, aged nine, had been involved in a road traffic accident and had been admitted to hospital suffering from head injuries and breathing problems. She had subsequently been transferred to the National Rehabilitation Hospital (NRH) in Dún Laoghaire for assistance with her speech and mobility, and had been assessed as having a mild learning disability. The criteria for eligibility for DCA is that a child must be suffering from a mental or physical handicap that is so severe that they require from another person constant care or supervision substantially greater than that which would normally be required by a child of the same age. As this young girl was assessed as functioning within the range of borderline ability, the application for DCA was refused, and the appeal made by the child's mother had also been refused on medical grounds.

The Ombudsman noted that the child, who had returned to school following her accident, had the assistance of a special needs assistant, and a resource and remedial teacher which was organised for her by the NRH. She also needed to attend physiotherapy and speech and language therapy on a regular basis. The child had ongoing difficulties with social skills, attention and concentration, impulsivity, behavioural and sleeping problems. It seemed logical to the Ombudsman that if the child required such a high level of assistance in school, then equally she must require a substantial degree of extra care and attention in the home.

Her mother, who was separated from her husband and had three other children to look after, sought practical support from the HSE via the "In Home Care Relief Service", and this request was supported by the NRH. However, despite this request nothing had actually been done to provide practical support and assistance for the family.

The Ombudsman asked the HSE to see what support could be put in place for the child and her mother, and to re-examine the issue of the child's eligibility for DCA. Up-to-date medical reports were submitted by the Senior Clinical Psychologist caring for the child in the NRH which stated that she was experiencing huge behavioural problems, and that the damage caused to her brain following the accident was likely to cause her lasting problems in all spheres of her life. The HSE decided to deem her eligible for DCA and agreed to back date the allowance to February 2002. The HSE also agreed to make in-home care relief and family counselling available, particularly when the child was in her final year in national school and would benefit significantly from this practical support.

Local Authorities

A woman complained to the Ombudsman in March 2006 that South Dublin County Council should not have sold the family home to her brother under the Tenant Purchase Scheme (TPS) because she had a right of residence there. Her brother had been awarded tenancy of the house in 1996 and at the time signed an agreement stating that his sister and their mother would always have a right of residence. Having purchased the house from the Council, her brother then sold it privately and asked his sister, with a child, to leave. She claimed that the Council was aware that she had a right of residence and sold the house to her brother without consulting or informing her. She applied for housing to the Council in November 2003 but received a letter in January 2004 advising that as she had a right of residence she couldn't be considered for housing. The woman wrote several letters to the Council and following a review of her correspondence it placed her on the housing list and gave her the full benefit of housing points retrospective to her initial application in November 2003.

The Council said that the information on the right of residency was maintained in Allocations Branch and that Allocations Branch had nothing to do with the sale of the house. Housing Sales Section said it was unaware of the right of residency until after the sale. As a result of poor communication systems within the Council, the complainant's right of residency was not taken into consideration with the result that she and her child had to leave the family home. The Council then used the right of residency agreement as a reason for not including her on the housing list.

Following the Ombudsman's intervention the Council, it agreed to offer the complainant a new 2 bed apartment in her area of preference by way of remedying the complaint. The complainant was happy with this solution. The Ombudsman asked the Council to put in place new procedures to ensure that a similar situation would not arise in the future.

 Statistics: Chapter 5

Emily O'Reilly received a total of 2,245 valid complaints during 2006 compared to 2,243 complaints in 2005. In addition to actual complaints, Ombudsman staff also dealt with enquiries from members of the public. Between valid and invalid complaints and enquiries, almost 11,400 people contacted the Ombudsman's Office during 2006.

Adding on complaints carried forward from 2005, which totalled 838, the Office had 3,083 valid complaints on hands for 2006.

Of the 2,187 complaints concluded in 2006: 370 (17%) were resolved, in whole or in part; and in 526 (24%) cases assistance was provided. In effect, 41% of complainants were better off as a result of having contacted the Ombudsman. As regards the distribution by sector of valid complaints received, 39.6% related to civil service departments and offices, 37.6% involved local authorities, 17.7% related to the Health Service Executive, and 5.1% to An Post.

 

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Further Information: Tom Morgan at 01-6395600, Fax 01-6395674, e-mail: tom_morgan@ombudsman.gov.ie

 The Annual Report of the Ombudsman 2006 is available in pdf and html formats.

Website: www.ombudsman.gov.ie

Note for Editors:

The Ombudsman - A Brief Guide

What is the Ombudsman's Role?

The Ombudsman investigates complaints from members of the public who feel they have been unfairly treated by certain public bodies. Her Office is impartial and completely independent of Government. If she finds a complaint justified she may recommend appropriate redress.

What Can the Ombudsman Do?

The Ombudsman has extensive powers in law. She can demand any information, document or file from a body complained of and can require any official to give information about a complaint. She can look into all administrative actions including:

• decisions 
• refusal or failure to act
• administrative procedures

Who Can Complain and How?

Any individual, public representative, company, or organisation can make a complaint. Complaints can be made in writing, by telephone, fax or email, or by calling to the Ombudsman's Office.

Which Public Bodies are Subject to Investigation?

• Government Departments and Offices
• Local Authorities (County Councils, City Councils etc.)
• Health Service Executive
• An Post

When Should You Complain?

Before you contact the Ombudsman you must first try and solve your problem with the public body concerned. If you fail to resolve your problem and feel that the public body has not treated you fairly, contact the Ombudsman. When making a complaint try to give as much information as possible including any copies of letters and reference numbers.

What Will it Cost?

Nothing. There is no charge for dealing with complaints.

How Will the Ombudsman Deal With Your Complaint?

The Ombudsman's staff will screen the complaint to see if it falls within her remit and whether there is a basis to take it up with the public body. In the majority of cases complaints are resolved satisfactorily in a very informal way, for example, by discussing the problem with the public body or by examining the relevant files. In the more complex cases a formal investigation may be required.

If the Ombudsman finds that your complaint is wholly or partially justified, she will report this to the public body concerned. She may recommend that it should review its action, change its decision, or offer some form of appropriate redress.

Will the Recommendation of the Ombudsman be Accepted?

The Ombudsman has no power to force a body to accept or act upon her recommendation. If it does not, she may find it necessary to report on the matter to the Houses of the Oireachtas.

Are There Areas That the Ombudsman Cannot Investigate?

Yes, she cannot investigate:

• the actions of private companies or individuals, private practitioners, dentists, opticians, pharmacists, etc.;
• actions taken in connection with clinical judgement by doctors;
• the "reserved functions of Local Authorities", for example, those functions exercised by elected members of local authorities;
• complaints relating to recruitment, pay and conditions of employment;
• court decisions, matters which are already the subject of court proceedings,
• the actions of the Gardaí or actions taken in the running of the prisons;
• where there is a right of an appeal to an independent tribunal or appeal body such as the Appeal Commissioners of Income Tax.

The Ombudsman and the Disability Act 2005

The Disability Act 2005, which became law on 8 July 2005, imposes significant obligations on Government Departments and on Public Bodies to work proactively towards the improvement of the quality of life of people with disabilities.

The Act also gave the Ombudsman new powers to investigate complaints about compliance by public bodies and others with Part 3 of the Act (i.e. accessibility of buildings, information and services).

The Ombudsman does not have any role in relation to other Parts of the Disability Act, 2005 (for example, assessment of needs [Part 2] or public service employment [Part 5] ). The Act contains separate complaints and/or monitoring arrangements for these.

 

List of Special Reports on Systemic Issues Published by the Office of the Ombudsman

Non-Payment of Arrears of Contributory Pensions March 1997

Provision of School Transport for a Child with Disabilities February 1998

Passengers with Disabilities August 2001

Redress for Taxpayers November 2002

Care of a Patient at Sligo General Hospital July 2005

Complaints Against the Public Health Service May 2006

Complaint About an Application to foster three sibling children June 2007

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