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Annual Report of the Ombudsman 1995

Chapter One

Introduction

This is my second Annual Report and it covers the first full year of my tenure as Ombudsman. It has been a time to consolidate and build on the many achievements of my predecessor, Michael Mills, as well as to emphasise what I see as the contribution which my Office has to make to promoting and ensuring good standards of administration in the public service. The citizens of this country are entitled to expect that they will be dealt with properly, fairly and impartially by our public service.

The format of my report has changed this year, as I had promised. The report is bilingual and this represents an important step in implementing my Office's policy in relation to the Irish language. It is a development which, I hope, will be followed by other public bodies in the future. I have also arranged to have the report made available on the Internet, as well as on computer diskette. As I have emphasised in the past, I am anxious that the report should have the widest possible circulation, not only among the public but also among the bodies within my remit.

In a break with tradition, and in line with the commitment given in last year's report, I have also named individual local authorities and health boards in case summaries. The only exception to this is where I felt that to name the organisation could have identified the complainant.

Principles of Good Administration.

In my first Annual Report, I highlighted the principles of good administration which public bodies should apply in exercising their powers. I also said that I intended to apply these principles in examining the complaints which come before me. In Chapter 2 of this Annual Report, I focus on these principles in more detail by illustrating their relevance to particular complaints examined in the course of the year.

Public service bodies very often exercise quite extensive powers and make important decisions affecting individuals or groups of individuals. It is in everybody's interest, including that of the bodies, to ensure that decisions are taken and powers are exercised in the fairest and most effective manner possible. While the role and functions of public bodies are wide and varied, these principles, nevertheless, have application throughout the public service. In my opinion, more could be done within the public service itself by way of training and education to familiarise staff with these principles and with the role and functions of my Office.

Constitution Review Group.

Accountability is an essential part of the democratic system and applies equally to both elected and non-elected public servants. I have previously referred to a form of accountability, which I call administrative accountability, which is the process of ensuring that the activities of public bodies are administered in a fair, impartial and proper manner.

The role of the Office of Ombudsman in monitoring and promoting administrative accountability was addressed by the Constitution Review Group and featured in one of its Provisional Reports published in December 1995. The report stated that, in recent years, it was clear that a consensus had emerged in both houses of the Oireachtas about the desirability of not only maintaining the institution of Ombudsman but also of strengthening and developing it. The report also acknowledged that my Office would become even more necessary if devolution and delegation within the public service continued to develop as envisaged at present.

The Review Group, acknowledging that independence is the foundation stone upon which my Office is based, recommended that a new Article be inserted in the Constitution. This Article would confirm the "establishment of the Office of the Ombudsman, providing for the independent exercise of such investigative and other functions of the Office in relation to administrative actions as may be determined by law, and making other provisions similar to those applying to the Comptroller and Auditor General and consistent with the 1980 [Ombudsman] Act, as amended". (Provisional Reports, Constitution Review Group, 20 December, 1995).

I welcome and fully support this recommendation.

Government Plans for the Office

Extension of Remit

In last year's report, I indicated that the Government's policy document "A Government of Renewal" proposed an extension of the powers and remit of the Office of the Ombudsman. I am pleased to say that much progress was made during the year and preparation of a draft bill is now underway.

Perhaps the most significant aspect of the proposals is the planned extension of my remit to cover non-commercial state bodies and voluntary hospitals. It is proposed to employ a similar formula to that which applies to the Comptroller and Auditor General whereby any public body, in receipt of 50% or more of State funding, is within jurisdiction. I welcome these proposals which will help to clarify my remit. I have often stressed how difficult it is for the public to understand why I can examine complaints against some public bodies, but not others and the current proposals will go a long way towards removing this confusion.

Administrative Procedures Act

The Government's policy document also contains proposals for an Administrative Procedures Act. The proposed Act would vest in the Office of Ombudsman monitoring and regulatory functions aimed at securing compliance with the principles of good administration to which I refer in more detail in Chapter 2 of this report.

During the year, I submitted some preliminary observations on the content of the proposed Act to the Department of Finance which has responsibility for preparing the legislation.

Freedom of Information

The Government's proposals for a Freedom of Information Act were recently published and are intended to bring about significant change in the way public servants approach their work and in the degree of public access to official documents.

Information is at the centre of the citizen's dealings with public bodies and in its absence, he or she cannot even begin to ask how and why decisions were made. The fundamental cause of many complaints which I receive is a failure to provide appropriate information or reasons. Indeed, there is no doubt that access to files and documents is one of the most significant powers available to me. Without it, my Office's effectiveness would be severely limited. Many of the complaints documented in my report result from a lack of openness by public bodies. If citizens had greater access to the basis on which decisions affecting them are made, many of these complaints would not have arisen in the first place.

My Office continues to add to its experience on cases involving requests for information through dealing with complaints relating to the Regulations on Access to Information on the Environment (SI No. 133 of 1993). In Chapter 2 of this report, I describe two such complaints which, unfortunately, both involved long delays in releasing information. As I said in last year's report, much work needs to be done in creating a culture which is disposed to releasing rather than withholding information.

During the year, at the invitation of the Dáil Committee on Security and Legislation, I presented my suggestions on the general format which the freedom of information legislation might take and my experiences to date, as Ombudsman, with regard to secrecy provisions and access to information generally.

Number of Complaints

During 1995 I received a total of 2,879 complaints compared to a total of 3,160 complaints the previous year. Of this number, 629 were outside my jurisdiction leaving a balance of 2,250 valid complaints. I should point out that, in the case of complaints outside my jurisdiction, every effort is made to direct the complainants to an alternative source of assistance or information. In addition to the number of new complaints I received, there was a carry-over of 809 complaints from 1994 resulting in a total of 3,059 valid complaints to be dealt with in 1995. During the year, 2,181 of these complaints were finalised, leaving a balance of 878 to be carried forward to 1996.

Of the 2,181 complaints finalised in 1995, 403 were resolved and in 542 cases, assistance was provided to the complainant, so some degree of redress was obtained in over 43% of cases finalised. A total of 842 complaints were not upheld, a further 394 were either discontinued or withdrawn by the complainant.

A breakdown of the number of complaints within jurisdiction handled during the year shows that 47% (almost half) concerned civil service departments and offices. Of these civil service related complaints, 49% involved the Department of Social Welfare, 20% concerned the Department of Agriculture, Food and Forestry and 11% were against the Revenue Commissioners. Of the remaining 53% of complaints, 25% concerned Local Authorities, 13% related to the Health Boards, 12% to Telecom Éireann and 3% to An Post.

Public Access and Awareness

I am very conscious of the need to make my Office accessible to the greatest possible number of people. I realise that sometimes it is easier for a member of the public to come in and talk to a member of my staff about his or her complaint rather than have to write or make a phone call. With this in mind, my staff continued to visit areas outside Dublin during the year, both for short one or two-day periods in some regions and regular monthly visits in the case of selected areas.

During 1995, staff from my Office visited Roscommon, Longford, Athlone and Tullamore. Over 200 people called to these centres.

In addition, the Office continued to maintain a regular monthly presence at Citizens Information Centres in Cork and Limerick and in the Social Services Centre in Sligo. Following a review of the operation of these centres, it became necessary to discontinue the service in Sligo due to poor demand. However, a new service was opened in Waterford in 1995 with the co-operation of the National Social Service Board (NSSB) and arrangements were made to commence a similar service in the Citizens Information Centre in Galway in April 1996. A new service was also opened in Tallaght with the co-operation of the Tallaght Partnership Company. During 1995 there was a total of 372 callers to the centres in Cork, Limerick, Sligo, Waterford and Tallaght.

I would like to thank all those involved in making these visits a success, particularly those who assisted in publicising them, including local radio and press. I would also like to thank the Board and staff of the NSSB for their continued co-operation in increasing public awareness of my Office especially through their contacts with the Citizens Information Centres.

Information on my Office, including details of the planned programme of Regional and Citizens Information Centre visits for 1996, is published on the Internet (url: http://www.irlgov.ie/ombudsman/)

Strategic Management Initiative

My Office is contributing to the civil service wide initiative on strategic management. The Office produced a Strategic Management Action Plan in 1994, the details of which I outlined in last year's Annual Report. One of the notable features of the production of the action plan was the participation of staff at all levels in the Office.

All staff were again involved in working groups during the year and the first annual review of the plan took place in October 1995. Each of the working groups was assigned the task of making proposals to implement the strategies outlined in the Office's plan. The groups reported on their findings and implementation of a number of their recommendations is now underway. One notable area which was singled out for attention was the need for increased dialogue with the bodies within my remit. My Office's initiatives in this regard are outlined on below. Further areas have been identified for consideration by the working groups, including ways and means of increasing public awareness of the Office and its functions.

Within the wider civil service context, my Director will take part in a working group of Secretaries of Departments and Heads of Offices which is to examine the issue of open and transparent service delivery. This is one of a number of groups which will report to a Co-ordinating Group of Secretaries on issues of general application to strategic management in the civil service. In this connection, my Office has written to the Department of Finance and has suggested that the Centre for Management and Organisation Development, which has, among other things, responsibility for civil service training, might initiate a programme designed to give public servants a general appreciation of the principles of administrative law as well as an appreciation of the principles which the Ombudsman takes into account in examining complaints. Such a programme would indirectly assist in promoting improvements in the quality of service delivery.

Staff

I would like to thank the Director, Pat Whelan, and staff of the Office for their continued support and commitment during the past year. I would especially like to thank the former Director, Frank Goodman, who left during the year to take up appointment as Chief Executive of the Legal Aid Board. His assistance to me when I became Ombudsman was invaluable and I wish him every success in his new post. Finally, I want to put on record Geraldine Fitzpatrick's excellent work in the preparation of this Annual Report.

Administrative Law

As a general rule, an Ombudsman does not have the power to make binding determinations, but only the power to make recommendations. This apparent weakness is, in fact, a great strength. It allows the Ombudsman to operate pragmatically and flexibly avoiding the legalistic and adversarial approach of the courts and, unfortunately, of many administrative tribunals. I have no doubt that, had my Office been given the power to make binding determinations, it would have found itself, especially in the early days, faced with many legal challenges. Instead, the Office is able to recommend remedies which would not have been given by a court and to hold bodies administratively liable even where there is no legal or statutory liability.

There is, of course, a common area between my Office and the courts in relation to the application of the principles of administrative law. Both my staff and I consider it essential that we have a full appreciation of these principles and that we bear them in mind when examining complaints. During the year, we arranged a series of lectures on the latest developments in the area of administrative law.

Relations with Public Bodies within my Remit

Last year I explained the need for increased co-operation and dialogue between my Office and the bodies within my remit. I expressed my intention to develop and cultivate all such contacts. Indeed, the improvement of relations with the public bodies within my remit was one of the corporate goals identified by my Office in its Strategic Management Plan. I believe that such dialogue is a prerequisite to improving procedures and practices generally. With this in mind, during the past year I have met the Chief Executive Officers of the health boards to discuss liaison arrangements and general issues arising from specific complaints. My Director presented a paper to the Annual Conference of Assistant County Managers and I addressed a conference of the Association of Municipal Authorities of Ireland. I also hope to meet the County Managers and County Secretaries of the local authorities in the near future. Such meetings and conferences are opportunities to exchange ideas and opinions and are invaluable in the overall context of promoting and explaining the work of my Office.

Additional Responsibilities

As Ombudsman I have been entrusted with additional responsibilities during the past year. My membership of the Public Offices Commission, which was established under the Ethics in Public Office Act, 1995, the Ad Hoc Commission on Referendum Information and the Dáil Constituency Commission is a further reinforcement of the Government's acknowledgement of the role which the Office of Ombudsman can play in promoting transparency in public life and in the process of government.

Public Offices Commission.

This five-member Commission was established on 1 November 1995 under the Ethics in Public Office Act, 1995. The other members of the Commission are the Ceann Comhairle, the Comptroller and Auditor General, the Clerk of the Dáil and the Clerk of the Seanad. The secretariat to the Commission is provided by my Office.

The Act provides for the disclosure of interests by holders of certain public offices and other persons holding designated positions and directorships in the public service. It also deals with gifts to holders of certain public offices and personal appointments by them.

The Commission will be reporting separately on its activities, as required by Section 27 of the Ethics in Public Office Act, 1995.

Ad Hoc Commission on Referendum Information

During 1995 the Government requested that, together with the Clerk of the Dáil and the Clerk of the Seanad, I form an Ad Hoc Commission to supervise the production and distribution to every household in the State of an information booklet containing the arguments for and against legalising civil divorce. On the understanding that there was all party support for this approach, I agreed and the secretariat to the Commission was provided by my Office.

This was the first time such an exercise had been undertaken in the context of a referendum and the task of producing the booklet and arranging distribution was successfully completed by the Commission prior to the date of the referendum.

Dáil Constituency Commission.

This Commission was established, on a non-statutory basis, by Government on 2 November 1994 and I was invited to join the Commission in my capacity as Ombudsman. The Commission was charged with making a report in relation to the constituencies for the election of members to Dáil Éireann and the report was compiled and presented to Government in 1995.

Contact with other Ombudsman Offices

The office of European Ombudsman was established by the Treaty of the European Union signed in Maastricht on 7 February 1992. The European Ombudsman is Mr. Jacob Söderman who was appointed by the European Parliament on 12 July 1995 and who took up duty on 1 September 1995. His role is to examine complaints of maladministration on the part of community institutions or bodies.

Later in this report, I will be referring to the increasing impact of European legislation at national level. The institutions of the European Union are increasingly involved in making decisions which can directly affect the citizens and residents of the member states. The appointment of a European Ombudsman, accessible by all citizens of the Union as well as non-Union nationals resident in the Union, is a very welcome development in the field of citizens' rights and promotion of good administration.

The European Ombudsman visited my Office in March 1996 and is holding a seminar with EU National Ombudsmen, on the supervision of the application of community law, in Strasbourg in September 1996. In common with Ombudsman Offices in other member states, I intend to play an active part in publicising the role and functions of his Office.

I have regular contact with my counterparts in Britain and Northern Ireland and I would like to acknowledge the excellent co-operation and assistance I have received from them since I took up office.

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