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Annual Report of the Ombudsman 1997

Chapter Four - Internal Complaints Systems

Over the past few years I have encouraged public bodies to establish their own internal complaints systems. At first sight it may seem strange that an Ombudsman, whose function it is to examine complaints against public bodies, would run the risk of making himself redundant by advocating such an approach! I see my role not only as obtaining redress for the people who have been treated improperly by public bodies but promoting higher standards of public administration so that such complaints do
not recur. I regard my Annual Reports as a valuable method of conveying feedback on cases which have come to my attention and as an opportunity to outline general principles for public servants which relate to what I call "Ombudsman jurisprudence".

Two years ago I outlined in my Annual Report the Principles of Good Administration which I take into account in my examination of complaints. Last year I published my "Guide to Standards of Best Practice for Public Servants" to assist public servants in applying these principles to their everyday work. This year I am focusing on internal complaints systems which will enable individual public bodies to check that their clients are being treated properly. I hope that public bodies will see internal complaints systems as an opportunity for feedback which will lead to improvements in the quality of services at local level. Not every complaint can be resolved at local level but, if an impasse is reached, the internal complaints system should provide for a referral, where appropriate, to the Ombudsman. This will be of significant benefit to the complainant in that, unlike the situation which exists at present, it will present a clear pathway for the complainant to independent third party adjudication. It will also have the benefit of creating a new method of increasing public awareness of the role of my Office.

The introduction of internal complaints systems is timely for many other reasons. Firstly, the Freedom of Information Act, 1997, which comes into effect on 21 April 1998, puts a very strong emphasis on the concept of internal review before decisions are referable to independent review by the Information Commissioner. Given that the public bodies which will be subject to the Act are devising such internal appeals systems at present, it would also be appropriate to plan for complaints systems in respect of their other functions. Secondly, internal complaints systems would serve to complement the Government sponsored Strategic Management Initiative, particularly the strong emphasis on citizens and their needs as clients or consumers of public services. There is now a commitment by Government Departments and Offices to the Principles of Quality Customer Care produced under the Government's Strategic Management Initiative. These bodies have agreed to establish well-publicised, accessible, transparent and simple-to-use systems for dealing with complaints about the quality of service provided and they have also agreed to introduce formalised systems of redress for customers who are dissatisfied with decisions.

Accordingly, I am circulating with this Annual Report a copy of my guide entitled "Settling Complaints - The Ombudsman's Guide to Internal Complaints Systems".

The guide outlines the prerequisites for a good internal complaints system and gives guidance on its implementation. I attempt to illustrate the importance of some of these features in the following pages by reference to cases which I have dealt with in the past year.

The need for internal complaints systems

Some complaints are reviewed and resolved by the public bodies concerned on their own initiative shortly after they have been notified of the complaint by my Office. In other cases, having undertaken a preliminary examination of a complaint, my Office may present its perspective and request bodies to carry out a review of the original decision. These reviews have the advantage of giving the body itself the opportunity to rectify cases of possible maladministration without the need for an investigation of the complaint. I would like to acknowledge the co-operation of those bodies which have acted upon requests from my Office to review decisions. However, some cases highlight the need for a complaints
system within the public body itself whereby the complaints could be resolved internally without the complainant first coming to my Office. The following is one such case.

In a case involving the Land Commission, a woman complained about an alleged failure to honour an agreement made with her late husband regarding the purchase of land. She said that in 1978 her late husband acquired 4.5 acres of land from the Land Commission. It was intended that the land would be paid for by annuity payments over a period of 29 years but, at the time, her husband was promised that he would be given the option to purchase the land outright for the agreed sum of �1,400 when some difficulties relating to the title to the land had been resolved. However, in November 1981, when these
difficulties had been sorted out, no outright purchase option was offered by the Land Commission. By the time the complainant approached my Office the total amount which had been paid to the Land Commission was �2,576 and a further �1,819 remained payable in respect of full redemption of the annuity.

The Land Commission's file contained a note by an official dated 27 January 1978 which referred to the fact that the complainant's late husband had indicated that he wished to purchase the land outright when it was feasible to do so. It appeared that this request had been overlooked when the title difficulties had been sorted out. As there was no evidence to indicate that the complainant's late husband had subsequently withdrawn his request, I suggested to the Land Commission that it might wish to review its position. The Commission later advised me that, having obtained the consent of the Minister for Finance, they were prepared to write off the remaining annuity of �1,819. This offer was accepted by the complainant.

Appeals against local decisions

The delegation of decision making to local level does not obviate the need for an avenue of
appeal to the delegating authority, as the following case illustrates.

In September 1996 the Department of Education and Science delegated to Principals and Boards of Management of primary schools the function of granting certificates of exemption from the study of Irish. In a case which I dealt with during the year, I considered the terms of the circular outlining the delegation arrangements and noted with concern the absence of an appeal mechanism. I pointed this out to the Department and expressed the view that decisions on exemption from the study of Irish should remain a function of the Department, the operation of which has been delegated to local level within defined parameters. There should be a right of appeal to the Minister and this should be specified in the circular. The Department welcomed my suggestion and said that it would be given serious consideration in the context of a review of the circular.

Fairness and independence

Where an internal complaints system exists, it is imperative that it is operated independently of the person or body responsible for the original decision, if the system is to have the confidence and support of complainants. It is, in my view, extremely important, therefore, that any credible internal complaints system should have vested in it the authority, independence and capacity to carry out a full review of decisions and to reverse these decisions where necessary.

This issue arose in a complaint against the Department of Agriculture and Food. A woman had been refused payment of a livestock grant. She had appealed the decision to the Department's Headage and Premia Appeals Unit and the original decision had been upheld. She then wrote to my Office and in the course of the examination of her case I requested the Department's file dealing with her grant application.

It appeared from an examination of the Department's file that the Appeals Unit had decided to reverse the original decision relating to the woman's grant entitlement. This decision was then referred to the original decision-makers for their observations. They responded indicating that the original decision should be upheld. Following receipt of this response, the original decision to refuse payment was reinstated by the Appeals Unit.

While I was satisfied that the decision to refuse payment was justified, it was not clear that the decisions of the Appeals Unit were made independently of the influence of the original decision-makers. When my staff met with officials from the Appeals Unit it became evident that the reason the Appeals Unit changed its decision was not because of the observations made by the original decision-makers, but because additional information had subsequently become available.

I stressed the importance of internal complaints systems having the capacity to make decisions independently and objectively. The Appeals Unit indicated that steps had been taken to ensure that it was entirely separate and distinct from the sections in which the original decisions were made. In particular, decisions of the Appeals Unit were no longer referred back to the original decision-makers for observations. It was now their practice to notify the appellant directly of the decision and the section was obliged to implement this decision. All decisions of the Appeals Unit were now accepted within the Department as final although they remained open to examination by my Office.

I must compliment the Department, first of all, for setting up the Appeals Unit and then, when I pointed out some deficiencies in the process, being prepared to ensure its independence in hearing appeals.

Speed and efficiency

Speed and efficiency are among the essential characteristics underlying a good internal complaints system. It is a matter of concern that many of the complaints made to me arise because the complainants are frustrated by the failure of the body dealing with their cases to respond to requests for information.

In one such case a farmer had made numerous written and verbal contacts with the Department of Agriculture and Food over a three month period in relation to payment of a disease eradication grant. Seven months after he had contacted my Office, the farmer's case was reviewed by the Department and he was paid the grants which he had sought.

While the review showed a willingness on the part of the Department to be fair to the complainant, there was an excessive delay in carrying it out. I was also unhappy about the delay of over four months in obtaining an initial report on the case from the Department, an experience which is not confined to this case.

Members of the public are entitled to comprehensive and prompt responses to valid enquiries made of a public body. An internal complaints system, where it exists, will not be effective if the complainant is not able to make his or her case due to inadequate details of the basis for the decision made.

Reasons for decisions

An internal complaints system must produce a result which, even though it may not be acceptable to the complainant, is capable of being understood by him/her. He/she must be reassured that the case has been fully considered and accordingly, reasons for not upholding the complaint must be given.

This problem was highlighted by a complaint made by a parent against the Department of Education and Science. The Department has an established complaints procedure in cases where a complaint is made against a teacher. The process itself is reasonable and seeks to give all parties concerned an opportunity to state their case before a decision is made by the Department on whether there is need for any action against the teacher. The complaints procedure which is currently in operation concludes:

"Where it is considered that no action is warranted against a teacher, s/he and the Board of Management are informed that the matter has been investigated and that no further action is being taken. The parents/complainants are also told that the investigation has been completed, but are not told what action, if any, was taken, on the basis that their being so told might reduce the teacher's standing in the community and thus his/her effectiveness."

Clearly, the parent who has made a complaint of this nature to the Ombudsman will not always be satisfied with a notification from the Department that the investigation has been completed. A parent who received a letter on these lines from the Department complained to me as she was not satisfied that the Department had investigated her case properly.

When I examined the case, I was of the opinion that the Department's investigation was thorough and the conclusion reached was reasonable. I could sympathise, however, with the complainant's dissatisfaction with the uninformative letter she had received at the close of the investigation. While I appreciated the Department's concerns about the preservation of confidentiality in matters concerning a teacher's standing in his or her place of employment and community, I was not happy that merely notifying the complainant that the investigation had been completed was sufficiently informative to represent a fair outcome from her point of view. I asked the Department to consider giving more information to the complainant at the conclusion of the investigation. The Department agreed to do so in the context of an impending review of the complaints procedure.

Flexibility

It is important that, where an internal complaints system is set up, it is staffed by people who are prepared to look at the complaint from the point of view of the complainant. They should bear in mind that rules and regulations, while important in ensuring fairness, should not be applied so rigidly as to create inequity. The following two cases illustrate the point.

Maintenance Payments by a Separated Husband

I received a complaint concerning a couple who were legally separated and, as part of the separation agreement, the husband was required to pay maintenance in respect of the three children. The husband became unemployed and received Unemployment Assistance at the rate appropriate to a single man. The Department of Social, Community and Family Affairs refused payment of Child Dependant Allowance (CDA) in respect of the children on the grounds that he was not contributing
substantially to their maintenance. This refusal was upheld on appeal. He argued that in the absence of the CDA he was unable to maintain them.

Article 7(6) of the Social Welfare (Consolidated Payments Provisions) Regulations, 1994 provides that where a qualified child is resident with one parent, and that parent is living apart from the other parent and not claiming or in receipt of benefit or assistance, the child, for social welfare purposes, will be regarded as resident with the other parent if that other parent is contributing substantially to the child's maintenance.

In this case the children were residing with the wife who was in employment and, therefore, not claiming from the Department. For social welfare purposes, therefore, the children could be regarded as resident with the father, and he could be paid CDA, if he was shown to be contributing substantially to their maintenance.

The Appeals Officer, when deciding the appeal, interpreted the expression "contributing substantially" as meaning an amount equivalent to the relevant CDA, and did not consider that this condition was satisfied in the present case. She also considered that the fact that the children spent weekends with their father did not alter the situation.

Having examined the details of the case, I was not satisfied that the decision to refuse CDA was reasonable. It seemed that in order to qualify for CDA, the husband would have had to contribute at least �13.20 per child per week or �39.60 in respect of the three children. It also appeared that if he had six children he would have had to contribute more than his actual income from Unemployment Assistance.

I considered that the purpose of the provision was to assist parents contribute to the maintenance of their children and suggested that the requirement might be satisfied where a parent could be shown to continue to contribute the CDA to the maintenance of the children, once the CDA was awarded. It seemed unreasonable to me to require an applicant to pay an amount equivalent to the CDA, in advance, where the rate of social welfare in payment to him was only intended to meet his own needs.

The Appeals Officer agreed to review the case, provided the complainant could show that he had contributed maintenance while previously on a F�S scheme. Evidence was subsequently provided in this regard and the Appeals Officer decided to revise her original decision and allow the appeal on the grounds that he had demonstrated his willingness to contribute substantially to the maintenance of his children.

I am continuing to pursue with the Department the general issue of the interpretation of "contributing substantially" in order to ensure consistency in the manner in which the term is interpreted.

Substandard House

A couple complained that the house they had purchased under the Shared Ownership Scheme was substandard. Before they purchased the house, it had been inspected and certified by Galway County Council as being free from structural defects and they relied on this certification when purchasing the house. Under the scheme, applicants acquire a minimum 50% share in the house and rent the remainder from the local authority. The house cost �27,000. The complainants claimed that the roof,
ceilings, walls and sewerage system were in need of repair.

When the complainants brought the matter to its attention, the Council said that it was not liable under the law. It was relying on the provisions of Section 22 of the Housing (Miscellaneous Provisions) Act, 1992 which provides that the granting of assistance by a housing authority in respect of a house shall not imply any warranty on the part of the authority in relation to the state of repair or condition of the house or its fitness for human habitation.

Following protracted correspondence with my Office, the Council made an offer to buy out the complainants' share of the house, but this was not acceptable to the couple. An inspection of the house by the Council showed that there were repairs needed which would cost almost �22,000 to carry out. It also obtained legal advice which indicated that the Council could, in the event of legal proceedings, claim exemption from liability but suggested that in the circumstances of the case the courts might find in favour of the complainants. In continuing to maintain a legalistic approach to the complaint rather than dealing with it on its merits, the Council claimed that it was exempt from liability and suggested that the matter was proper for the courts to decide.

At this point I initiated an investigation of the case. I considered that there was evidence of administrative shortcomings in the Council's dealings with the complainants and that no reasonable form of redress had been offered. It was clear that the complainants had entered the purchase agreement relying solely on the certification by the Council as to the condition of the house. Subsequent evidence clearly showed that the house was in very poor condition. There was no evidence to suggest that the Council had at any time notified the complainants of the terms of Section 22 of the Housing (Miscellaneous Provisions) Act, 1992 so they were unaware of its implications. I pointed out that the case breached a number of standards in the Guide to Standards of Best Practice for Public Servants, in particular, the need for public servants to avoid adopting an adversarial approach where there may be a fear of litigation. It seemed to me that the Council had maintained a legalistic approach to the complaint throughout and did not deal with it on its merits.

Subsequently, the Council offered to carry out the full repairs to the house, to be financed by a contribution of �5,000 from the Council's own resources and the balance of �17,000 to be provided under the Improvement Works in lieu of Local Authority Housing Scheme. The �17,000 would be registered as a charge against the property and the complainants' repayments in respect of loan and rent would increase by �10.50 per week for a period of 15 years based on their financial circumstances. The complainants were happy to accept the offer and accordingly, I discontinued the investigation.

An opportunity for feedback

An internal complaints system should be seen by public bodies in a positive light as an opportunity to get feedback on the quality of service provided and to rectify any defects in their administrative procedures. The following two cases resulted in changes which were of benefit to many others and not just the original complainants.

Overpayments of Invalidity Pension

During the period 1994/1995 my Office examined a small number of complaints relating to assessments of overpayment in the case of people receiving Invalidity Pension from the Department of Social, Community and Family Affairs. These complaints all arose from decisions to disallow Adult Dependant Allowance (ADA) payable with the Pension; and in each case there was a related decision to recover the amount paid by way of ADA for the previous few years. Typically, amounts of about �2,000 were being recovered. The general context was that a pensioner could not claim his spouse as his dependant where the spouse had earnings above a specified level. Having dealt with a number of these complaints, in which the Department accepted that the decisions were unsound and that moneys already recovered should be refunded, I had concerns about the general standard of decision-making relating to such overpayments.

The complaints arose from decisions taken in the period 1990/1991. While I accepted that these decisions might not reflect the current standard of practice, I was concerned that a significant number of other pensioners might have been adversely affected. Accordingly, I set out my general concerns to the Department. In doing so I outlined the specific procedural and other defects noticed from the small sample of cases dealt with by my Office. These defects included:

• Failure to make a formal decision as is required by law;
  
• Failure to explain the grounds for the overpayment decision;
  
• Failure to refer appeals made to the Social Welfare Appeals Office;
  
• Failure to consider fully all of the relevant legal provisions;
  
• Provision of inaccurate information to pensioners and to their representatives;
  
• Mistakes regarding the calculation of the overpayment involved.
  

On the basis of my concerns, the Department undertook a review of decisions which had given rise to Invalidity Pension overpayments during the period in question. The review dealt in particular with the withdrawal of ADAs. The Department subsequently advised that it had identified 344 cases in which the ADA had been withdrawn during the relevant period and which the Department had decided to recover ADA already paid for specified periods. According to the Department, this review concentrated on whether the disallowance of ADA in these cases was procedurally correct and, in particular, whether the decisions exhibited any or all of the deficiencies outlined above. According to the Department, of the 344 cases examined, it concluded that proper procedures were not followed in 210 cases. The Department concluded that, whereas it was correct to have disallowed the ADA in these cases, it felt that there was inadequate evidence to have warranted making the decisions retrospective i.e., to have sought to recover amounts already paid. Accordingly, the Department undertook the task of reviewing
each individual case and calculating the amounts to be refunded to each pensioner. The eventual outcome of the review was as follows: refunds were made in 193 cases (for other reasons, not all of the 210 cases were found to be due a refund); the refunds ranged from a minimum of �32 to a maximum of �4,800; the total value of the refunds made amounted to about �246,000.

It is to the Department's credit that it undertook a detailed review on foot of the concerns expressed. This review revealed a series of defects in the Department's decision-making in relation to ADA in the case of Invalidity Pension. What is perhaps most striking is the absence of an internal review mechanism which would have picked up on such errors. One might expect that the existence of the independent Social Welfare Appeals Office would be sufficient to alert the Department to a pattern of
error in a particular area of decision-making. There are two comments to be made in this regard.
Firstly, one of the procedural errors involved was a failure to refer cases on to the Appeals Office even where applicants had clearly indicated a desire to appeal. Secondly, the Appeals Office would have been likely to deal only with the actual decision and would have had regard primarily to the case being made by the appellant. In a situation where appellants had not already been given full information as to the grounds of the initial decision, and where the relevant law was quite complex, the likelihood of an appellant being able to articulate a reasoned argument would have been limited.

Perhaps the lesson to be drawn here is that the Department should have had internal procedures in place to assure itself of the quality of its decision-making. The existence of the independent Social Welfare Appeals Office is an important protection of the rights of the individual claimant; but it is not an alternative to good internal quality control.

Refund of Motor Tax

The following case highlighted a problem with an application form. On 21 September 1995 a motorist paid �320 to renew the tax on his car for one year operative from 1 October 1995. On 24 September 1995 the vehicle was badly damaged in an accident. The following day he enquired of the Motor Tax Office of Kerry County Council about a refund of motor tax as the operative date had not yet arrived. He alleged that he was informed that he would qualify for a refund of tax only if the chassis was cut in two places and Garda verification was obtained. As he did not know at that particular time whether the car
was a write-off, he did not pursue the matter further.

He said that some considerable time later he was informed by an official in the Motor Tax Office that he should have lodged his "taxation documents" and windscreen disc at least three months before the date of expiry of the licence in order to qualify for a refund of the car tax. As he had not done so, he could not now obtain a refund.

He felt very aggrieved that he had been denied his �320 refund, due to the incorrect information which he alleged had been given to him by an official of the Motor Tax Office.

When I examined the regulations governing refunds of motor tax, and the relevant application form, I found that the form did not list all the qualifying conditions for a refund of motor tax. In fact, the form was misleading and it was possible that a staff member, believing that the form contained all the relevant conditions to qualify for a refund of tax, may have given incomplete information to the complainant. When I pointed this out to the Council, it agreed to accept an application for a
refund from the complainant and to amend its application form for a refund of duty to incorporate all the provisions of the regulations under which a refund may be claimed.

Accessibility

In many of the complaints which my Office receives, the basic problem is a failure on the part of the complainant and the public body concerned to communicate properly. An internal complaints system, if it were publicised and accessible to all, can help in identifying such cases and resolving them locally.

This case illustrates the problem where there is a lack of communication between two public bodies and a member of the public is caught in the middle. The complainant had been allocated tenancy of a Dublin County Council house in 1973 and applied to purchase it under the Tenant Purchase Scheme in 1986. There was a crack in the rear wall of the house which, he understood, the Council had undertaken to repair and on that basis he proceeded to purchase the house in 1988. In 1997 he
complained to me that, despite contact by himself, his solicitor and a public representative on a number of occasions, no work had been carried out to repair the crack and, as a result, water had been penetrating the rear walls of the house for some years.

Following the reorganisation of local government in the Dublin region, the house is now within the functional area of D�n Laoghaire-Rathdown County Council. It advised that under the terms of the Tenant Purchase Scheme, where disagreement arose between a housing authority and the applicant regarding the structural condition of a dwelling, the applicant had a right to apply to the Minister for the Environment for a determination as to whether the house was in good structural condition. If the Minister determined that a house was not in good structural condition he could order the housing
authority to carry out specified remedial works. The complainant in this case had applied to the Minister for a determination order and the Council was contacted by the Department regarding the matter in February 1989. The Council had no record of a determination having been made by the Minister and consequently had not carried out any work to the complainant's house. Despite the enquiries made by the complainant and on his behalf, the Council had not contacted the Department of the Environment to enquire if the determination order had been made.

When my Office contacted the Department, it acknowledged that the complainant had applied to the Minister for a determination order and that the house had been inspected. However the complainant's file had been put away in error some years earlier and no decision had ever been made on the matter. The Department then undertook to carry out a further inspection of the dwelling and to make a decision on the request for a determination order. Following a review of the case, the Minister made a determination order directing the Council to carry out works to eliminate water penetrating the rear wall of the house.

In this case the complainant used the appeal mechanism available and, had a decision been made in his case at the time, the problem would have been resolved within a short period. However because of the lengthy delay in the making of a decision, and the failure of the Council to follow up on the case, he was obliged to live with the problem of water ingress to his house for a further nine years after making the appeal.

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