• You are here:
• Home /
• Publications /
• Annual Reports /
• Annual Report of the Ombudsman 1994

Annual Report of the Ombudsman 1994

Chapter Four - General Issues Arising from Specific Complaints

Regulations on Access to Information on the Environment.

Legal Background

The Regulations on Access to Information on the Environment, 1993 were made by the Minister for the Environment under sections 6 and 110 of the Environmental Protection Agency Act, 1992 and came into effect on 20 May 1993. They give effect to the provisions of EU Directive 90/313/EEC on freedom of access to information on the environment. As the title suggests, the Regulations provide for the release of information on the environment on request, subject to certain exceptions, some of which are mandatory and others of which are discretionary. The Regulations also prescribe time limits within which requests for information should be met and also allow for a charge to be made for the release of the information.

The Department of the Environment recently published a review of the first year of operation of the Regulations and, as a result of that review, are proposing to amend the Regulations with a view to improving access to information. The principal changes envisaged are a more extensive definition of the public authorities covered by the Regulations, a revision of some of the discretionary grounds for refusal of information and a reduction in the time frame for responding to requests for information.

My comments below relate to complaints dealt with by my Office under the 1993 Regulations.

Scope

The Regulations apply to all public authorities as defined in article 3(1) of the Regulations. The Department of the Environment, which issued guidance notes on the implementation of the Regulations, did not consider it practical to formulate a detailed list of organisations to which the Regulations are considered to apply.

Appeals

Appeals against refusals to supply information may be dealt with by judicial review. As Ombudsman, I can examine complaints about refusal to supply information, but I only have jurisdiction in relation to the bodies already within my remit as defined in the Ombudsman Act, 1980. In practice, almost all complaints which are made to me relate to local authorities. Occasionally, complaints against decisions of other bodies such as the health boards, the Office of Public Works or the Department of the Environment arise.

Number of complaints received

In 1993, my Office received only five such complaints. In 1994, I received forty two. Of the 27 complaints which had been finalised by the end of 1994, seven (26%) were resolved in favour of the complainant, with a further 11 (41%) complainants being provided with assistance of some form or another and nine (33%) were either discontinued or not upheld. Twenty complaints were carried forward to 1995.

To put these figures in context, the Department of Environment's review of the first year of operation of the Regulations shows that, on the basis of survey results received, 168 requests for information under the Regulations were made to public bodies in the period May 1993 to May 1994.

Types of complaint

Complaints generally fall into three categories - delays in provision of the information, excessive charges for the information, or refusals to release the information. In relation to the operation of the Regulations by public authorities, complainants (who in the main are environmental groups) seem to hold the view that a defensive attitude prevails in which heavy reliance is placed on the restrictions in the Regulations to justify the withholding of information. My Office's experience in this regard is limited but, in relation to the more difficult complaints under examination, there is a tendency on the part of public bodies, when reporting to me, to list several of the grounds in the Regulations as reasons to justify the refusal to release information. In some cases, even a cursory examination of the complaint shows many of these reasons to be irrelevant.

Ombudsman's approach to the examination of complaints

Some public authorities have been under the impression that it is a sufficient defence of their case to the Ombudsman to simply quote the relevant sections of the Regulations. However, where I still consider that the public body have a case to answer, I will ask them to justify, by reference to the information sought, the reasons for not releasing it. I may also request a copy of the information for my own examination.

The aim of the EU Directive is, among other things, to promote protection of the environment. My general approach to complaints, therefore, is a positive one; information should be released unless it is specifically exempted by the terms of the Regulations giving effect to the Directive. In relation to the discretionary exceptions in the Regulations, it is not sufficient for a public authority to quote one or more of these - they must also demonstrate that, in refusing to release the information, they have exercised their discretion reasonably.

Although not specifically provided for in either the Directive or the Regulations, I will, in addition, apply a "harm test" to the information which is the subject of the request. This test, which is particularly appropriate to the discretionary as opposed to the mandatory exemptions in the Regulations, is designed to test the reasonableness of the public authority's refusal to release the information requested. This test takes the form that if the release of information is not expressly excluded by the Regulations, what harm, if any, would it do to release it.

The more difficult complaints

From my perspective, the more difficult cases are those which centre on the exclusions, whether mandatory or discretionary, in the Regulations. These cases can involve questions of interpretation of the Regulations but, equally, questions of fact. A good example of this approach arises in a complaint against a Local Authority for refusal to release data relating to drinking water (see Investigations Chapter). On the basis of my preliminary examination of this complaint, I was not satisfied that the Local Authority were justified in refusing to release the data and I decided to conduct an investigation of the case. On first approaching the Local Authority at preliminary examination stage, they gave several reasons for refusing to release the data including the contention that the data in question did not come within the scope of the Regulations. At investigation stage, the grounds for refusal had been narrowed down to the aforementioned reason and also that the data in question was, essentially, an internal communication and was, therefore, within the discretion of the Local Authority to refuse it under article 6(1)(d) of the Regulations. I had to decide whether the facts supported the contention that the data was an internal communication and whether this was a reasonable interpretation of the Regulations. I produced a report with findings and, in this case, a recommendation to release the information in question, which was accepted by the County Manager. There are other cases on hand where similar questions of fact and interpretation arise.

Shortcomings in the Regulations

My primary function is to examine whether refusals to release information are fair and reasonable having regard to the provisions of the Regulations. However, over the years, in the course of his examination of complaints generally, my predecessor has pointed out to the appropriate government department and highlighted in his Annual Report, defects or shortcomings in legislation underpinning particular schemes and programmes. I will adopt a similar approach to these Regulations. There is one aspect of the Regulations which even now has been identified as a cause for concern. Article 3(b) of the Regulations excludes from their scope information which is already covered by some other statutory provision. There is no such provision in the Directive. This article has the effect of excluding a whole range of data, the most important of which is information on planning matters which, in many instances, would otherwise come within the definition of information on the environment. Having regard to the spirit and intention of the Directive, it is not clear that the Regulations should have excluded such information. I wrote to the Department of the Environment on this matter and my officials also discussed the matter with them.

The Department's view is that, in framing the Regulations, it was considered neither desirable nor appropriate to duplicate existing statutory provisions for public access to information relating to the environment, hence the provision included in article 3(b). In certain circumstances, the question of copyright may also be involved. The provision in article 3(b) was not designed to exclude access to planning information but to avoid duplicating the already extensive access provided for in planning legislation. Such duplication would be potentially confusing and would, in effect, require planning authorities to operate two systems to provide public access to the same information in order to fulfil their obligations under both sets of legislation. The Department also say that access to documents relating to planning applications is now covered by the Local Government (Planning and Development) Regulations, 1994. While the size and volume of requests, and constraints of cost and time, would be matters for individual local authorities to assess in the context of their planning functions, the availability of documents under planning law does not, of course, preclude the provision of copies in particular circumstances. Full availability for inspection during office hours would seem to be a generally reasonable practical arrangement in most circumstances and one which meets article 3 of the Directive. The Department add that, under the 1994 Planning Regulations (article 37), planning authorities are required to make copies of an environmental impact statement, or extracts from the statement, available for purchase.

My concerns in relation to this matter are twofold. Firstly, it is a matter of general concern if the Regulations giving effect to the Directive are more restrictive than the Directive itself. Secondly, I am concerned about the consequences for those seeking the information. Planning legislation provides for the right to inspect documents. It does not, in general, provide a right of access. Although "access" is not defined in the Regulations, it is operated on the basis of copies of documents being furnished to the applicant at a charge. The right of inspection only, such as exists in planning legislation, although not subject to a charge by the planning authority, can result in considerable inconvenience for interested parties who may have to travel long distances to planning offices and are restricted to inspection within a public office within defined hours.

I am aware that the Department of the Environment have recently written to all local authorities suggesting that they put arrangements in place which will make copies of all or part of any document relating to a planning application, other than a plan or other drawing or a photograph, available for purchase. While I welcome this development, the decision to release such information is being left to the discretion of individual local authorities, whereas arguably it ought to be a matter of statutory obligation, having regard to the terms of the Directive. The Department are aware of my continuing concerns in this regard.

Creating a culture favourable to freedom of information

It is interesting to consider to what extent the Regulations and the Directive have been effective in securing greater access to information on the environment.

It is clear that the environmental groups, while welcoming the Directive, are not happy that the Regulations have gone far enough in terms of their scope and application. One of the criticisms which they make is that the Regulations do not define "the practical arrangements under which...information is effectively made available", even though such arrangements are expressly required under article 3.1 of the Directive. They say that the Regulations fail to specify what types of response are acceptable within the two month period, what charges may be made for information, or to expand on what they describe as vague concepts such as "the proceedings of public authorities" or "preliminary investigation proceedings". They add that the failure of government to transpose the Directive in more detail will probably mean that the task of interpretation is passed to the courts, in a time consuming and costly process during which those without the resources or the persistence to litigate will effectively have the rights envisaged in the Directive denied.

By not defining these practical arrangements in the Regulations, arguably an important opportunity was lost to assist in creating a culture within public authorities which would be favourably disposed towards the release of environmental information. In fact, the Regulations were not introduced until May 1993 - almost six months after the operative date of 31 December 1992 specified by the Directive. It is acknowledged that the Department of the Environment took a number of initiatives to publicise the making of the Regulations and also published a review of the first year of operation of the Regulations. Indeed, as a result of that review, they are proposing to amend the Regulations with a view to improving access to information. Nevertheless, it might have been better from the outset had the Department of the Environment made greater efforts to create a culture favourable to the release of information. It is hardly surprising, therefore, that, from the public authorities' perspective, the balance of advantage lies in withholding rather than releasing information. While the Department view the Regulations as a first step towards the introduction of freedom of information legislation generally, it is very important not to underestimate the importance of creating a favourable climate in that wider context.

Prerequisites for an effective appeals system

I will comment further on these Regulations in the light of future complaints. As these complaints are essentially about freedom of environmental information rather than maladministration in the ordinary sense, a number of elements must be put in place to ensure the effective operation of the Regulations:

• A culture which is disposed to releasing rather than withholding information.
• A strong and effective internal review mechanism within each public body.
• A speedy and comprehensive response from bodies to queries from the Ombudsman.
• Publication of case notes by the Ombudsman.

While guidance notes were issued by the Department of the Environment, little else was done to prepare public authorities for the implementation of the Regulations. The absence of good internal review mechanisms has inhibited the development of a culture conducive to the release rather than the refusal of information and to greater co-operation with this Office. We intend that the publication of case notes will guard against public bodies putting forward arguments which have already been rejected by the Ombudsman. It should also encourage the release of information by public bodies in cases of doubt. It is hoped to begin publication of case notes later this year when the first batch of the more difficult cases has been finalised.

Researching and Interpreting Social Welfare Law

There is a large volume of legislation, both primary and secondary, associated with the various social welfare schemes. Not surprisingly, many of our social welfare complaints raise issues of interpretation of that law. The law in this area can be quite complex and there is a particular problem in keeping track of the range of secondary legislation (statutory instruments) which continues to have application, over a period of decades in some cases. Because of the complexity and inaccessibility of some of this legislation, it is not surprising that complainants are frequently not in a position to articulate a reasoned legal argument in support of their complaints. In relation to social welfare complaints, much of our work involves establishing the relevant legislation and forming an opinion as to whether it has been correctly applied in the particular case. The following examples, from our social welfare work in 1994, illustrate the extent to which research and interpretation of the legislation is an issue for this Office.

Social Insurance Credits

Social insurance credits are awarded to formerly employed people who are now out of the work force, either because of unemployment or because of illness. These credits keep alive an existing social insurance record and are particularly important in the context of long-term pensions. Accordingly, the award or refusal of social insurance credits is a significant issue for any individual. In two specific complaints during the year, we were required to look in detail at the law governing the award of credits.

The first case related to a man who had his Disability Benefit (DB) withdrawn because he was found to be in breach of the Rules of Behaviour. (These are rules governing the activities a person may engage in while drawing DB). While there was no question as to the man's incapacity for work, he was found to be in breach of the Rules of Behaviour because he continued to have an involvement in the running of his farm. We felt that his involvement with the farm constituted a breach of the Rules and that the Department were correct in imposing the penalty of the withdrawal of DB. However, the Department also withdrew the award of social insurance credits even though it was not disputing that the man was still incapable of work. In effect, the Department was imposing an additional penalty for the breach of the Rules by withdrawing the award of credits.

In order to have social insurance credits awarded, it is not necessary to be in receipt of a social welfare payment. Although credits are automatically awarded to people in receipt of certain payments (e.g. Unemployment Benefit or DB), they may also be awarded to people who are either unemployed or incapable of work provided they have previously been in insurable employment and seek the credits within the specified timescale. In this case, it was not necessary for the complainant to be in receipt of DB in order to qualify for the award of credits.

The main legislation governing the award of credits is a statutory instrument from 1953. Our understanding of that Regulation was that a credited contribution would be awarded for any week of "duly notified incapacity for work", provided the person was otherwise entitled to the award of credits. On this basis, credits could only be refused where the Department was satisfied that the applicant was not, in fact, incapable of work during the week in question. We could see no link between the penalty provided in the case of a breach of the Rules of Behaviour governing payment of DB and the award of social insurance credits.

We put these views to the Department. It reconsidered its position and agreed that social insurance credits should have been awarded in the particular case.

A second case related to the award of credits in the case of an unemployed person. This person had been last employed in 1985 and, when her Unemployment Benefit entitlement was exhausted, she continued to register as unemployed for the purposes of social insurance credits. In early 1994, her Employment Exchange decided that she was no longer entitled to the award of credits on the grounds that she had not shown that she was "genuinely seeking employment". This was a reference to the fact that the complainant had failed to show to the satisfaction of the Department that she was making genuine efforts to find employment. The question for us was whether the award of credits, in the case of unemployment, is dependent upon the applicant showing that he or she is genuinely seeking work.

The law relating to unemployment social insurance credits is somewhat more complex than is the case of credits based on incapacity. Credits are awarded in respect of days of "proved unemployment". The Department interpreted this term to include a requirement that, not only is the person actually unemployed, but is, in addition, actively seeking work. From the Department's point of view, there was a requirement to show that the applicant was genuinely seeking work.

Our understanding of the legislation was that a "day of proved unemployment" did not in fact carry a requirement to be actively seeking work. Our understanding was that it was sufficient to be unemployed and that there was no requirement to be actively seeking work. In other words, the definition indicated a passive condition rather than an active condition.

The Department reconsidered its position in the light of our arguments and ultimately accepted that social insurance credits should be awarded in this case.

Delays in claiming death grant

Subject to certain conditions, the Department of Social Welfare pays a death grant in the case of the death of an insured person or a dependant of an insured person. The grant is not particularly substantial - £100 is the maximum payment. We dealt with two cases during the year in which death grants were refused because the next of kin delayed making their applications for more than six months. In one case, the death occurred in July 1992 and the grant was not claimed until April 1993. In the other case, the death occurred in June 1991 and the application was not made until October 1992. In both cases the Department refused the applications on the grounds that they had not been made within the prescribed time limit. In both cases the Department noted: "Under the Regulations a claim for death grant must be made within six months of the date of death". In both cases the complainants were aggrieved at this decision because they felt there were good reasons for the delay in making the application.

The Department's decisions in these two cases were based on its understanding of the relevant legislation i.e. the Social Welfare (Claims and Payments) Regulations. The Department interpreted the legislation as meaning that a claim for death grant made more than six months after the death could not be allowed.

We undertook an examination of all of the Regulations involved. Our reading of the legislation was that an application for death grant must be made within the prescribed period of three months from the date of death. However, the legislation further provided that the Minister may "...having regard to the circumstances of any case, extend the time within which a claim..." for death grant might be made to the date of the making of the claim. The effect of this, it appeared, was that the Minister might, where the circumstances so warranted, extend the prescribed time for the making of a claim to the date of actual application. In other words, the normal requirement was to make an application within three months but an application made outside of the three month limit could be regarded as having been made within the prescribed time, "having regard to the circumstances" of the case.

The Department's standard letter to the two complainants said that the prescribed time for the making of a death grant application was within the period of six months from the death. Nowhere in the legislation was a prescribed time of six months mentioned. It appeared that the Department had restricted the exercise of its discretion in relation to a late claim (outside the three month period) to an additional three months. On this basis, it was operating a rule whereby claims received outside of six months would not be accepted. We pointed out to the Department that the discretion given to the Minister to accept the late claim did not include any time limit. Furthermore, we pointed out to the Department that, in the two particular cases, there was no evidence to suggest that the Department had given any consideration as to the circumstances in which these late claims were made.

In reconsidering these cases, the Department accepted that it had failed to take full account of all of the provisions of the governing legislation. The Department decided to award the grant in both cases.

Social Welfare Means Testing

Transfer of property

In deciding eligibility for means-tested payments such as the Non-Contributory Old Age Pension or the Non-Contributory Widow's Pension, one of the considerations is whether the applicant has disposed of any capital or property. Where there has been such a disposal, the question arises as to whether this disposal was done with a view to either qualifying for a pension or qualifying for a higher rate of pension than would otherwise apply. In cases where the Department of Social Welfare is satisfied that the capital or property was disposed of and that this disposal was done with a view to qualifying for a pension or for a higher rate of pension, then the capital or property will be included in the means assessment as if the transfer had not taken place. This seems a sensible arrangement to the extent that it discourages claims for means-tested payments from people who might otherwise have the resources to maintain themselves. However, in some instances the application of this provision can have adverse consequences.

A case dealt with during 1994 illustrates this point. The complainant was a widow who had been receiving a Non-Contributory Widow's Pension (NCWP) for many years. The widow was running a small farm and, in 1990, she sold her milk quota for £22,000. She told the Department that she had divided £19,000 of the milk quota proceeds among three of her children. When the Department considered the matter, it concluded that the pensioner had given away £19,000 to her children with a view to qualifying for a higher rate of NCWP than would otherwise be payable. Accordingly, the Department treated the transfer as if it had not occurred and the £19,000 was included in a revised means assessment. The effect of this was to substantially reduce the rate of NCWP payable. The matter was twice considered by an Appeals Officer (in 1991 and in 1993) and on both occasions the Appeals Officer upheld the decision of the Department.

When we considered this complaint, we concluded that there was no basis for taking issue with the view of the Department (and of the Appeals Officer) that the £19,000 had, in fact, been transferred with a view to seeking a higher rate of pension. When the complaint reached this Office, the assessment of the £19,000 had already been in effect for three years. There is no provision in social welfare law whereby the capital or property in question in this kind of case might be written off over a period of years. In other words, in 1994 the complainant was regarded as having the same income from the transferred capital as in 1991. Indeed, it appears that such an assessment might stand indefinitely.

Had the complainant actually retained the £19,000 rather than transferred it to her children, she would, over time, have been able to dispose legitimately of the capital in any number of ways. Once she could show that she had legitimately disposed of this capital, it would no longer be included in the NCWP means test. But in a situation where she had transferred the capital, and where this transfer was deemed to have been done in order to increase the rate of pension, there is no mechanism in social welfare law to enable this transferred capital to be written off over a period. One could envisage that the penalty for transferring capital in this way would be a graduated one, with a proportion of the capital amount being written off each year, until a point would be reached (say after three or five years) when the entire amount would be written off.

It would seem that the present arrangements are not equitable and are in need of review. I have raised this matter with the Department.

Social Welfare Benefits

Entitlements based on "passport" system rather than on need

The social welfare system provides a range of additional benefits for the elderly and for the sick/disabled who are receiving long-term payments. These additional benefits include Free Telephone Rental Allowance, the Free Electricity Allowance, Free Television Licence, an Over 80 Allowance and a Living Alone Allowance. These additional benefits are paid on a "passport" system whereby entitlement depends upon being already in receipt of one of a list of qualifying payments such as Contributory Old Age Pension (COAP) or Disabled Person's Maintenance Allowance (DPMA). (There are also usually a number of other additional requirements). We have had a number of complaints during the year which suggest that it is unfair to base these additional entitlements on receipt of an existing payment. These complaints suggest that it would be more equitable if the additional benefits were based on some separate objective indicator of need.

One particular complaint graphically illustrates what is involved. The complainant was 86 years of age and living alone. He was receiving a small occupational pension of £68 per week. He had no entitlement to a COAP and his occupational pension was £4 above the ceiling for receipt of any level of Non-Contributory Old Age Pension (NCOAP). Had his occupational pension amounted to £64 per week rather than £68 per week, he would have qualified for the minimum rate of NCOAP at £3 per week. In addition, once he had even the minimum rate of NCOAP, he would also have qualified for an additional Living Alone Allowance (LAA) of £4.80 per week and an additional Over 80 Allowance of £4.70 per week. Furthermore, had he even the minimum rate of NCOAP, he would also have qualified for Free Electricity Allowance and Free TV Licence (£207 per annum), Free Telephone Rental (£175 per annum) and Fuel Allowance (£208 per annum).

In cash terms, the complainant's loss amounts to £12.50 per week or £650 per annum plus a further £590 per annum in respect of the various non-cash allowances.

Losses

NCOAP - £3 per week
LAA - £4.80 per week
Over 80 - £4.70 per week
plus
Fuel Allowance - £208 per annum
Free Electricity & TV - £207 per annum
Free Telephone Rental - £175 per annum

In all, this complainant has lost out on a total of £1,240 per annum in additional benefits (or £23.85 per week) all because he has £4 per week above the NCOAP means ceiling.

In this case the Living Alone Allowance and the Over 80 Allowance are provided for in the Social Welfare Act and it is clear, in law, that they only become payable where there is already at least a minimum rate of basic NCOAP payable. In the case of the other additional benefits (Fuel Allowance, Electricity Allowance etc.), these are not provided for in statute and operate on an administrative basis. The common denominator for all of them is that entitlement is linked on a "passport" type basis to having a qualifying payment. Most of these additional benefits (the exception is the Fuel Allowance) are available to people on COAP which is not a means-tested payment. On this basis, irrespective of the amount of any other income they might have, people in receipt of COAP qualify for the Free Schemes. We have had a number of complaints from elderly people on occupational pensions which are, in some instances, not significantly higher than the NCOAP rates. These people do not have a qualifying payment to enable them to qualify for the Free Schemes. They feel aggrieved that people on COAP, and who may have significant other income, qualify for the Free Schemes whereas they, with a limited occupational pension, do not qualify.

We have already drawn this issue to the attention of the Department of Social Welfare, but their response does not indicate that they intend to revise the eligibility criteria for the Free Schemes in a way which would meet the equity argument raised by our complainants.

Health Board Acting Without Authority

A woman, whose husband had been hospitalised for almost a year, complained that she had been requested by the hospital to pay a sum of £40 weekly for his maintenance. Her complaint related to the difficulties she was having, as a dependant on her husband's Social Welfare pension, in maintaining herself and her home on the balance of the pension. In an initial contact with the Health Board on the matter, my investigator pointed out that the circumstances as outlined suggested that no charge should apply. The man in question had a medical card and he had a wife who was a dependant on his pension. Health Regulations exempt such a category of person from in-patient charges.

The Health Board responded that, by imposing a charge determinable by reference to domestic financial commitments, they were acting in accordance with legislation. Eventually, the Board conceded that such a legislative basis did not, in fact, exist but they continued to defend the practice by claiming to have the right to charge for maintenance. They also claimed that the residue of pension available to his wife was reasonable.

I became very concerned at the apparent failure of the Health Board to recognise that the statutory provisions specifically precluded charges in the circumstances of the complainant and that this imposition had resulted in continuing difficulty for the woman in question. Following the intervention of the Department of Health, at my request, the Health Board informed me that the case had been reviewed and that the maintenance charges had been raised in error. They said that they would cease the practice immediately and that all charges paid would be refunded.

While the particular case has been resolved, I remain concerned about the practice in this area and I am continuing my examination with the Health Board in question.

Domiciliary Care Allowance - Provision of Information

The following case illustrates the importance of clear and unambiguous communications with members of the public. By way of general comment, I would urge public bodies to appreciate that the general public do not have the same level of familiarity with schemes and services as the staff of the bodies themselves. For this reason, correspondence and advice should be as clear and as helpful as possible and should ideally be structured primarily with the reader in mind. If some action is required on the part of the recipient, this should be stated very clearly. If a prescribed format or application form exists for particular schemes or services, it should be included with the correspondence.

A woman, who had been receiving Domiciliary Care Allowance (DCA) for her severely handicapped child for 14 years, was issued with a standard letter from the Health Board shortly before the child reached 16 - the maximum age for payment of the allowance. The letter advised of the child's impending 16th birthday and went on to refer to Disabled Person's Maintenance Allowance (DPMA) in the following terms: "There is another allowance called Disabled Person's Maintenance Allowance which may be paid to an adult who has been certified by the Board's Medical Officer as substantially handicapped and unfit to work for a period of twelve months or more. This allowance is subject to a means test". The letter concluded by stating that, if further information on the allowance were required, the local office should be contacted.

The woman claimed that she had not received this letter and, because it was a standard post item, I could neither prove nor disprove this aspect. I concentrated, therefore, on what the position would have been had she received it. I decided that the letter was unclear for a number of reasons:

1. The letter indicated that DCA normally ceases at age 16. It did not say that in this case this would happen.
2. The letter gave the general requirements for DPMA without reference to the need for an application. In not so doing, it could reasonably be assumed that no action was required on the part of the potential applicant.
3. No application form was enclosed.

As it happened, DCA was terminated on the child's 16th birthday and the mother did not make enquiries about DPMA for a number of months on the assumption that there would be some delay in processing that allowance. When she did enquire, she was advised that an application form had to be submitted and that the child would establish entitlement only from the date of application. She immediately obtained and submitted an application form. Her attempts to resolve the matter for the period during which neither allowance was paid reached a point where the Health Board agreed to extend the payment of DCA up to the date of receipt of the DPMA application. Since DPMA is worth substantially more than DCA, the mother did not accept this offer.

I asked the Health Board to review the decision. I pointed out the reasons why I considered that this child and his mother were being penalised unduly for, at worst, failing to pick up on an oblique reference. The Health Board accepted my interpretation and, while maintaining the general requirement for application prior to payment, agreed to pay DPMA with effect from the child's 16th birthday.

Internal Communication Failures

The following case highlights the problems that can arise when there are deficiencies in internal communications systems and where systems failure, rather than maladministration on the part of individuals, can have an adverse effect on members of the public.

A patient in a Health Board nursing home died. Patients in long-term care, who have no dependants, are liable to pay charges from whatever income they have. However, it is the practice of the Health Board concerned when levying such charges on elderly long stay patients, to have regard to whether provision has been made for their funeral expenses. Where provision has not been made, it is the Board's practice to divert funds from the patient's pension or income, which would normally be sequestered for maintenance charges, to a personal account until such time as a reasonable sum for burial expenses has accumulated. In this case, the patient's personal account held slightly over £1,000 at the time of her death. The lady in question had two daughters, both in their late sixties and of limited means. They found the costs of their mother's funeral arrangements overburdening and, being unaware that there was a personal account held by the Board in respect of their mother, applied to the Board for assistance under the Supplementary Welfare Allowance Scheme towards the cost of their mother's funeral. This application was refused as was their appeal to the Board. Dissatisfied with the Board's decision on their application, one of the daughters complained to my Office.

A telephone call to the section dealing with the administration of personal accounts for elderly patients in long term care, established that a personal account was maintained by them in respect of the deceased. My Office arranged for direct contact between the relevant section of the Health Board and the complainant and within a short period the Board issued a cheque discharging the personal account of the deceased to her daughter.

The relevant section in the Health Board which administers these personal accounts has, at the request of my Office, revised their procedures to ensure that, in the event of the death of a patient, every effort is made to make contact with the next of kin to ensure that contents of the account can be discharged as quickly as possible. They have also put additional procedures in place in an effort to overcome the problem highlighted by this case.

Rents on Local Authority Dwellings

The assessment of income in the calculation of rent for local authority dwellings was an issue brought to my attention in the past year. In two of the complaints I received, there appeared to be anomalies in the rent scheme which seemed to allow for the payment of two different levels of rent in respect of the same household income.

The responsibility for making and amending the local authority rent schemes lies with each housing authority. In devising and revising such schemes, housing authorities are required to ensure that the scheme is in keeping with a number of broad principles set down in guidelines by the Department of the Environment:

• that the rent payable should be related to income and a smaller proportion of income should be required from low income households;
• that allowances should be made for dependent children;
• that a contribution towards rent should be required from subsidiary earners in the household and -
• that provision should be included for the acceptance of a lower rent than that required under the terms of the scheme in exceptional cases where payment of the normal rent would give rise to hardship.

Rent schemes, the terms of which fall within these broad guidelines, are deemed to have the approval of the Department of the Environment.

I received two complaints from local authority tenants regarding rent payable on their dwellings. In each case, while the rent scheme had been devised in accordance with the guidelines set down by the Department, and the rent payable was correctly calculated in accordance with the terms of the scheme, the actual operation of the scheme appeared to discriminate unfairly against the tenants. The circumstances of the cases are set out below:

The first complainant lived with his parents and his brother. His parents were both in receipt of a Blind Pension of £57 per week from the Department of Social Welfare, he was in receipt of a Carer's Allowance of £45 per week, while his brother received Unemployment Assistance at the rate of £45.80 per week.

Under the particular rent scheme, where a tenant and spouse are in receipt of split or separate social welfare payments as in this case, these are aggregated as a single payment for the purposes of calculation of rent. However, if the couple are both working and have a weekly wage equivalent to the same amount as they would receive under social welfare, they would be treated as having two separate incomes, which would result in a different (and lower) rent calculation, notwithstanding the fact that the household income remains the same. For instance, in the first example above, the rent for the household based on income from social welfare payments was assessed as £22.55. This figure was reduced by the Local Authority on hardship grounds to £19.00 per week. With the same total income, but based on a weekly wage, the rent assessed would be £14.50.

In the light of this information, I wrote to the County Manager in question. I pointed out that, while it was acknowledged that the Local Authority were acting in accordance with the terms of the approved rent scheme, he might wish to consider the question of whether the aggregation of separate social welfare payments could be justified. Attention was drawn to the basis on which the Department of Social Welfare makes these payments and secondly to the question of whether the practice could be construed as unfair discrimination against social welfare recipients vis-à-vis tenants with earned income of a similar amount. The County Manager replied that the Local Authority proposed to amend its future rent scheme so as to remove any potential for unfair discrimination in this regard.

In the second case, involving a different Local Authority, the contrary situation existed. Here a married couple with three children were in receipt of individual Unemployment Assistance payments of £66.55 weekly each. Under the differential rent scheme approved in that Local Authority, rent was calculated as 1/15th of assessable income of the principal earner added to 1/7th of the assessable income of the subsidiary earner (i.e. the spouse) in the household. Under this arrangement, the rent was assessed at £10.10. If, on the other hand, the couple were regarded as being in receipt of joint social welfare payment of £133.10, this would have been assessed as the income of the principal earner only and would have resulted in a rent payment of £8.50 per week.

Once again, I wrote to the Local Authority and put it to them that, while I acknowledged that in calculating the rent they were acting in accordance with the terms of the approved Differential Rent Scheme, I was concerned as to whether this arrangement could be justified. The Authority replied that they had become aware in the recent past of the possibility of such anomalies. It had been decided to vary the method of income assessment in their proposed new rent scheme so as to allow the income of couples, where both partners are in receipt of separate social welfare payments, to be combined and assessed as one income.

Telecom Éireann - Metered Call Charges

As Telecom Éireann implements the detailed billing system more widely, there has been a corresponding drop in the number of complaints about the accuracy of telephone accounts.

There are, however, some areas in the country where the new system of detailed billing has not been introduced and customers' bills are still presented showing only the total unit charge for usage during the billing period. In these circumstances, when a customer receives a large bill with insufficient detail they are at a serious disadvantage if they wish to dispute the matter. Telecom Éireann place great reliance on the accuracy of their metering equipment and seldom accept the customer's claim that the account is incorrect.

One particular case illustrates the difficulties that can arise. An account for over £15,000 issued to a customer in respect of his telephone at his private residence. The billing period in question was October 1985 to March 1986. The charge for usage alone came to £14,760. No details of the individual calls were available. The customer was willing to accept that his usage would have been high at that time, but he was adamant that it could not come to the amount for which he was billed. He agreed to pay £2,600 off the bill but disputed the balance.

Time passed and Telecom Éireann ceased to send accounts or demands for payment. The customer assumed that Telecom had accepted his view of the matter. Then, in February 1992, a demand issued from Telecom Éireann's solicitors demanding settlement of the bill under threat of legal action. The letter was addressed to the customer at his place of work. He again disputed the account but Telecom Éireann insisted on payment in full.

At that stage the customer approached my Office. The complaint was examined in great detail. He had lived in the UK for a number of years prior to 1985 and with the assistance of Oftel (the telecommunications regulatory agency in the UK) and British Telecom, I was able to obtain details of his usage pattern for some of that time. I was also able to obtain details of his usage in more recent times in this country. I decided, based on the evidence available, that the level of usage being billed to this man was most improbable and that it would be reasonable to accept that his actual usage was more akin to the levels outlined by him. I also had to consider the question of Telecom's delay in dealing with the matter and the fact that the account had been presented to him at his place of employment where correspondence was opened in a general manner.

I recommended that the account be reduced by the sum of £12,000. Following some correspondence on the matter, Telecom agreed to this and the necessary adjustment was made to the customer's account.

Instances have also arisen in other cases where billing inaccuracies were associated with faults in Telecom's equipment. In one case, a sharp increase in a complainant's account was found to coincide with a fault which has been associated with metering errors in the past and it was recommended that the charge for the relevant period be rebated to a figure which was in keeping with the general pattern of her accounts. Telecom Éireann accepted this.

In another case, a customer disputed charges for a number of calls which appeared on his detailed bill. When the matter was examined it was discovered that there had been a fault in the cabling near his premises which gave rise to a number of another subscriber's calls being charged to his account. The detailed bill also showed a considerable number of calls of very short duration. It seemed that these could be attributed to the cable fault in that he would have had to redial numbers where there was a poor quality connection on some of his calls. In the circumstances, Telecom agreed to credit the account with the relevant charges.

In yet another case, Telecom were asked to re-examine a customer's query on her account and a fault was discovered which could have affected the meter recording her usage. Telecom rebated a total of £352.63 on this complainant's telephone account without a recommendation from this Office.

Telecom Éireann - Premium Rate Calls

A number of complaints in 1994 concerned charges on accounts for calls made to premium rate services. Because of the rates charged for these calls, they can give rise to significant charges on a customer's accounts. This arises particularly where unauthorised use is made of a subscriber's line. I understand that Telecom Éireann have agreed to the appointment of a Premium Rate Service Regulator; this appointment is to be organised by the Director of Consumer Affairs.

The availability of detailed bills is particularly helpful in addressing the question of such charges and it is possible for customers to identify the caller in many cases. Telecom Éireann can provide a service whereby the making of such calls can be barred on a customer's line where it is connected to a digital exchange. This service is provided free of charge. In some instances, it is possible for credit controllers in Telecom Éireann to detect a pattern of such calls and customers, having been advised of the situation, have been able to curtail such usage.

In one particular case during 1994, a subscriber had been made aware of a pattern of such calls and immediately requested Telecom Éireann to have this service discontinued on her line. There was a considerable delay on Telecom's part in implementing her request and the calls continued, giving rise to substantial charges. When the case was examined, it was felt that the subscriber had taken all reasonable measures to resolve the problem and that Telecom should share some responsibility in the matter. It was recommended that there should be no charge for such calls made during the period after the customer had sought cessation of this service. Telecom accepted this, rebating the account by £580.00.

Back to contents