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Annual Report of the Ombudsman 1998

Chapter Three - Communicating with the Public

Communicating with the Public

Problems arising from poor communication give rise to a significant number of complaints to my Office. I made the point in a previous Annual Report that many of the complaints reaching my Office result from a lack of openness on the part of public bodies or from a failure to give appropriate reasons or explanations for actions taken. I am returning to this theme because my experience in the meantime suggests that poor communication continues to give rise to a significant level of complaint.

As the process of reforming and modernising the Irish public service proceeds, there is an increasing emphasis on the quality of services provided. Central to the various quality initiatives being pursued by many public bodies is an acceptance of the need to give public service clients all the information, explanations and reasons they might need in order to understand entitlements, pursue their cases (where necessary) and, ultimately, be satisfied that they have been dealt with fairly and openly. If these initiatives are extended and sustained across the wider public service then, perhaps, we can hope for considerable improvements in communication with clients.

Another milestone in the process of modernising the public service was the implementation of the Freedom of Information Act, 1997. The Act commenced in April 1998 for the civil service and in October 1998 for the health boards and local authorities. The 1997 Act confers an explicit right on the clients of public bodies to be given (1) a statement of the reasons for an act which materially affects them and (2) a statement of “any findings on any material issues of fact made for the purposes of the act”. A related right conferred by the 1997 Act is the right to have personal information, held by a public body, amended where it is “incomplete, incorrect or misleading”. In my capacity as Information Commissioner under the 1997 Act, I have a role in seeing that these provisions are properly applied. However, these are rights which must be invoked by the individual client before the public body is legally obliged to respond.

As Information Commissioner I am anxious to encourage public bodies to anticipate the information needs of their clients and, to the greatest extent possible, provide their clients with all relevant explanations and findings without being specifically required to do so under the 1997 Act. This will help to dispel any suspicions on the part of the public that those “in the know” are treated more favourably. It will also ensure that public servants do not misuse their decision-making powers or exercise them in an arbitrary fashion. Accordingly, I am motivated by the desire to promote openness and transparency. Openness, as has frequently been said, “is the natural enemy of arbitrariness” and, accordingly, is an indispensable check on possible injustice.

What ultimately legitimates the actions of public servants in our style of Western democracy is the acceptance by the public that public servants are acting in the overall public interest rather than in the self-serving interests of their own organisations. It would be very wide of the mark to suggest that public bodies are generally acting other than in the public interest. However, as the pace of the public service modernisation programme quickens, and as more attention is paid to the quality of service provided, public bodies will be doing much more to show that they are actually there to serve the public. A critical factor in this will be the attention public bodies give to communicating with their clients. Some public bodies have made very significant progress in this direction; but for some other bodies there is much progress yet to be made.

There are very tangible benefits to the client when a public body is open in its dealings. For example, where a full explanation for an action is given the person, even if adversely affected by the action, is more likely to understand and appreciate the body’s position. Or, if there are grounds for the client to lodge an appeal, this is more likely to be evident where the reasons for the decision are given. Where the person chooses to appeal or complain, and does so on the basis of the facts and reasons given, the appeal or complaint is likely to be more focused and less wasteful of time and energy all around. I sometimes find that people can misunderstand the consequences of an action of a public body and remain unnecessarily apprehensive in the absence of a full explanation of what has been done.

While the access rights created under the 1997 Act can help to address some of these deficiencies from the client’s perspective, the ultimate measure of the success or otherwise of the Act will be the effect which it has on the attitude of public servants to decision making, to the exercise of administrative discretion and to the dissemination of information.

The cases I cite below illustrate instances of communications failures which were to the detriment of the public body’s client. Few, or perhaps none, of these cases would have ended up in my Office had the bodies concerned been more attentive to the need for good communication with their clients.

School Transport Cases

A series of complaints against the Department of Education and Science illustrates the necessity for public bodies to publish in full the rules or criteria governing schemes they administer. More particularly, these complaints show the absolute need to publish the grounds on which exceptions may be made to the standard rules. Where this is not done, the public may well feel that the scheme is being administered in an unfair or discriminatory manner. It is very important that the public can have confidence that it has been told all of the criteria governing the particular scheme. The complaints in question related to the school transport scheme and, in a more general way, to the non-statutory schemes administered by the Department.

The following is an excerpt from the Today with Pat Kenny programme on RT� Radio One in which a parent aired her complaint about school transport.

"Pat Kenny: All right. Let’s tell people who may not have heard your original story exactly what happens every morning in your house.
Parent: Every morning in our house what happens is, John boards the bus here adjacent to our house right, and then I drive Mary 10 miles after the same bus before she is allowed to board the same bus at this pick-up point.
Pat Kenny: Yeah, so he gets on the bus, you get into your car with Mary and you trail the bus and 10 miles on the bus stops and Mary gets on the same bus where her brother is already luxuriating.
Parent: Yes exactly.
Pat Kenny: The logic of this of course is that he’s entitled to go to [name of school] ... because there isn’t an alternative boys’ school."

Although it is by no means evident, there is a logical explanation to this family’s plight and, indeed, I have considerable sympathy for the many cases where the operation of the catchment area provisions of the school transport scheme results in situations which, on the face of it, are almost impossible to justify.

While it would be easy for me to get kudos by recommending exceptions in hard cases (such as the one outlined above), I am concerned to maintain the integrity of the scheme in its totality. The scheme has contributed enormously to the development of education in Ireland. It is constructed on the basis that pupils should not be provided with free transport to schools of their choice if there are suitable schools in their catchment area. I accept that it is not economically possible for the Department to provide a service which brings all children directly from home to school. (Though this comment does not include the cases of children with special needs). If the service meets reasonable standards, I cannot suggest that an exception to the general rule be made in a particular case, unless the circumstances are in some way unusual, or my examination brings to light evidence which indicates an error has been made by the Department.

Clearly, as in any scheme, the need for exceptions arises. My concern is that exceptions should be made on an objective and impartial basis, for example on medical grounds or because of a pupil’s special needs such as the need for remedial teaching. However, I have come across cases where exceptions were made on grounds which the Department has been unable to explain to my satisfaction. I have had similar experiences in relation to other schemes administered by the Department.

This has led me to repeat a request, which I first made to the Department in 1996, to bring forward proposals to put the school transport scheme, and other non-statutory schemes which it administers, on a statutory basis. I have also suggested that formalised, internal appeals systems should be introduced in respect of these schemes. I feel that these measures are necessary to safeguard against future instances of unfair discrimination and to reduce the level of misinformation which, in my view, is undermining public trust and confidence in the Department’s decision-making processes.

Among the instances which gave rise to my concern, and which I have drawn to the Department’s attention, are the following:

• three families complained about the refusal of transport for their daughters to a particular school while two other girls in the same area had received the transport denied to the complainants and the basis for their being granted the transport was not at all clear.
• I noted, in another locality, that transport was granted to a particular pupil who, on the face of it, was ineligible under the rules of the scheme. The transport was granted apparently as a result of Ministerial intervention. A similar reason was given for a concession in another case which I had handled two years previously.

I also have reservations about the extent to which the Department delegates the administration of the transport scheme to school Boards of Management. In one case, the Department initially sought to place responsibility for granting concessionary transport on the Board of Management of the local school. In another similar case, the school management had given permission for the child of one family to travel to a school which was not his nearest, while refusing this concession to the child of another family. The Department stood by the school’s refusal to clarify the decisions on the basis of the school’s right to preserve confidentiality.

Clearly, the Boards of Management have a role to play with their knowledge of local circumstances. However, I believe that the Department must retain overall responsibility to ensure that the school transport scheme is administered in an open and fair manner. I have asked the Department to consider whether a structure should be put in place to oversee the decisions of such Boards in relation to the school transport scheme to ensure that they are both consistent and fair.

Turning to other schemes administered by the Department, in a particular case involving the funding of school buildings the Department ultimately accepted that the complainant had been treated less favourably than some other similar cases and that there were no objective grounds for the preferential treatment of the other cases. In the circumstances, and only after the preferential treatment had been established and acknowledged, the Department agreed to treat my complainant’s case in a like manner.

This is not the first time I have expressed these concerns. In my 1995 Annual Report, under the heading of “Unfair Discrimination”, I described two complaints where the Department had failed to treat like cases in like manner. The Department’s approach in these cases resulted in unfair and inconsistent decision-making and I expressed this view to the Department at that time.

The above examples leave me with the apprehension that little has changed in the last few years in relation to the administration of the school transport scheme, or other schemes of the Department, and that it is still possible for the “flexibility” of a non-statutory scheme to be used to grant exceptions to the rules for reasons which are not objective and are not set out in the scheme. This is why I have asked the Department to bring forward proposals to put the schemes on a statutory basis and to introduce formalised internal complaints systems.

Old Age Pensions Case

A case involving the Department of Social, Community and Family Affairs illustrates how an elderly man was seriously disadvantaged as a consequence of the Department failing to communicate with his accountant. The man had been self-employed but by 1995, aged 73 years, his business was effectively gone and he was in financial difficulty. He had no experience of dealing with the Department and it appears he was unable to manage his own affairs. His accountant, recognising the man’s difficulties, undertook to apply for a pension on his behalf. Indeed, the accountant was providing his services without charge, in view of the man’s circumstances. In September 1995 the accountant applied on his behalf for the Survivor’s Contributory Pension. This claim was unsuccessful and in May 1996 the accountant applied on his behalf for the Non-Contributory Old Age Pension (NCOAP). This claim was refused in August 1996 as the man had failed to provide information requested. But the accountant was not told of this decision nor of the reasons for it. Between August 1996 and January 1997 the accountant wrote to the Department on four separate occasions but the Department failed to respond. The accountant was under the impression that the Department had whatever details it needed and that the claim had not yet been decided.

In March 1997 an inspector from the Department visited the man and sought further details on his means. At this point, apparently out of frustration at the delay, the man actually withdrew his application. But, again, the Department did not inform the accountant of this. Normally one would expect the client to inform his accountant of such a development - but in this case the accountant was involved precisely because the ex-client was not able to manage his affairs. In fact, the accountant did not discover what had happened until August 1997 when he re-applied for the NCOAP. This re-application was successful and the pension was awarded from early September 1997. However, the accountant then complained to my Office that the Department should have paid a pension from an earlier date and that the delays which had arisen could have been avoided.

Following detailed discussions, the Department ultimately agreed to pay the man NCOAP from the date of the first application, which was for Survivor’s Pension, in September 1995. Arrears of more than �7,000 were paid. However, had the Department communicated directly with the accountant, and in particular responded to his letters, the matter would have been resolved at a much earlier date.

Cases of Alleged Child Abuse

Two unrelated child care cases involving the Southern Health Board (SHB) illustrate how unnecessary anxiety and trauma can result from a misunderstanding between a public body and members of the public. The background to the two cases - one finalised in 1997 and the other in 1998 - is remarkably similar. In both, a young school boy was alleged to have sexually abused another child. The SHB in both cases was made aware of the allegations and thus became involved. In one of the cases the SHB notified the Garda� that a named child was alleged to have been abused; in the other case, the parents of the child, the alleged victim, contacted the Garda�. Ultimately, the SHB judged that there was not a sufficient basis to be concerned about the allegations or about the future behaviour of either of the two boys - and it appears the Garda� felt there were no grounds either for on-going involvement. However, the parents in both cases felt that it was unfair on their sons to have had allegations made which the SHB had neither upheld or rejected. In both cases, relations between the SHB’s social work staff and the parents deteriorated when it became clear that the SHB was not going to “clear” the names of the boys. Effectively, the complaints to my Office were that the SHB had disadvantaged the two boys by virtue of its failure to find either for or against them.
I could not uphold the complaints, mostly because it is not a function of a health board to decide on the guilt or innocence of any person accused of child abuse. In discussions with the parents, however, it emerged that their underlying concern was that their sons’ names were recorded on some kind of list of potential child abusers. Unfortunately, this underlying anxiety had never been put to the SHB, most likely because of the breakdown in communication which marked both cases. When my staff discussed these concerns with the SHB, it emerged that they were quite unfounded. At our request, the SHB wrote to both sets of parents to clarify that their respective sons were not, and had never been, on any such list maintained by the Social Work Department. Furthermore, the SHB was able to clarify that neither boy’s name was on any list maintained by the Garda�; indeed, in one of the cases, the Garda� had not even been given the name of the alleged abuser.

Local Authority Housing Case

A housing complaint against one of the smaller local authorities (name withheld to protect the complainant’s identity) illustrates the point that clear communication is essential in ensuring fair procedures. The complainant, a young woman with two young children, was on the housing list for ten months when she approached my Office. She said she had been given a number of verbal reasons as to why she had not been offered housing, including a reference to the fact that the father of her children allegedly had an involvement with drugs. She maintained that this was an irrelevant consideration as she was separated from her ex-partner and the housing application did not include him. The key background consideration here is the Housing (Miscellaneous Provisions) Act, 1997 under which a local authority can refuse or defer a letting to a person where it considers that he or she “is or has been engaged in anti-social behaviour or where it considers that a letting would not be in the interest of good estate management”.

In its response to the complaint, the local authority explained that in processing this housing application it had made enquiries with the local Garda� “in relation to the applicant’s character etc.” The authority explained that it had “an informal arrangement with the Garda S�och�na that any proposed housing allocations are notified to them for their comments”. Any information given by the Garda�, explained the authority, is given “in the strictest confidence and is never in writing”. In this case the Garda� told the local authority that the applicant was involved with a man known to be a drug addict and dealer and that she was actually living in his mother’s house. The applicant agreed that she was living in the family home of her ex-partner, with the grandparents of her children, but that this was an emergency arrangement and that her ex-partner was not living there. Subsequently, the authority made further enquiries with the Garda� and were advised that my complainant was, to the best of their knowledge, no longer involved with her ex-partner and that she had no convictions for drug taking. On this basis the local authority housed the woman and her two children subject to specific conditions relating to the exclusion of her ex-partner from the house.

This case raises an important issue in relation to the operation of certain aspects of the 1997 Act. I appreciate that the provisions in that Act, in relation to anti-social behaviour, are there to address genuine estate management problems. I have concerns, however, that the basis for decisions of local authorities, made in the interests of good estate management, may not always be communicated properly to unsuccessful housing applicants. It seems to me that if a local authority is relying on information obtained from any source, they ought to disclose, either verbally or in writing, the nature of the information they are relying on to refuse/defer the application, so that the person affected by the decision has an opportunity to explain, challenge or correct the information, as appropriate.

To be given reasons for a decision is a fundamental right recently enshrined in the Freedom of Information Act, 1997 and I will continue to monitor the operation of the Housing (Miscellaneous Provisions) Act, 1997 in the context of complaints to my Office primarily to ensure that housing applicants are not treated unfairly under the Act.

Third Level Fees Cases

A number of complaints involving the Department of Education and Science illustrate the importance of proper planning for information campaigns, including adequate training for the staff concerned. The complaints relate to the decision to abolish fees for third level education, the so-called “Free Fees Initiative”.

The decision to abolish third level fees was announced in the Budget of February 1995. The Department undertook an immediate information campaign, including the operation of a Free Phone service, in relation to the Initiative. The Initiative, as originally announced, appeared to apply to all undergraduate students; 50% of fees would be waived for the 1995/6 academic year and full fees to be waived thereafter. In early July 1995 the Department decided that certain categories of undergraduate would not be eligible under the Initiative. Essentially, the Initiative would benefit undergraduates studying for a first degree and provided they were not repeating a year. This meant that students taking a second primary degree would not benefit. The difficulty with this decision of July 1995 was that the information which the Department had been giving under its information campaign - and which apparently was being passed on by the third level colleges - did not refer to any such restriction.

Subsequently, my Office received a number of complaints from students who claimed to have made decisions based on a clear understanding that the Initiative applied to all undergraduates. They claimed to have been misled by the Department in this regard. I found in favour of a number of these complainants who were able to provide me with evidence of their contact with the Department. At my request, the Department gave the benefit of the Initiative to these students.

One complainant, already a graduate, needed to acquire a medical degree in order to pursue a particular specialisation. She was in England and could have taken the degree there without paying tuition fees. From contacts with the Free Phone service, and from the details in the Department’s information brochure, she understood that she would benefit under the Initiative. Accordingly, she opted to take the degree course in Dublin. She had completed the first year of her course before she discovered that the Initiative did not apply to her. Initially, I decided that I could not uphold her complaint as she had no hard evidence of having been misled by the Department. Subsequently, the Department told me that new information had come to light which confirmed that this complainant had, in fact, been misled. She had been told by a senior official in the Department that the Initiative would apply to her. In the light of this, I considered it highly likely that anyone contacting the Department would have been similarly misled. Accordingly, I asked the Department to review two earlier complaints which I had initially been unable to uphold. On review, the students in question had the benefit of the Initiative extended to them. The Department agreed to review other complaints in relation to the Initiative that it had received but which had not been made to my Office. It also undertook to discuss its approach to these other complaints with my Office.

I appreciate that public bodies will always wish to publicise new schemes, and modifications to existing schemes, at the earliest opportunity. But the lesson from this episode must surely be that no public body should undertake a publicity campaign in relation to a new scheme until such time as all the details of the scheme have been finalised. Furthermore, staff involved in operating an information service must always be fully briefed on the details of the scheme. Failure to abide by these basic rules will inevitably result in complaints such as have arisen in relation to the “Free Fees Initiative”.

Telephone Service Cases

A number of complaints against Telecom �ireann (T�) raised the issue of T�’s failure to communicate with clients regarding delays in providing service. These were cases in which the complainant had applied for a telephone line, paid a deposit and was then left waiting for service for a considerable period of time with no information on the delay, or the reason for the delay, being given. In some of these cases, the deposit was returned to the applicant after a time with a notification that the application was cancelled, leaving the applicant no wiser as to the reason for this move. Nor, in these cases, did T� clarify whether the applicant would have to re-apply for a telephone line.

I have put it to T� that this is an untenable situation. While there may, at times, be valid reasons for such delays, it is poor administrative practice not to keep the applicant informed from the outset of the cause of delay and give an indication of when a service is likely to be provided. I have serious concerns regarding T�’s practice of cancelling applications for service without prior communication with the applicant.

Under the terms of the T� Customer Charter, the company is committed to connecting a new line within 15 working days of accepting an application and it gives a credit of �20 (two months rental charge) if it fails to do so. Telecom �ireann will not award the credit where the delay is caused by factors outside its control. In instances where the delay is greater than two months, however, I believe this credit is inadequate and in the case of a number of complaints received I have recommended credits of �10 per month for each month of delay after the first month. These recommendations have been implemented by Telecom �ireann. However, I have asked the company to clarify its approach in one particular complaint which I received where the company itself gave a substantially higher credit to a business subscriber in respect of a nine month delay in the provision of service.

While my complainants were all eventually provided with a service and were given compensatory credits, the problem of T�’s inadequate communication with its clients remains. I acknowledge that the current expansion of the market for services is posing difficulties for the company. However, I do not accept that clients who have applied for service should remain uninformed of delays which arise in providing that service. I have written to T� asking it to review its practices, specifically its approach to relaying information to applicants for service as speedily as possible. I understand that a project is underway aimed at improving communications between the company and its clients and I intend to monitor T�’s progress in the matter.

The common factor in the cases outlined above is a failure on the part of the body concerned to consider fully the consequences for the individual, or the wider public, of what it actually said or what it omitted to say. It is easy to see why these mistakes occurred. Clearly the message must be that, even in the most routine of administrative functions, public servants must always think carefully about what their clients need to be told in order to be satisfied that they have been dealt with fairly and openly.

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