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Annual Report of the Ombudsman 1996

Chapter Three - Public Bodies and the Citizen

The Ombudsman's Guide to Standards of Best Practice.

In Chapter One, I set out a simple checklist outlining standards of best practice which should be of assistance to public officials in ensuring high quality public administration.

I have tried to make the checklist as practical as possible. It was devised entirely by reference to cases which my Office has received. In this chapter, I describe some of those cases and their relevance to the headings in my checklist.

Dealing "properly" with people means dealing with them

Promptly and without undue delay

Delay on the part of a public body not only creates frustration and uncertainty but can also give rise to practical difficulties and unforeseen consequences for its clients. Unfortunately, I also find that such delay is often compounded by further delay on the part of public bodies in responding to my Office when the matter is taken up on behalf of the complainant. The following case illustrates the problems which can arise.

It took the Department of Department of Agriculture, Food and Forestry 17 months to notify a farmer of the result of his application under a Beef Premium Scheme. The Department then advised him that he would not be paid for 16 of the animals for which he had applied as they were ineligible on age grounds. This decision was correct. However, the Department's long delay in notifying the farmer effectively prevented him from making an application for the animals under the terms of another scheme in the intervening period.

My Office put it to the Department that its delay in notifying the decision on his application was a contributory factor in the failure of the farmer to claim for animals which were eligible for payment under a later scheme. The Department agreed and arranged for grants to be paid under the terms of the later scheme.

Correctly in accordance with the law or other rules governing their entitlements

I sometimes get complaints that public bodies abuse their powers or use their position unfairly against their clients. The public body operates from a position of strength vis-�-vis the citizen in terms of its powers, resources and experience in administering public affairs. It is essential that the individual citizen is dealt with in accordance with the law or other rules governing his or her entitlements. The next two cases are examples of how public bodies can sometimes breach this principle.

In the first case a farmer complained to me that, without seeking permission, Kerry County Council had widened the road at a bend by cutting into his land by a number of feet. It removed some of the soil and rock and dumped a considerable amount of it down the slope on his land on the other side of the road, destroying terraced paths used by sheep.

The complainant said that, had he been consulted by the Council, he would have agreed to the road widening works being carried out on condition that the excess material was deposited elsewhere on his own land where he could have used it.

Responding to a letter from the complainant's solicitor, the Council said it had been unable to establish who owned the property; that it undertook the works by cutting and clearing away shrubs and vegetation which presented an immediate and serious hazard to road users under Section 70 of the Roads Act, 1993; that the cost incurred in carrying out this work was �1,000 and that the Council wanted to know if the complainant was prepared to recoup this expense without proceedings being issued.

Regarding the ownership of the land, the complainant said that his house was the nearest (on one side of the road) to the area in question and he had not been asked as to the ownership of the land; he had previously given the Council permission to widen the road into his land at a junction nearby; local people would have known that he owned the land in question and the Council's Fire Department and the Council's Civil Defence Department had no difficulty in identifying him as the owner of the land when it wanted to carry out training exercises on his land, to which he readily agreed. It was clear to him, therefore, that the Council's Roads Department had made no effort to find out who owned the land.

The complainant felt strongly that the Council was abusing its powers; firstly, by taking his land without notice or compensation and, then, when he complained, by threatening to use the powers of the Roads Act, 1993 and the courts to bill him for the costs incurred in doing the work. It should be noted that the Roads Act, 1993 provides for the serving of notice by a local authority on a land owner to take specified action where a tree, shrub or vegetation is a hazard and the person on whom it is served may, within 14 days, appeal against the notice to the District Court. The Council did not serve such a notice on the complainant and the actual work in this case involved the removal of lorry-loads of soil and rocks.

The Council, in responding to my Office, justified its actions on the basis of "the immediate and serious hazard to persons using the road" and because it had been unable to establish who owned the property. Following a meeting between Council officials and my Office, the Council agreed to discuss the matter with the complainant. Eventually, the Council agreed to remove the material which they had dumped on the glen side of the road; to erect fencing around the area where excavation had taken place and to make the area safe; to formally transfer the land where the road widening had taken place (0.046 acres) to the Council; to withdraw the charge of �1,000 for works done and to pay compensation of �1,500 to the complainant in full and final settlement of all matters.

The complainant was an old man living on his own. The Council, by trying to take his property without his knowledge or consent, failed, in my view, to act in a proper legal manner from the outset by not serving the appropriate notice under the Roads Act, 1993.

The second case involved the Department of Health and the South Eastern Health Board. A High Court judgment delivered in the case of O'Connell v Minister for Health on 31 July 1995 found that, from 1991, certain provisions of the Disabled Person's Maintenance Allowance (DPMA) Regulations were ultra vires the Health Act, 1970. The provisions in question purported to provide health boards with the power to pay a reduced rate of DPMA in the case of spouses, where both of them were entitled to be paid a maintenance allowance. The Department of Health lodged an appeal to the Supreme Court soon after this judgment was delivered.

In September 1995 I received a complaint that the South Eastern Health Board was failing to apply the terms of the High Court judgment in an individual case. The Board's response was that it had been advised that payment should not be made on foot of the High Court judgment until the Supreme Court handed down its decision on the appeal.

I wrote to the Department of Health expressing my concern that the South Eastern Health Board, in refusing to pay full personal rates of DPMA in this case, was relying on a provision of the DPMA Regulations which had been ruled ultra vires by the High Court.

After a delay of some months, which the Department attributed to the necessity to seek legal advice on the matter, it confirmed that the Minister for Health had decided not to proceed with the appeal to the Supreme Court and that health boards were being instructed to pay the full rate of DPMA where both partners in a couple were in receipt of DPMA. The revised rate was to apply from the date of the High Court judgment.

Sensitively by having regard to their age, to their capacity to understand often complex rules, to any disability they may have and to their feelings, privacy and convenience

Public servants administer an enormous range of schemes and services, some of which are extremely complex. Over time they become familiar with, and expert in, all the relevant rules and criteria for qualification. The individual citizen, by contrast, will not share the same degree of familiarity and may have occasion to claim a benefit once only in his or her lifetime. It is important for public servants to keep this fact in mind and to act sensitively, having regard to the applicant's individual circumstances (age, disability etc.). The following cases involving the Department of Social Welfare illustrate these points.

Two remarkably similar complaints arose during the year involving retrospective Disability Benefit claims from multiple sclerosis (MS) patients.

The first complainant was suffering from advanced MS when she made her complaint in 1994. She had made a number of Disability Benefit claims since early 1987 but all had been rejected by the Department of Social Welfare. The claims were rejected on the grounds that she had no recent history of social insurance, whether paid or credited. This woman had been out of work since 1975. She gave up work due to health problems which ultimately resulted in a diagnosis of multiple sclerosis. Her condition had deteriorated very considerably over the years. She did not claim either Disability Benefit or Unemployment Benefit, nor did she seek social insurance credits, following her leaving work. She said she was entirely ignorant of the social welfare system. She did not claim Disability Benefit until 1987 and then on the advice of the MS Society. Whereas by 1987 she was clearly seriously disabled, her social insurance record had lapsed because she had neither received a payment, nor been awarded credits, since leaving work in 1975.

With the woman's consent, my Office contacted an ophthalmologist, a consultant neurologist and two general practitioners all of whom had treated her since 1975. The reports of these medical people supported the view that this woman had, in reality, been incapable of work since 1975. My Office asked the Department to consider the retrospective award of social insurance credits on the basis of this new medical evidence. The Department reviewed the case and accepted the suggestion. The Department also awarded Disability Benefit on a current basis and with arrears for six months.

This Office further suggested to the Department that arrears might be payable back to January 1987, which is the date of the first recorded benefit application from the woman. Following further consideration, the Department accepted this suggestion and additional arrears of almost �20,000 were paid.

In the second case, the complainant had left work in 1980 due to ill health. Subsequently she was found to have MS and also suffered from agoraphobia. She claimed Unemployment Benefit for a short period after leaving work but discontinued this claim due to her illness. She did not claim Disability Benefit nor did she seek social insurance credits. In 1991 and again in 1992, acting on advice, she asked the Department to award retrospective social insurance credits based on her illness. The Department refused these requests and her applications for Disability Benefit were also refused.

When she complained to my Office, I sought a detailed medical history from the woman's general practitioner. This supported the view that she had been incapable of work since 1980. My Office then asked the Department to reconsider its position in relation to social insurance credits. The Department reviewed its position and agreed that credits could be awarded back to 1980. Following on from this, Disability Benefit was awarded, initially on a current basis and subsequently retrospective to March 1991 - the date of her earliest application for Benefit. The arrears involved amounted to �14,700.

While the two complainants were pleased to have received substantial arrears awards, it is worth bearing in mind that, due to their ignorance of the social welfare system, they lost out on very substantial social welfare benefits. In the first case, Disability Benefit entitlement for the period 1975-1987 was lost. In the second case, entitlement for the period 1980-1991 was lost. There is a particular difficulty in relation to Disability Benefit entitlement in the case of illnesses such as MS which have a long and progressive onset. By the time a firm diagnosis is made, some patients may have slipped out of social insurance cover either because they took no action themselves or because Disability Benefit claims were rejected due to insufficient medical evidence.

Helpfully by simplifying procedures, forms and information on entitlements and services and providing clear and precise details on time limits or conditions which might result in disqualification

Many of the complaints which I receive arise because of shortcomings in the particular public body's internal procedures. Systemic failures of this type can quickly be recognised when complaints of a similar nature arise repeatedly in a particular public body or across a range of public bodies. I will always highlight such systemic weaknesses as, once corrected, they can lead to long term improvements in service across a range of public bodies. The following cases illustrate the point.

I received a number of complaints from persons who had been refused payment under various Department of Agriculture, Food and Forestry grant schemes. The Department said it had not received the applications. Following an examination of the complaints, I concluded that, in accordance with the terms of the relevant schemes, and in the absence of specific evidence, e.g. a Certificate of Posting from An Post that the applications had actually been posted, I could not ask the Department to reconsider the decisions to refuse payment of the grants.

I acknowledge that, because of the number and range of schemes operated by the Department, there is an obligation on an applicant to retain some record to show that an application for a particular scheme was submitted. However, I am also aware that, in many cases, applications for schemes are delivered by hand to the Department via regional offices by, or on behalf of, applicants. In such instances proof of posting would not be available.

The problem could be overcome if the Department adopted the practice of acknowledging each application form received. However, I accept that this would involve considerable cost given the number of applications which might be received in any given year. I suggested to the Department that, as a possible alternative to the issuing of acknowledgements for each application received, it might consider the inclusion in its documentation of a note advising applicants that:

- any claim that a late or missing application was posted on time would not be accepted unless supported by a Certificate of Posting from An Post;

- applications are not acknowledged in the normal course;

- if an applicant wishes to have an application form acknowledged, a stamped addressed envelope should be included with the completed application.

In response, the Department said that it would examine the possibility of putting a receipt system for applications in place and, in the interim, consider including a note on the lines suggested above in the help-sheets and in the terms and conditions issued in conjunction with schemes.

Responsibly by not adopting an adversarial approach as a matter of course where there is fear of litigation

I find that, when there is conflict between a public body and a client which may involve a claim for compensation or possible legal action, the public body may tend, as a matter of course, to adopt an adversarial approach. Little consideration is given to the merits of the case, the public body puts up its defences and the client is left with no option but to take the matter to court or, if appropriate, to my Office. I acknowledge that a public body has a duty to defend its own interests and those of the taxpayer but a primary duty as a public body is to ensure that it responds to its clients in a proper, fair and impartial manner. This means that it is required to consider fully the merits of any case and not to force clients unnecessarily to resort to the courts or to my Office to achieve their rights.

Many citizens are reluctant to use the courts. While compensation may sometimes be an issue, they often want explanations, the truth or, perhaps, an apology from the public body in question. Indeed, I am often surprised to find that some public bodies adopt the same defensive attitude in dealing with my Office. There is sometimes a failure to recognise the extent of my powers and, rather than address the merits of the complaint, the public body either implicitly or explicitly tries to redirect the complainant towards the courts. The following two cases, both involving a possibility of litigation, are cases where the public bodies in question could have responded more positively from the outset. In the first case I received a complaint from a couple whose house had been flooded. For some years previously, during periods of heavy rain, surface water from the road had threatened to encroach on their property. They claimed that they had spoken to Galway County Council on a number of occasions about the risk of flooding and had asked that steps be taken to rectify the situation but no such action was taken.

On 28 December 1990 the house became flooded. The area affected was the ground floor of the two storey house where damage was caused to the furniture and fittings. After the flooding, the Council piped a roadside culvert which had been blocked at the time of the flooding. The pipes used for these works were paid for by the complainants. The Council also piped a roadside drain near the complainants' house which was also blocked at the time of the flooding.

The complainants contended that the Council had failed in its obligations to maintain the blocked roadside culvert and drainage pipe adjacent to their property. This failure resulted in the flooding of their house causing damage estimated at �3,000 to furniture and fittings. The complainants made a claim for compensation to the Council for the damage to their property. The Council responded that, as there was no negligence on its part, it would not pay compensation. Following an examination of the complaint by my Office, the Council carried out a review of its decision and concluded that it had a bona fide defence to the claim based on the following:

• - there was exceptionally heavy rain at the time and the Council had successfully defended all resultant claims for compensation through the Courts (this latter claim subsequently turned out to be incorrect);
• - the flooding, or most of it, was due to internal drainage;
• - the complainant may have made an unauthorised connection to the roadside culvert.

As I was not satisfied with the result of the Council's review of the complaint and as I considered there was prima facie evidence of maladministration, I proceeded to investigate the complaint. Among my findings were:

• - that, in the circumstances of this case, on the evidence available, the Council was responsible for the maintenance of the roadside culvert;
• - that two unauthorised connections had been made by the houseowners to the roadside culvert and that these probably contributed to the flooding of the property;
• - that the Council was responsible to a significant degree for the circumstances which led to the house becoming flooded.

Having regard to the issues and circumstances applying in this case, I recommended that the Council pay the complainants half of the certified cost of replacing damaged furniture and fittings and of redecorating the flooded area of their house.

The Council accepted my recommendation.

One of the strongest powers given to me by the Oireachtas is that of access to all relevant files and information relating to a complaint. The issue of my access to medical records has long since been clarified and I regularly obtain files with clinical details from the health boards and the Department of Social Welfare. In this second case, however, involving the Department of Health, I had difficulties in relation to the production of documents.

A complainant made allegations regarding the behaviour of a staff member attached to a health board psychiatric hospital. The relevant health board had already investigated the allegations and had sent a detailed report of its investigation to the Department of Health. The report arose under the provisions of the Mental Treatment Act, 1945 and was sent to the Department via the Inspector of Mental Hospitals.

My Office contacted the Department of Health with a view to examining the documentation relating to the board's investigation. The Department wrote to say that it had referred the request to its legal advisor "for adjudication". Subsequently, one of my investigators arranged to call to the Department to inspect the documentation. Having read the documentation, my investigator requested that a copy of portions of the report be provided for the ongoing examination of the complaint. This request was not acted upon resulting in the matter being discussed at a senior level meeting between my Office and the Department. I was informed at this point that the Department had written to the Attorney General seeking advice as to my right to require the provision of the documentation concerned.

I understand that the advice received was to the effect that the Department should comply with my request and, subsequently, the requested documentation was provided.

It is entirely understandable that the Department should be conscious of, and sensitive to, its obligations in this area. I am also aware that the nature of the report was such that the Department was concerned about the possibility of litigation and the implications of my Office's request for extracts from the report. Nevertheless, the delay in finalising this aspect (of a matter which has long since been clarified) proved most unsatisfactory not least in prolonging the time it took me to conclude my examination of the complaint.

Dealing "fairly" with people means

Treating people in similar circumstances in like manner

It is important that public bodies administering similar schemes should adopt a uniform approach and that discretionary powers are used in a consistent and fair manner. Otherwise inequities arise as is shown in the following case.

The case concerns the payment of interest by the Revenue Commissioners on tax refunded to taxpayers. The issue arose in two complaints I dealt with during 1996. In one complaint, the income tax had been deducted at source on interest paid on an investment. It later transpired that the taxpayer was not liable for the payment of this tax and a refund was made. In the other complaint, a refund of Professional Services Withholding Tax was made to the taxpayer following a High Court decision under which the provisions of Section 26(1) of the Finance Act, 1990, relating to the payment of such tax, were struck down.

In each case, the complainants sought interest on the refund for the period in which the tax had been held by the Revenue Commissioners. The response of the Revenue Commissioners was that they were precluded from paying interest as there was no statutory basis for the payment in either case. From my examination of the legislation, it appeared that the payment of interest on tax paid and subsequently refunded was confined to certain limited circumstances. For example, under Section 30 (4) of the Finance Act, 1976, where a refund is made subsequent to the making of an income tax assessment which has been successfully appealed to the Appeal Commissioners or under Section 12 (7) of the Finance Act, 1988 where payment of preliminary tax is made in excess of subsequent liability. As there was no statutory provision for the payment of interest in the circumstances of either complainant, I could not, in this instance, recommend redress for them.

From the evidence available to me from these two complaints, it would seem that the principle of treating like cases in a like manner is not being applied as different rules govern the payment of interest on overpaid tax depending on the circumstances of the overpayment. I am aware that this issue was referred to in a recent judgment in the High Court. In the case of O'Rourke v The Revenue Commissioners [1996], the Court concluded that, if a plaintiff was entitled as a matter of law to the repayment of the overpaid tax, then it followed that Revenue were unjustly enriched at the expense of the plaintiff and that the latter was entitled to be paid a sum equivalent to that enrichment.

I am satisfied that, in the light of my examination of these complaints and the judgment of the High Court, the legislation dealing with the payment of interest on tax refunded to taxpayers needs to be re-examined. I wrote to the Department of Finance on the matter and in response it indicated that my points will be fully considered in the context of a review of the relevant legislation.

Accepting that rules and regulations, while important in ensuring fairness, should not be applied so rigidly or inflexibly as to create inequity

While schemes and services administered by public bodies must have eligibility criteria and other standard conditions underpinning them, it is equally important that public bodies should be able to accommodate unusual cases or unforeseen circumstances. They need to develop flexibility so that benefits or services can be made available to persons who would not normally qualify but who would be unjustly treated if such services or benefits were denied. In particular, I would be anxious to ensure that persons, through no fault of their own, should not be denied entitlements simply because they failed to satisfy some technical requirement. The following case revolves around this issue.

The case involved a complaint against the Department of Social Welfare on behalf of an elderly lady who had serious visual impairment for the previous thirty years and could not get around unaided. She qualified for Free Travel on her Non-Contributory Old Age Pension but was refused the Companion Free Travel Pass on the basis that she was not in receipt of Blind Pension and was not registered as blind. She never claimed the Blind Pension or registered as a blind person because of her desire to be independent and her wish not to be classified as a blind person. Her problem, therefore, was that despite the fact that she had free travel, she could not use it without a companion.

The Companion Pass is provided to certain incapacitated people who are medically unfit to travel alone and, in this case, would allow the holder to have a person over age 16 accompany her free of charge when travelling. To satisfy the requirements for the Pass, the complainant would have to be in receipt of a qualifying payment e.g. her old age pension and be medically certified by either a doctor or the Irish Wheelchair Association as a permanent wheel chair user. Alternatively, she would have to be registered as a blind person with the National Council/League of the Blind of Ireland and be medically registered as blind and certified by either a doctor or the Irish Wheelchair Association as a permanent wheelchair user.

The complainant was not a wheelchair user but she would have satisfied the requirements if she had a Blind Pension, without the need for registration or certification as a wheelchair user.

The Companion Free Travel Pass scheme is non-statutory, with the Department of Social Welfare having discretion in relation to the scheme. I felt that, if the Department accepted that she would qualify for the Blind Pension were she to apply, it seemed unreasonable to refuse the Companion Pass simply because she did not wish to have that pension as she was being paid the same amount on her Non-Contributory Old Age Pension. I also drew the Department's attention to the Principles of Good Administration set out in my 1994 Annual Report.

In response, the Department said that it had always adhered strictly to the qualifying conditions for the Pass because of cost and audit requirements and the number and variety of Passes issued. These factors, it felt, justified the use of, and strict compliance with, a clear set of rules in order to administer the scheme. On the other hand, it accepted that it was possible she would qualify for a Blind Pension but for the fact that she was in receipt of the Non-Contributory Old Age Pension. It was, therefore, prepared to review the case in the light of the medical evidence. The lady was subsequently issued with a Companion Free Travel Pass

Avoiding penalties which are out of proportion to what is necessary to ensure compliance with the rules

Being prepared to review rules and procedures and change them if necessary

The penalties imposed by public bodies should not be too severe or lacking in proportionality. Equally, practices, rules and procedures which have been in place over time should always be capable of being reviewed and changed if there is evidence to suggest that they are causing inequity. The following example illustrates both of these requirements.

In last year's report I referred specifically to a Department of Social Welfare Regulation whose application, I felt, breached the principle of proportionality and imposed unreasonably severe penalties. The particular Regulation is one which is applied where a person is late in claiming a contributory pension - whether for old age or for widowhood. For a variety of reasons, many of them entirely understandable, people may be late in claiming a contributory pension entitlement. When they do claim, many are shocked to find that the arrears paid cover only the period of six months immediately prior to the actual date of claim. This can leave very substantial pension arrears unpaid, up to �40,000 in one case I have seen. The Department's position is that there is a long-standing rule - set out in successive statutory instruments dating back to 1952 - which limits arrears in such cases to a maximum of six months. The claimants, on the other hand, are naturally very upset at such losses. From their point of view, their entitlement has been created by social insurance contributions already paid and they see the failure to claim in time as no more than a technicality. In any event, there are often good reasons for the failure to claim on time e.g. ill health, misunderstanding of the conditions or, simply, ignorance.

My predecessor, Michael Mills, highlighted his concern regarding the rigid application of this Regulation in a number of his Annual Reports. The first such reference was in his Report for 1985. In his 1993 Report he commented that, from his perspective, the penalties created by the Regulation were too severe and lacking in proportionality. While acknowledging the Department's legitimate interest in having pension claims made in a timely manner, he suggested that a penalty of the loss of 10% of arrears due might be reasonable. Whatever the ultimate formula might be, the then Ombudsman clearly indicated that here was a Regulation which should be reviewed in the interests of fairness and equity.

In October 1994 the Department of Social Welfare announced that it intended to review the operation of the Regulation. In the meantime, I continued to receive complaints from pensioners who felt they had been excessively penalised by the rule. It appeared to me that the social welfare system has now become so complex that it may no longer be sufficient for the Department to put the onus on ordinary citizens to be aware of their rights and entitlements. As there were no developments in relation to the review, advised to me by February 1996, I notified the Department of my decision to investigate three of these complaints.

As I have published the full report of these investigations recently, I am not dealing comprehensively with the issue in this report. However, my investigation report does find fault with the Department on a number of counts, including: (1) that the general approach of the Department to late claims, especially where there is good cause for the delay, reflects a failure to mitigate the effects of rigid adherence to the strict terms of the Regulation where that produces manifestly inequitable and unfair treatment; (2) a failure, by the Department, over time, to take action to ameliorate the consequences of the application of the Regulation and (3) that the application of the Regulation, in individual cases, does not comply with basic fairness or reasonableness nor does it satisfy the requirements of the principle of proportionality.

.Quality of Service in Irish

I have included this topic under the heading of "Dealing fairly with people" because many of the complaints I receive relating to the Irish language result from a failure by public bodies to review their rules and procedures for dealing with people who require a service through Irish.

Each year my Office receives complaints regarding the alleged failure of public bodies to provide an adequate level of service to the public in the Irish language. The numbers involved are relatively small, 13 complaints in 1996. The specific issues raised fall into the following categories: forms and information material not available in Irish or bilingually; failure to reply to correspondence sent in Irish; replies in English to correspondence in Irish; names and/or addresses translated from Irish into English; inability of public servants to conduct business (orally) in Irish; unacceptable delays and inadequacy of service where service is provided in Irish. In addition, the complaints generally indicate a failure to take account of the requirements of Irish language users when new services are being planned or where existing systems are being upgraded e.g. where new computer systems are being installed. Finally, some complainants have said that bodies are not just failing to provide a particular service but are, by their actions, contributing to the undermining of Irish as a community language. This is a reference to the practice whereby some public bodies insist on communicating in English in Gaeltacht areas.

Whereas Irish is the "first official language", under Article 8.1 of the Constitution, there has not, so far, been any statute law enacted - for instance, a Language Act - to give concrete expression to the significance of that constitutional status. Accordingly, in dealing with complaints in this area and in the absence of such legislation, my Office has had to rely on the precedent value of those few cases dealt with by the Superior Courts as well as on the generally accepted principles of good administration.

Government policy requires not just that services be made available in Irish but that public bodies actively offer their services through Irish. The complaints received by my Office suggest that there is a significant gap between official policy and actual performance. Research published in 1996 showed, in relation to the Connemara Gaeltacht, that, with the exception of �dar�s na Gaeltachta and the Department of Arts, Culture and the Gaeltacht, the majority of public bodies conduct their business through English. Commenting on this research, the Minister for Arts, Culture and the Gaeltacht made the point that Gaeltacht people will avail of a service in Irish where the service is a good service; they will not avail of a mediocre or bad service in Irish where there is a good or excellent service available in English.

I appreciate that achieving the required level of service in Irish creates major problems for the public service and will necessitate a major review of existing rules and procedures. I also appreciate that the Irish language is an emotive issue - both in terms of support and otherwise - for very many people in Ireland. I am currently reviewing my approach to complaints in this area. This review is prompted in part by the realisation that the same issues crop up, year in and year out and, in some instances, the same complainants are coming back to me saying that the same problems are continuing to arise for them. The recurring nature of these complaints underlines the contribution which a Language Act could make to a more effective complaints examination system.

Giving adequate notice before changing rules in a way which adversely affects a person's entitlements

I have noted that public bodies sometimes change the interpretation and application of the rules of their schemes without giving due notice to those who may be affected. While I may not have reservations about the substance of such changes, I feel that it is most desirable that people are given adequate notice of such changes where this is possible, particularly where the changes may adversely affect them. This issue emerged in the following cases.

During 1996 I received complaints against the Department of Education from a number of gaelscoileanna. These schools had previously operated on the understanding that individual schools would be given provisional recognition by the Department of Education when they reached a situation where the combined number of pupils in their two most junior classes reached twenty. The school would then be in a position to avail of the considerable benefits accruing from recognition as a national school. The Department recognised several gaelscoileanna over a number of years on this basis.

While they had been refused recognition in respect of the academic year 1995/1996, the schools applied again, in March 1996, for recognition in the year commencing September 1996. However, during 1996, the Department had reviewed the question of granting recognition to gaelscoileanna and had decided that the schools should be assessed on the basis of the number of new pupils in the first year alone. In August 1996 it informed the schools that they would not be granted recognition as they did not meet the criterion of having twenty pupils in their most junior class.

This change in the Department's practice gave rise to considerable stress and uncertainty for the schools. The financial burden of continuing to operate was considerable. Promoters found it difficult to retain the confidence of parents in the longer term prospects for the schools. In the case of at least one school, there was a serious doubt as to whether it could maintain its numbers and continue to operate. The fact that the schools were only informed of the change in the prevailing practice shortly before the start of the school year was a serious factor.

Following a preliminary examination of these cases, I informed the Department that it appeared to me that it had failed to give adequate notice of the change in the practical requirements for recognition and that this may have been contrary to fair and sound administration. I asked the Department to review its decision to refuse recognition to three of the schools involved. While I had to withdraw from my examination of two of the cases because the schools in question sought leave to apply for judicial review, I was pleased to note that the Department subsequently granted recognition to the schools.

Having an internal review system so that adverse decisions can be looked at again and reviewed by someone not involved in the first decision

I have spoken on a number of occasions at meetings with public bodies about the need for such bodies to have their own internal complaints systems. This would reduce the number of complaints coming to my Office and it would improve the efficiency and effectiveness of the service provided to the public by identifying inadequacies in present procedures or services.

Before introducing a complaints system, it is important that management and staff generally are committed to the principle. Complaints need to be viewed positively. Although the main purpose of the complaints system is to provide an effective means for the public to make complaints and have them resolved, another very important objective is to improve services and service delivery. Staff will need to be trained in handling complaints and front line staff, in particular, will need to be assured that they have the trust, commitment and support of management. The essential elements required to make up an effective internal complaints system are as follows:

Access and Simplicity

The complaints system should be widely publicised, simple to invoke, easy to use and the public should be encouraged to complain.

Speed and Fairness

The complaints system should deal with complaints quickly and the complainant should be kept informed of progress on the case. The complainant and those complained about must be satisfied that the process is objective, thorough and even-handed.

Attitude and Motivation

The complaints system can only operate effectively if the staff and the organisation take a positive and welcoming attitude to complaints and management is willing to improve complaint handling procedures and learn from, and react constructively to, complaints.

Conclusions and Redress

The system should provide for appropriate redress if a complaint is upheld and a full explanation to the complainant if it is not.

My Office will be very happy to advise public bodies on how best to devise and implement an internal complaints system. It is also my intention to publish an information leaflet on this topic.

Informing people how they can appeal, co-operating fully in any such appeal and being open to proposals for redress

If a public body has an appeal mechanism in place then the existence of such a mechanism should be publicised. The procedures should be open and transparent so that both sides of an argument are given an airing and the reasons for any decisions on appeals are made known to the appellant. These issues arose in the following case involving the Department of Social Welfare.

The complainant had lived apart from her husband since 1962. The separation came about due to the husband's failure to provide for his wife and children, the fact that he had run up substantial debts which led to his imprisonment and the fact that the family home had been repossessed because of these debts. However, the woman did not apply for Deserted Wife's Benefit until 1981. Her application was rejected at that stage as the Deciding Officer concluded that the woman had not made reasonable efforts to obtain maintenance from her husband. She appealed this decision and there was an oral hearing in April 1982. The appeal decision was that the woman could not be regarded as a deserted wife because she had not proven constructive desertion. It appears the Appeals Officer did not address the issue raised in the first decision i.e., whether the woman had made reasonable efforts to obtain maintenance. The complainant was very unhappy with the appeal decision but understood that it was final and conclusive and that she had no options left.

In 1992 she complained to my Office regarding the refusal of Deserted Wife's Benefit. The Social Welfare Appeals Office (SWAO) indicated that the 1982 appeal could not be reopened. Accordingly, my Office suggested to the woman that she reapply for Deserted Wife's Benefit on a current basis. She did reapply but her application was again rejected. This time the rejection was based on the view that the husband had not left of his own volition. The complainant appealed this decision and in July 1994, following an oral hearing, her appeal was allowed. However, it was allowed only with effect from the date of the second application. The Appeals Officer in 1994 accepted that the desertion had occurred in 1962.

The woman sought to have the new appeal decision made retrospective to the date of her original application in 1981. However the SWAO informed her that it would not be appropriate to review the original appeal decision "as some 12 years have now elapsed". The woman again complained to my Office about the matter.

At this point the issue for my Office was the refusal of the SWAO to review the 1982 appeal decision. In fact social welfare law does provide that an appeals officer may "at any time, revise any decision of an appeals officer, if it appears to him that the decision was erroneous in the light of new evidence or of new facts brought to his notice since the date on which it was given...". The legislation does not set time limits to the application of this provision. Nevertheless, the SWAO felt that, because of the passage of time, the original appeal decision should not be reviewed.

Following a detailed examination of the case, my Office suggested to the Chief Appeals Officer that the 1982 appeal decision should be reviewed. It seemed to me that the delay on the part of this woman in seeking to change the 1982 decision could not be regarded as having arisen from any indolence or negligence on her part. The key consideration was the fact that between 1982 and 1992 she was unaware that she had lost her appeal on the grounds that she could not be regarded as having been constructively deserted. The question raised in the original decision was whether she had sought maintenance from her husband but the Appeals Officer in 1982 decided against her on an entirely new ground. Unfortunately she was never informed of this.

I was subsequently advised that the Appeals Officer who dealt with the 1994 appeal had backdated his decision to 28 May 1981, the date of the original Deserted Wife's Benefit application. The Department had indicated that, had it been aware of the woman's full circumstances in 1981, her claim would probably have been allowed at that point. On this basis, the Department considered that her entitlement should commence from the date of her initial application in May 1981. The woman was paid net Deserted Wife's Benefit arrears of �23,890 as well as a PRSI refund of �5,901.

Dealing " impartially" with people means

Making decisions based on what is relevant in the rules and law and ignoring what is irrelevant

If a public body makes a decision which has an adverse effect on a client then the decision must have a basis in law or in the rules which are relevant to the particular area. Criteria which are not directly relevant should be excluded from the decision making process. The following case arose during the year.

I received a complaint from a woman whose son was profoundly deaf. She had been receiving Domiciliary Care Allowance (DCA) for him from the Eastern Health Board until he was 16 years old. At that stage he was assessed for Disabled Person's Maintenance Allowance (DPMA) but was refused. He was assessed again over a year later when he was aged 17� and was awarded DPMA. She could not understand why he had been refused 1� years earlier.

I examined the Health Board's files. They showed that, at the time of his original DPMA application at 16, the medical assessment recorded that the applicant had good speech, was able to lip read well and had no other abnormalities. The report appeared to suggest that the reason that DPMA was not recommended was that he was still at school and that he would be able to work in the future.

To qualify for DPMA an applicant must be substantially handicapped in undertaking work of a kind which, if he or she was not suffering from that disability, would be suited to his or her age, experience and qualifications. Attendance at school is not a relevant consideration. I also pointed out to the Board that the DPMA Regulations do not provide for the assessment of a person's future work capability but are based on capacity for work at the time of application for the allowance. In this case, it appeared that DPMA had been refused because the applicant was still attending school and would, at some time in the future, be able for open employment. Furthermore, the evidence on file also suggested that there had not been any significant change in the extent of the handicap over the period in question.

Following my approach, the Eastern Health Board reviewed the case and awarded DPMA with effect from his 16th birthday. This resulted in arrears of �3,593 being paid.

Avoiding bias because of a person's colour, sex, marital status, ethnic origin, culture, language, religion, sexual orientation, attitude, reputation or because of who they are or who they know;

Ensuring, where a service is based on a scheme of priorities, that the scheme is open and transparent;

Being careful that one's prejudices are not factors in a decision.

As I said at the beginning of this Chapter, this checklist of standards of best practice was devised entirely by reference to actual cases. In my 1995 Annual Report (pages 18-20), I described a case and its relevance to the concepts of openness and transparency. No significant case involving bias or prejudice came to my attention during 1996. However, in the event of such cases arising, I will describe them in a future Annual Report.

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