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Annual Report of the Ombudsman 1994

Chapter One

Introduction

I took up my appointment as Ombudsman on 1st November 1994 and I am conscious, in preparing this report on the work of the Office for the year 1994, that most of that work was done by my predecessor, Michael Mills. Michael was Ireland's first Ombudsman and, in his 10 years in office, his sense of public duty, his firmness of purpose and his instinct for absolute fairness contributed in a major way to the position occupied by the Office today.

In his final Annual Report, that for the year 1993, Michael Mills reviewed the previous 10 years and emphasised that the Office of the Ombudsman is now accepted and recognised by all as an independent agency which impartially examines complaints and which takes every possible step to have cases of genuine grievance resolved. He pointed out that the Office had succeeded in resolving many thousands of complaints, most of which would never have been resolved without its existence. He pointed to the significant changes in our legislative and administrative system to which he and the Office had contributed.

In this report, as well as reviewing the year's work, I want to deal with what the future holds for the Ombudsman's Office, and to emphasise that, as well as resolving individual complaints, we hope to contribute to improving standards in the public service as a whole. It may be useful to set out some of the principles of good administration to which all public servants should adhere; these are derived largely from the complaints dealt with by the Office and attempt to address what I perceive to be the underlying problems faced by the public in dealing with public bodies. I also outline what I regard as the rights of citizens as consumers of these public services.

I will comment on Government plans for the Office as outlined in "A Government of Renewal", the policy agreement concluded by Fine Gael, The Labour Party and Democratic Left in December 1994. In addition, a significant development in the public service is the Strategic Management Initiative and I will refer to our own efforts in this area to improve the standard of service which we in the Ombudsman's Office provide.

The Role of the Ombudsman's Office

The Ombudsman's Office was established as an independent body by the Oireachtas; it is charged with the objective examination of complaints and to report to the Oireachtas; to identify instances of maladministration, their causes and to recommend redress. It is this independence which gives the Ombudsman the public credibility to perform his functions and which also leads the various bodies within his remit to have confidence in him. The Ombudsman gives the citizen the capacity to question the administration and, in many instances, the Office represents an avenue of last resort for the citizen aggrieved by actions of the public service.

The Office also has a role, however, in contributing to the elimination of what may be termed the root causes of many of the complaints encountered. We strive to improve standards of public administration by identifying the underlying causes of maladministration and suggesting improvements. It is obviously a matter for each department or agency to take whatever steps are necessary to prevent the recurrence of maladministration. Increased co-operation and dialogue between the Ombudsman's Office and the individual organisations on improvements in administrative practices and procedures would be most desirable and I hope to help this develop.

Accountability

An effective democracy requires that both elected and non-elected public servants should be held accountable for their actions. Accountability may take different forms and operate at different levels. The most demanding is political accountability which requires elected representatives, at fixed intervals, to put themselves before the people for re-election. Accountability for the management and use of resources is another form with which we are all familiar. This is aimed at ensuring that monies raised by, or given to, public authorities are not only properly used but are also used in an efficient and effective manner. The process is validated by independent external auditors; the Comptroller and Auditor General for all the public service except the local government service which is subject to its own Local Government Audit Service.

Another form of accountability, which is perhaps not so widely discussed, is what I would call administrative accountability. This is the process of ensuring that public service activities and, in particular, the exercise of decision making powers, whether discretionary or otherwise, are carried out not only in a proper legal manner but in a manner consistent with fairness and good administrative practice.

This is the area in which I and my Office and indeed, the courts operate. Just as financial auditors examine the activities of the public service against certain financial principles and criteria, I examine their activities against the background of what are commonly referred to as the principles of good administration.

Principles of Good Administration

In exercising their powers, including those of decision making, whether discretionary or otherwise, public bodies should ensure that the following basic principles are adhered to:

• powers must only be used for the specific purpose for which they are given;
• powers must be applied with objectivity and impartiality - factors not relevant to the particular case must be disregarded;
• unfair discrimination must be avoided - like cases must be treated in like manner;
• public bodies must ensure that an appropriate balance is achieved particularly in relation to any penalties or adverse effect - known as the principle of proportionality; this may be of particular interest where a body must decide between the needs of the common good and the rights of a particular individual;
• public bodies must avoid undue delay - particularly in cases where practical difficulties may arise for the individual as a result or where uncertainty may be created;
• public bodies must have available general administrative guidelines to which the public at large may refer;
• in addition, 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.

Many of the cases outlined in this report highlight the failure by public bodies to observe one or more of these principles; these are the principles which I intend to apply in examining the complaints which come before me. These criteria may well be a feature of the proposed Administrative Procedures Act.

Citizens' Rights

While I recognise that public bodies are becoming more conscious of citizens as consumers of their services, it may be useful to outline what I regard as the basic rights of citizens in their dealings with the public service:

In my opinion, citizens or users of public services for their part have the following rights:

• the right to be heard;
• the right to receive sufficient information;
• the right to assistance and representation;
• the right to be given reasons;
• the right to be told what remedies are available to them;

Users of public services should be able to put forward points and arguments before decisions adverse to them are taken, including arguments for an exception to be made in the individual circumstances of their case. They should have available information on any general guidelines which apply to the particular scheme or programme involved. Advice and representation must be available, especially for those least able to make their case. The reason for a decision is particularly important where a decision is an adverse one, and they must be told of remedies or avenues of redress, especially rights of appeal to independent bodies, which are available to them.

I intend to promote a greater awareness of these rights among public service bodies through the various means at my disposal. In some other jurisdictions, guidelines on good administrative practices are regularly issued and I intend to consider this in the context of the forthcoming Administrative Procedures Act.

Strategic Management Initiative

A welcome development during the year was the Strategic Management Initiative in the Irish Civil Service. In launching the Initiative, the then Taoiseach noted that among the key areas to be addressed was that of customer needs; he said that public service bodies must satisfy actual needs, rather than what they think clients need. He added that services must be accessible to the users; that systems and procedures should be as simple and straightforward as possible and that redress must be available when a client has been badly treated. The development of strategic management action plans by the various Departments has led to an increased emphasis on the quality of the service delivered to civil service clients.

The Office is uniquely placed to contribute to the strategic management process in the area of client needs. Our role is to deal with complaints from people who are unhappy with the service they receive from the various public service bodies; these people will have followed whatever complaints procedures exist for the service in question and we are their avenue of last resort. I report elsewhere on the detail of our own strategic management action plan (see Chapter 1 - The Year's Work).

Government Plans for the Office

The Government's policy document "A Government of Renewal" envisages an extension of the powers and remit of the Office of the Ombudsman. Discussions on this extension are in progress. As far as the remit of the Office is concerned, I am conscious that a number of areas of activity previously subject to examination are no longer so and that the public may be confused as to whether the actions of a particular body can be examined. The public should be entitled to assume that a public service body is subject to the Ombudsman's jurisdiction unless it comes into a small category of bodies which are specifically excluded. It is heartening to note that the policy document explicitly states that additional resources will be provided to the Office for this extension in powers and remit.

The policy document also proposed the introduction of an Administrative Procedures Act with the aim of securing maximum compliance with the tenets of good public administration. It is proposed that the Act will vest in the Office of the Ombudsman monitoring and regulatory functions, and will incorporate requirements on:

• minimum response times to a citizen's case;
• the level of guidance to be given to the public;
• the form in which decisions are communicated, setting out:
  • the basis of the decision;
  • the right of appeal;
  • the right of access to all relevant information on the case;
  • the right of a citizen to confer with the officials making the decision concerning that citizen.

Freedom of Information Act

The increased emphasis on openness, transparency and accountability is very welcome. The impending freedom of information legislation will have far-reaching consequences for the way in which public servants do their work and for the ability of members of the public to gain access to the information on which administrative decisions are based.

The Office of the Ombudsman has gained some experience in this area through dealing with complaints relating to the Regulations on Access to Information on the Environment (S.I. No. 133 of 1993). In Section 6 of this report, I describe the background to these Regulations, the experience of my Office in this area to date, what I perceive as shortcomings in the Regulations and what I regard as the prerequisites for an effective appeals system for such cases. An investigation of a complaint concerning the operation of the Regulations is summarised elsewhere.

Staff

I want to express my thanks to the Director and staff of the Office for the great support they have given me since I took up office. I have inherited a staff who are enthusiastic, committed and tenacious in their pursuit of fair play for the citizen and I look forward to continuing to work with them during my term of office. I would like to acknowledge specifically the excellent work of David Waddell in the preparation of this Annual Report.

Future Reports

I intend to give some thought to the format of future annual reports since I believe that they play an important role in ensuring proper standards of public administration and in the prevention of the sort of problems highlighted in the details of complaints examined. I will also issue individual reports on cases which I consider to be of particular importance.

It is important that my reports be given the widest possible circulation, particularly among the staff of the bodies within my remit. With this in mind, this Annual Report and future reports will be available on computer diskette. I am also examining the possibility of the use of the World Wide Web to ensure the widest possible availability of my reports.

Up to and including this year, it has not been the practice to identify individual Local Authorities and Health Boards in case summaries; this contrasts with the position of Telecom Éireann, An Post and Civil Service Departments and Offices, which are named. In future annual reports, all bodies complained of will be clearly identified, save where there may be a need to ensure that the identity of the complainant is completely protected.

The British and Irish Ombudsman Association

This Office is a member of the British and Irish Ombudsman Association. The Association was formed following a joint conference of UK public and private sector Ombudsmen in October 1991. Originally called the UK Ombudsman Association, the new name was adopted in 1994 to enable members from the Republic of Ireland to participate. Currently, there are nineteen UK member schemes and three Irish ones.

The Association is involved in publishing educational and other material of interest to Ombudsmen and organises conferences for the staff of Ombudsman offices to discuss work practices and procedures.

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