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Annual Report of the Ombudsman 1997

Chapter Five - Selected Cases

Civil Service

Department of Arts, Heritage, Gaeltacht, and the Islands

Refusal to pay a Gaeltacht house building grant

A complaint against the Department of Arts, Heritage, Gaeltacht and the Islands raised interesting issues in relation to the right of a Department to suspend the operation of a statutory scheme.

In 1993 the complainant applied to the Department for a Gaeltacht house building grant. His application was refused on the grounds that he was already the owner of a house in which he lived with his family. The complainant was aggrieved as the Department had already agreed, in principle, to pay a Gaeltacht improving grant in respect of the complainant's old family home (in which he was not actually living). When the complainant decided to build a second house, rather than restore the old family home, he assumed this project would be grant-aided. The complainant decided not to proceed with the renovation of the old home as he felt this would be a waste of money. His point was that, since the Department had agreed in principle to grant-aid the renovation of the old home, it should, in all common sense, agree to provide at least the same level of grant aid towards the building of a new house on the same site.

The relevant law - the Housing (Gaeltacht) Acts, 1929-1979 - authorises the payment of a house building grant in a case where the applicant is already "the occupier of a dwelling house". The Acts also authorise the payment of a house improvement grant in respect of a second house. This particular case showed that, whereas the Department was willing to pay the improvement grant in respect of a second house, it was not willing to pay a building grant in respect of a second house.

The Department explained that a decision had been taken to suspend payment of building grants in respect of second houses with effect from 1 January 1983. The reasons for this decision related to budgetary considerations and evidence of widespread abuse of the particular grant scheme. The Office was concerned that a decision had been taken at an administrative level to suspend the operation of a statutory scheme, a decision which was not within the competence or authority of the Department to
take. The Acts do not provide for such an administrative decision nor, during the period since 1983, had any move been made to have a relevant amendment passed by the Oireachtas and it was never publicly announced that the scheme was being suspended indefinitely.

Following an investigation, the Office found, among other things, that the Minister had exceeded his jurisdiction under Section 3(7)(b) of the Housing (Gaeltacht) Act, 1929 in refusing to pay a grant to the complainant. Following the Ombudsman's recommendation the Department processed the 1993 application in accordance with the procedures which would have been in place had the scheme not been suspended and paid the complainant a grant of �4,000. In addition, the Department published notices - in the context of an announcement of a general review of all the provisions of the Housing
(Gaeltacht) Acts - to say that building grants in respect of second houses were now available from the Department.

Department of Justice, Equality and Law Reform
Refusal to pay legal costs

A man complained that, due to an error on the part of the Department of Justice, Equality and Law Reform, the Minister wrote to him on 21 June 1996 stating that he (the complainant) had written a letter to her in which he had made representations on behalf of a person serving a sentence for serious fraud and that she found his letter to be "unwise and intimidatory towards my statutory powers". The complainant immediately telephoned the Minister's Private Secretary and was given a verbal assurance
that the letter had issued in error and that it was accepted that he had not written the offending letter to the Minister. He considered the matter to be of a very serious nature and he instructed his solicitor to approach the Minister seeking a formal acknowledgement that he was not the writer of the letter, confirmation that it had not been passed to any third party, that his name be removed from all records and that his solicitor's fees be settled by the Minister. The complainant received a letter from the Minister on 18 December 1996 which addressed the points raised by the solicitor but it did not accept that the Minister would settle the solicitor's charges.

When the man complained to the Office in May 1997 it asked the Department to review its decision in relation to the complainant's legal costs. The Office was satisfied that the complainant had suffered adverse affect as a result of an undesirable administrative practice on the part of the Department. However, the Department maintained that this was an action of the Minister in relation to a private constituency matter and added that the Department held no records in relation to the correspondence. The Office's view was that the correspondence related to functions assigned by law to the Minister and that this was not a private constituency matter. The Office also expressed some doubt as to the legal basis for the Department's argument that there was a distinction between the actions of the Minister and the actions of the Department.

Following further correspondence, the Department agreed to pay the reasonable legal costs incurred by the complainant.

Department of Social, Community and Family Affairs

Private Pension Plans

The Office received a complaint from a man who worked for a company which did not provide an occupational pension scheme for its workers. To make provision for his future, the complainant had taken out a private pension plan. However, he then discovered that while he was allowed tax relief in respect of the contributions he made for the private pension plan, he was not allowed relief from Pay Related Social Insurance (PRSI) as the contributions were not paid through his company. In addition he discovered that while contributions made to an occupational pension scheme are deductible from income when applying for Family Income Supplement(FIS), his private pension plan contributions were not.

An examination of the issue showed that the Department of Social, Community and Family Affairs had correctly applied the relevant legislation. Only contributions made under a net pay arrangement scheme, i.e. deducted at source, were allowable for PRSI exemption and as deductions from income for FIS.

Many employees in companies which do not provide an occupational pension scheme retire having only a Contributory Old Age Pension. Concern has been expressed recently about the difficulties of maintaining the State pension at an adequate level in an aging society. There seems to be a growing consensus that people who have no occupational scheme should be encouraged in their efforts to make independent provision for their retirement. There would seem to be no logical reason to differentiate between deductions through a company and those made privately in circumstances such as this.

The same point applies to allowable deductions for FIS. It is anomalous to allow superannuation contributions made to an occupational pension scheme as deductible for FIS purposes, but not allow private contributions made in the absence of an occupational pension scheme.

The Office wrote to the Department of Social, Community and Family Affairs and it has agreed to take this anomaly into account when the report of the National Pensions Policy Initiative is published in 1998.

Scheme of Compensation for loss of Purchasing Power

Since 1986 the Department of Social, Community and Family Affairs has administered a scheme under which claimants, whose social welfare payments have been excessively delayed, are compensated for the loss of purchasing power arising from the delay in payment. This scheme was first introduced in response to a complaint from a widow who was granted compensation of �4,000 because of a seven year delay in awarding her a pension (see Annual Report for 1986). Having regard to other similar
complaints dealt with in the intervening period, in 1996 the Office made a number of suggestions to the Department for improvements in the scheme. As a result the Department made a series of changes which took account of many of the concerns already expressed by the Office and included:

• a reduction from two years to one year in the so-called "fallow" period i.e. the period within which the Department must deal with the claim without triggering the compensation mechanism;
  
• a change in the basis for compensation from one based on the Department being solely at fault to one where the Department is solely or significantly at fault, i.e. some fault on the part of the claimant will not rule out compensation provided it is not a significant factor;
  
• a commitment that the Department will seek automatically to identify cases warranting compensation without the need for the claimant expressly to seek compensation;
  
• payment of up to �50 to meet costs actually and necessarily incurred by the claimant due to the delay in making the payment.
  

The Department intends to put the scheme on a statutory basis.

Lost Contributory Pension Arrears

A recurring theme in successive Annual Reports has been the inequity and lack of proportionality inherent in the penalties imposed on people who have been late in claiming contributory pensions. Up to 1997, where a person was late in claiming such a pension, the maximum arrears being paid was for the six months immediately prior to the date of claim. This practice resulted in major losses of pension arrears in individual cases - as much as �40,000 in one case this Office has dealt with. The Social Welfare Act, 1997 improved matters somewhat by increasing the maximum arrears payable in such cases from a maximum of six months to an automatic 12 months' arrears, irrespective of the reason for the failure to claim on time. That Act also provided for the making of regulations, by the Minister, to extend "..subject to such conditions and in such circumstances as may be prescribed.." the maximum arrears period. At the time of writing, regulations under this heading have not been made.

In March 1997, the Office published the report of an investigation of three individual complaints against the Department in relation to lost pension arrears. As this report has already been published, it is not dealt with here in any comprehensive way. However, some aspects of the report, and its aftermath, are worth noting.

Extra-Statutory Arrangements

In the course of the investigation it emerged that the Department has had a long-standing arrangement whereby it can pay pension arrears, outside of the six months limit, on an extra-statutory basis. The arrangement covers a variety of situations, many of which would have been relevant to complaints made to this Office since 1985.

In 1993 the previous Ombudsman was unable to uphold the complaint of a widow who had lost arrears of pension for the period 1984 - 1993. At that stage, the question of a payment being made on an extra-statutory basis did not arise as this Office was not aware such an arrangement existed. Fortunately, this woman again contacted the Office in 1996. It became evident that she could legitimately argue financial hardship - one of the grounds for making an extra-statutory payment - as a consequence of having lost out on almost eight years of pension arrears. The Office asked the Department to consider an extra-statutory payment on these grounds and it agreed to pay �7,000 - roughly three years arrears - on the grounds of hardship.

The extra-statutory arrangement allows for payment of pension arrears on grounds of equity. Where the failure to claim on time can be shown to have arisen because of an incapacity to act, due to ill health, the Department may accept that arrears should be paid on grounds of equity. In one case, a widow had failed to claim the pro rata Contributory Widow's Pension on its introduction in 1988. She had Alzheimer's Disease and was not able to manage her affairs. Her family eventually applied on
her behalf in 1996 and the pension was awarded. Arrears for six months only were paid. The Office, aware of the widow's inability to manage her affairs, advised the family to claim full arrears on the grounds of equity. The Department accepted the argument and paid arrears of about �17,000.

Claim for one Payment Satisfies Requirement to Claim Another Payment

Another outcome of the investigation was that the Department agreed that, in certain situations, it could treat an existing claim for one payment as satisfying the requirement to have claimed some other payment. This is relevant in a situation where a person has been claiming a particular social welfare payment during a period when s/he could have been claiming a different, higher-rate payment.

This change has benefited quite a few complainants. In three very similar cases women, who had been on widow's pension when they might have been on old age pension, received arrears of about �1,000 each. The Office understands the Department is now applying this new approach as a matter of course when such cases come to light.

A related and very welcome development is that the Department now accepts that receipt of some other payment, up to the point of reaching pension age at 66 years, may be treated as satisfying the requirement to have claimed the old age pension at 66 years. In effect, a person who is a "client" of the Department on reaching 66 years will be deemed to have claimed the old age pension at 66 years. In one particular case a woman had not been paid contributory old age pension on reaching 66 years in 1983. She claimed to have applied, and been refused, in 1983 and again some time later. An application made in 1990 was successful but the Department had no record - nor had the applicant - of the earlier applications. This meant that the woman had lost out on about six years arrears of pension. However, the Department accepted the Office's suggestion that the woman's existing claim for Disability Benefit at age 66 could be deemed to be a claim for the old age pension. On this basis, arrears of �17,800 were paid to this woman.

Civil Servant refused Unemployment Assistance

The Office received a complaint concerning the refusal of the Department of Social Community and Family Affairs to pay Unemployment Assistance (UA) to a civil servant who was awaiting re-employment in the civil service at the expiry of her career break.

The career break was initially for one year from September 1990 but was subsequently extended, by mutual agreement between the applicant and her department, for two further periods of 12 months. However, in April 1993 when the civil servant wrote to the department saying that she wished to return to work at the end of her career break in September 1993, the department told her that there was no immediate vacancy. In the event no vacancy arose until she was offered a position which she took up in May 1994. In the interim period, she applied to the Department of Social, Community and Family Affairs for UA and signed on at her local employment exchange. Her application for UA was refused by the Department and she lodged an appeal to the Social Welfare Appeals Office but was not advised of the rejection of her appeal until April 1994. Despite her contacts with the Department of Social, Community and Family Affairs during this period, she was not advised to claim Supplementary Welfare Allowance (SWA). She had no income between September 1993 and March 1994 when she fortuitously became aware of the SWA scheme and was awarded payment.

On examination of the case it was clear to this Office that the Social Welfare Appeals Office, in refusing the appeal, drew upon advice which it had received some years previously from the Attorney General. This advice was to the effect that civil servants on career breaks were not unemployed within the meaning of the Social Welfare Acts and, therefore, did not have entitlement to UA. However, it appeared to this Office that the advice dealt only in a general way with the status of civil servants on career breaks. It was not clear that it should be relied upon in the present case and accordingly the Office asked the Social Welfare Appeals Office to return to the Attorney General for further clarification of his advice in the light of the circumstances of this case. The Office also raised the more general issue of the employment status of those civil servants who, although the specified period of their career break had expired, were, through no fault of their own, precluded from resuming their employment in the civil service, because no vacancy was available at the time or for a considerable period thereafter.
On reviewing the issues, the Attorney General advised that, in the given circumstances of the case cited, the civil servant was entitled to claim UA. The Social Welfare Appeals Office revised the earlier decision and allowed payment of UA to the civil servant from September 1993.

The outcome of this case has implications for other civil servants who take career breaks and who cannot be taken back for some time after the end of the career break. Accordingly, the Department of Finance, at the Office's request, wrote to all Civil Service Personnel Officers notifying them of this development so that they in turn would advise individuals in any similar case which might arise of
their possible social welfare entitlements.

Department of Education and Science
School Transport Service for Children with Disabilities

The Office investigated a complaint against the Department of Education and Science concerning the provision of a school transport service to a child with multiple disabilities. The Office found that the child concerned had not been treated fairly by the Department and that the school transport scheme, as it applies to children with special needs, did not meet the requirements of fair and sound administration, since it was both undocumented and unpublished.

The Office recommended that the child's family be paid compensation of �6,800 for the period during which the child had an inadequate transport service and that the Department devise and publish a school transport scheme which would incorporate principles which the Office considered to be essential in order to ensure fair treatment. The Department accepted the recommendations. The Office published the report of this investigation in February 1998.

Local Authorities

Carlow County Council
House repossessed without consent of one spouse

A complainant and her husband had purchased their house from Carlow County Council. Following domestic difficulties she moved out of the house with her daughter. Her husband then wrote to the Council claiming that he was not in a position to pay the tenant purchase annuities. Following legal advice, the Council acceded to his implied request to surrender the house to the Council and revert to tenancy on a weekly rent. The complainant said that she was not made aware of the surrender of the house until more than two years after the event. As her complaint about the matter proved unsuccessful, she complained to this Office.

The Council said that the complainant had left the dwelling and was in default of the terms of the Order transferring the house to her husband and herself. She did not take the trouble to advise the Council that she had done so or where she had gone to live. The Council was not aware of the reasons why she left the house. It said that its main concern was the ability of the complainant's husband, the occupant of the house, to meet the repayments. The decision to allow the house to revert to rent was made in the light of his financial circumstances and the fact that he had been the tenant since August 1976. The complainant had not made any offer to meet the repayments.

The Council considered that it had taken a sensible approach to the resolution of an impending financial difficulty associated with the inevitable failure by the complainant and her husband to honour their tenant purchase arrangements. This failure would have resulted in the repossession of the house. If the repossession of the dwelling had taken place, a likely outcome would have been the appointment
of the complainant's husband as tenant. The complainant, in the event of a repossession, would not have any say in the matter and indeed would not have any basis for a complaint. While there could be a possible technical difficulty in relation to its termination of the Transfer Order, the complainant did not comply with her contractual obligations to the Council. It acknowledged that it did not have regard to the provisions of the Family Home Protection, Act 1976 [FHPA] when making its decision on the matter.

Following an investigation the Office found, among other things, that the Council, in proceeding to accept the surrender of the house, acted without proper authority in that it failed to take into account that, by virtue of the Transfer Order, the complainant was the joint owner in fee simple of the house and together with her husband, was entitled to "the entire beneficial interest" in the house. Notwithstanding the Council's failure to address correctly the fundamental question of the fee simple ownership of the house, the Office also found that the Council, in proceeding to accept the surrender of the house occupied by the complainant's husband, acted improperly by failing to obtain the consent, in writing, of the complainant as is required under the FHPA.

While the complainant, in the interim, had been rehoused by a voluntary housing group, the Office could not ignore the manner in which the Council, over a six year period, had dealt with the complainant and her interest in the family home. Accordingly, in consideration of her surrendering her interest in the family home to the Council, in order to enable the Council to regularise its title to the property, the Office recommended that it pay the complainant the sum of �5,000, which included a compensation element for her time and trouble over the years in pursuing the complaint against the Council. The Office also recommended that the Council review its procedures for dealing with future cases of this nature. The Council accepted the recommendations.

Wexford County Council

Pollution

A complainant alleged that on 23 December 1995 an agent of Wexford County Council unloaded a tanker of raw sewage onto a field adjoining her land. Later that week, there was a heavy fall of rain which caused flooding in the area. She claimed that this rain caused the sewage to drain onto her land and contaminate a well which was the source of her drinking water. The woman told the Office that
she had reported the matter to the Council in early January 1996 but that it did not respond. She said that, later, she called in person to the Council's office and was told that the Council would contact the person who allegedly had dumped the untreated sewage on the land and instruct him not to repeat the dumping.

The complainant subsequently disinfected the well and, after tests, the water was found to be suitable for human consumption. She had incurred various expenses and suffered substantial inconvenience as a result of the dumping incident. She complained to the Office about the unsatisfactory manner in which the Council responded to the incident.

The Office sought and received a copy of the Council's file dealing with the incident and asked the Council to indicate what action it proposed to take to resolve the complaint.

The Council responded by saying that it wished to apologise to the complainant for the inconvenience and disruption caused to her and her family. It was also prepared to reimburse the complainant for the expense which she had incurred in disinfecting the well, subject to a maximum of �100 and, as a gesture of goodwill, it would make a further payment of �100 to her. The Office regarded this response as reasonable and welcomed the Council's clear acknowledgement of its responsibility to the complainant for the initial incident. In particular, the Council is to be commended for not adopting an adversarial approach to the complaint and for acting in accordance with the spirit of the Office's Guide to Standards of Best Practice for Public Servants.

Dublin Corporation

Use of Irish on Voting Documentation

A man complained that he had been denied his right to vote by the failure of Dublin Corporation to send him a polling card with his name and address in Irish.

Dublin Corporation claimed that it was unable to issue, by computer, polling cards with the man's name and address fully in Irish, without going to considerable expense. The Corporation said that the computer system was designed to produce polling cards by reference to the register of electors. Addresses were detailed on the register on the basis of the official designation of the street name. If a street was designated in Irish, all electors from that street would have their polling cards addressed in
Irish. The official designation of the complainant's street was in English. Accordingly, the computer produced his polling card with the English address. The Corporation undertook to issue polling cards manually to the complainant with the address in Irish but he was not satisfied with this as, in his view, he was being treated differently from others.

When the Office became aware that Cork Corporation had overcome a similar problem without any major difficulty, Dublin Corporation was asked to review its position. It then agreed to change its method of operation and, in future, persons wishing to have the Irish version of their address on their polling card will be facilitated.

Last year's Annual Report underlined the contribution which a Language Act could make to a more effective complaints examination system and outlined the difficulties which the Office faces in this area in the absence of such an Act. The Office's review of its approach to such complaints is continuing.

Traveller Accommodation

Complaints relating to the provision of accommodation by local authorities for members of the travelling community present unique difficulties for the Office. Typically, such complaints from members of the settled community relate to objection to local authority proposals to build halting sites for traveller families in their area; complaints that the local authority is not taking effective action to remove traveller families from unauthorised sites in built up areas; complaints against decisions by local authorities to offer houses to travellers in their area; or that the local authority has not taken action against travellers in local authority houses who are alleged to be engaged in anti-social activities.

On the other hand, the Office receives complaints from travellers, or their representatives, claiming that they have been discriminated against in relation to their unsuccessful housing applications when others in seemingly better conditions have been successful; that their halting sites are in poor condition; or that they are being forced to move by a local authority but that no suitable alternative accommodation is being offered. Complaints by travellers in relation to delays in carrying out house repairs or the provision of house extensions have also been received.

In one particular case a local authority was threatened with legal action by a member of the settled community because a traveller family was camped illegally adjacent to his property while at the same time a nearby residents group had also threatened legal proceedings against the local authority because it proposed to move the same family into a house in their estate.

In March 1996 the Government adopted a National Strategy on Traveller Accommodation. In line with the Strategy, a Traveller Accommodation Unit has been set up in the Department of the Environment and Local Government. New and amending legislation is being brought forward to include such provisions as a requirement that local authorities, in consultation with travellers, prepare and adopt five year programmes to meet the existing and projected accommodation needs of travellers in their areas. It is envisaged that the legislation will oblige local authorities to take the appropriate steps to secure implementation of such housing programmes. Some local authorities have already begun work on drafting their five year plans in advance of the legislation.

Funding for the provision of traveller specific accommodation, i.e. special group housing and halting sites, but excluding standard local authority houses which are funded as part of the normal housing programmes, was increased from �6.5m in 1996 to �11m in 1997.

While there is evidence of an increased political willingness at national level to try to tackle the traveller accommodation problem, through the targeting of resources, the development of national policies and the amendment of legislation, the Office's experience in dealing with individual complaints at local level is that the political will to grapple with the problem is not as evident on the ground.

The Office has found that some local authorities draw up lists of priority cases on a geographical basis within their area and will give preference to traveller families within each designated geographical district over travellers in other districts. Thus, traveller families who move from place to place within a county boundary will find it more difficult to get themselves established as priority cases within a particular district and will have little chance of being offered accommodation if their first choice of location is in a separate district from where they are located. To complicate the matter further, some local authorities have adopted a policy of setting a ratio of traveller families to settled families in individual housing estates and, once the quota has been filled, traveller families will not be considered for further vacancies which arise in such estates.

It seems, therefore, that the administrative structures and procedures which are in place to provide public housing serve, in some instances, to militate against traveller families getting accommodation. With the number of traveller families seeking accommodation over the coming years projected to increase, it suggests a need to consider special, separate, administrative structures to deliver accommodation for traveller families throughout the country. At the very least, it would seem advisable
that there should be a co-ordinated approach between clusters of adjacent local authorities, in addition to urban authorities within each administrative county, to the planning and delivery of accommodation for travellers. The Department of the Environment and Local Government has, in the past, pressed for such a development and this Office would welcome any measures to bring it to fruition.

The issue of the provision of accommodation for travellers is somewhat akin to the human rights concerns being expressed in relation to the rights of refugees and asylum seekers in that they are a marginalised group, lacking a political voice, and enjoying little favour or sympathy among the public at large. In such circumstances there is an increased danger that they will be denied their human rights by
public bodies in social, economic and health matters. The acid test for the quality of our democracy is how we treat such marginalised groups. Indeed, the proposed Equal Status Bill being prepared by the Department of Justice, Equality and Law Reform is expected to prohibit discrimination in relation to the provision of accommodation for travellers. The Bill is being reviewed as parts of it were deemed unconstitutional by the courts but it is anticipated that the revised Bill will be published in 1998. The issue of the accommodation rights of travellers is one which is worthy of increased debate and analysis. Any such debate needs to be an informed one and the Office will continue to highlight the issue and contribute to the debate.

It is perhaps noteworthy that the issue of this country's treatment of the travelling community has now become the focus of international scrutiny. The European Commission against Racism and Intolerance (ECRI), which examines the problems of racism and intolerance in each member state of the Council of Europe, published its first eleven-country report in late 1997 in which it commented on the situation of the travelling community in Ireland. The report states, inter alia, that the travelling community faces serious problems of discrimination. The ECRI welcomed the various measures adopted by the government to resolve the accommodation needs of travellers and expressed the hope that they would be rapidly implemented.

Health Boards

Western Health Board

Nursing Homes Subventions

The Office has received a number of complaints regarding the assessment of means for a subvention under The Nursing Homes (Subvention) Regulations, 1993. These Regulations provide that a subvention is payable where the applicant is considered sufficiently dependent to require maintenance in a nursing home, and able to pay none or only part of the cost of that maintenance. Three categories of dependency are provided for with a maximum payment in respect of each category.

In order to determine ability to pay all or part of the cost of maintenance, the Regulations provide for the assessment of the applicant's means. Broadly speaking, a health board, in determining such means, may take into account any income, and the imputed value of any assets. In calculating the means, however, the Regulations oblige a health board to disregard income equivalent to one fifth of the
weekly rate of Non-Contributory Old Age Pension (NCOAP) payable at the time, such sum to be retained by the applicant for her own personal use. This provision was designed to allow old people in nursing homes to retain some personal disposable income, even if only of a very limited amount (approximately �12 per week at the time in question).

One particular complaint received related to the Western Health Board where the Board had not made the appropriate disregard as outlined above. In its report on the case, the Board said that it had written to the Department of Health and Children for clarification. The Department's response formed the basis for the Board's subsequent assessment of means and of the amount of subvention payable. The outcome for the applicant, an elderly woman, was to the effect that she did not have the full amount of the �12 disregard available to her.

In the course of the Office's examination of this and similar cases, it transpired that other health boards were also adopting a similar practice based on the advice from the Department of Health and Children. The Office was not satisfied that this advice was a correct interpretation of the Regulations and took up the matter with that Department. After taking legal advice, the Department proposed to amend the regulations so as to ensure that there would be no confusion in the matter and, in December 1996, wrote to all health boards asking them to ensure that qualifying applicants be allowed to retain one fifth of the pension pending the amendment of the Regulations, which has not occurred at the time of writing. The Western Health Board subsequently advised that, as a result of this notification from the Department, it had reviewed the complainant's case resulting in a net gain to her of �6.24 per week.

Treatment of a Hospital Patient

The Office received a complaint from a woman about her treatment while a patient in Merlin Park Regional Hospital, Galway. She had complained to the Western Health Board about a number of matters and felt that the reply she had received was unsatisfactory. Among other things, she was concerned about an alleged mix-up in relation to a prescription which resulted in her receiving twice the prescribed dosage.

The role of the Office is to investigate administrative actions. Its remit does not extend to the investigation of persons who when acting on behalf of health boards are, in the opinion of the Ombudsman, doing so solely in the exercise of clinical judgement in connection with the diagnosis of illness or the care or treatment of a patient.

In this particular instance, therefore, the Office was limited to establishing whether and how the alleged mix-up had occurred, and if so, the steps taken by the Health Board to ensure that it would not happen again in the future. The Board acknowledged that there had been a mix-up. The medication prescribed had been in unit numbers rather that dosage amount. The problem arose when the medication strength was increased. The Board pointed out that the consequences in this case would not have been clinically significant. The hospital has since changed its procedures and medication can now only be administered and dispensed in measured quantities rather than in unit amounts.

Southern Health Board

Dealing with a Sexual Abuse Allegation

The Office received a complaint that the Southern Health Board had failed to take appropriate action following notification of an alleged sexual assault on a child by his peers while attending school; that there was undue delay in carrying out an assessment of the child and a subsequent failure to provide for his psychological and educational welfare.

As the Ombudsman was not satisfied with the Board's response to the complaint, he carried out an investigation. The Office's role in the case was confined to an investigation of the administrative actions of the Board in relation to the matters outlined in the complaint. The Office did not seek to establish whether the alleged incident of sexual abuse took place or who the perpetrator might have been. In

responding to the draft investigation report, the Board argued that the Ombudsman was operating in an area outside the scope of his jurisdiction and that he was interfering in the exercise of clinical and professional judgement in social work matters. In his reply, the Ombudsman advised the Board that, while he accepted that social workers regularly exercised professional judgement in the course of
their work, he did not accept that they exercised clinical judgement within the meaning of the legislation under which he operates. He also stated that none of the actions investigated by his Office related to clinical judgement. He further pointed out that actions relating to professional (as opposed to clinical) judgement were not excluded from his jurisdiction but that normally he would not query such judgements when properly taken. He had to bear in mind, however, that actions relating to professional judgement were not always solely professional in nature but might also have administrative elements.

Among the Ombudsman's recommendations, all of which were accepted by the Health Board, were that it should:

l review its procedures in relation to representation at case conferences;

l put in place an effective case management procedure to provide for regular formal review of cases which would include a letter to the family/client when a case is concluded or to indicate no further action, with reasons;

l put in place a formal appeal procedure with regard to decisions of the Family Centre (Sexual Abuse Unit); the family concerned to be advised of their right to appeal;

l initiate contact with the Department of Health and Children with a view to developing an integrated policy for dealing with serious bullying of children by children, with or without a sexual element. The Health Board was also asked to consider consultation with the Department of Education and Science in the development of such a policy;

l send a letter of regret to the parents of the child involved in this case for any distress they had suffered arising from misunderstandings during the processing of their complaint;

l report to the Ombudsman on progress with regard to the implementation of the recommendations.

Telecom �ireann
Emergency Operator Service

A complainant rang the 999 emergency service for an ambulance early on 7 May 1997 when her baby had developed serious breathing difficulties. The Telecom ireann operator connected her call to the Garda' rather than the ambulance service and she also claimed that she was treated in an abrupt fashion (she said that she was told to "keep her hair on"). She had to dial 999 again and another operator connected her to the ambulance service. Tragically, her baby died in hospital later that morning although the delay which occurred was not a contributory factor.

On 29 May 1997, she rang Telecom �ireann to complain about her treatment at the hands of the operator. She had difficulty in registering her complaint and after a number of phone calls she was eventually asked to write to Telecom �ireann's Operator Services Head Office. She did so on 29 May 1997 but her letter was delayed in the post and did not arrive until 9 June 1997. By the time Telecom �ireann had investigated the incident, the tape recording of her dealings with the operator had been erased (this happened on 5 June 1997) and vital evidence relating to her complaint was lost.

The complainant approached the Office seeking an apology for the incident, a full explanation as to what had transpired on the morning in question, and an explanation as to what had happened to her complaint. She also sought reassurance that an incident of this type could never happen again. However, she expressed satisfaction that the Chairman of Telecom �ireann had telephoned her personally about the matter.

The Office's examination of the complaint showed that Telecom �ireann's procedures had failed in a number of important respects. In particular, the company's ISO 9002 documented complaints procedure had not been followed. Telecom �ireann amended its procedures as a result of the case.

The Office concluded that there was not sufficient evidence to establish that the operator was rude to the complainant. However, it was shown that the complainant's call was connected in error to the Garda' on at least one occasion on that morning. The difficulties experienced by her in attempting to lodge her complaint were caused by the company's failure to follow its own complaint procedures.
In addition, crucial evidence was lost because of the delay in investigating her complaint.

While the Office accepted that the case was quite complex, it was not happy that the company had adequately explained the chain of events to the complainant. In the circumstances, the Office recommended that the company should:

• convey the operator's apology to the complainant and in addition should itself unreservedly apologise for the poor standard of service which she had received;
  
• clearly explain the sequence of events which led to the operator error and the subsequent mishandling of her complaint;
  
• inform the complainant of the steps which had been taken to ensure that there would be no repeat of such incidents and
  
• make a donation of �5,000 to the Irish Sudden Infant Death Association in recognition of the distress caused to the family.
  

Telecom �ireann accepted the recommendations.

Maritime Radio Licence

The holder of a maritime radio licence complained that in 1995 and again in 1996 he was wrongly refused the facility of making a radio link call from his vessel. He said that he was told over the airwaves by an officer at the coastal station that he was "blacklisted". He contended that this was an error on the part of Telecom ireann as he was at all times the holder of a valid maritime radio licence and his accounts were paid by direct debit. He was distressed by the message that he was "blacklisted" which was made over the airwaves and regarded it as damaging to his good name in the community in which he conducted his business.

The Office examined the complaint, which involved both Telecom �ireann and the former Department of Transport, Energy and Communications. The complainant had attempted to make radio link calls from his vessel in the summer of 1995 and again in June 1996. The local coastal station had incorrectly assumed that he did not hold a valid radio licence and told him, over the radio, that he was on the blacklist and could not be given service. It appeared likely that the word "blacklist" was in fact used by the officer in the coastal station as this is the term occurring on Telecom �ireann records and was customarily used in cases where service was being denied. It was also considered likely that the message was heard by others in the area, who may have been able to identify the person to whom it was addressed. It was probable that "being blacklisted" was understood to mean that the man was in debt to Telecom �ireann or some other party, which was not the case.

The evidence indicated that the preponderance of fault in relation to the recording of inaccurate information lay with Telecom �ireann. Telecom �ireann accepted the Office's recommendations that a payment of �100 be made to the complainant for the erroneous refusal of service and that a further payment of �2,000 be made to him in recognition of the adverse affect suffered in having the fact that he was on a "blacklist" broadcast from a coastal station. The Office also asked Telecom �ireann to ensure that the Department of the Marine and Natural Resources' coastal stations are notified of changes in call signs in the future and that the term "blacklisted" is avoided in dealing with cases where service is to be denied

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