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Annual Report of the Ombudsman 1995

Chapter Four - Selected Cases

Civil Service

Department of Agriculture, Food and Forestry

Arable Aid Scheme

The Arable Aid Scheme is a support system for farmers and the Set-Aside Scheme is part of the overall Aid Scheme. The land which a farmer uses to claim set-aside payments, must meet certain conditions in relation to past use. The Set-Aside Scheme is a five year scheme and applicants must apply and be accepted at the start of the five year cycle. In this case, a complainant had been a participant in the previous Set-Aside Scheme but complained to this Office when the Department refused his application to join the subsequent scheme.

In September 1994 the complainant contacted the Department to enquire as to why he had not received any correspondence concerning an inspection under the scheme which normally took place during the summer months. The Department said that it had written to him on 1 March 1994 notifying him of the commencement of the 1994 scheme and informing him that an application under the scheme should be submitted not later than 20 April 1994. As an application had not been made by that date, the Department indicated that he would not qualify for payments under the scheme in 1994.

The complainant denied having received the notification in March 1994. No reminder had issued to him by the Department notwithstanding the fact that he had been a participant in the scheme for the previous five years. He also said that he could not afford to reinstate his land to grow crops as the set-aside payments were his primary source of income. He pointed out that his late wife had been seriously ill over a long period and that due to her illness and death and the rearing of his three young children, he had not taken up the matter with the Department sooner.

The Department undertook to review the position and subsequently decided that, given the domestic circumstances, the case could be considered under the force majeure provisions of the EU Regulations. These provisions allow for the acceptance of applications and the making of payments where it can be shown that exceptional circumstances apply which were beyond the control of an applicant. The Department agreed that, provided the lands in question were set-aside in 1994, the complainant would be accepted into the scheme for 1994 and subsequent years.

Ewe Premium Refused

A farmer complained that the Department had refused his applications under the 1989 and 1990 Ewe Premium Schemes. The applications were in respect of 784 sheep each year and the inspections for both years were carried out at the same time in 1990.

The Department maintained that some of the sheep which the complainant had presented for inspection had their left ears marked in a way which could be confused with the Department's 1990 ear notch. If this were the case, it would be contrary to the terms and conditions of the Ewe Premium Schemes and would have led to refusal of the 1989 and 1990 applications.

The complainant maintained that the disputed mark on the ears was the private identification mark of the farmer from whom he had purchased the sheep. He said he had bought sheep on other occasions from the farmer concerned and never previously had a problem with the mark when it came to applications for premium and neither had the farmer who used the mark. He also claimed that, on the date of inspection, he was not informed that there might be a problem with his applications. He maintained that the inspection report form, which he signed for the Department's inspector on the day of the inspection, was blank. If there was a problem, the form should have contained remarks by the inspector to that effect. Accordingly, the complainant felt that he was denied a proper opportunity to dispute the inspector's findings. He claimed that the first indication he received that a difficulty existed was when he contacted the Department several months after the inspection to enquire about his payment.

The Department said that the complainant was fully aware that there was a problem with some of the sheep. It was relying on reports from the inspectorate which indicated that the complainant had, in fact, been informed of the difficulty on the day the inspection took place.

An examination of the Department's file suggested that a considerable doubt existed as to whether or not the offending ear marks could be confused with the marking system used by the Department. The documentation on the file recording the procedure followed on the day of the inspection was also examined and the Office posed a number of questions to the Department in relation to the recording of information.

The Department subsequently agreed to pay the premium valued at approximately �28,000.

Department of Education

Retention of Examination Scripts

A complaint against the Department was received from a woman whose son believed that he had been incorrectly awarded too low a grade in a particular subject in the Leaving Certificate examination. The complainant was unhappy that, when her son's examination script was rechecked following a request by his school, he was not awarded a higher grade. She was not satisfied that the rechecking procedures were adequate and asked that the Ombudsman conduct an independent assessment of the examination script.

This Office is not equipped to conduct such an independent assessment but decided to pursue the matter by ensuring that fair and reasonable procedures had been followed in the case. However, this proved impossible as the Department had already destroyed the script when the complaint was received. The Department stated that it was its practice to dispose of all scripts within 12 months of the examination, except those which were the subject of correspondence or where a recheck resulted in an upgrading.

It was pointed out to the Department that the script in this case had been the subject of ongoing correspondence with the Department at the time it was destroyed. Apparently, the officer who destroyed the script was not aware of the correspondence. The Department acknowledged this and undertook to change their procedures for the retention of scripts. In future, all scripts will be retained until 30 November of the examination year and all scripts which have been the subject of appeals will be retained for one year after the result of the appeal has issued or a year after the correspondence has ceased, whichever is later. Officials who receive correspondence will be instructed to alert Examinations Branch which holds the scripts.

Department of Social Welfare

Deserted Wife's Benefit - EU Social Security Regulations

The complainant in this case was refused Deserted Wife's Benefit by the Department on the grounds that the social insurance requirement was not satisfied, either on her own insurance record, or on that of her husband. One of the insurance requirements is that either the applicant, or her husband, must have a minimum of 156 paid social insurance contributions since entering insurable employment. The husband in this case had a record of 155 contributions paid in Ireland. In effect, one additional paid contribution would have created an entitlement for his wife.

In examining this complaint, my Office discovered that the husband had a record of insurance in the United Kingdom. It was suggested to the Department that the application of the European Union Social Security Regulation would allow for the husband's UK insurance record to be added to his Irish insurance record for the purpose of his wife's entitlement to benefit. In dealing with this suggestion, the Department was obliged to consider whether Deserted Wife's Benefit fell within the category of "family benefits" for the purposes of the European Regulation. Aggregation of social insurance records from more than one EU member state is provided for only in the case of "family benefits". The Department informed this Office that, following a recent Appeals Officer decision, Deserted Wife's Benefit in the case of an applicant with dependent children, was to be regarded as coming within the scope of "family benefits" for the purposes of the European Regulation. However, the Department was unsure as to whether Deserted Wife's Benefit being paid to a woman without dependent children, as in the present case, amounted to a "family benefit".

The Department sought legal advice and was advised that Deserted Wife's Benefit probably constituted a "family benefit" - in the sense of the European Regulation - even where the applicant did not have dependent children. In the light of this advice, the Department decided that it was possible to award Benefit based on the aggregation of the husband's Irish and UK social insurance records. Deserted Wife's Benefit was then awarded and arrears of almost �6,000 were paid.

Pension Arrears of �17,000 paid

The complainant in this case qualified for the Non-Contributory Old Age Pension in 1973. At that point there was no provision for payment of an adult dependant allowance along with the pension. Accordingly, the complainant was paid a personal rate pension only. Payment for adult dependants was introduced in 1974, but, unfortunately, the complainant did not hear about this and continued to be paid the personal rate only. The complainant did not become aware until October 1993, when an official of the Department called to him on separate business, that he should have been claiming an adult dependant allowance for his wife since 1974. Initially, the Department refused to pay any arrears of the allowance, on the grounds that the pensioner should have claimed separately for it, following its introduction in 1974.

Following initial enquiries from this Office, the Department reviewed the case and decided that arrears of the allowance (amounting to �11,198) could be paid for the period October 1985 to October 1993. The basis for this decision was that an officer of the Department had visited the pensioner in October 1985 on a separate matter and the Department accepted that the pensioner should have been advised of his correct pension entitlement at that time.

A series of suggestions were put to the Department in relation to the outstanding arrears for the period 1974 - 1985 but the Department rejected these. Accordingly, it was decided to conduct a formal investigation of the matter. In response to the notification of this investigation, the Department stated that it had conducted a further review of the entire case and had concluded that, because of its unique circumstances, including the proximity of the award of pension in 1973 to the change in the position regarding adult dependant allowance, they would pay the outstanding arrears for the period 1974 - 1985 (amounting to �6,170). This meant that the total arrears paid in this case amounted to �17,370.

Revenue Commissioners

Tax Relief for Psychotherapy Refused

Complaints continue to be made by people who have undergone various forms of medical treatment and who have been refused income tax relief in respect of the expenditure incurred.

One particular area of complaint relates to psychotherapy services. A large number of people avail of such services. However, the law as it stands does not allow for the granting of tax relief in respect of the cost of the service unless the provider of the service is a registered medical practitioner, as defined in the legislation, or the service is accepted as coming within the legal description of "diagnostic treatment carried out on the advice of a (registered) practitioner". In other words, if a person directly attends a psychotherapist who is not a registered practitioner or if the person is not referred by a registered practitioner to the psychotherapist for "diagnostic treatment", then the tax relief will not be granted.

One of the problems encountered in these cases has been that the Commissioners may choose not to accept that the service being provided by the psychotherapist was "diagnostic treatment carried out on the advice of a (registered) practitioner". In one case, even though the complainant had been referred to the psychotherapist by a registered practitioner, the Commissioners took the view that the referral was for "treatment" and not for "diagnosis". Thus the tax relief was refused. The complainant had been attending the psychotherapist because of depression and other difficulties for a number of years and would continue to do so in the future. It was accepted that the attendance had been beneficial and would continue to benefit his state of health. He estimated that the total cost of the attendance would amount to several thousand pounds and that the refusal of tax relief would place a considerable additional burden on his ability to meet the expense.

A review of the legislation governing tax relief in this area is being undertaken by the Department of Finance, in consultation with the Commissioners, and developments in that regard are awaited. The relevant legislation is now almost 30 years old and a review at this stage would be desirable given the developments in the forms of treatment available which have occurred in the period since its enactment.

Department of Arts, Culture and the Gaeltacht

Gaeltacht Housing Grant Refused

This complaint arose from the refusal in 1992 of the Department to pay a Gaeltacht House Improvement Grant on the grounds that the applicant was not regarded as being "normally resident" in the Gaeltacht. The applicant had ties with the particular Gaeltacht for some years and proposed to live there with his family. He bought a derelict house in the Gaeltacht and set about renovating it as his family home. While the improvement works were underway, he lived with his family in rented accommodation a few miles outside the Gaeltacht boundary. The grant application was made from this temporary address. The applicant did not own a house anywhere else in the State. In his complaint, the applicant contended that the Department's rejection of his application was unreasonable. He argued that the object of the particular Gaeltacht housing legislation must surely be to encourage Irish-speaking families to move to live in the Gaeltacht.

When the case was examined it became clear that the governing legislation did not require the applicant to be "normally resident" in the Gaeltacht. Rather, it required that the applicant should be the "occupier" of a dwelling house in the Gaeltacht. It emerged that the Department interpreted the term "occupier" as meaning "normally resident".

The applicant and his family had, by the time they made the complaint, established their permanent home in the Gaeltacht. On examination it seemed unduly restrictive, in the context of the Gaeltacht housing grant scheme, to equate the term "occupier" with being "normally resident" in the Gaeltacht. Furthermore, it emerged that, had the applicant made his application from a rented address in the Gaeltacht, this particular problem would not have arisen.

Following a series of contacts and discussions with the Department, it eventually reviewed its decision and decided that the applicant could be regarded as satisfying the requirement relating to being the "occupier" of a dwelling house in the Gaeltacht at the point of making his application. On this basis, the grant sought, amounting to �2,470, was paid.

Local Authorities

Kerry County Council

Bed & Breakfast and Directional Signs

During a regional visit to Kerry in 1993, complaints were received from three individuals about B&B advertising and directional signs. The Council had removed their signs, as part of a campaign to eliminate all illegal signs which, in the Council's view, were too numerous and unsightly and were having a detrimental effect on the tourism industry. The complainants, whose houses were located off the main roads, had erected signs giving directions to their guest houses. In the course of examining the complaints, two separate issues arose:

1. Planning Permission

In one case, the Council had removed an advertising/directional sign for which the complainant had received planning permission in 1968. The Council said that the sign had been erected at the incorrect location and that it was on public property, whereas it should have been erected on private property. In the course of examining the complaint, it was noted that the Council had been satisfied in 1968 that the sign was on private property. In 1974 the Council removed the sign but subsequently decided to replace it, on the grounds that there was doubt as to whether it had been erected on public or private property. The complainant had obtained permission to erect the sign from the land owner who was satisfied that the sign was, indeed, on his property. The Council failed to produce any evidence that the sign was on public property.

It was put to the Council that it was most unfair to question the location of a sign that had been in place for 24 years. Following protracted correspondence and discussions with various officials of the Council, a meeting with the County Manager finally resolved the complaint and the sign was re-placed by the Council at a location agreed with the complainant.

2. Directional Signs

Three complainants had experienced difficulties with the Council's new policy of not allowing B&B signs, other than fingerpost directional signs, to advertise their premises. A further restriction imposed by the Council was that a premises could only be signposted by one sign from one direction, i.e., if a premises could be reached from two or more directions from the main road, the Council would allow it to be signposted from one direction only. In remote areas more that one sign would be considered, but again from one direction only.

The Council policy of restricting the number of advertising and directional signs on the roads seemed to be very desirable and the policy had, in fact, been approved by the elected members of the Council. In examining the complaints, however, the question arose as to whether strict enforcement of the policy might prove to be unfair in certain cases especially since there seemed to be no provision for an appeal by aggrieved applicants.

The Council's policy document on the matter provided that the signs would be erected by the Council on a fee basis by licence granted under Section 89 of the Local Government (Planning and Development) Act, 1963. Planning permission would not be required. Section 89(1) provides for the granting of a licence and Section 89(4) provides that any person may, in relation to the granting, refusing, withdrawing or continuing of a licence under this section, appeal to An Bord Pleanála.

When the Council was asked why the complainants in this case, and indeed other unsuccessful applicants, were not informed of their right of appeal, it replied that it was not operating in accordance with Section 89(1) but, instead, was operating in accordance with Section 89(9) which enables local authorities to erect signs themselves, without a licence. Section 89(9) did not provide for an appeal for unsuccessful applicants. Having examined the Section, it was not clear that the Council's actions were in accordance with the Act.

It was pointed out to the County Manager that the correct procedure seemed to be that the Council would deal with applications for licences for signs in accordance with Section 89(1) of the Act and that unsuccessful applicants would be informed of their right of appeal under Section 89(4) of the Act. The Manager agreed to review the Council's procedures in this regard and, subsequently, stated that it would change its procedure in order that unsuccessful applicants would, in future, be informed of their right of appeal to An Bord Pleanála.

Local authorities who grant licences under Section 89 of the Local Government (Planning and Development) Act, 1963 should be aware that unsuccessful applicants must be informed of their right of appeal to An Bord Pleanála.

Unspecified Local Authority

Delay in Processing Application for Private Burial Ground

Note: The name of the Local Authority in this case has been omitted to ensure that the identity of the complainant is protected

In January 1993 a complainant sought advice from a County Council regarding permission to develop a family private burial ground. The complainant subsequently sent a completed application form and supporting documentation to the Council which, in turn, sent the application form to the Department of the Environment for observations. The Department sought further information from the Council which was eventually forwarded to the Department almost 16 months after it had been requested.

In the meantime, the relevant legislation, the Local Government (Sanitary Services) Act, 1948, was being amended by the introduction of the Local Government Act, 1994. Section 44 of the 1948 Act was amended to remove the need for Ministerial consent to the use of land as a burial ground and to substitute instead the consent of the local authority. The relevant Schedule (No. 2) of the Local Government Act, 1994 came into effect on 1 July 1994. This meant that from 1 July 1994 the complainant required planning permission from the Council for the development of the proposed private burial ground. On being advised of the new situation, the complainant maintained that this would further delay the proposed development of the burial ground and also involve additional expense, particularly in relation to planning fees.

The Office pointed out to the Council that the delay of twenty months in processing the application had adversely affected the complainant in that the application, made in the correct manner, would now have to be resubmitted, at a cost, under a different set of procedures. The Council acknowledged that there had been a delay on its part in processing the application and indicated that it was prepared to meet the reasonable costs of the complainant in pursuing the application for planning permission under the new planning arrangements. It also indicated that the planning fees associated with any planning application would be waived. Furthermore, the County Secretary indicated that he would meet the complainant, personally, to explain fully the planning process to ensure that there were no further delays. The complainant considered that the response from the Council was reasonable.

Mayo County Council

Charges for Inadequate Water Supply

In this case the complainant claimed that the Council had failed to provide him and his family with an adequate water supply. He said that due to poor water pressure he did not have any water for most of the day and was dependent on building up a supply in his water storage tank during the night to ensure that he had water in the house the following morning. He considered that he should not be required to pay the full water service charge because of the inadequacy of the supply but the Council insisted on payment in full.

The Office asked the Council to reconsider the matter. In response it said that it was prepared, as a means of resolving the problem, to install an on-line booster pump in 1996 which, it said, would alleviate the supply difficulty. In addition, they agreed to waive �150 of the arrears on his water charges account.

Waterford Corporation

Delay in Provision of Title Deeds

The Corporation delayed for 11 years in finalising title documents for the owners of maisonettes who had completed their purchase agreements with the Corporation in 1984. When the question of the long delay in processing the documentation was initially raised with the Corporation, it stated that this delay was due to a number of factors, including the fact it was the first local authority in the country to include maisonettes in a weekly tenancy sales scheme. It also said that no title documents were available at the time of the sale in 1984 and, therefore, difficulties were encountered in drawing up the Transfer Orders, maps and layout plans for the maisonettes. Eventually, the Corporation had to seek the opinion of Senior Counsel before the Form of Transfer Order could be finalised. The delay was further compounded by a number of complicated factors, not all of which were within the control of the Corporation.

While acknowledging that the Corporation had experienced considerable difficulties in processing the documentation, the Office decided to ask it, in the light of the delay and inconvenience which the clients had experienced, to consider making some gesture. The Corporation responded by offering �100 to each of the owners.

Telecom Éireann

Premium Rate Service Charges Rebated

A complainant was distressed to find heavy charges for Premium Rate Service calls on his telephone account. He contacted Telecom and arranged to have these calls barred on his line. However, the calls continued to appear on the account after the date on which the barring was to have been implemented. He disputed the accounts with Telecom. Telecom maintained that the accounts were correct and his line was disconnected. His contract was subsequently terminated and he was presented with a final account for �1,147.

Following this Office's intervention, the matter was reviewed by the company. In view of the circumstances, Telecom rebated in full the final account and restored service to the complainant free of charge.

Several complaints have been received about charges on telephone accounts for calls made on the Premium Rate Service. These cases present a particular difficulty in that, while the calls may have been made without the subscriber's permission or authority, Telecom hold that the subscriber is responsible for the control of access to the telephone and it will generally insist on full payment. The problem is relieved to a certain degree in that subscribers can have the Premium Rate Service barred, at no charge, from their lines.

A non-profit limited company has now been formed to regulate the Premium Rate Telephone Service industry in Ireland. This company is funded by a levy on the Network Operators (in effect, at present, Telecom) and the Premium Rate Service Providers who use Telecom's network. Judge Mary Kotsonouris has been appointed to act as the first Regulator. The Regulator operates under broad terms of reference to supervise both the content and promotion of Premium Rate Services and a comprehensive Code of Practice has been drawn up for the industry.

Unfair Requirement for Guarantee Renewal

In 1992 Telecom required a potential subscriber living in local authority accommodation to provide a guarantee to the company before providing her with service. She subsequently paid her accounts satisfactorily. Nevertheless, when the original guarantee expired, she was required to provide another guarantee. When the Office took up the matter, Telecom decided that a further guarantee was not required in view of the complainant's payment history.

The company's usual practice at the time was to seek an initial guarantee from a potential subscriber in rented accommodation, but this would only have been operative for 26 months. Then, where accounts were being paid satisfactorily, the guarantee would not be renewed. Bearing in mind that the guarantee in this case appeared to have been treated differently and given the inconvenience caused to the complainant, the Office recommend a credit of �100 to the complainant's account. Telecom accepted this recommendation.

Faults on Carrier System

Another complainant had service on a multi-channel carrier system where eight customers received service through one physical line but on separate frequencies. He complained to Telecom about his line being out of order for two months in late 1994. Telecom allowed him a rebate of �11.85 in respect of the service difficulties. He subsequently complained about unusually high charges on two of his accounts. Telecom checked these accounts, found them to be correct and insisted on payment.

When the matter was put to Telecom by this Office, its initial report indicated that its engineers had not found any faults that would have led to incorrect billing. Referring to details of the account, Telecom implied that the charges might have arisen from actual usage but that the complainant might not have been aware of the level of usage.

Telecom was asked to supply its maintenance records for the line and any relevant papers; this led the company to discover that some faults had existed which might have affected the pulsing of the complainant's telephone and those of the other customers on the carrier line. This might have led to inaccuracies in the amounts charged for usage. Telecom then decided to rebate the sum of �237.21 plus VAT to this complainant. The accounts of the other subscribers on the carrier line were also examined and rebates were made to a number of these, even though they had not complained to this Office.

It is a matter of concern that the fault was not located and associated with the account problem when the complainant first approached Telecom and that its significance was not adverted to when the first response was submitted by Telecom to this Office.

Telecom has pursued the likelihood of a recurrence of the problem with the supplier of the equipment and all Telecom Districts have been asked to ensure that all appropriate staff are aware of the consequences of the particular fault.

Health Boards

Eastern Health Board

Disabled Persons Maintenance Allowance

The question of payment of Disabled Persons Maintenance Allowance (DPMA) to persons aged 16 to 18 years who continue in full-time education has been dealt with in previous Annual Reports. In 1992 the Office pointed out that there is a statutory entitlement to DPMA at age 16 for handicapped people who satisfy the prescribed medical and income criteria. However, the Office continues to receive complaints about this issue.

In one case, the complainant said that, when her son reached 16 years of age in 1992, his Domiciliary Care Allowance (DCA), a monthly payment of �89.50 made to the parents of handicapped children who require care and attention substantially in excess of a normal child, was initially discontinued. In 1992 the maximum rate of DPMA payable to a handicapped individual, upon reaching 16 years of age, was �57.20 per week. When the complainant contacted the Board, she was advised that, in all cases where a child was in full-time education, it had been decided not to pay DPMA until the child reached 18 years of age. However, in the circumstances, it would pay DCA to 18 years of age. She was not advised that DPMA was payable, upon application, from 16 years of age.

The Health Board subsequently confirmed that the advice the complainant said she had received reflected Health Board policy at the time. The Office asked the Board to review the decision and was subsequently advised that the applicant would be paid DPMA from his 16th birthday resulting in arrears of �3,839 being paid to the man.

In view of the continuing problem in this area and having highlighted this issue in the past, the Office raised the matter in discussions with the Chief Executive Officers of the health boards and they were requested to ensure that that their policy and practice is now consistent with the statutory conditions for the award of DPMA. The health boards' procedures for providing information to parents in regard to DCA was also raised (see page XXX). The CEOs have agreed to review their approach in the light of a memorandum which this Office is preparing setting out all the relevant factors on these issues.

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