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Annual Report of the Ombudsman 1994

Chapter Six - Cases of General Interest

An Post

Savings Certificates

Two cases involved delays in dealing with applications for repayment of saving certificates. Interest is added to the value of these certificates at the end of each six month period and no interest accrues in respect of the time between interest dates. The complainants claimed that they had applied to encash their certificates in good time to coincide with the relevant interest dates, thereby getting the optimum value for their investments. However, there had been a delay in processing their applications and they did not receive their repayments until some time after the specified dates. They felt that they should have been paid interest for these periods when their funds were not earning interest.

When the matter was brought to the attention of An Post, they accepted that they had contributed to the position. Although there was no statutory obligation on An Post to pay additional interest, the company agreed that a payment would be made to the complainant in each case, on an ex gratia basis, to recompense them for the delay in receiving their funds. This was calculated on a pro-rata basis for the periods involved at the appropriate rate of interest payable by the Post Office Savings Bank.

Department of the Environment

House Improvement Grant Increased

I received a complaint from a woman who claimed that, while she had been approved for a House Improvement Grant (HIG) in 1984 by the Department of the Environment in the sum of £1,800, she had received only £1,400 when the grant became due for payment.

The additional grant payment was withheld as it related to the installation of shower facilities in the complainant's house. It transpired that a separate grant application had been made by the complainant to her Local Authority under their Disabled Persons Grant (DPG) scheme in 1985 for these facilities and had been approved by them. It was for this reason that the Department of the Environment had refused the additional grant payment.

From my examination of the complaint, it became evident that the complainant's application under the DPG scheme had been withdrawn on the basis that grant payment was to be made by the Department under the HIG scheme for the shower facilities. My complainant requested payment of the balance of the HIG grant from the Department but was refused.

I asked the Department to clarify the reasons why the balance of grant payment was refused. In their report to me the Department said that, following further examination, it had been established that the complainant did not avail of the local authority grant and that the balance of the grant outstanding would be paid.

Department of Health

Fadhbanna sa Chóras Cláraithe

Díríodh aird na hOifige ar fhadhbanna a bhaineann leis an gcóras um bhásanna agus bhreitheanna a chlárú sa chás gur mian leis an iarratasóir sonraí an teastais a bheith trí Ghaeilge.

Teastas Breithe

Bhain an cás seo leis an gcleachtas a leantar sna hoispidéil mháithreachais chun eolas faoi bhreith linbh a chur ar fáil don Chláraitheoir. De réir an ghearánaí sa chás seo, ní thugann an cleachtas atá ann faoi láthair cothrom na féinne dóibh siúd gurb í an Ghaeilge a rogha teanga. Measann an gearánaí go bhfeidhmíonn an córas ar bhealach a thugann le fios nach féidir an clárú a dhéanamh trí Ghaeilge.

Is iad na tuismitheoirí na príomhfhaisnéiseoirí cáilithe ó thaobh na reachtaíochta um chlárú bhreith linbh. Is ar na tuismitheoirí go príomha a thiteann an dualgas breith an linbh a chlárú. Sa chás nach gcomhlíonann na tuismitheoirí an dualgas seo, is ar shealbhóir an tí ina saolaítear an leanbh a thiteann an dualgas. Ach is cosúil go bhfuil sé de nós ag údaráis na n-ospidéal - mar "sealbhóir an tí" - feidhmiú thar ceann, ach in áit, na dtuismitheoirí gan aon rogha a thabhairt do na tuismitheoirí. Ciallaíonn sé seo go bhfágtar na tuismitheoirí ar an leataobh agus nach mbíonn a fhios acu go minic gur orthu go príomha a thiteann an dualgas i leith an chláraithe. Tá gach seans ann go n-oireann an socrú seo le tromlach na dtuismitheoirí, ach b'é an gearán a fuaireamar anseo nach n-oireann an cleachtas sa chás gur mian leis na tuismitheoirí sonraí an chláraithe a bheith trí Ghaeilge.

Nuair a bhailíonn an t-ospidéal sonraí na breithe baintear úsáid as foirm ilfheidhmeach dar teideal Notification of Birth agus a chuirtear ar fail ón Roinn Sláinte. Níl leagan Gaeilge ná leagan dátheangach den fhoirm ar fáil.

De réir an ghearánaí, tá an fhoirm seo lochtach ó thaobh chlárú na breithe de sa chás gur mian leis na tuismitheoirí na sonraí a thabhairt trí Ghaeilge. Go deimhin, tugann an fhoirm aonteangach le fios nach féidir na sonraí a ghlacadh ach amháin i dteanga na foirme, eadhon, i mBéarla. Óna taithi féin, de réir an ghearánaí, bhí uirthi dua breise a chur uirthi féin chun sonraí na breithe a thabhairt trí Ghaeilge. Ní hé amháin nach raibh na háiseanna ar fáil san ospidéal a chabhródh léi an clárú a dhéanamh trí Ghaeilge, ach bhí an córas ag maíomh nach raibh an clárú indéanta trí Ghaeilge.

Phléamar an cheist seo leis an Roinn Sláinte agus le hOifig an Ard-Chláraitheora. Dúirt Oifig an Ard- Chláraitheora gurbh fhearr leo go mór dá gcuirfeadh na tuismitheoirí sonraí na breithe díreach in iúl don Chláraitheoir seachas tríd an ospidéal. Ar an gcaoi seo, bheadh sé níos éasca rogha teanga na dtuismitheoirí a chinntiú. (Dála an scéil, tá na bunteastais bhreithe agus bháis iomlán dátheangach. Baineann an gearán seo leis an teanga a úsáidtear chun na sonraí éagsúla a líonadh isteach).

I gcás na Roinne Sláinte, dúirt siad go rabhthas chun treoir a eisiúint chun na n-ospidéal máithreachais go léir ag áiteamh ar an bhfoireann i gceist bheith faichilleach ar cheist chearta teanga na dtuismitheoirí. I dteannta sin, dúirt an Roinn go rabhthas chun leagan Gaeilge den fhoirm Notification of Birth a chur ar fáil agus go gcuirfí in iúl ar aon athchló den leagan Béarla go bhfuil leagan Gaeilge ar fáil freisin. Dúirt an Roinn freisin go bhfeicfeadh siad chuige - mar a mholamar - arbh fhéidir bailiú na sonraí ar mhaithe le cláraithe a scaradh ó bhailiú sonraí ar mhaithe le cúiseanna eile.

Tá súil agam go mbeidh toradh na n-iarrachtaí seo le brath amach anseo.

Teastas Báis

Bhain an gearán seo le heisiúint teastas báis i gcás fhear Ghaeltachta a fuair bás de bharr timpiste bhóthair. Nuair a eisíodh an teastas báis bhí muintir an fhir buartha faoi leagan amach an teastais sa mhéid is go raibh na sonraí i mBéarla sa mhórchuid cé gurbh í an Ghaeilge a rogha teanga. De réir a mhuintire, ba mhaslach an rud é an teastas bheith eisithe sa chaoi sin. D'éirigh lena mhuintir ceartúchán amháin a chur i gcrích ar an teastas, eadhon, gairm an fhir a athrú ón leagan Béarla go dtí an leagan Gaeilge. Ach ba cheartúchán ar imeall an teastais é seo agus bhí an bunleagan fágtha gan a bheith athraithe. I dteannta sin, bhí na sonraí ag baint le Dáta agus Ionad Báis, Gnéas, Staid, Aois, Cúis Bháis, Sonraí an Fhaisnéiseora, agus An Dáta a Cláraíodh go hiomlán i mBéarla.

Bhí gá le hinchoisne chun cúis an bháis a dheimhniú. I gcásanna mar seo is é an Cróinéir an "príomhfhaisnéiseoir cáilithe" agus is é a sholáthraíonn na sonraí cuí don Chláraitheoir. Baintear feidhm as teastas reachtúil (Coroner's Certificate) chun na sonraí a chur in iúl. Nuair a sholáthraíonn an Cróinéir na sonraí ar an teastas seo, ní mór don Chláraitheoir glacadh leo go díreach mar ar tugadh iad. Faoin dlí - agus is fíor shean-dlí atá i gceist - níl an dara rogha ag an gCláraitheoir ach sonraí an Chróinéara a ghlacadh, gan aon athrú a dhéanamh orthu. Dá bhrí sin, b'ón Chróinéir a tháinig na sonraí don teastas báis.

Phléamar an cás leis an gCróinéir i gceist. Dúirt sé gur i mBéarla a pléadh an inchoisne agus nach bhfuil aon leagan Gaeilge den fhoirm reachtúil Coroner's Certificate ar fáil. Dá bhrí sin, adúirt sé, ní bheadh sé réalaíoch sonraí a líonadh isteach trí Ghaeilge ar an mbunfhoirm Bhéarla agus tar éis na hinchoisne bheith pléite i mBéarla. Cé go raibh leasú amháin ceadaithe aige cheana féin, bhí sé soiléir nach raibh sé sásta na leasuithe eile a bhí ag teastáil ó mhuintir an fhir mhairbh a cheadú. De bharr nach dtagann cróinéirí faoi dhlínse an Ombudsman, ní raibh ar ár gcumas gníomhartha an Chróinéara a scrúdú ná aon mholadh a dhéanamh i leith a chleachtais.

Bhí sé soiléir nach raibh aon locht le fáil ar an gCláraitheoir áitiúil. Ní raibh an dara rogha aige ach glacadh go hiomlán leis na sonraí a fuair sé ón Chróinéir. Phléamar an cás le hOifig an Ard-Chláraitheora agus chuireamar in iúl go mbeadh sé ina chabhair dá gcuirfeadh an Oifig sin leagan dátheangach den Coroner's Certificate ar fáil. Thairis sin, agus i gcomhthéacs aon athraithe sa dlí a bheadh beartaithe, mholamar córas a chur i bhfeidhm ina bhféadfaí sonraí teastais a chur ar fáil i dteanga amháin cé gur sa teanga eile a cláraíodh iad ar dtús. Tuigim go bhfuil an chomhairle seo á meas ag Oifig an Ard-Chláraitheora faoi láthair.

Department of Social Welfare

Arrears of Disability Benefit for Multiple Sclerosis Patient

This case illustrates a particular kind of problem which has arisen on a number of occasions over the past few years. The issue is that of entitlement to Disability Benefit (DB) or Invalidity Pension for people who have contracted serious long-term illnesses, such as multiple sclerosis (MS). The problem in these cases is that the extent of incapacity can be hidden in the early years of the illness and claims for DB may well be rejected. By the time the full extent of the illness has become manifest, the person's social insurance record is no longer up to date and the person is regarded as ineligible for benefit on that account. The complainant was confirmed as having MS in July 1981. However, she had been in ill health since 1977 when she had to give up employment. She received DB for a short period in 1977/1978 but this was withdrawn when she was regarded by the Department of Social Welfare as being again capable of work.

The complainant returned to work in 1979 but after two days she was forced to leave the job as she was constantly stumbling, losing her balance and falling over from time to time. Her DB was not restored. The complainant says she appealed the withdrawal of DB in 1978 but that she never received any result on this appeal. The Department, on the other hand, has no record that such an appeal was lodged.

In April 1991, the MS Society made representations to the Department of Social Welfare on behalf of this complainant. The MS Society felt that she should have been receiving DB since the onset of her illness but that she had failed to pursue her entitlement (a) because of the severity of her illness and (b) because she had appealed but had not received any outcome. The response of the Department was to say that Benefit could not be paid as the complainant had no recent record of social insurance. The question of awarding retrospective social insurance credits - based on the woman's incapacity - was raised. However, the Department took the view that, as this request was not made until April 1991, it was well outside the prescribed timescale for claiming such credits. (In fact, the legislation provides that the Minister has discretion to extend the period within which such credits may be claimed).

This Office had a lengthy involvement in this case. Our attention focused primarily on the issue of the retrospective award of social insurance credits. In this case such credits would have to be awarded from April 1981, at the latest, if the continuity of her social insurance record was to be restored. There was considerable difficulty in establishing her right to such credits. The main problem arose from the fact that MS was not confirmed until July 1981. The consultant who made this diagnosis had not examined the woman prior to July 1981. Whereas the consultant did say that, in his opinion, it was probable that the woman had been incapable of work for a period of months prior to his diagnosis, the Department was reluctant to accept this as a sufficient basis for awarding incapacity credits in the period prior to July 1981. A solution was eventually found when the Department decided that it could regard the complainant as having been unemployed in the period prior to July 1981. This allowed for the retrospective award of unemployment social insurance credits for that period. Once this was done, the continuity of her insurance record was restored and it was possible to award credits all the way back to 1978. The eventual outcome of this case was that the Department paid DB retrospective to April 1991, i.e. the date from which the MS Society had made representations on her behalf.

The case highlights a number of problems in relation to DB and indeed the wider social insurance system. One such problem is the fact that many ordinary people are quite ignorant of the significance of, and the mechanism for claiming, social insurance credits. Such credits may be claimed in respect of periods of either unemployment or incapacity. A related problem is that if credits are not awarded within the prescribed period (before two full contribution years have elapsed following last being insured) it can become almost impossible to acquire credits later on. Failure to seek credits can arise either through ignorance or because, for example, the incapacity is not sufficiently established. When the person finds out about credits, or when the illness has become clearly established, in many cases it may be too late.

In the present case, the complainant benefited from the award of DB from April 1991. But she might well have been paid DB from at least July 1981, if not from an earlier date, if she had known how to pursue the case properly at that time.

Unexpected Outcomes

In dealing with social welfare complaints, it can occasionally happen that a person complains about the non- payment of a particular benefit and, in the course of examining that complaint, it emerges that the complainant in fact has an entitlement to a totally different benefit. These unexpected outcomes can arise either as a result of the Department's own further consideration of the case or as a result of work done by this Office.

In one such case, the complaint related primarily to the Non-Contributory Old Age Pension (NCOAP). The issue was that the complainant was receiving a very small rate of pension and she felt that the outcome of the means test - subsequently upheld by an Appeals Officer - was unreasonable. She mentioned that she had applied originally for a Contributory Old Age Pension (COAP) but that this had been refused on the grounds that she had an average of only 16 social insurance contributions per year over the relevant period. She needed a minimum average of 20 contributions per year in order to qualify. She had apparently accepted that the refusal of the COAP was correct.

From our examination of the complaint relating to NCOAP, we quickly concluded that there was no case against the Department. However, we decided to look in some detail at the refusal of COAP in order to be sure that she did not have an entitlement to that pension. It emerged that the question of her COAP entitlement was quite complex.

While one of the requirements for COAP entitlement is that the applicant should have a certain minimum average of contributions, there are a number of variations in relation to the relevant period. In this case, the applicant would need to have had a minimum average of 20 contributions per year from the year she entered insurable employment to the end of the tax year before reaching 66 years. It appeared the Department had taken the applicant's entry into insurance as having occurred in 1953 and the relevant period then spanned 38 years up to the age of 66. When we examined the case, it appeared that the date of entry into insurance should have been taken as 1958 rather than 1953. The complainant had been in employment and had paid contributions under the old National Health Insurance Acts, prior to the introduction of the current social insurance system in 1953. She had been in employment until about November 1952 but had then been out of employment in Ireland until 1958. It appeared that the Department treated her entry into insurance under the National Health Insurance Acts as amounting to an entry into insurance under the current Social Welfare Acts and that this was the basis for running the relevant period from 1953 rather than from 1958.

We pointed out to the Department that the relevant period should run from 1958. However, even on this basis, the complainant's average of insurance would only amount to 19 contributions per year whereas she needed a minimum of 20 contributions per year in order to qualify. We suggested to the Department that, when the complainant entered insurance under the Social Welfare Acts in 1958, she should have benefited from the award of what are known as pre-entry credits. These pre-entry credits are normally awarded at the point when a person first enters insurance under the Social Welfare Acts. They cover the balance of the year of entry, in addition to the complete year prior to entry, into insurance. These pre-entry credits, we suggested, would raise her average of contributions to 19.8 per year.

There is provision in social welfare law for "rounding up" in cases such as this. This meant that the suggested new average of 19.8 should be rounded up to twenty contributions thus giving rise to entitlement to the COAP.

Following a lengthy consideration of the case, the Department agreed that the complainant's entry into insurance should be taken as having occurred in 1958 and it agreed that pre-entry credits should be awarded in her case. The Department calculated that this raised her yearly average to 19.7 contributions and this, when rounded up to 20 contributions, created an entitlement to the Contributory Old Age Pension. Accordingly a pension at the rate of £110.60 per week and appropriate arrears were paid.

Health Board - Mortgage Allowance

A man complained that he had been refused a Mortgage Allowance under the Supplementary Welfare Allowance scheme on the grounds that he was unemployed at the time he finalised the purchase of his house. The background to the case was that, prior to being made redundant, he had arranged to sell his house and entered into a commitment to purchase a new house. He had understood that he would obtain further employment in a similar operation which was to open within a short time, but he did not get the job. He believed that the Health Board decision to refuse his application was unfair as he had no alternative at the time but to go ahead with the transaction.

In their report on the case, the Health Board said the application was refused because he was unemployed at the time he negotiated and was granted a loan from the Local Authority and that the Allowance was not payable under such circumstances. They explained that the scheme was for persons with a mortgage at the time their financial circumstances disimproved and was intended to assist those in receipt of Department of Social Welfare or Health Board allowances to remain in their existing home, if they so wished, unless it was too large for their needs, too expensive for their circumstances, or the recipient had a significant realisable equity in the property. It was not intended to help a person acquire a capital asset .

Having discussed the matter with the complainant's solicitor, my investigator established that the contract to purchase the new house was entered into before the applicant became unemployed. The contract was conditional on his receiving loan approval in respect of the new house and on the sale of his own house, the sale of which was also completed before he became unemployed. His contract in respect of the new house, therefore, became binding on his receipt of loan approval. It seemed to me that, had he decided not to go ahead with the purchase of the new house, he stood to lose not only his deposit but would also have left himself open to being sued for performance of the contract.

The Health Board were asked to review the case in the context of the circumstances in which the complainant found himself. They subsequently advised my Office that, having obtained legal advice, they were satisfied that he was tied into binding contracts from which he could not extricate himself without disastrous consequences. They decided, therefore, that he was eligible for a Mortgage Allowance and that payment would be made from his date of application.

Where a change of circumstances due to unemployment is the key factor in a decision to refuse Mortgage Allowance under the Supplementary Welfare Allowance scheme, due account must be taken of any relevant legal commitment which the applicant had entered into prior to becoming unemployed.

Local Authority

Disabled Persons Grant Refused

A Local Authority refused to allow payment of a Disabled Persons Grant (DPG) in respect of the provision of a downstairs extension to accommodate a bathroom for the use of the mother of a complainant. Because of her disability, she was unable to use the existing bathroom located upstairs in the house.

When the application for the grant was originally made, an inspection was carried out by the Local Authority's Engineer who certified that the works were necessary. The Area Medical Officer (AMO) confirmed that the complainant's mother was medically eligible for the grant. Reports from the AMO and the Engineer were forwarded to the Local Authority . However, before the grant was formally approved the works were completed by the applicant. At this point a further inspection of the house was carried out by a Local Authority official who decided that, as there was now an existing bathroom downstairs in the house, the grant should be refused.

It is a standard requirement of the DPG Scheme, as operated by the Local Authority, that work should not start before grant approval is given. In this instance, the applicant had commenced work prior to receipt of formal approval. He cited two reasons for this: (a) the AMO had indicated that his mother complied with the medical requirements in respect of disability and (b) there was urgent need involved as it was felt that it would be injurious to her health for her to continue to climb stairs to use the bathroom upstairs.

While I acknowledged that the terms of the scheme required that work should not start before grant approval was given, I was satisfied that, given the circumstances of the case, it was understandable that the applicant's son would have assumed that, following visits from the Local Authority's Engineer and the AMO and the urgency associated with the application, he could proceed with the works. Accordingly, I asked the Local Authority to look again at their decision not to pay the grant in this instance.

The Local Authority reviewed the case and decided to allow payment of the grant.

Failure to provide housing

I received a complaint from a single man who said that he had applied to his Local Authority for housing seven years before approaching my Office and that he had received no offer of accommodation. He said he had been living as an owner-occupier in substandard accommodation which lacked water and sanitary facilities and that he had medical problems which were exacerbated by his poor living conditions.

The Local Authority reported to me that the man had been, and would continue to be, considered for any suitable housing which became available, but that it had not been possible to accommodate him because of financial constraints on the Local Authority's housing programme. They suggested that he would be considered under the Plan for Social Housing for remedial works to his cottage. The Local Authority also stated that, some years previously, when the complainant left the family home he had received a substantial sum of money from his brother and that he had only spent one quarter of this amount on the purchase of his cottage. It was suggested that he should have spent more of the money on refurbishing the cottage which he had bought.

The man had moved out of the family home when his brother married and he had bought a cottage. Under the arrangement with his brother, he had indeed received a sum of money from him. My examination of the case established, however, that the sum of money which he had received was considerably less than that stated by the Local Authority and that it had been used by the complainant to purchase his cottage. The Local Authority acknowledged in response to my examination of the complaint that the man had been living in unfit accommodation The man first applied to the Local Authority for housing in 1985. He gave as the reason for seeking rehousing the fact that his cottage was unserviced and vermin infested. He had reapplied on 1 December 1987, 25 January 1991 and 11 January 1993. In his 1987 application, he indicated that he was sick. He submitted medical reports from his doctor in June 1990 and February 1991 requesting a review of his living conditions. While he had featured on waiting lists for limited accommodation dwellings (dwellings suitable for single people or small families) in 1986, 1987 and 1988, he had received no offer of accommodation from the Local Authority. As an applicant living in unfit accommodation, the complainant should have been awarded Category A priority rating under the Local Authority's scheme of letting priorities. This is the highest priority rating under their scheme as adopted by the Councillors. My staff carried out a review of the successful applicants for five limited accommodation dwellings which had been allocated by the Local Authority in 1986 and discovered that two of them were in Category B and one in Category C of the Local Authority's scheme of letting priorities. These categories covered applicants living in overcrowded conditions and applicants who lacked adequate and suitable accommodation and who were unable to provide such accommodation from their own resources and were deemed to be of a lower priority under the scheme of letting priorities.

In the circumstances, I requested the Manager to review the Local Authority's decision in the matter. The Local Authority concluded that the complainant's cottage was not suitable for refurbishing under the Improvement Works Scheme in the Plan For Social Housing but they decided that they would offer him accommodation in a particular property which they expected would shortly become available. I accepted this solution and I informed the complainant accordingly.

Some three months after notifying the complainant of this, my Office received a telephone call from him saying that he had not yet been housed by the Local Authority. He said that he had recently contacted the Local Authority about a particular vacancy of which he was aware and he was told by a Local Authority official that he could not be given a guarantee that he would be housed and that he would be considered for housing like all other applicants. During the course of my examination of this complaint, my Office had experienced delays and difficulties in securing adequate responses from the Local Authority. My investigator contacted the Local Authority and discovered that they had plans to facilitate a number of transfers involving, among others, the house which they had proposed to offer to the complainant in resolution of his complaint. Despite not having been approached by the Local Authority about this latest proposal, I would not have objected to it provided the Local Authority had intended to carry out the proposed transfers simultaneously and in the context of the complainant being allocated a house suitable to his needs. My investigator relayed my view to the Manager who had, in the meantime, allocated the house originally earmarked for the complainant to a transfer applicant, but he agreed to allocate the consequential vacancy to the complainant.

Housing transfer applicant with psychiatric illness

A tenant with a psychiatric condition seeking a transfer complained that his Local Authority was discriminating against him because they refused to award him points on medical or compassionate grounds.

The tenant said that he had been the subject of intimidation from local youths because of his psychiatric condition. He had sought a transfer from his flat to get away from the intimidation. The Local Authority awarded him a total of 25 points based on his existing housing circumstances. Despite the medical evidence submitted by his Health Board's psychiatric clinic and his GP in support of his application, the Local Authority, on the recommendation of the Welfare Officer and Medical Officer, refused to grant him any points on medical or compassionate grounds. They refused to do so even though their scheme of letting priorities and transfers contained a provision whereby a maximum of 15 points could be awarded on each count at the discretion of the Local Authority.

Having reviewed the Local Authority's file on the complainant's application, in particular the medical evidence submitted in support of his application and the evidence of intimidation, I was concerned at the possibility that the decision not to grant any points on medical or compassionate grounds might represent discrimination against people with a mental illness. Accordingly, I asked the Local Authority to have both their Medical Officer and Welfare Officer indicate the circumstances in which they might award medical or compassionate points to applicants with a mental illness. Arising from this request, the Local Authority awarded the complainant the maximum 15 points on exceptional compassionate grounds. The Medical Officer gave me reasons as to why he did not consider that the complainant should be awarded points on medical grounds and an explanation of his approach to awarding medical points to applicants who have a psychiatric illness. I was satisfied that the Medical Officer's general approach to such applicants was reasonable and that, with the additional points now awarded to the complainant on exceptional compassionate grounds, he was being treated reasonably by the Local Authority.

Lack of appreciation of the functions of the Ombudsman

I received a complaint from a separated woman who claimed that she and her daughter had applied to the Local Authority for housing as homeless people and that her application had been largely ignored by them. Before complaining to my Office, they had for a number of years been forced to live in a mixture of temporary accommodation. This included moving from one relative to another on a short-term basis, living in hostels for the homeless and squatting. During the course of my examination of her complaint, the woman was eventually housed by the Local Authority. A feature of the case, however, was the lack of appreciation, on the part of the Local Authority, of the functions of the Ombudsman

In accordance with normal procedures, my Office asked the Local Authority to furnish a report setting out their position on the complaint. The Local Authority were asked to include in their report details of the complainant's priority rating for housing with reference to their scheme of letting priorities, together with a copy of the scheme and any waiting lists on which she had featured. This is the normal enquiry which issues in housing cases of this type. The Authority replied enclosing a brief history of her housing situation since the complainant first applied to them for housing. This showed that the woman had made numerous applications for housing and that her circumstances had changed frequently, ranging from homelessness to living in overcrowded conditions with relatives and friends. The reply indicated that the woman's application was under consideration, but it did not explain how the Local Authority regarded her applications under their scheme of letting priorities or why she had not been housed.

My investigator discussed the matter with the official involved. He asked for a full explanation of the woman's priority rating in respect of each of her applications for housing, together with an explanation of the basis for the Authority's decisions, so that I could assess if her application had been properly considered. The Local Authority furnished a letter enclosing copies of Environmental Health Officer reports on the woman's application, but again failed to address the question of her priority rating under their scheme of letting priorities. My investigator found it necessary to have three further telephone conversations with the relevant official of the Local Authority and to write to him before the Local Authority finally furnished a letter addressing the general question of interpretation of their scheme of letting priorities. They did not, however, address specifically the complainant's priority rating. Eventually, the Local Authority finally outlined their view of her priority designation under their scheme of letting priorities in respect of each of her applications for housing. They also asserted that no applicant with a lower priority had been housed ahead of her.

While the latest developments were under consideration by my staff, the Local Authority wrote to my Office stating that they had allocated the complainant a house and that their decision had been taken in the normal way under the scheme of letting priorities and was not influenced in any way by my examination of the case. It appeared to me, from the delays and difficulties experienced in receiving information requested in connection with this complaint, that there was a distinct lack of appreciation of the function of the Ombudsman on the part of the officials concerned. Neither was I satisfied with the Local Authority's handling of the complainant's housing application. I asked my officials to write to the Manager to ask him to remind his staff that, in complaints concerning housing, just as in any other area of local government administration which is statutorily subject to my remit, I expect that all relevant information to enable me to assess whether the authority has acted correctly will be supplied when requested.

Charging for a substandard water supply

In his Annual Report for 1993, my predecessor made mention of instances where local authorities had exceeded their statutory power in charging for services. By contrast, in the year under review, my Office completed examination of a complaint against a Local Authority on the question of the power of the Authority to charge for a substandard public water supply. While the Authority had acted within their statutory discretion, the case raised fundamental questions about the equity of the Local Authority's power to charge for a substandard supply.

The water supply in question had been acknowledged by the Local Authority to have been aesthetically objectionable since the summer of 1993 because of the presence of iron and manganese in the supply. The Authority maintained, however, that at all times it had been fit for human consumption and they were supported in this by the conclusions of the Environmental Health Officer who had monitored the condition of the supply. The objections raised by the householders were that the water was dark brown in colour and contained a sediment which made the water unappealing to drink and that it caused discolouration of the household washing and limited damage to some household appliances. While my Office was satisfied with the steps taken by the Authority to address the problem and to provide an alternative supply, the complaint raised questions as to whether the Authority should have been allowed to charge for what was, in the consumers' view, a substandard supply. The view of the Local Authority was that the problem was a short- term one. They were not prepared to consider a refund of charges in circumstances where the supply was deemed fit for human consumption and the problem with the supply was short-term, which arose from circumstances beyond their control such as acts of nature. The Local Authority also indicated that they had been advised by their Law Agent that they had no liability to consumers provided the water was deemed potable.

The statutory position is that under the European Communities (Quality of Water Intended For Human Consumption) Regulations, 1988 it is the duty of a sanitary authority to take all necessary measures to ensure that water intended for human consumption meets the requirements specified, except where a derogation is granted by the Minister and provided that the supply does not constitute a public health hazard. In this case, the Local Authority had been granted a derogation by the Minister for the Environment in respect of the supply because of ground conditions. Section 7 of the Local Government (Sanitary Services) Act, 1962, as amended by Section 8 of the Local Government (Financial Services) (No 2) Act, 1983, empowers each Local Authority to charge for water supplied by them. The definition of a domestic water supply under Section 7(11) of the 1962 Act goes beyond the basic requirement of being fit for human consumption. It provides that water must be suitable for washing and sanitation. It seemed, therefore, intrinsically unfair that consumers should be required to pay the full amount for a supply which did not meet their normal domestic needs. There appeared, however, to be no specific statutory requirement linking water quality standards and the power of authorities to charge for providing a supply and so I sought my own legal advice in the matter. This advice concurred with the Local Authority's stated position that, as long as the water was potable and fit for human consumption, the consumers had no legal remedy open to them. I decided, therefore, to raise the issue with the Department of the Environment and I suggested to them that, in equity, consideration should be given to making provision for the granting of a waiver of charges where a water supply was substandard.

The Department indicated in response that, in general, it is the practice of local authorities to apply a uniform scale of charges for water supplied by them across their functional area, without regard to the actual cost of supplying individual consumers. They pointed out that the actual cost to consumers can vary considerably, as can the consumption of water by individual domestic consumers, at any particular time and over any particular period, depending on a multitude of factors affecting the quantity of water deliverable or delivered. They suggested that, if a waiver of charges were granted in whole or in part in the circumstances outlined by my Office, there would inevitably be pressure to extend the concession in the many other situations which might arise affecting the quality or quantity of water supplied and that the cost of any such relief would fall to be borne by increases in charges on the remaining consumers. They suggested that, on balance, where the statutory requirements for drinking water were met and where there had not been any negligence by the Local Authority, equity should not require reductions in charges for a substandard supply. While I acknowledge the Department's arguments, much of what they say, particularly in relation to the cost being borne by other consumers, would apply to consumers of goods and services in the market place in situations where faulty goods or services are supplied. In such cases, the consumers of faulty goods and services are entitled to refunds or other protection. In my view, the consumers of public services should in principle be treated no differently to private sector consumers. They have a right to expect that, if they pay a charge for a service, the service will be of good quality and fit for the purpose intended. The legislation enabling local authorities to supply water for domestic purposes and to charge for water for domestic purposes envisages that a domestic water supply will not just be fit for drinking but that it will also be suitable for washing and sanitation.

Failure to take in charge a group water scheme

The Secretary of a Group Water Scheme complained that their Local Authority had failed to take the scheme in charge despite repeated requests. He maintained that this failure to take the scheme in charge had caused both him and the Group substantial running and maintenance costs, which they would not otherwise have had to bear.

The Local Authority replied that they had been flexible and helpful to the Group over the years in dealing with their difficulties. They said the Group had failed to comply with the conditions for the taking in charge of schemes. They said that, if the Group disputed their view of the condition of the scheme, they should have referred the matter to the Minister for the Environment for determination under Section 6(3)(b) of the Local Government (Sanitary Services) Act, 1962. They denied that they had given any commitment in 1981 to take the scheme in charge. The Local Authority also stated that it was their general experience in the early 80's that schemes were not constructed in accordance with the plans approved and that it was therefore necessary to draw up a list of standard conditions for the taking over of schemes. The Local Authority stated that, because of the rapid expansion of the group water programme, they did not have the finances in 1981 to take the scheme in charge. They also pointed out that members of the Group owed substantial arrears of water charges.

I carried out a detailed examination of the Local Authority's file on the scheme to establish the facts of the case. The Local Authority gave approval for undertaking the scheme on 17 October 1974. The Group applied in writing to the Authority in June 1981, asking that the scheme be taken in charge. The Authority replied on 14 July 1981, stating that they were not in a position at that time "to take over any group schemes". The Group again wrote to the Authority on 4 November 1981, asking them to clarify their position on the take over, since they were under the impression that the scheme would be taken in charge before the end of that year. The Authority decided, in April 1982, to adopt new conditions for the taking over of Group Water Schemes. A copy of these conditions issued to the Group on 21 April 1982.

The matter of taking over the scheme was next formally raised in January 1987. The Local Authority replied that the list of standard conditions for the take over of such schemes, which had been given to the Group, had not been satisfied. The Group again wrote to the Authority on 27 October 1987, requesting them to take the Scheme in charge. The Authority replied on 2 November 1987, enclosing the list of standard conditions for the taking in charge of schemes which had to be satisfied before consideration would be given to the Group's application. The Local Authority also stated that they were going to undertake a survey of the condition of connections, etc., to facilitate the remedying of any faults.

Meanwhile, the Group were incurring substantial running and maintenance costs. They had provided a booster pump to cater for expanding membership of the Scheme. The Local Authority members, at an estimates meeting in 1989, passed the following resolution:

"with effect from 1 January, 1990 group water schemes with pumping charges to be refunded 50% of E.S.B bills in respect of pumping costs in all cases, and 100% of E.S.B bills where 100% of the domestic water rate had been paid by domestic consumers in a group".

The Group benefited from this assistance towards the running cost of their booster pump. The Authority issued revised and simplified standard conditions for taking over schemes on 15 September 1988, followed by an instruction on 26 July 1989 to the Group to provide meters on a number of connections. In that letter, the Group were again told that consideration could not be given to taking the scheme in charge until all the meters were provided.

In May 1991, the Local Authority's Senior Executive Engineer reported to the County Engineer that it would cost £10,000 to complete repairs and replacements of fittings on the scheme. The Authority reduced the repair requirements to the minimum, bringing the estimated cost involved to £5,775. The Group Secretary arranged for a contractor to undertake these repairs on the assumption that the Authority would meet the cost involved. When he eventually realised that the Authority were not prepared to meet this cost, he had to write a personal cheque for £1,159.40 to the contractor to cover the cost of works undertaken. During the course of my examination of the complaint, discussions between the Authority and the Group were held about taking the scheme in charge, but these did not satisfy the Group because the Local Authority were not prepared to reimburse the Group for their running costs.

It seemed to me that, under the relevant legislation (Section 6, Local Government (Sanitary Services) Act, 1962), if a scheme was in good order and repair and there was agreement on the terms of the take over, a Local Authority was obliged to take a scheme in charge if it was requested by the majority of the members of a group to do so. If agreement could not be reached on the terms, it seemed to me that the Local Authority was obliged to acquire the works by compulsory purchase order and to have the matter of compensation determined by an arbitrator. If there was a dispute as to the condition of the works, the Act provided for this matter to be referred to the Minister for the Environment for determination. Grants were available to assist groups to provide water supplies for their areas. Under the grant scheme which was administered by the Department of the Environment, a scheme had to be certified by the Department's Inspector as being completed satisfactorily before payment of a grant could be paid. My investigator confirmed with the Department that all grants had been paid in this case and the scheme had been certified as being completed and satisfactory in all respects at the time of payment of the grants.

In the circumstances, my Office wrote to the County Manager asking him to review the Local Authority's position in the matter and officials from my Office met with the Assistant County Manager and County Secretary to discuss the case. In these discussions, the Local Authority, while not denying that they had the aforementioned statutory obligations under the 1962 Act, questioned the adequacy of the legislation for dealing with such situations. They also advanced general financial arguments about their ability at the time or subsequently to take the scheme in charge. They promised to furnish evidence which would show that, at the time of the initial request from the Group to take the scheme in charge, it was not completed to their satisfaction. When the Local Authority failed to furnish this evidence and because I was not satisfied that the Authority had met their statutory obligations in the matter, I decided to initiate an investigation of the case.

The Authority responded to the statement of complaint, which is the first step in my Office's investigation procedure, restating the position which they had held in the matter but stating that, having regard to the Group's financial difficulties, they had agreed to take the scheme in charge notwithstanding the repairs necessary and the level of arrears of water charges. They also reopened discussions with the Group and reached agreement to pay £26,659 to purchase the scheme. Since this offer was acceptable to the Group, I decided to discontinue my investigation.

Revenue Commissioners

Interest charges

A company complained that the Revenue Commissioners, in raising interest charges on late payments of VAT, should have taken into account a refund of VAT subsequently made to the company.

The company had applied, in February 1993, for a VAT refund in respect of a once-off transaction with a subsidiary company. The application was initially refused by the Commissioners but, after lengthy legal argument between the Commissioners and the company, it was eventually allowed and the refund was made in October 1993. In the meantime, the company was a month and two months late in making VAT payments due in March and May 1993, respectively, and full interest charges were raised on these late payments. The company was of the view that, in determining the amount of interest due on the late payments, the Commissioners should have taken into account the fact that the refund of VAT, applied for in February 1993, was not made until October 1993 and that the interest charges on the other VAT amounts arose within the same period.

The Commissioners said that there was no legislative provision whereby amounts of repayments could be offset against VAT due in other periods. Hence, if payment is outstanding for other periods, the interest is fully chargeable on the amounts outstanding regardless of any refund in the offing for any separate period.

The Commissioners' view on the matter as outlined above was not accepted by my Office and the matter was pursued further with them. The Commissioners eventually accepted the company's right to set the VAT repayment against VAT due. They had some doubt about the acceptance of the right from the date of the claim, because a certain level of enquiry was necessary before it could be established that the repayment was due. Finally, however, the Commissioners accepted that the VAT repayment was due to the company from the date on which the application for repayment was lodged in February 1993. In the circumstances, they agreed that the interest charges, which by then had been paid by the company, would be reduced (by more than half) and it was arranged that the amount in question would be credited against the next period in respect of which a VAT liability arose.

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