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Annual Report of the Ombudsman 2003

Chapter 2 - Dún Laoghaire - Rathdown County Council - Disabled Persons Grant

I received a complaint against Dún Laoghaire - Rathdown County Council on behalf of a man who had applied for a Disabled Persons Grant (DPG). This is a special grant which allows a person adapt or carry out works to a house to make it more suitable for the accommodation of a person with a disability. The applicant was terminally ill but had been refused a grant by the Council because the builder who carried out the work on his home had not produced a tax clearance certificate.

The Housing (Disabled Persons and Essential Repairs Grants) Regulations, 2001 stipulates that a builder who carries out work under the scheme must have a tax clearance certificate. This ensures that persons who are not tax compliant do not benefit under the DPG scheme. My Office has always accepted the need for such measures, and regards them as a generally fair and reasonable way of underpinning Government policy in this area.

The Council had considered the matter carefully but felt it was bound by the terms of the relevant Regulations which prevents it from paying a grant until a tax clearance certificate is presented. The Council could not be faulted for acting correctly within the law as it stood.

Having considered the compelling nature of this case, however, and the very unfortunate circumstances in which the complainants found themselves at the time, my Office considered that there was sufficient grounds for the Minister for the Environment, Heritage and Local Government to invoke a discretionary power which he has, under the Housing Act, 1966 to award the grant in particular circumstances. It was clear that the complainants had, at all times, acted in good faith in undertaking this work. There was also a considerable urgency in having the work done because of the applicant's terminal condition at the time and, finally, the applicant had no way of independently checking on the tax status of the builder. In effect, the Regulations were penalising a terminally ill man and his family rather than the builder, which was never the intention behind the Regulations.

Where discretionary powers exist they should be exercised fairly and flexibly, particularly where the action complained of had led to a disproportionate penalty or adverse effect. I made this case to the Department which was receptive to it. Sadly, the grant applicant died shortly after I took up his case with the Department. Under the Housing Act, 1966, the Department needed the consent of the Minister for Finance before it could approve the grant, and when this consent was sought, the Minister for Finance initially refused.

Having reviewed the matter fully, my Office asked the Department of Finance to look at the case again on its individual merits. Having considered the matter, the Minister for Finance reviewed his decision on compassionate grounds and decided to permit the Minister for the Environment, Heritage and Local Government approve payment of the DPG in this case.

I was very happy to see that both Departments were open to using their discretion so that a family already suffering a considerable emotional loss did not have to also suffer financially when they had acted, at all times, in good faith. I was also pleased to note that the Finance Act, 2002 included a provision which would allow a person check a tax clearance certificate with the Revenue Commissioners (with the consent of the person to whom it relates) and, while there are still some administrative issues to be resolved in implementing the changes, the problem that arose in this case should not arise again in the future.

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