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Annual Report of the Ombudsman 2000

Chapter Two

Issues arising in some current Complaints

I am required to report annually to the Dáil and Seanad on the performance of my functions. In doing so I report on individual cases of interest or concern and I identify themes emerging from them. My Annual Report is also an opportunity to highlight systemic failures which I have identified and to put forward suggested remedies. From time to time I also comment on cases which serve to clarify my jurisdiction as this can be important from the point of view of prospective complainants. My Annual Report presents an opportunity to look back over the past year but also to highlight issues of on-going concern which will be receiving particular attention in the coming year.

In this Chapter I deal with the particular difficulties which planning complaints pose for my Office. I also clarify my jurisdiction in relation to the examination of complaints regarding certain fines. I then comment on the hardship being suffered by certain families with high interest local authority loans and my efforts to relieve the situation. Finally, I identify what I see as unacceptable policies being adopted by some local authorities in their handling of representations made to them on behalf of members of the public.

Local Authority Planning Complaints

Ireland is experiencing a building boom at present. For instance, in 1989 local authorities received 41,924 planning applications. By 1999 this had risen to 80,261 applications. The boom has resulted in increasing numbers of planning complaints arriving in my Office as well as an increase in the number of day to day planning queries which my staff deal with over the telephone. My remit confines my role in planning matters to the examination of the administration of the planning process by local authorities and to their enforcement of the planning laws in instances where planning breaches arise. I cannot question decisions to grant or refuse planning permission as An Bord Pleanála provides an independent statutory appeals mechanism in relation to planning decisions. From my point of view there are a number of factors which make it increasingly difficult to resolve planning complaints satisfactorily. The thrust of economic and political pressure is towards the completion of developments in as short a time frame as possible. In my view, what is being lost sight of is the very real adverse effect that building development can have on persons living in the neighbourhood of such developments. Industrial developments which are not tightly controlled can cause noise and air pollution. Unauthorised developments can encroach on the privacy of neighbouring properties. Unfinished housing estates can cause years of disruption and annoyance for householders. The individual cases I have seen confirm the extent and variety of the adverse effects which can arise.

To compound the difficulties faced by persons objecting to unauthorised developments, or developments which allegedly do not comply with planning permission, it is becoming all too apparent that very many local authority planning sections are understaffed. As a result the emphasis is on processing applications for planning permissions as opposed to policing breaches of planning permissions which have been granted or pursuing developers who have carried out unauthorised developments. Where it is evident that a breach has occurred or an unauthorised development is in place, I find that there is a marked reluctance on the part of local authorities to take developers to court. More often than not a hands off approach is adopted with developers being encouraged to apply for retention to regularise existing breaches, as opposed to being subjected to enforcement proceedings. While local authorities have discretion as to whether or not to take enforcement proceedings in individual cases, it seems to me that this discretion is very frequently exercised in favour of the developer. This, in turn, creates a climate which encourages developers to continue to breach the planning laws, particularly where full compliance is more costly and inconvenient for the developer. It also undermines public confidence in the planning process and increases public cynicism and the tendency to give credence to unfounded allegations of corruption and conflicts of interest on the part of public officials and public representatives.

Even the most basic elements of the services provided by planning sections are deteriorating. The public tell me that they are unable to make contact with staff to discuss their complaints, that it is increasingly difficult to arrange meetings with planning officials and that letters are not acknowledged or replied to. I am also concerned about the very considerable delays on the part of local authorities in furnishing reports to my Office on planning complaints. My overall impression is one of a system which is in a state of collapse.

The new Planning and Development Act, 2000 consolidates and revises all of the previous Planning Acts and introduces a range of new provisions, including some in the area of planning enforcement. These provisions are being brought into force over time and the full impact of the new Act is not yet clear. Our growing economy requires a fully functioning planning process which recognises and encourages balanced and integrated planning, on the one hand, while respecting the rights and quality of life of persons living adjacent to new developments. Legislative change alone will not bring this about without the provision of sufficient staff and other resources on the ground. I intend to monitor this area closely over the coming year and, if necessary, to highlight any systemic flaws I identify in the planning process as the new legislation takes full effect.

The Ombudsman's Jurisdiction and certain Fines

From time to time I receive complaints which do not clearly fall within my jurisdiction. Jurisdictional issues arose during the year in relation to three separate pieces of legislation. The common aspect of all three was whether or not I could deal with the imposition of fines/penalties by bodies within my jurisdiction. I decided to take legal advice on the matter.

The first case related to a decision by An Post to prosecute three tenants whom it believed did not have television licences. An Post advised the residents that each of them was to be summarily prosecuted under Section 77(b) of the Postal and Telecommunications Act, 1983. An Post argued that its actions in the matter did not come within the scope of Section 4(2) of the Ombudsman Act, 1980 and "were taken for the purpose of the enforcement of the criminal law and not in the performance of an administrative function." Section 4(2) of the Ombudsman Act, 1980 permits me to examine the administrative actions of bodies within my remit.

The advice I received in relation to this case was that the matter did fall within my jurisdiction and, with the co-operation of An Post, I am proceeding with my examination of the complaint.

The second complaint related to a decision by Dublin Corporation to impose a fine for an alleged breach of Section 3(1) of the Litter Pollution Act, 1997. The matter was appealed by the complainant to Dublin Corporation but he was informed that the fine would not be waived. He was informed that the Corporation would grant him a time extension to pay the fine before it referred the matter for legal proceedings.

The purpose of fixed penalty notices (or "on the spot fines") is to avoid the cost and effort of court proceedings for rather obvious and not too serious offences. A person to whom a notice applies may pay the "fine" within a period of 21 days, on a voluntary basis, and thereby avoid a prosecution for the alleged offence.

Arising from the second case, I also decided to seek legal advice on my jurisdiction in relation to complaints about "on the spot" fines which are imposed by local authorities under the Road Traffic Act, 1994 for less serious offences, particularly parking offences, and for the non-display of a valid motor tax disc. An Garda Síochána is listed in Part 11 of the First Schedule to the Ombudsman Act, 1980 as being one of the bodies outside my remit and so I cannot examine complaints in relation to fines issued by the Gardaí.

Apart from the question of whether the actions in question could be deemed to be administrative actions, my legal advisors also had to take into consideration Section 5 (1)(a)(ii) of the Ombudsman Act 1980 which provides that I cannot investigate any action where a person has a right of "appeal, reference or review to or before a court...".

The legal advice I received in relation to the second case and also in relation to the particular road traffic fines was that the actions in question were administrative in nature and also that such cases would not fall within the terms of the exclusion in Section 5 (1)(a)(ii) of the Ombudsman Act 1980.

Accordingly, I proceeded with my examination of the complaint against Dublin Corporation. The Corporation subsequently waived the fine.

Local Authority Housing Loans

During the year a number of complaints I received highlighted the difficulties which have arisen for certain families who had taken out high interest rate local authority mortgages with no mortgage protection. An interest rate of 12.5% was applied to some local authority fixed rate house purchase loans issued in the late 1970s and early 1980s. The interest rate was related to the then prevailing cost of long-term funding and the rate was fixed for the life of the loan. In some cases loans were made available at slightly lower rates but the rates applied were still significantly higher than the interest rates prevailing in recent years.

Since July 1986 mortgage protection has been a mandatory part of such local authority loans. In examining one complaint I discovered that, when the mortgage protection requirement was first introduced, it only applied to loans taken out on or after 1 July 1986. Persons with local authority mortgages prior to that were not allowed the option of buying into the mortgage protection scheme at the time and were not informed that such a scheme was being introduced for new applicants. As a result most would not have realised the potential benefits of mortgage protection and were not advised to seek their own cover. Indeed, over the years many of them assumed wrongly that they had mortgage protection until circumstances arose which led them to make enquiries with the local authority.

I asked the Department of the Environment and Local Government to request local authorities to alert all mortgagees with outstanding loans who had taken out their loans before 1 July 1986 that they had no mortgage protection as part of their local authority loans and to advise them to make their own enquiries about obtaining such protection. The Department duly contacted the local authorities. I believe the number of families in this position is quite considerable. Indeed Cavan County Council has over 1000 such mortgagees and Wexford County Council has nearly 300.

The financial impact of high interest rates combined with a lack of mortgage protection has resulted in very serious consequences for some families. In one case a couple took out a local authority loan in 1981 of £9,000 (€11,427.64) to be repaid over 30 years. The loan was at a fixed interest rate of 12.5%. The amount outstanding as of March 2000 was £7,306.99 (€9,277.96) and monthly repayments amounted to £96.29 (€122.26). The husband died in tragic circumstances in 1998 leaving the widow to fend for two young children. Her income was £110 (€139.67) per week. By the end of 2000 repayments on the loan amounted to £19,987 (€25,378.25). Over the full period of the loan repayments will amount to £34,578 (€43,905) which includes £25,578 (€32,477.36) in interest. Because the loan in question was taken out before 1 July 1986 it did not include mortgage protection and she did not realise this until she contacted her local authority following the death of her husband.

In another case a couple took out a loan of £12,000 (€15,236.86) in 1985 to be repaid over 30 years. The loan was at a fixed interest rate of 12.0%. The husband fell seriously ill in 1998 and had to leave his employment. Shortly after his wife brought her complaint to my Office, her husband died. The widow was left with four children. Monthly repayments on the loan amounted to £129 (€163.80). By the end of 2000 total repayments on the loan amounted to £21,116 (€26,811.79). Over the full period of the loan repayments will amount to £44,435 (€56,420.81), which includes £32,435 (€41,183.95) in interest. Again, she did not realise she had no mortgage protection until she contacted her local authority.

I am concerned that these cases may reflect a more widespread problem affecting many other families caused by the particular combination of factors. I am sure that, unlike other mortgage holders, the option of converting their mortgages by switching to another mortgage provider, is not available to many families with local authority mortgages because of their low or uncertain incomes. I have written to the Department outlining my views and asked it to consider some form of relief scheme to provide assistance for such genuine hardship cases. One must periodically review schemes to see if they are achieving their objectives. The scheme of local authority housing loans was originally designed to assist those who would not be in a position to obtain loans on the commercial market.

Local Authorities Refusal to Reply to Correspondence

The life blood which sustains a vibrant, healthy and fully functioning democracy is the free flow of information from public bodies into the public domain. Public bodies have a duty to explain their decisions and to give information to the public on their rights and entitlements. It should be possible for every citizen to make representations either personally, through a public representative, through a group of which they are a member e.g. a residents' association or with the assistance of a third party of their choice e.g. a priest, doctor, social worker etc. Legislation and recent public service initiatives underpin these principles from a number of perspectives. The most obvious examples are the Freedom of Information Act, 1997 and the Strategic Management Initiative (SMI) which is now beginning to permeate the local authority sector. Indeed, in the context of the SMI process, the Department of the Environment and Local Government's publication Modernising Government - The Challenge for Local Government refers to the need for "pro-active information dissemination to customers".

Public bodies which seek to operate in a climate of secrecy, which provide partial information to citizens or which disseminate information on a selective basis, undermine these basic principles of openness and transparency. If a public body consciously erects barriers which serve to prevent or obstruct the free flow of information to the public then this has to be a cause for concern. Yet this is what I encountered in dealing with a number of complaints against Galway County Council and Leitrim County Council. I have been dealing with the individual cases for some considerable period of time and it has been suggested to me that the problem may not be confined to these two local authorities. In view of this I have taken up the matter with the Department of the Environment and Local Government.

Leitrim County Council had adopted a policy of replying only to representations from elected members of the Council and other elected persons representing the constituency of Sligo/Leitrim or Ministers and Ministers of State. The effect of the policy was that it would not reply to representations from, for example, community activists who had failed to become elected members of the Council, doctors, priests etc. Following my intervention the Council set aside this policy.

Galway County Council has adopted a policy of replying in writing only to those representations which come from elected members of the Council or members of the Oireachtas on behalf of individuals or groups. The effect of the policy was that the Council would not reply to representations from an elected Town Commissioner and prospective County Councillor, from within County Galway, acting on behalf of his constituents and others. In my view this is an unacceptable policy. It was introduced specifically to confer an unfair advantage on elected Councillors and is an abuse of the democratic process in that it is an attempt to force constituents to channel their representations through those Council/Oireachtas members who already hold power. I have no doubt that one of the main purposes of the policy is to reduce competition from would-be Councillors. I have communicated my concern both to the Department and the Council but to date the Council has not set the policy aside. My examination of the issue is continuing.

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