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Annual Report of the Ombudsman 1998

Chapter Two - Role of the Ombudsman

Taking Stock

I understand that work is now well in hand on an Ombudsman (Amendment) Bill which will extend the range of issues and of public bodies subject to examination by my Office. Accordingly, this seems a good time to take stock of what an Ombudsman generally does and of how my own Office compares with Ombudsman Offices elsewhere. There is a considerable degree of communication and co-operation between Ombudsman Offices internationally, at European level and, more particularly, between my Office and the various UK Ombudsman institutions. In the case of Northern Ireland, the existing close links - for example, members of my staff have recently availed of training with their Northern Ireland counterparts - are likely to develop further as we may share a joint jurisdiction in relation to some of the North-South Implementation Bodies being created under the 1998 Belfast Agreement.

Essential Characteristics of an Ombudsman’s Office

An Ombudsman is someone who investigates grievances of individuals or organisations arising from the actions (including failure to act) of the bodies subject to the Ombudsman’s jurisdiction. Where an Ombudsman finds that the complaint made is justified, and that the action complained of involves maladministration, then the Ombudsman recommends redress. The overriding essential requirement for an Ombudsman is that he or she is entirely independent and impartial. Impartiality requires independence and independence, in turn, requires statutory or legal underpinning, security against arbitrary removal, the power to issue and publish reports with the protection of legal privilege and, finally, adequate resources to do the job. At the international level, these requirements are recognised by the International Ombudsman Institute (IOI) as essential attributes of an Ombudsman’s office. The British and Irish Ombudsman Association (BIOA), of which my Office is a member, has laid down similar requirements - adapted to take account of the non-statutory nature of the private sector or industry type Ombudsman - for its members.

An Ombudsman provides an alternative dispute resolution mechanism - alternative, that is, to the courts - and has a valuable role in ensuring accountability and promoting good administrative practice by the organisations within his or her jurisdiction. At present, the IOI has more than one hundred national Ombudsman-type institutions affiliated to it.
Initially, Ombudsman offices were invariably public sector institutions. Indeed, it is easy to see that the essential requirements of an Ombudsman, as outlined above, are most easily met in the context of the public sector. In recent years there has been a growth internationally in the private sector, or industry type, Ombudsman and there is concern that the term “Ombudsman” is being used by institutions which may not satisfy all of the basic requirements. For this reason, some countries have given statutory protection to the term “Ombudsman” to ensure that it is used only by institutions which satisfy the basic criteria. As I suggested in earlier Annual Reports, we may now need to take action to protect the use of the term “Ombudsman” in Ireland.

Ombudsman Offices throughout Europe

A national, public sector Ombudsman is now the norm in nearly all European countries, including very many of the former Eastern bloc countries. The typical European national Ombudsman deals with a similar range of public bodies and functions as does my own Office but generally with some additional responsibilities. The typical, additional areas of jurisdiction include the administration of the prison service (and of people in custody generally), the administration of the law in relation to refugees, asylum seekers, citizenship and naturalisation and also the wider public service (i.e. the equivalent of the non-commercial state sector in Ireland). In some cases the Ombudsman’s jurisdiction includes the police and the army. Of course the wider brief of these offices is reflected in their staff structure and organisation. Recent research - reported on at the Sixth Round Table of the Council of Europe and of European Ombudsmen in October 1998 - showed that of 16 European countries surveyed, only the Ombudsmen of Ireland and of Greenland did not have jurisdiction in relation to people in custody i.e. people in police detention, remand prisoners and prisoners. (The 16 countries in question were: Austria, Bosnia and Herzegovina, Denmark, Finland, Greenland, Hungary, Iceland, Ireland, Israel, Lithuania, Malta, Norway, Portugal, Spain, Sweden and Slovenia.) Similarly, Ireland is one of the few European countries where the Ombudsman does not have jurisdiction in relation to asylum seekers and naturalisation.

Since the 1980s the Council of Europe has been promoting non-judicial means for the protection and promotion of human rights. Whereas the courts will always remain the ultimate arbiter of human rights questions, the Council of Europe has identified a value in the creation of non-judicial means for dealing with complaints in the human rights area. The Council recognises the advantage to the individual of a complaints system which, by comparison with the courts, is speedier, more accessible and less formal. These are the attributes of an Ombudsman office and, not surprisingly, the Council of Europe has been promoting the inclusion of the human rights area within the scope of Ombudsman offices.

The need for measures to promote and protect human rights in Ireland has been highlighted in a number of ways in the past few years. The Report of the Constitution Review Group specifically referred to the need to create a Human Rights Commission on a statutory basis. In the context of North-South relations, the Belfast Agreement now requires the establishment of a Human Rights Commission. I am aware that some consideration has already been given to the role of the proposed commission. In particular, it might be sensible - as is envisaged in the Council of Europe’s approach to human rights - to accommodate, in addition to the courts, a non-judicial complaints mechanism while the commission itself would concentrate on an advisory, educational and promotional role. A proliferation of bodies dealing with citizens’ and human rights - as has occurred in some countries - results in a lack of focus and confusion among the general public.

Some Misconceptions about the Ombudsman’s Role

It seems to me that there are some misconceptions regarding the role of the Ombudsman in relation to investigating alleged instances of what might be called major maladministration - as against minor and more isolated instances of maladministration affecting only individual people - within the public service.

Typically, an Ombudsman deals with the complaints which are made to his or her Office. There is no statutory restriction on the involvement of the Ombudsman simply by reference to the scale of the alleged maladministration or, more crudely perhaps, by reference to the financial implications of the issue. For example, for a number of years my Office had been pursuing with the Department of Social, Community and Family Affairs (DSCFA) the question of non-payment of arrears of contributory pensions to people who failed to claim the pension at the earliest relevant time. As a result of my involvement the Minister, in February 1998, introduced improved arrangements for payment of such arrears at an estimated additional cost of �3.4m for 1998 and �1.7m per year thereafter. Furthermore, in the Budget of December 1998 the Minister for Finance provided a sum of �10m to the DSCFA to provide for payment of partial pension arrears to those pensioners who were not covered by the improvements of February 1998. I think it is fair to characterise this as an instance of major maladministration with very significant financial implications. My Office dealt with it, over a number of years, because the issue was raised by the affected pensioners or their representatives.

Despite the DSCFA cases referred to above and some other cases of this nature dealt with by my Office, it is true that, over the years, not many complaints have been made involving allegations of deliberate and large-scale maladministration whether involving significant levels of financial loss or otherwise. But if there is a perception that the Ombudsman is precluded from dealing with such instances, then this would be incorrect. Complaints alleging that people were adversely affected by administrative decisions taken without proper authority or which are, for example, improperly discriminatory are clearly within my remit unless court proceedings have been initiated. Instances of alleged public service maladministration are also amenable to examination by way of a tribunal of inquiry, or by the Comptroller and Auditor General (C&AG). For example, a tribunal may be appropriate where the actions being probed include those of public representatives, private individuals or bodies as well as those of a public body, or where actions of a criminal nature may be involved. But the scale, as opposed to the source, of the alleged maladministration is not a factor when deciding whether it is appropriate for my Office to be involved. The powers given to me under the Ombudsman Act - in terms of my right to see documents and to seek answers to all relevant questions - are substantial and are equally capable of being deployed in relation to the big issues as they are in the case of the more routine issues.

Amendment of Ombudsman Act

During the year my Office had detailed discussions with the Department of Finance regarding proposals for the amendment (including the taking of additional public bodies into jurisdiction) of the Ombudsman Act, 1980. The Government decided recently to proceed with the drafting and publication of a Ombudsman (Amendment) Bill. I am hopeful that these proposals will result in appropriate amendments to the Act in the course of 1999. In recent Annual Reports I have set out the reasons why the Act needs to be amended and earlier in this chapter I set out some comparative information regarding the remit of national Ombudsman offices throughout Europe.

Complaint Numbers - Future Trends

The Ombudsman (Amendment) Bill proposals for the inclusion of additional, public bodies in my jurisdiction will inevitably lead to an overall increase in complaint numbers. I am hopeful that the development of internal complaints systems within public bodies - a subject which I dealt with at length in last year’s Annual Report - will, in time, leave my Office free to concentrate on the more complex cases.

As of now, there is no sign of a downward trend in complaint numbers. Although the number of complaints received in 1998 is lower by 4% than the 1997 figures, they are still higher than those received in any other year since 1987. And the 1985-1987 figures were in themselves exceptionally high because of the large numbers of Telecom �ireann complaints received by the Office in that period.

Over time, as the whole process of Government has become more complex, so too has the nature of the complaints coming to my Office. This is partly because good quality standards of public administration are not frozen in time. I find that, by working in co-operation with the public bodies within my jurisdiction to remedy the more routine systemic defects, we are inevitably driven by the complaints which we receive, to strive for higher and better standards. This is as it should be but it also highlights once again the need for effective, internal complaints systems and appeal mechanisms within the bodies themselves.

Information Commissioner Role

I was honoured to be appointed by Her Excellency, Mary McAleese, President of Ireland to the office of Information Commissioner with effect from 21 April 1998. My situation in discharging dual functions as Ombudsman and Information Commissioner is by no means unique. Other Ombudsmen also hold similar dual appointments most notably the Chief Ombudsman of New Zealand and the Ombudsman of Queensland, Australia. Coincidentally, both are fellow directors of the International Ombudsman Institute and this has facilitated a sharing of experience, at first hand, which I have found most useful.

I have already highlighted the complementary nature of the Ombudsman and Information Commissioner offices despite their separate statutory identities. Perhaps this complementarity is best illustrated by one of the three new, legal rights created under the Freedom of Information Act, viz. the right of members of the public to be given reasons for decisions affecting themselves. I have said several times that lack of information and the failure to give proper reasons is at the heart of many complaints against public bodies which my Office receives. Indeed, this is a theme which I explore in more detail at Chapter Three of this Report. And in my 1994 Annual Report I published a list of citizens’ rights (including the right to reasons for decisions) which I asked public bodies to bear in mind in their dealings with the public.

Before the Freedom of Information Act, 1997 came into effect many complainants had no option but to rely on the Ombudsman’s Office to pursue this important right on their behalf. The great thing about the 1997 Act is that it gives citizens direct access to the bodies with which they are dealing without the need for an intermediary such as the Ombudsman. It gives an entitlement (subject to certain exemptions) to see records, to be given assistance, to be given reasons for decisions and to have their rights of appeal explained to them. I feel strongly that there is a responsibility on particular groups such as the media, the legal profession, other professional bodies, the statutory and voluntary organisations which provide support and advice to citizens and especially the disadvantaged in society, to publicise and utilise the provisions of the Act on behalf of citizens.

My experience as Information Commissioner is that people who pursue requests for personal information are motivated by more than mere curiosity. Frequently, the request is made in order to establish why a decision was taken or if that decision was justifiable. Certainly, once the requester has obtained access to the information he or she is in a better position to assess the merits of the case and to make a cogent argument to the public body in question and, if unsuccessful, to complain to me in my capacity as Ombudsman.

An important part of my statutory functions as Information Commissioner is to foster an attitude of openness among public bodies by encouraging the voluntary publication by them of information on their activities which goes beyond what they are obliged to publish under the Act. It is a function which sits very well with that of an Ombudsman investigating complaints of maladministration.

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