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Annual Report of the Ombudsman 1996

Chapter Four - Selected Cases

Civil Service

Department of Arts, Culture and the Gaeltacht

Gaeltacht Housing Grant Refused

The complainant was refused a house improvement grant in 1991 by the then Department of the Gaeltacht because he had been paid a new house grant, in respect of the same house, by the Department of Environment (DOE) in 1986. The Department said that he was debarred from any payment under its grant scheme for a period of seven years following the payment of the DOE grant. On this basis, he could not be considered for a Gaeltacht house improvement grant until August 1993.

The Department's decision was based on Section 7(1A) of the Housing (Gaeltacht) Act, 1929. This states that: "No improving grant shall be made under this Act in respect of a dwelling-house during the period of seven years following the making of a building grant or an improving grant in respect of the same dwelling-house". The Department was interpreting this restriction as being applicable in any situation where a grant from any other source had been paid in the previous seven years. The view taken by this Office was that, taking the 1929 Act as a whole, the restriction in question applies only where "a building grant or an improving grant" under Gaeltacht legislation has been paid within the previous seven years. In other words, the seven year restriction does not arise in the case of a grant paid from another source e.g. the Department of Environment. The Office's legal advisor confirmed this interpretation.

In November 1994 this Office set out a detailed analysis of the case for the Department (now Arts, Culture & the Gaeltacht). In July 1995 the Department indicated that it had decided to seek legal advice from the Chief State Solicitor's Office (CSSO) and did so in August 1995. The CSSO consulted with the Attorney General's Office and it was March 1996 before this Office was notified that the Department had received its legal advice and had decided to pay a grant of �900 to this particular complainant. Subsequently, the Department confirmed that its legal advice was in agreement with the position outlined by this Office in November 1994 and that, in future, it would be deciding cases in the light of this advice.

It is entirely reasonable that a Department or public body should seek legal advice in relation to its business. However, it is not reasonable that a Department should delay taking a decision to seek legal advice on an issue for some seven months after receiving a detailed analysis from this Office. A further six months elapsed before the advice was received by the Department and one month later it responded to this Office.

Department of Health

Provision of Facilities for Home Births

During the year, the Office received a number of complaints about the failure of four health boards to provide midwifery facilities for women who chose to have a home birth. The women complained that their health board could not provide them with a midwife and, when they themselves contracted private midwives, the boards would not pay realistic fees for their services. A further complication was that the fees offered by the different health boards varied, resulting in complainants receiving differing amounts of assistance depending on where they lived.

Section 62 of the Health Act, 1970 imposes a duty on health boards to provide midwifery services, without charge. This obligation was clarified in a decision of the High Court in 1988 (Spruyt-v-Southern Health Board) which held that the statutory duty could only be met where a health board engaged a registered medical practitioner or midwife to attend at the home birth. The duty could not be discharged merely by offering to compensate a woman for the cost of engaging a registered medical practitioner or midwife of her own choice.

The practice of having home births (which used to be the norm) has declined in favour of hospital births. As the demand for home births declined, so too did the availability of domiciliary midwives. Many health boards, therefore, found themselves in a position where they were unable to provide a proper home midwifery service.

This Office acknowledged the practical difficulties faced by the health boards in the provision of these facilities, on a consistent basis, throughout the country. It was also conscious that the Department of Health is endeavouring to address these issues, within the context of the Women's Health Plan, by introducing pilot schemes in some health board areas. The Office was aware of the legal obligation to provide this service and the inconsistency which had developed between health boards in their handling of the issue. This inconsistency resulted in unfair discrimination given that every applicant has an equal statutory right to the service.

This Office contacted the Department of Health and requested that, as an interim measure, it approach the health boards and seek agreement on a standard fee to be paid to women who engaged private midwives for a home birth. As a result, the Department obtained the agreement of the health boards to pay two thirds of the cost of a home birth, up to a maximum of �400. In addition, the Department will keep the Office informed about progress on the pilot schemes which are being arranged to explore longer term solutions to the home births issue.

Release of Internal Document

The parents of two autistic children complained that the Department of Health had refused to provide them with a copy of a report by the Department's Advisor on Mental Handicap Services. The report related to a visit made by the advisor to an education and treatment centre for autistic children in the United States. The two children were already attending this facility in the USA and the parents' health board was contributing about 20% of the very substantial fees involved. The balance of fees was being met through private fund-raising. A copy of the report had been given to the health board and the parents felt it was in the interests of their children that they should have a copy of the report also.

In September 1995 the Department of Health wrote to the parents to say, among other things, "that a copy of the report of the Department's Advisor on Mental Handicap Services on his visit to the (facility) has been forwarded to the ... Health Board". The Department did not make a copy of the report available to the parents. The request for a copy of the report was among a number of issues raised in a D�il question in January 1996. That part of the D�il reply which dealt with access to the report said that "there is no formal report published" but went on to acknowledge that the Department's Advisor had visited the particular facility. The parents contacted this Office in late March 1996 arising from their failure to obtain a copy of the report.

In its reply to this Office, the Department again stated that there was "no formal report published" in relation to the visit to the facility. The Department enclosed a copy of the D�il question of January 1996. It was pointed out to the Department that the complaint clearly related to the report sent from the Department of Health to the particular health board and that the Department had already acknowledged the existence of this report. The Department was asked to say clearly whether or not it intended to make the report available to the parents and, if not, to give the precise reasons for the decision to withhold the report. The eventual outcome was that the Department agreed to make the report available to the parents, subject to the deletion of certain references which might tend to identify other families.

Some features of the Department's handling of this case were far from reassuring. It took the Department almost three months to give a full response to my notification of complaint. This is not acceptable and the Department was advised accordingly. The response indicated that there was no formal report in existence. Bearing in mind that my letter of notification referred specifically to the report sent by the Department to the particular health board, it was hard to understand the Department's initial position.

Department of Social Welfare

Recoupment of Overpayments

The Office receives complaints from time to time about the Department of Social Welfare recovering overpayments from clients. In one case, the Office queried the Department on procedural matters relating to the assessment and recoupment of an alleged overpayment made between 1983 and 1985 to a non-contributory old age pensioner. The complainant had been assessed with an overpayment of �1,449 and by 1991 he had repaid the arrears by means of weekly payments of �6. On review of the case, the Department found that it, in fact, owed money to the complainant. Since 1979 he had been entitled to a Contributory Old Age Pension which, by 1996, entitled him to �26,238 more than he had been paid. In addition, the Department awarded him a further �6,242 compensation in respect of the loss of purchasing power over the period.

Widow's Pension Arrears

This complainant was widowed in 1965. She says she approached the Department of Social Welfare at that time to enquire about her entitlement to Contributory Widow's Pension and was advised that she had no entitlement. In 1983 she applied for the Contributory Widow's Pension on the advice of a friend and was found to be eligible. She was paid three months arrears of pension but was refused arrears back to the date of widowhood in 1965. The woman pursued the arrears issue vigorously with the Department at that point but she was unsuccessful. The Department's position was that, in cases of late pension claims, arrears can be paid only for a period of three months prior to the actual application.

The widow did not make a formal application for a pension in 1965 and there was no record of her having approached the Department at that time. Even if she had applied in 1965, she would have been unsuccessful, as the contribution requirement for Widow's Pension changed in 1966 and it was as a result of this change that her later application (1983) was successful. In complaining to this Office, the widow made the point that she had been unaware of the change in the contribution requirement made in 1966 and that it was unfair that she should lose out as a result.

This woman had been living in the UK at the time of her husband's death and qualified for a reduced UK Widow's Pension prior to her returning to Ireland. This Office suggested to the Department that the provisions of the 1966 Agreement on Social Security between the United Kingdom and Ireland might apply. Under this Agreement, a claim for a social insurance payment in one country may be treated as a claim in the other country.

The Department reconsidered the case in the light of this suggestion. As the widow had been a client of the UK social security authorities in 1966, she was found to come within the scope of the Agreement. She was deemed to have claimed the Irish Widow's Pension with effect from 28 October 1966 when the Agreement came into effect. On this basis arrears of pension to October 1966 were paid. The arrears totalled �14,200.

Local Authorities

Leitrim County Council Bundoran Urban District Council

Inadequate Water Supply

The complainants were an elderly couple living in County Leitrim, close to the border with County Donegal. This case proved to be complex and protracted and involved Leitrim County Council and Bundoran Urban District Council. While the complainants' water source was located in County Leitrim, the system to which they were connected was originally used to supply Bundoran in County Donegal. In 1978 Bundoran began to use an alternative water source for their Donegal consumers. The consumers in the Leitrim County Council functional area, who had continued to rely on the old system, were informed in 1987 that Bundoran UDC would no longer take responsibility for supply or maintenance of the pipeline.

In 1984 Bundoran UDC had requested Leitrim County Council to take responsibility for the scheme. A lengthy legal wrangle developed between the two local authorities about the terms of the take-over. While the complainants were no longer being asked to pay water charges, their water supply had deteriorated greatly over the years due to the lack of maintenance. They had effectively become victims of the impasse between the two local authorities.

The Office sought to put the focus on the plight of the elderly complainants rather than the broader dispute between the local authorities. The complainants were semi-invalids, living in poor circumstances, who felt powerless to influence a situation which they had not created. Following discussions with this Office, Leitrim County Council agreed, in the first instance, to make a local Waterworks Caretaker available to the complainants to assist in any minor water supply problems which might arise. It also agreed to carry out a series of technical investigations to determine whether a long term solution could be found. This resulted in a decision to replace the pipeline to the complainants' house as part of a local Road Improvement Scheme. This new pipeline would then be connected to a new County Leitrim pipeline system in the area which would restore normal supplies to the complainants.

This case shows that public bodies sometimes lose sight of the fact that their actions, or inactions, have a profound impact on the daily lives of citizens. Individuals may be adversely affected over years and feel powerless to bring influence to bear on problems which are not of their own making. It seemed to this Office that both local authorities were unresponsive, for many years, to the plight of the complainants. Having said that, Leitrim County Council must be commended for resolving this particular complaint once the full circumstances were brought to its attention by this Office.

Louth County Council

Family Income Supplement and Local Authority Rent

A tenant with Louth County Council, who had been unemployed, got a low-paid job which required him to undertake a 70 mile round trip daily. As a result of taking up employment, he was left �18 per week worse off than previously. He applied for and was granted, Family Income Supplement (FIS) of �60 per week from July 1993. He did not report this income immediately to the Council but it came to its attention in May 1994, during a routine annual review of housing rents. The Council then reassessed his rent retrospective to July 1993. This resulted in an increase in his rent from �17.30 to �26.10 per week. At this stage the man complained to this Office.

In its response to the complaint, Louth County Council confirmed that FIS was assessable, as household income, under its rent scheme and it refused to allow any concession for the complainant's travelling expenses.

Since 1986 local authorities have been responsible, within broad parameters laid down by the Department of the Environment, for fixing the terms of their own rent schemes. Each local authority is therefore free to decide for itself whether to include or exclude FIS as income for rent assessment purposes.

The Office suggested to the Council that it should consider excluding FIS in calculating the complainant's rent having regard to the complainant's circumstances, the nature of FIS and the Department of the Environment's guidelines about the assessment of income for rent purposes from employment initiatives such as the Area Based Responses to Long Term Unemployment. In response, the Council proposed to apply the hardship clause (in its rent scheme) to the complainant and to reduce his weekly rent with effect from 1 December 1994 to reflect his travelling expenses. It also agreed to assess, on their merits, each individual case where hardship is claimed by tenants in receipt of FIS.

It seemed to this Office, however, that, if the Council accepted that the assessment of FIS was causing hardship in this case, it should, in equity, have applied the concession from the date the complainant first received FIS. When this question was put to the Council, it agreed to back date the application of the hardship clause to July 1993, i.e. the date on which the complainant commenced employment.

Health Boards

Nursing Home Subventions

A number of complainants said that health boards were not properly implementing the regulations in relation to nursing home subventions. These are subsidies paid by the health boards towards the cost of private nursing home care for people (usually elderly) found to be in need of such care. The level of these subventions is governed by the provisions of the Nursing Homes (Subvention) Regulations, 1993. The Regulations provide for a maximum rate of subvention in respect of three separate levels of dependency.

In order to qualify for a subvention an applicant must (a) be assessed as falling within one of the dependency levels and (b) be unable to pay any or part of the nursing home fees. A person whose sole means is a sum equivalent to, or lower than, the weekly rate of Non-Contributory Old Age Pension (NCOAP) qualifies for the maximum subvention. This maximum rate is reduced by any amount by which the applicant's means and circumstances exceed the NCOAP. In particular, Article 8.2 of the Regulations provides that, in assessing the means of the applicant, health boards shall "disregard income equivalent to one fifth of the weekly rate of the Old Age Non-Contributory Pension available at the time, such sum to be retained by the person for his or her own personal use".

The complainants pointed out that some health boards were not applying this provision in determining the rate of subvention and consequently an amount equivalent to one fifth of the NCOAP rate was not being disregarded. This resulted in a reduction in the level of subvention otherwise payable by the health board. The consequence of this was that the patient - or frequently the patient's family - was required to meet the shortfall created by the failure to pay a higher subvention.

One complaint typifies the problem. The applicant, an elderly lady, was assessed as being of medium dependency level. A maximum weekly subvention of �70 is payable at this level. Her total weekly income (pensions and some savings) amounted to �128.06 per week. No account was taken of the provisions of Article 8.2 by the health board when calculating the subvention. Her weekly rate of NCOAP at that time was �67.30 per week. This meant that her means exceeded the NCOAP by �60.76p and the maximum subvention payable was thus reduced by that amount. This resulted in a payment to her of �9.24 per week. Had the board applied the Regulations correctly when calculating the subvention a further �13.46 (one fifth of weekly NCOAP) would have been payable giving a total of �22.70 per week.

On enquiry, it emerged that those health boards involved were acting on advice received from the Department of Health. The Department had advised the boards that, whereas they should disregard one fifth of the NCOAP rate in assessing means, this same disregard should not be taken into account in determining the rate of subvention. The Office did not agree with this interpretation. The intention of the Regulation was that all applicants would have a need for some personal income (fixed at a minimum of one fifth of the NCOAP rate) over and above what would be required for the nursing home fees, and that an allowance for this should be built into the subvention calculation. In the cases complained of, the health boards involved had reduced the maximum subvention payable by the total income and this resulted in the applicants not having a personal disposable income available to them.

As the health boards were acting on the advice of the Department of Health, this Office pursued the matter with that Department. The Department maintained that the Regulation - made by the Minister for Health - was unclear in relation to the application of the provision at Article 8.2. The Department sought legal opinion in relation to the issue, following which they accepted that its advice to the health boards should be changed. The Department subsequently advised the boards to the effect that the disregard should be taken into account when calculating a subvention. In addition the Department says it intends to amend the Regulation to remove any doubt or confusion that might exist in this area.

Telecom �ireann

Charges to Payphone Subscriber

According to Telecom, one of the features of the Payphones 20 and 50 is that they are pay-on-answer phones which means that no coins need to be inserted until the dialled number is actually answered. Once the call is answered, the caller is then allowed a period of time in which to insert the required amount of money and, if the minimum fee is not inserted, the call is automatically terminated. During the interval allowed to insert the money, the microphone in the handset is muted so no conversation can take place but the line is continuously metered in the exchange. Therefore, if no cash is inserted, discrepancies can arise between the amount billed to the owner/renter and the amount collected by the payphone.

The Office received a complaint from a man who had a Payphone 20 installed. He discovered that he was being charged for calls which were disconnected after 30 seconds if no money was inserted. He claimed he was never informed that he would be charged for such calls and that there was no mention of the fact in the handbook provided by Telecom. Another person complained about a Payphone 50 which he had installed in a house let to tenants. He had discovered a sudden increase in his bill due to international calls totalling hundreds of pounds. All of these calls were of less than a minute's duration for which the person dialling did not insert any money. Nevertheless, the subscriber was charged for them. Again, this person claimed that he was not told that calls could be made without any money being inserted.

Previously, the Office had recommended a rebate for a subscriber with a Payphone 20 on the basis that the information supplied with the payphone was inadequate to alert the subscriber to the possibility of misuse and to the fact that he would be billed for calls where a connection is made but the calling party cannot be heard. Telecom had agreed, at that time, to have the position clarified in its literature when next it was being reprinted. This had not happened by the time the complainants came to the Office. The Office recommended rebates in the above cases and Telecom agreed to refunds of �114 and �619, respectively.

Telecom has informed the Office that all sales staff at their Telecentres have been instructed to advise potential customers of the implications of abuse of the pay-on-answer facility and that this is also highlighted in a Telecentre product brochure. The company is currently evaluating a new portfolio of customer payphones; and it has agreed that, if any of the new range have a pay-on-answer facility, an appropriate warning will be included in the product literature.

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