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Annual Report of the Ombudsman 1998

Chapter Four - Selected Cases and General Issues

Selected Cases and General Issues

The cases and issues outlined in this chapter have been selected on the basis that they may be both of general interest and of interest to bodies seeking to attain high standards of public administration. In introducing each case I have tried, where appropriate, to identify the point of good practice or the principle of good administration raised by that particular case.

CIVIL SERVICE
Department of Social, Community & Family Affairs

Lost Contributory Pension Arrears

Once again, the issue of lost arrears of contributory pensions featured during 1998. People who are late in making claims for contributory pensions - whether for old age, retirement or widowhood - have been losing out on substantial levels of pension arrears over the years. Up to 1997, the maximum arrears being paid in the event of a late claim was for the period of six months prior to the claim. This was the case virtually irrespective of the reason why the claim was made late. This is a complex issue on which I have reported over a number of years, including by way of a specific investigation report published in March 1997. In last year’s Annual Report I referred to an improvement in the situation whereby, with effect from 1 January 1997, the first 12 months arrears are paid in full and a proportion of the balance is paid. (The proportion of arrears after the first 12 months is on a reducing, sliding scale starting with 50% for Year 2 and reducing to 10% for Year 6 and subsequent years.) These improved arrangements apply only to cases where the claim was first made after 1 January 1997.

In the Budget of December 1998 the Minister for Finance provided a sum of �10m to fund the payment of partial pension arrears to people who had not benefited from the improved arrangements. The Department estimates that more than 4,000 people (including about 80 people whose cases I have been examining) will benefit from this. The level of arrears paid under this arrangement is 50% of that available under the improved arrangements which apply since 1 January 1997. I think it is fair to say that this development was in response to suggestions I had been making to the Department for some time. It does not represent an ideal outcome for the people concerned but it does amount to a partial resolution of a very difficult problem. I shall be publishing a separate report on this general issue later this year.

Insurance Record Miscalculated

Dealing properly with people includes dealing with them correctly and being particularly careful where a claimant misses an entitlement by the smallest of margins.

My complainant’s husband died at the very young age of 28 years in 1992. Her claim for Contributory Widow’s Pension was refused on the grounds that her late husband’s social insurance record totalled only 155 contributions, whereas a minimum of 156 paid contributions was necessary. She qualified for the means-tested One-Parent Family Allowance but in 1996 re-applied for the pension as it was payable at a higher rate. This application was rejected for the same reason. The woman felt that her late husband’s social insurance might not have been fully recorded so in 1997 she complained to my Office.

In examining the case it was clear that the crucial year, from the point of view of the late husband’s insurance record, was 1984/5. The Department’s records showed that he was initially recorded as having paid 21 contributions in that year on the basis of having ceased employment on 24 August 1984. However, when the Department itself re-investigated the situation in 1996 it accepted that the late husband actually ceased employment on 7 September 1984. But the Department neglected to amend his insurance record to reflect this fact and the pension was again refused. When my staff pointed out this error to the Department it immediately accepted its mistake, amended the insurance record and awarded the pension with effect from 1992. My complainant was paid arrears of �1,829 (being the difference between the pension and the allowance already paid) and was also given compensation of �97.

Revenue Commissioners

Non-Resident Landlords - Tax Deductions

Dealing fairly with people involves accepting that rules and regulations should not be applied so inflexibly or rigidly as to create inequity. The Revenue Commissioners recognised this in its final response in the case of a tenant who was unaware that she should have been withholding tax from rent paid to a non-resident landlord.

Since 1969 it has been a requirement of Irish tax law that a person paying rent to a non-resident landlord should deduct income tax at the standard rate from the gross rental income and pass on the deduction to the Revenue Commissioners. This form of withholding tax applies both in the case of residential and commercial property rental. My complainant, probably like the vast majority of people, was quite unaware of this provision. In early 1998 she became aware of her possible entitlement to income tax relief on rent paid and she applied to the Inspector of Taxes for this relief. The Inspector notified her that she was due a tax refund in respect of rent paid totalling �265 for the years 1996/7 and 1997/8. However, the Inspector also informed her that, as her landlord resided outside the state, she (the tenant) should have been withholding income tax from the rent being paid. Where such tax is not withheld, the tenant is liable for payment of the tax instead. Accordingly, the Inspector told my complainant that she owed an amount of �801 for the years 1996/7 and 1997/8 which, after deduction of the tax relief otherwise due to her, meant that she owed a net amount of �536.

The woman subsequently complained to my Office on the grounds that the Inspector’s decision was inequitable and also on the grounds that the Inspector had failed to explain fully the basis for the decision. On the former point, she felt it unreasonable that she should be penalised for her ignorance of a fine point of tax law; and on the latter point, she claimed the information leaflet on the matter - which she did not see until after the event - did not make clear that the tenant becomes liable where he or she fails to withhold tax from the rent payments. My complainant’s sense of grievance was added to by the fact that her sister, with whom she co-rented the house, and who applied at the same time and giving the same information, was given the full tax relief on rent paid. In responding to the complaint, the Revenue Commissioners decided to waive the outstanding amount of �536 on the grounds that my complainant clearly was not aware of the requirement to deduct tax from the rent payments and also because payment of the tax would be a financial burden on her. All of this was contingent on my complainant complying with the tax requirement in the future - in fact, she found alternative accommodation before the case was resolved.

Whereas I was pleased with the ultimate outcome in this case, it does raise the general issue of whether it is reasonable to expect ordinary residential tenants to act as tax collectors in the case of non-resident landlords. I appreciate that the provision may have validity in the case of lettings to commercial or business organisations. But is it reasonable to expect a residential tenant, who may be elderly or have little experience of tax affairs, to be either aware of, or have the capacity to manage, this type of requirement? Indeed, tenants may not even be aware that the landlord’s “usual place of abode is outside the State” (which is the technical term used in the law). These are questions which might be considered in any review of the current legislation.

Meath County Council

Overpayment of Housing Loan

Poor internal communication caused Meath County Council to continue collecting repayments on a loan for 22 months after it had been fully paid off. My complainant, now a pensioner, got a housing loan of �2,500 from the Council in 1981. The loan was repayable over a period of 15 years at a fixed interest rate of 12.5%. The loan term expired in 1996. In January 1998 my complainant called to the Council to enquire about redeeming the loan and was informed that his account had been paid in full since March 1996. However, he also learned that repayment by bank standing order had continued in the intervening 22 months and that he had overpaid the loan by �683. The Council refunded the overpayment but refused to pay interest on the overpayment received. At that point he complained to my Office regarding the Council’s handling of his case, pointing out that it had not notified him that the loan had been paid off, that it had not issued any loan account statements and that it had benefited from his overpayment but was refusing to pay any interest to him.

My examination of this complaint suggested that the Council did not have a formalised, internal reporting procedure between its Housing Loans Section and its Accounts Section and this meant the Loans Section was unaware that repayments continued long after the loan had been repaid. This deficiency was largely responsible for the failure to detect the overpayment at an earlier stage. However, I felt the Council was not entirely to blame given that my complainant knew the loan was for a fixed 15 year period and that the repayments had continued due to his failure to cancel the standing order with his bank. In the event, the Council agreed to pay the bank charges arising from the standing order over the 22 month period. I felt this was a reasonable outcome.

On a wider note, the Council informed me that it was now complying with the provisions of the Consumer Credit Act, 1995 - which came into effect for local authorities on 1 September 1997 - and which provides for the issuing of annual loan statements to borrowers. Furthermore the Council said it was, in consultation with other housing authorities and the Local Government Computer Services Board, seeking to improve its financial reporting systems.

I asked the Council to check whether similar, undetected loan overpayments might have occurred with other such clients. On checking, the Council found six other accounts where loan repayments had continued to be made after the loan had been fully repaid. The overpaid sums ranged from �116 to �424; in one case repayments continued to be made, unnecessarily, for more than two years. The Council refunded these clients in full and advised them to cancel their bank standing orders.

I was concerned that this particular problem might well be arising with other local authorities, particularly those operating financial reporting mechanisms similar to those of Meath County Council. Accordingly, I asked the Department of the Environment and Local Government to alert all local authorities of the potential problem. The Department agreed to my request and notified all the relevant authorities. I remain anxious, however, to establish whether this problem has arisen in other local authorities. Accordingly, I have initiated an investigation into the matter using my powers under Section 4 of the Ombudsman Act, 1980 which enables me to investigate the matter on my own initiative (without any particular complaint having been received).

Westmeath County Council

Deprived of Planning Appeal Right

Public bodies must be particularly careful to ensure that people are not deprived of statutory rights as a result of some failing or inaction on the body’s part. In this case, my complainant was deprived of her statutory right to appeal a planning decision to An Bord Plean�la because of a failure on the part of Westmeath County Council.

Mrs. H. lodged an objection with the Council in relation to two separate, proposed developments at a factory near her home. The proposed developments consisted of (1) an extension to the factory building and (2) the erection of a crane. The Council, in due course, granted planning permission for both developments. However, whereas the Council did notify Mrs. H. of its decision in relation to the factory extension, it failed to notify her of its decision to allow the erection of the crane. By the time she became aware of this decision, the statutory time limit for lodging an appeal with An Bord Plean�la (the independent planning appeals board) had elapsed and Mrs. H. was deprived of the opportunity to lodge an appeal against the permission to erect the crane. (She did appeal to An Bord Plean�la in relation to the permission to extend the factory building.) As someone who had lodged an objection with the Council in relation to the crane application, the Council was under a statutory obligation to notify her, within three working days, of its decision to grant permission.

My examination showed that a series of administrative errors within the Council resulted in the failure to notify Mrs. H. - and other objectors to the proposed development - of the decision to permit the erection of the crane. At the time the planning decisions were taken, the Council’s computerised planning administration system did not automatically generate, and issue, a notification of the decision taken to all objectors; this required a manual intervention by Council staff. Since then, the Council has upgraded its computer system and notifications of planning decisions are now automatically issued to all objectors.

Mrs. H.’s complaint was that the Council had effectively deprived her of her right to appeal to An Bord Plean�la. Whereas the complaint caused the Council to improve its systems, I was conscious that this was little consolation from the complainant’s perspective. While the Council is obliged in law to notify objectors of its decision on a planning application, the law does not provide for a penalty or redress where the Council fails in this duty. I felt nevertheless that the Council should take some steps to mitigate the adverse consequence for Mrs. H. of its failure to meet its statutory obligation. In suggesting to the Council that it might think along these lines, I drew its attention to a very similar case (involving another local authority) which my Office had investigated and reported on in my 1994 Annual Report. In that case my Office had recommended monetary redress for the loss of the complainants’ statutory rights and to compensate them for the time and effort in dealing with the Council involved.

The Council’s response was to say that “..the Manager....does not see that [a] payment to the person involved would be appropriate in all the circumstances of the case”. I felt this response was unfortunate and did not take full account of the 1994 Annual Report investigation case mentioned above. When a second request to the Council to re-consider its position did not result in any change, I decided to investigate the complaint under the formal procedures of the Ombudsman Act. The findings of this investigation were similar to the factual situation as outlined above. I recommended to the Council that it send Mrs. H. a written apology and that it pay her compensation of �500 for the loss of her statutory right of appeal and for the time and effort spent in pursuing her complaint. The Council accepted these recommendations and acted accordingly.

I expect that public bodies will take account of the general principles which emerge from a reported investigation and will apply these principles where appropriate. An Ombudsman investigation is a lengthy and resource intensive process. It should not be necessary to duplicate the investigation process in a situation where the same facts and circumstances, broadly speaking, have already been the subject of an investigation. Regrettably, Westmeath County Council chose not to accept this logic and I was left with no alternative but to investigate this case under the Ombudsman Act.

Donegal County Council

Housing Grant Refused - Contractor’s Tax Clearance

Dealing properly with people means dealing with them sensitively by having regard, for example, to their age and their capacity to understand complex rules. Dealing fairly with people means accepting that rules should not be applied inflexibly where to do so would create an inequity. The following complaint, against Donegal County Council, raises issues in relation to both of these areas.

Mr. B. was in his eighties when he applied to the Council for an Essential Repairs Grant in March 1995. The estimated cost of the essential repairs to his house was �12,200 and the expected grant would amount to �3,300. In June 1995 the Council wrote to Mr. B. to say that his application had been approved and that it was in order for him to begin the works. However, the Council did say that it would not be able to pay the grant until the works had been completed and until it had received details of the contractor’s tax clearance certificate (C2). In the belief that the C2 would be provided, Mr. B had his contractor commence work and in due course, in February 1996, a Council engineer certified that the works had been satisfactorily completed. However, Mr. B. had not supplied the Council with the contractor’s C2 number and the Council withheld the grant pending its receipt. Mr. B. says that he chose the particular contractor as he was well known locally and, he believed, had carried out Council contracts in the past. Mr. B. was not able to get the contractor to provide his C2 number and, accordingly, he was in a position of stalemate with the Council. In September 1996 Mr. B.’s nephew complained on his behalf to my Office.

In responding to the complaint, the Council said that its refusal to pay the grant arose from a particular provision in the regulations governing the grants scheme. This provision says that a grant shall not be paid unless the Council is furnished with details of the contractor engaged for the work and the details must include, inter alia, the number and expiry date of a tax clearance certificate issued by the Collector General. It was the Council’s position that, in the absence of the C2, it could not pay the grant. From the information available, I felt the difficulty with the contractor’s C2 was not primarily of Mr. B.’s making. Moreover, bearing in mind his age, and the fact that people in rural Ireland may not always have a real choice in engaging a building contractor, I felt that the Council’s position was rather inflexible.

The requirement to produce details of the contractor’s tax clearance status has become a feature of most housing grants in recent years. On the face of it, this seems a reasonable proposition. Arising from some other complaints received over the past few years, I have some reservations about its application in practice (see below). In this case, however, I decided to explore a particular option. Section 38 of the Housing Act, 1966, provides that the Minister for the Environment (with the consent of the Minister for Finance) may authorise payment of a grant to an applicant who has acted in good faith notwithstanding that a requirement of the grant scheme has not been satisfied. At my suggestion, the Council approached the Department of the Environment and Local Government (DOELG) to seek its authorisation to pay the grant. When the DOELG refused this authorisation, I contacted the Department directly and asked it to review this decision. I made the following points to the Department:

• Mr. B. was quite elderly and had no previous experience of the scheme;
• when difficulties regarding the C2 first arose, which was before any work had started, Mr. B. informed the Council in writing and sought guidance on how to proceed;
• Mr. B. had good reason to believe the contractor’s tax affairs were in order as he believed the contractor had done work for the Council itself;
• the Council had advised Mr. B. (in June 1995) that he could proceed with the work, even though he had not yet got the contractor’s C2;
• it appeared that Mr. B. had been misled by the contractor and he was now being exposed to a significant financial loss;
• the requirement to provide the contractor’s C2 number is potentially flawed in that the grant applicant cannot verify the contractor’s tax position with the Revenue Commissioners.

Ultimately, the DOELG agreed to seek the consent of the Department of Finance (DOF) to the payment of the grant. Unfortunately, its response was negative the DOF taking the view that it is for the grant applicant to ensure that the contractor’s tax affairs are in order and that any departure from this position would undermine the operation of the tax clearance requirements generally. As this response seemed unreasonable, and may not have been based on a full understanding of all the facts, I asked the DOF to reconsider its position. In so requesting, I set out the facts and the arguments in support of a flexible and proportionate response to the circumstances of the particular case. I made it quite clear that it was not my intention that the tax clearance measures should be in any way undermined. The DOF then agreed that, in the circumstances of the individual case, a grant could be paid to Mr. B.

Comment

Having regard to my opening comments about dealing properly and fairly with people, I must draw attention to the fact that I had to engage with three separate public bodies, over a period of 19 months, to achieve an outcome based on flexibility and common sense. Given the initial insistence of these bodies that the letter of the law must be obeyed, it is perhaps worth looking at what the law actually requires.

The question of the contractor’s tax clearance details arises from the Housing (Disabled Persons and Essential Repairs Grants) Regulations, 1993. In practice, it seems this provision is operated in a manner which limits the payment of grants to instances where the contractor has a C2. I am not aware of any provision in the relevant primary law which authorises this type of restriction. In any event, what the Regulations stipulate is that the contractor’s name, address, tax reference number, tax district “ .. and the number and expiry date of a certificate of authorisation....or of a tax clearance certificate issued .. by the Revenue Commissioners” must be provided.

It may also be worth reflecting on the overall objective of the tax clearance provisions in the administration of such grants. It appears this type of provision was first raised in the Budget Speech of 1986 when the Minister for Finance, in the context of measures to help prevent tax evasion, announced that a contractor doing work under the House Improvement Grant Scheme must furnish his tax number. Clearly, the intention was to counter tax evasion. But neither then, nor subsequently to my knowledge, has the rationale of the measures introduced been clarified. The intention can hardly have been to penalise grant applicants who, through chance perhaps, engage contractors whose tax affairs are not in order. The reality of dealing with contractors, in this context, is that the grant applicant cannot insist on seeing a C2 and has no means of checking on the tax status of the contractor. Does it not seem more likely that the intention was to detect “rogue” contractors than to penalise grant applicants? (There are separate provisions for ensuring that grants are limited to those applicants whose own tax affairs are in order.)

The overall point is that if there are to be penalties imposed by regulation then the authority to make the regulation must be clear and the nature and intended target of the penalty must be equally clear.

South Dublin County Council

Right to Tender in Irish

A complaint against South Dublin County Council raised interesting issues regarding the right to use the Irish language in a tendering process governed by the EU public procurement directive.

In January 1997 the Council was purchasing machinery whose cost exceeded the threshold for the purposes of the EU Supplies Directive. This meant the tendering process was governed by the Directive and the Council was obliged to advertise it in the EU’s Official Journal. It was also advertised in the national press in Ireland. The Council specified that tenders should be submitted in the English language. When a particular supplier wished to submit his tender in Irish, the Council told him this was not possible as Irish is not one of the official languages of the EU and the Directive provides for tendering only in one or more of the official languages. The supplier was aggrieved in that this amounted to the exclusion of Irish from a tendering process operated by an Irish public body and, if the Council were correct, this exclusion would apply across the board to all public bodies subject to the Directive.

In responding to the complaint made by the supplier, the Council said it had received advice from the European Commission’s Dublin Office that tenders could only be accepted in one or more of the official languages of the European Union (as specified in the tender invitation). This had the effect of excluding any language, Irish included, which is not an official language.

I felt that this position was not necessarily the correct one. Clearly, the Directive does require that the notice in the Official Journal must be in one of the official languages and that tenders may be made in one at least of the official languages (as specified). However, I felt that the Directive does not prohibit the acceptance of a tender in another language provided the requirements of the Directive are otherwise met. As the Council was relying on advice from the European Commission, I decided to ask the European Ombudsman, Mr. Jacob S�derman, (who has jurisdiction in this area) to raise the issue with the Commission. On considering the matter further, the Commission agreed that its initial advice to the County Council was incomplete and it accepted my view i.e. that there is nothing in the Directive to prevent a public authority from accepting tenders in another language, such as Irish or Basque, provided it does not require that tenders be in this other language.

From my perspective, the significance of this case is that while the Directive is concerned with promoting the internal market, this need not be at the expense of national measures to promote and respect languages which are not official languages of the European Union. I informed the Department of the Environment & Local Government of the outcome and requested that it ensure that local authorities and other relevant bodies would be made aware of it. That Department subsequently informed me that it issued a circular on the matter in November 1998. I also informed the Department of Finance of the case and asked that it inform public bodies generally of the outcome.

There is further comment on the wider issue of the provision of service in Irish at the conclusion of this chapter.

HEALTH BOARDS

North Eastern Health Board

Misuse of Powers in Collecting Hospital Charges

One of the principles of good administration is that powers must be used only for the specific purpose for which they are given. Any other use of powers is likely to constitute an abuse. The principle arose in this complaint against the North Eastern Health Board (NEHB).

My complainant was a widow and a former NEHB employee. She was being paid an occupational pension by the Board. A dispute arose with the NEHB regarding unpaid hospital charges, amounting to �120, incurred by her late husband. The NEHB sought payment from the widow whereas she argued the debt lay against her late husband’s estate and was the responsibility of the executors of his will. The NEHB decided that, given the widow’s failure to co-operate (as they saw it), it would be reasonable to recover the debt from her occupational pension. Accordingly, the NEHB deducted �20 per fortnight from her pension until the debt was cleared. This action was taken without the widow’s consent. When she protested, the NEHB told her it was “..incongruous that a pension is being paid to you by the Board while this debt is outstanding”. In its initial response to the complaint, the Board told me that it felt it was acting reasonably in all the circumstances even though it acknowledged it had no statutory power to act in this way.

My concern in all of this was that the NEHB should not use its position, as paymaster of the widow’s pension, to force payment of a disputed debt which actually related to a third party. I felt that what the Board was doing constituted an abuse of power and that it should not exploit the widow’s position as a NEHB pensioner - whatever debt collection arrangements are used generally should be applied in this case also. Ultimately, the NEHB accepted that its action was untenable and refunded the �120 already deducted. I regard the principle that powers may not be used, other than for the purpose for which they are given, as extremely important. Public bodies must resist the temptation to use powers, given for one purpose, to deal with a perceived problem in an unrelated area.

Southern Health Board

Discrimination against Cohabiting Couple

Dealing impartially with people means avoiding bias based, for example, on marital status. Difficult issues continue to arise regarding the treatment of cohabiting couples where more favourable treatment is available to married couples. In some of these instances, the unfavourable treatment is institutionalised in primary legislation and public bodies have no discretion. The treatment of cohabiting couples vis � vis married couples for tax purposes is one such example. However in other instances, including the case reported below involving the Southern Health Board (SHB), public bodies do have the flexibility to avoid unfair bias.

My complainants were a couple, cohabiting as man and wife, but not married to each other. Each partner was eligible for, and availed of, the Drug Cost Subsidisation Scheme. This Scheme subsidises the costs of drugs and medicines for people who do not have a medical card or a long-term illness book and who are certified as having a long-term medical condition with a regular and ongoing requirement for prescribed drugs and medicines. Persons who qualify for the Scheme pay only the first �32 for all of their prescribed drugs and medicines in any one month. In this case the SHB regarded the complainants as two single people and therefore each was liable for the first �32 per month (�64 between the two of them) spent on drugs and medicines. Had they been a married couple in similar circumstances, they would have to pay only the first �32 per month between the two of them. The couple regarded this as unfair discrimination against people in their circumstances.

When I contacted the SHB it felt it was operating the Scheme in accordance with
Departmental guidelines and, accordingly, referred my correspondence to the Department of Health and Children. In the absence of any clarification of the issue in health legislation, the Department took the view that it would be reasonable to adopt a practice provided for in social welfare legislation. Under social welfare law, and for a range of specified purposes, a couple regarded as cohabiting are treated in exactly the same manner as is a married couple. The Department accepted that, for the purposes of the Scheme, a cohabiting couple should be treated as one family unit and should, therefore, be liable only for the first �32 per month of joint medical and drug costs. On this basis the couple’s complaint was resolved. They received a refund of �1,000 to cover the extra costs incurred in the two years prior to the new ruling. I asked the Department of Health and Children to ensure that all health boards are informed of this clarification.

Western Health Board

Mistake with Hospital Record

Dealing properly with people requires, amongst other things, the maintenance of proper records. Perhaps nowhere are mistakes in record management potentially more damaging than in the case of hospital patient charts.

A man complained that, on admission to Castlebar General Hospital, his late mother had been treated for a period of time on the basis of another patient’s hospital records. As a result, and despite the fact that she was not a diabetic, he claimed that his mother had been administered insulin and morphine. He claimed that a nurse had confirmed that she had received insulin. In support of his case, he claimed that his late mother’s temperature chart indicated that insulin and morphine had been administered. He also claimed that medical staff only became aware of the mistake when he drew their attention to it.

The Western Health Board (WHB) accepted that an incorrect patient chart had been provided by the medical records staff. However, when the mistake was pointed out, according to the WHB, the new records which had been applied to the incorrect chart were removed and transferred to the correct chart. Given that an incorrect hospital record had been extracted, I had one of my staff visit the Hospital to examine the particular chart and to examine the record retrieval system in place at that time. It was apparent that the mistake arose as a result of a failure to do proper cross-checking of the patient details at the point of retrieving the chart. In the meantime, the Hospital has introduced a new computerised records system and is confident this will eliminate the possibility of similar errors occurring in the future.

I was satisfied from my examination that the available evidence supported the WHB’s contention that, while the patient had initially been treated on the basis that she was a diabetic and had her sugar levels monitored, she had not been given either insulin or morphine. I was also satisfied that there was no evidence to support the assertion that a nurse had told the complainant that his mother had received insulin.

I was aware that the Chief Medical Officer (CMO) of the Department of Health and Children had also investigated the case. I established that the CMO also took the view that, despite the admitted mistake with the hospital chart, there was no evidence that insulin or morphine had been administered to the patient.

I recognise that the complainant and his family suffered considerable anguish as a result of the Hospital’s mistake. There was, however, a direct conflict between his version of events and that of the Hospital. The documentary evidence on the hospital files did not support the complainant’s contentions. I found no reason to doubt the veracity of the hospital records (that is, those records created after the mistake had been discovered) or to suspect that they had been tampered with in any way. In all the circumstances, I decided I could not uphold the complaint.

SERVICE IN IRISH

During 1998 I received 15 complaints regarding failure to provide service in Irish. These were very much in line with the type of complaint regarding poor, or non-existent, service in Irish which my Office has been receiving over the years. In my Report for 1996 I set out the difficulties presented by these complaints and mentioned that I was reviewing my approach to them. The major difficulty in this area is that, whereas Article 8.1 of the Constitution establishes Irish as the “first official language”, there is nothing in statute law to give practical effect to this constitutional provision.

In undertaking the review, I found that I was left with a series of unanswered questions rather than with a set of clear standards which I should seek to have implemented. Amongst these were quite fundamental questions such as: is the public sector obliged to provide a service in Irish to the public generally? does it have any special obligation in relation to service in Irish in Gaeltacht areas? having regard to considerations of cost and language competence, should the public service concentrate on the provision in Irish of a range of essential services? Normally an Ombudsman is not unduly fettered where standards of service are not set out in statute law; he or she can draw on what is the prevailing consensus. The difficulty in relation to service in Irish is that there is no clear consensus which I might seek to enforce. From my experience in this area, I am clear that the provisions of Article 8 of the Constitution require to be given operational definition in statute law.

I suggested in previous Annual Reports that the enactment of a Language Act would be very helpful. A Language Act could specify the level of service in Irish which the public service would be required to make available to those choosing to do business in Irish.
Accordingly, I welcome the commitment of the present Government (as announced by the Minister of State at the Department of Arts, Heritage, Gaeltacht and the Islands) to the enactment during its term of a Language Equality Act. This is in line with the recommendations in the First Report of the Joint Oireachtas Committee on the Irish Language, published in April 1997. The Minister of State has indicated that the proposed Act will contain a clear statement of the citizen’s language rights and of the equality of Irish speakers vis � vis English speakers; that it will place a statutory obligation on Departments and other public bodies to plan for the provision of services in Irish at a level equal to that of services delivered in English; and the Act will make special provision for the delivery of public services in Irish in Gaeltacht areas. As I understand it, the Minister envisages that individual complaints regarding service in Irish will continue to be investigated by my Office.

A related provision has been formulated for inclusion in the proposed Ombudsman (Amendment) Bill. The proposal outlines the administrative procedures to be followed by public bodies in order to ensure that people are dealt with properly, fairly, impartially and expeditiously. In this context, “dealing with the public” would explicitly include providing a service in Irish to the public. Whereas this provision is not directed solely at the question of service in Irish, it is clear that, if approved, it would go some way towards filling the current vacuum which exists regarding the requirement in that area.

I welcome both of these proposed developments. However, nobody should underestimate the scale of the challenge facing the public service in meeting the language equality requirement. Providing a service in Irish, encompassing written and oral communication to the same standard as in English, requires a high level of language competence. At present, it is probable that most public bodies simply do not have the capacity to provide a competent service in Irish. It seems to me that public bodies are not going to have staff with the necessary level of language competence unless this requirement is specifically identified at the recruitment stage - something which has not been the case in recent decades. Furthermore, one must seriously question whether our educational system is currently producing sufficient numbers of skilled Irish language speakers to provide the level of service envisaged in the Language Equality Act.

My comments above may be perceived as being unnecessarily negative. My intentions are entirely positive as regards the language rights of Irish speakers. My comments are made only to ensure that the task of protecting these language rights takes full account of all the difficulties which lie ahead.

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