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Annual Report of the Ombudsman 2005

Chapter 3: Selected Cases

Selected Cases

CIVIL SERVICE

Department of Agriculture and Food - Dispute About Calculation of Single Farm Payment

During the year I received a large number of complaints concerning the Single Farm Payment scheme. This is probably unsurprising as the scheme represented a significant change in the way farm payments were to be administered in Ireland. Many of the complaints concerned what are known as the force majeure provisions of the scheme. These provisions were introduced to allow account to be taken of certain exceptional circumstances which might have affected a farmer’s production in the reference period 2000-2002, which had been picked for calculating payments under the new scheme. Where it was accepted that force majeure circumstances arose during all these reference years the Department could use an alternative reference period 1997-1999.

A complaint was made to me by a farmer who had applied to have the reference years for the Single Farm Payment changed from 2000-2002 to 1997-1999, on the basis of the force majeure provisions of the scheme. The basis of his application was that he had Hodgkin’s Disease. The Department, having initially examined his case, had agreed to exclude the year 2001, the year in which he was diagnosed but would not accept the exclusion of the years 2000 and 2002.

When my staff received the complaint they researched the illness, mainly on the Internet, to see what the effects of Hodgkin’s Disease were. Most of the information available tended to support the argument that it was an illness that would have very adverse effects both before diagnosis and after treatment. My staff discussed the matter with the farmer and as a result he was asked to provide further supporting evidence from the doctor who had been treating him. The farmer in turn went back to his doctor, a Professor specialising in Hodgkin’s Disease, who supplied a very detailed report outlining the effects of the disease to my Office. It was clear from this report that his condition had a major impact on the complainant’s functional capabilities for a considerable period prior to the formal diagnosis and also for a long period after the diagnosis as a result of the disease and the intensive treatment he had to receive.

I considered that his report was of such importance that I forwarded a copy to the Department and asked that it consider the case again based on the new information. Having examined the evidence, the Department agreed to exclude both the year before the farmer was officially diagnosed and the year after he had received chemotherapy. This resulted in the reference years being changed with a potential difference of Û15,000 over the period of the scheme.

I was very gratified by the result in this case and I consider that it showed the extra value that my Office could bring to a case in terms of focusing the farmer on the need to provide the information that was required to support his case. This, in turn, allowed the Department a basis on which it could re-examine the case which clearly had merit. I should also add that I commend the Department for the sympathetic and speedy response to the complaint, once it was notified of the new information provided by the complainant’s doctor.

Department of Arts, Heritage, Gaeltacht & the Islands, Department of the Environment, Heritage and Local Government - Faulty Procedures in Designation of Special Protection Area

The former Ombudsman, Kevin Murphy received a complaint in 2000 from an individual that, on 13 July 1999, the National Parks and Wildlife Service of Dœchas of the then Department of Arts, Heritage, Gaeltacht and the Islands (now part of the Department of the Environment, Heritage and Local Government) published a map setting out the area of a proposed extension to Dublin’s Sandymount Strand/Tolka Estuary Special Protection Area (SPA) under the Birds Directive, 79/409/EEC.

This map appeared to include an area which the Dublin Port Company proposed to develop. However, following contact with the Port Company, Dœchas, on 15 July 1999, reduced the area for inclusion in the SPA by excluding the area which the Port Company proposed to develop. The new map was not published until after the area was designated by Minister for Arts, Heritage, Gaeltacht and the Islands, on 25 November 1999, in the European Communities (Conservation of Wild Birds) (Amendment) Regulations, 1999 (S.I. 367 of 1999).

The complainant claimed that the SPA had been altered to suit the Port Company and that no scientific evidence has been presented by the Port Company to justify the exclusion of the development site, as was required by the Regulations.

I undertook a very extensive preliminary examination and noted specifically that the Department

• had published a newspaper advertisement which contained a map of the proposed SPA which was amended following undocumented discussions with the Dublin Port Company;
• did not publish the amended map until after the SPA had been designated;
• sought observations from interested parties on the basis of incorrect information;
• had not produced the scientific evidence on which the amendment was based.

I went on to conclude that the Regulations designating the SPA were apparently signed in the absence of the scientific evidence which would justify the exclusion made after discussions with the Dublin Port Company. It was also my view that it was improper to invite submissions from interested parties without fully informing them of the facts on which such submissions were being sought. Had the complainant and other interested bodies been made aware of the amendment to the area as advertised they would have been afforded the opportunity to submit relevant scientific evidence which could then have been taken into account in the decision to designate the SPA.

I asked the Department of the Environment, Heritage and Local Government (which had by this stage taken over responsibility for the area) to review the matter with a view to repealing the relevant Regulations and to following correct administrative procedures in the course of any future designations. The Department agreed with many elements of my report and while they acknowledged that there were deficiencies in administrative practices it did not agree with my overall conclusion.

The Department made the following points:

• that the complainant and the organisation of which he was a member (Dublin Bay Watch) were not an interested party with legal standing in relation to the designation process;
• that while, in making the Regulations, the Minister was required to consider any objections and to notify the interested parties, there was no requirement on the Department to repeat any consultative process with these parties;
• that it did not agree with my con-clusion that incorrect administrative procedures were followed in making the designation without publishing an amended map or seeking further observations on the basis of the amendment;
• that there was no regulatory requirement in this case to include maps in newspaper advertisements and that the inclusion of indicative maps in these advertisements was an administrative practice so as to assist in the process.

The Department also set out the circumstances in which the appropriate official conveyed the necessary scientific advice verbally at the time of designation and documented this on file at a later stage. The Department fully accepted the criticism of some administrative practices followed at the time, particularly in relation to the contemporaneous documentation of the process, but went on to say that many necessary improvements had subsequently been put in place and that the complaint had helped greatly in this regard.

The complainant strongly maintained that his organisation was an interested party and that it was adversely affected by the Department’s decision and that the Department’s faulty procedures had had detrimental consequences.

Having carefully reviewed these further arguments I considered that the conclusions outlined in my preliminary examination report remained valid. While accepting the Department’s assurances in relation to promised improvements in relation to future designations, I considered that the Department should take steps to regularise the position of the SPA in question and I continued to monitor developments.

In a very welcome development I learned from the Department in November 2005 that, arising from discussions with the EU Commission, Ireland had agreed to re-designate all previously designated SPAs to ensure that they are given greater protection and to take account of the fact that many of the SPAs were designated prior to the adoption of the European Communities (Natural Habitats) Regulations 1997 which provide the legal basis for such protection. The Department has indicated that the Dublin Bay SPA will be included in this process of re-designation and that it intends to submit proposals to the Minister in this regard during 2006 for the re-designation of Dublin Bay as an SPA under a new Statutory Instrument.

Office of the Revenue Commissioners Mismanagement of Appeal to Appeal Commissioners

A taxpayer (himself a tax advisor) complained to me about the manner in which his appeal against an Amended Assessment had been managed by the Revenue Commissioners (the Revenue) and the Appeal Commissioners. The taxpayer claimed that:

• there were delays by the Revenue in acknowledging and responding to his letters;
• while his letters were in Irish, when he did get replies they were in English;
• there had been a delay of almost five years between the date of his appeal to the Appeal Commissioners and the date fixed for the hearing;
• following a mutually agreed adjournment of the hearing, the Revenue and the Appeal Commissioners had failed to respond to his written requests for clarification of an interim ruling by the Appeal Commissioners and he had been left in the dark in regard to the substantive issue in dispute and how the matter was to be progressed;
• the Collector General had issued him with a Warning Notice regarding the disputed liabilities which he, the taxpayer, understood to be under appeal, before he had been given an opportunity to exercise his right to appeal, and a second notice threatening Sheriff enforcement of the liability had been sent to him in spite of his communication to the Collector General that the matter had not been resolved.

The matter had been in dispute for over six years when the taxpayer brought it the attention of my Office.

The dispute arose from a decision by the Revenue to withdraw relief from investment made in a particular film production which had previously been approved for Film Relief. The relief was worth Û12,600 to the complainant. Agreement was reached between the Revenue and certain other investors concerning the withdrawal of the relief. The complainant chose instead to pursue the established avenues of appeal open to him.

The Appeal Commissioners were established by the Minister for Finance to carry out certain duties under the tax acts, including the hearing of appeals in certain cases from aggrieved taxpayers against decisions of the Revenue. The Ombudsman Act 1980 specifically excludes the Appeal Commissioners from my jurisdiction and I cannot examine the administrative actions or decisions of that Office.

When I examined the actions of the Revenue in this case I was told that delays had arisen initially due to the technical complexity of the issue and that the Warning Notices had been issued due to administrative error. The Revenue apologised for the delay, the failure to keep the taxpayer informed and the failure to answer certain correspondence in Irish and offered to set a new date for the appeal hearing.

When I pursued the matter with the Revenue it emerged that it was unaware of certain correspondence between the taxpayer and the Appeal Commissioners. In the light of this information, the Revenue agreed to withdraw from the appeals process and to concede the original allowance in its entirety to the taxpayer. I have asked the Revenue to review the procedures associated with appeals to the Appeal Commissioners with a view to minimising delays and improving communications with the Office of the Appeal Commissioners.

Department of Social & Family Affairs - Faulty Administrative Procedures

A woman, who was in receipt of an Invalidity Pension, received an unannounced visit from a Social Welfare Inspector, following receipt of allegations that the woman was working while claiming the pension. The complainant was distressed after receiving this visit. Following correspondence with the complainant I sought a report from the Department of Social and Family Affairs in the matter.

The Department accepted that the allegations about the woman were unfounded. However, the Department failed to inform her of the outcome of the investigation by the Social Welfare Inspector or adequately explain the position when it finalised its review.

I have always held that individuals who use public services have basic rights, which include the right to be heard and the right to be given reasons for decisions which effect them. Any investigation into a matter of such a serious nature should be carried out in a fair and transparent manner. In view of the seriousness of these allegations, the failure of the Department to adequately explain and record all of its dealings with the complainant at the time could be construed as an unfair administrative practice. Similarly, the lack of a formal decision being sent to the complainant at the end of the review was also a matter for concern. I brought these issues to the attention of the Department with a view to ensuring that such failures do not recur in the future.

In response, the Department apologised directly to the complainant and assured me that the experience gained from this complaint has enabled it to bring about improved administrative practices, with procedures put in place to ensure that, in the future, greater attention is paid to the communication of such decisions and associated record keeping.

 Department of Social & Family Affairs - Application for One-Parent Family Payment Refused

A single parent complained about the rejection of her application for One-Parent Family Payment (OPFP). Her claim was disallowed by a Deciding Officer from the Department of Social & Family Affairs and the complainant appealed the decision to the Social Welfare Appeals Office. Following further enquiries by the Department, at the request of the Appeals Officer, the appeal was disallowed on the grounds that the complainant had failed to establish that she fulfilled the statutory conditions as to means. The Appeals Officer had serious reservations as to the veracity of her statements and submissions, and he did not believe that she had made a full, frank, open, honest disclosure of her means and circumstances.

The woman subsequently wrote to the Appeals Officer to seek clarification as to what statutory conditions she failed to meet regarding her means. She also asked the Appeals Officer what further evidence she was required to produce to make her submissions less vague and insubstantial. Having considered the matter further, the Appeals Officer re-iterated his views on the appellant’s case, and indicated that his decision still stood as he did not regard it to be erroneous by reason of some mistake having been made in relation to the law or the facts. He did not answer the specific questions raised by the woman.

In the course of my enquiries I ascertained that the same evidence produced by the woman to the Appeals Officer had been accepted by her local Community Welfare Officer (CWO) as being adequate to allow him to pay Supplementary Welfare Allowance and Rent Allowance (both means tested payments) to her following the decision of the Appeals Officer. The CWO was satisfied, from his personal interviews with the woman, that her means and circumstances warranted payment of the allowances.

My staff subsequently interviewed the complainant with a view to obtaining specific clarification as to the concerns raised by the Appeals Officer. I subsequently formed the view that, while it was understandable that the Appeals Officer could have had serious reservations as to the veracity of the woman’s statements and submissions, no meaningful enquiries appeared to have been carried out which might, perhaps, have satisfied those concerns. These aspects could, most likely, have been more fully considered if the Appeals Officer had determined the appeal by way of an oral hearing. This would have provided him with an opportunity to tease out his concerns about the veracity of the appellant’s statements and submissions, and he could have sought documentary evidence if he thought it was warranted. This would also have afforded the appellant an opportunity to present evidence which might have gone some way in satisfying the reservations. In these circumstances, I asked the Chief Appeals Officer (CAO) in the Social Welfare Appeals Office to consider the exercise of his powers under the provisions of Section 263 of the Social Welfare (Consolidation) Act, 1993, to effect a review of the appeal.

The CAO responded by indicating that, while he could understand the approach taken by the Appeals Officer in not convening an oral hearing, on balance he felt that something might have been gained by being able to hear the appellant present her story in person. He noted dimensions in the case not present in other similar applications e.g. change of name by deed poll on two occasions, residence at fifteen different addresses, which in addition to a certain lack of definition and corroboration added to the sense of difficulty in coming to terms with the woman’s circumstances. Notwithstanding those dimensions, the CAO revised the Appeals Officer’s decision on the ground that an error had been made in regard to the facts. He, therefore, determined that the woman was entitled to OPFP backdated to the date she made the original claim.

HEALTH SERVICE EXECUTIVE

Health Service Executive: Eastern Region, Northern Area - Nursing Home Subvention Refused

A woman complained to me on behalf of her elderly mother, who was a patient in a private nursing home. The complainant had made an application to the Health Service Executive (HSE), Eastern Region, Northern Area, for assistance towards the cost of her mother’s care, under the Nursing Home Subvention Regulations. The application was refused on the grounds that her mother was a home owner, even though it was also the complainant’s home. The decision to refuse assistance, coupled with the erratic nature of the complainant’s employment, left the complainant and her mother in difficult financial circumstances. The elderly woman had exhausted all of her savings to fund her care and her daughter found herself in a situation where she had to consider selling the family home to fund her mother’s care.

In calculating the mother’s entitlement, the HSE assessed her State pension, her small occupational pension, and an estimated rental value of her stake in the family home (50%). This was in accordance with the subvention regulations. However, this provision is not mandatory and the HSE has, in fact, a discretion to assess or disregard a property when calculating an applicant’s entitlement. I felt that the circumstances in this case constituted sufficient grounds for the HSE to consider the exercise of this discretion and I requested a review of the matter.

Given the circumstances as outlined, the HSE accepted that the continued assessment of the property would cause her undue financial hardship. The HSE advised that it had decided to disregard the property and award a subvention of €203.97 per week.

Health Service Executive: Eastern Region, East Coast Area - Top Up Grant Refused

The daughter of an elderly woman approached my Office following the installation of a stairlift in her mother’s home. The local Council had provided a grant covering 90% of the cost and she had applied for the balance by way of a "Top Up Grant" from the Health Service Executive (HSE), Eastern Region, East Coast Area. This is payable in cases where the applicant is a medical card holder and has limited means. The "Top Up" had been refused on the grounds that the stairlift was not considered essential since the woman had bathroom facilities downstairs, and the HSE did not consider that funding the balance of the cost (€830) would cause her undue financial hardship. In addition, the stairlift had been installed prior to the processing of the application for the "Top Up". I noted that the applicant was a medical card holder and her only source of income was her Old Age Pension. Her husband was in a private nursing home, the cost of which she had to meet from their pensions. An occupational therapist had assessed and recommended the woman for a stairlift on medical grounds and she had received the necessary grant from the Council. The HSE had overlooked this in rejecting the application and had not contacted the Council to discuss the matter. I asked the HSE to review the complaint, given that the woman needed to access the upstairs area of her home, and that given her level of income, the withholding of the grant would cause her undue hardship. The HSE subsequently approved the "Top Up" grant.

Health Service Executive: Eastern Region East Coast Area - Dispute Over Nursing Home Costs

A woman contacted me in relation to her late sister-in-law who had been a medical card holder, and had been admitted as a patient to St. Colmcille’s Hospital, Loughlinstown in November 2003. This woman (complainant’s sister-in-law) had remained as a patient in hospital until she was assessed as suitable for nursing home care. Her name was placed on the waiting list for public nursing home care. In March 2004 there was a bed crisis in Loughlinstown Hospital and staff were asked to identify elderly patients who could be moved out to private nursing homes based on their care needs. This woman was one of seven patients moved into private nursing homes in April 2004, as there were no public nursing home beds available at that time. She had been assured that the cost of the private nursing home care was to be met by the Health Service Executive (HSE), and the Principal Social Worker working in the hospital and the Hospital Manager confirmed this to be the case.

However, shortly after the transfer took place, the HSE advised the woman to apply for subvention. The HSE subsequently wrote to the woman in August 2004 advising that her contract bed would cease from mid-October 2004, and information was sought in relation to the ownership and value of the woman’s assets. The woman declined to forward this information as she understood that when she agreed to transfer into private nursing home care her costs would be met by the HSE until a public bed became available for her. No public bed became available until the end of January 2005 by which time the woman had incurred over three months private nursing home costs amounting to almost €13,000 which she could not afford. Sadly, the woman died some weeks after transferring into public nursing home care with this debt still outstanding. I asked the HSE to review the complaint made by the late woman’s sister-in-law as I felt that it was unfair to withdraw the agreement in relation to the contract bed almost as soon as the woman had transferred into private nursing home care.

The HSE did review the matter and agreed to pay the amount still outstanding in respect of private nursing home costs incurred by the late woman.

Health Service Executive: Eastern Region, Northern Area - Medical Card Refused

I received a complaint from a TD on behalf of an 18 year old man who had been refused a medical card by the Health Service Executive (HSE), Eastern Region, Northern Area. The man was suffering from chronic heart problems and had recently undergone open heart surgery. Unfortunately, eligibility for a medical card for persons aged between 18 and 25, and who are dependent on their parents, is based on whether their parents qualify for or hold a medical card. In this case, the parents were ineligible for a medical card due to their level of income. Following my examination of the HSE’s file, I requested a review of its decision, based on further information which I had received from the parents regarding their financial circumstances. This included up-to-date information on their mortgage payments, details of existing loans and recent payslips. My request for a review coincided with a change in the rules governing the financial assessment for qualifying for a medical card. These changes allowed the HSE to disregard the tax paid by an applicant, reasonable travel costs (to and from work) and reasonable child care costs. In light of the new information provided by me and the changes in the financial assessment, the HSE approved a medical card in this case.

LOCAL AUTHORITIES

Clonakilty Town Council - Condition of Site Leads to Compensation

I received a complaint from a man in relation to the sale of a site to him by Clonakilty Town Council under the Subsidised Site Purchase Scheme. He bought the site from the Council, applied for and received planning permission to build a house, but when building commenced in 2003 he discovered that standard foundations would not be possible due to previous infilling of the site. He claimed that the Council should have been aware of this. Following discussions with the Council the only solution to the problem was to provide pile driven foundations which were more expensive than the standard foundations. He received quotations for both traditional strip foundations (standard) and pile driven foundations and these were Û8,886 and Û24,704, respectively. His correspondence with the Council, concerning the increased cost to him of providing the more expensive foundations, did not resolve the matter and he contacted my Office in February 2004.

When I contacted the Council it informed me that the complainant, through his solicitor, had offered to contribute €10,000 towards the cost of the foundations in an effort to resolve the matter. The Council then decided to pay the difference between the cost of piled foundations and traditional strip foundations (€15,818) less the complainant’s €10,000. On this basis it made an offer to the complainant, in May 2004, of €5,800 approximately. This offer was rejected by the complainant.

My Office then requested sight of the Council’s correspondence and documents on the case. It appeared that, due to the unforeseen difficulties with the site, the complainant would be out of pocket by over €15,000 if he were to accept the Council’s offer. As this did not seem fair or reasonable in the circumstances the Council was asked in July 2004 to explain its offer.

Following several reminders, the Council provided a copy of its file in October 2004 and advised my Office that it was prepared to fund the difference between the cost of standard and piled driven foundations i.e. €15,818. This offer was accepted by the complainant.

Following a full examination of the Council’s papers and the correspondence between the Council, the complainant and his solicitors, I was satisfied that the Council’s offer to fund the extra costs of the required foundations was a reasonable and fair outcome. However, I was concerned at the length of time it took for the Council to resolve the matter and the resultant costs to the complainant in the form of solicitor’s fees, engineer’s costs etc. I was also conscious of the time and trouble to the complainant in pursuing his complaint. I wrote to the Council in November 2004 and drew its attention to guidelines previously published by my Office on the provision of redress "Redress- Getting it Wrong and Putting it Right" which states:

"Where it becomes clear that the complainant had to go to unusual lengths or suffered distress in making his/her case, compensation in the form of payments for time and trouble reasonably expended in pursuing the complaint, and associated vouched costs, should form part of the redress proposals."

The Council agreed to compensate the complainant on this basis and made a further payment of €2,000. While I commend Clonakilty Town Council for resolving the case following the intervention of my Office, it seems clear that if payment of the extra costs of the foundations had been agreed in a more timely manner, payment of additional compensation would not have arisen.

Galway County Council - Dispute Over Tenant Purchase

A delay by Galway County Council prevented a woman from selling her house.

In July 2001, a man sold a house to Galway County Council, who in turn sold the house, under the Shared Ownership Scheme, to the woman. She took possession of the house in 2001. Subsequently, when she went to sell the house in October 2003, she found that the original ownership transfer, from the original owner to the Council, had not been completed. As a result her potential sale fell through.

When the woman complained to my Office in October 2004 the house was still not registered in the Council’s name, notwithstanding the fact that it had purchased it more than three years previously. As a consequence, the complainant was unable to sell her house.

It appears that, in the course of preparing the documentation for lodgement in the Land Registry, the original Deed of Transfer from the original owner to Galway County Council was mislaid in transit to the Housing Unit. A new Deed of Transfer was prepared in December 2003 and sent to the original owner’s solicitor requesting that it be signed. Subsequently, in March 2004 the relevant documentation was lodged in the Land Registry.

However, in May 2004 the Land Registry informed the Council that, in pursuance of an Order made by the Family Court, a further document was required to allow registration to be completed. This matter had not been finalised when the complainant approached my Office.

I took the view that there had been an unreasonable delay of almost 4 years in registering the property in the Council’s name and I asked the Council to review its handling of the case.

In response, the Council advised me that it was prepared to purchase the house from my complainant with a view to bringing matters to a satisfactory conclusion. My complainant was happy with this arrangement. In offering to purchase the house from my complainant, the Council was putting her back into the position she would have been in had the Council acted properly in the first instance. In conclusion, I would like to take this opportunity to commend the Council for its initiative in resolving this potentially difficult issue.

Louth County Council & Navan Town Council - Disputes Over Disabled Persons Grant Scheme

During the year I received a number of complaints concerning applications under the Disabled Persons Grant (DPG) scheme.

In a case involving Louth County Council the complainant, who had sustained injuries in an accident, proposed to carry out certain works to accommodate her needs. The Council had agreed to allocate grant aid towards the replacement of a bath with level access shower only. The complainant, who was dissatisfied with the Council’s decision, complained to my Office and stated that the Council had failed to act on the recommendations of an independent Occupational Therapist and a Building Surveyor to construct a second exit to comply with safety regulations.

The relevant Regulations are the Housing (Disabled Persons and Essential Repairs Grants) Regulations 2001 which provide that:

"A housing authority may pay a grant to a person for the provision of additional accommodation or the carrying out of works of adaptation that, in the opinion of the authority, are reasonably necessary for the purpose of rendering a house more suitable for the accommodation of a member of the household who is ...

(a) physically handicapped and the works are necessary for his or her proper accommodation, or ... "

When I took up the matter with the Council it advised me that the complainant had sought a grant towards the demolition of an existing bathroom and construction of a new extension containing a bedroom and bathroom. The Council was of the view that the complainant’s requirements could be met by carrying out alterations within the existing structure of the dwelling which would be more economical than building an extension. The Council stated that it had taken this view on the advice of its own Social Worker and Occupational Therapist and was not obliged to comply with the recommendations of an outside Occupational Therapist. It did state, however, that it would be prepared to re-examine the situation regarding the provision of a second exit door but in the context of the existing structure of the dwelling rather than incorporating it into a new extension, as proposed by the complainant.

Staff of my Office met with the complainant and also with Council officials to obtain further information and to clarify their respective positions. As a result, it became clear that the complainant was concerned to make provision for her long term needs should her condition (particularly her mobility) deteriorate and was anxious to proceed with the building work which she had proposed. She was concerned that the work which the Council was willing to approve would not be adequate to accommodate her long term needs.

The Council indicated that it would consider approving a grant in respect of certain specified works which could be incorporated in the works proposed by the complainant. The Council reviewed the application and subsequently allocated a grant of €10,273 for certain specified works and approved this sum towards the cost of the works to be carried out by the complainant. The complainant was satisfied that the grant would assist her towards the overall cost of the works she proposed to carry out. I was also satisfied that the Council’s response was reasonable. Meeting with the parties concerned in this case allowed their positions to be clarified and to be explored more fully and, in doing so, assisted in reaching this resolution.

In another case, I received a complaint against Navan Town Council on behalf of a 93 year old woman who suffered from osteoporosis. She had great difficulty climbing the stairs and had to be aided in doing so. On professional advice given to the complainant and her family, they installed a stairlift, as they were advised that the stairs were a danger to the complainant and those aiding her. The stairlift allayed the complainant’s fears at negotiating the stairs and as a result it provided her with a form of independence. An application was made to Navan Town Council for a DPG for the stairlift. The Council advised the complainant that works could not commence prior to written approval and as a result the application could not be approved in this case.

Following contact from my Office, the Council re-examined the case without delay. The Council, having had regard to the urgency of the case, the proven need for the facility provided for the complainant and in the special circumstances of the case, decided to approve the payment of a DPG in respect of the work carried out on her behalf.

I cite these two cases as examples of Councils taking a flexible approach and positive action to resolve the difficulties encountered by complainants. In doing so, I would like to take this opportunity to compliment both Louth County Council and Navan Town Council and their staff for the manner in which they dealt with these complaints and I would encourage other Councils to adopt a similar flexible approach.

Mayo County Council - Dispute Over Tenant Purchase Price

Mayo County Council built a house and rented it to a married couple in 1995. The site had been provided to the Council by the husband’s mother. In September 2003 the complainants applied under the Council’s Tenant Purchase Scheme to buy the house from the Council for a net purchase price of €42,110. This valuation was valid for six months from that date.

The complainants secured a mortgage from the bank. However, in June 2004 the complainants were advised by the Council that it was not in a position to sell the house at that time. At this stage the complainants were paying rent to the Council on the house and interest to the bank on the loan.

In October 2004, the Council re-valued the house and offered it to the complainants at a revised net price of €49,390, an increase of €7,280 on the original offer price. This offer price was also valid for six months. The complainants approached my Office but, shortly afterwards, purchased the house for €49,390 as they feared it might increase in price once the six month offer period had expired.

Given the nature of the case I sought the Council’s entire files on the matter. It became clear that there had been a considerable delay in registering the original site from the husband’s mother to the Council. Having reviewed the files, I felt that the complainants were responsible for some of the difficulties in which they found themselves.

I discovered that as far back as February 1995, the Council had been pressing the complainants to send it details of title for the site. It advised the complainants that it was imperative the site be transferred to the Council if the construction of their house was to proceed in 1995. However, due to the complainants’ urgent housing need, the Council proceeded to build the house for them without first registering the title of the site in its own name.

Therefore, in 1995, by

• trying to do the complainants a favour,
• taking a shortcut,
• abandoning the strict legal route, and
• ensuring that the complainants got re-housed in a new house 

the Council subsequently found itself in a situation, in 2003, where the complainants had been disadvantaged when they went to purchase their house. However, while acknowledging this, I felt there was scope for the Council to revisit some aspects of this case and to consider the question of redress.

I drew the Council’s attention to the fact that there was a delay of about four years in the period 1995 to 1999, for which the Engineering and Housing Sections of the Council were responsible. I felt that, had the Council managed to resolve the title transfer in this period, all the problems which were discovered after the complainants applied to purchase the house in 2003 might have been avoided and they might have been in a position to progress the purchase of the property at the 2003 net purchase price of €42,110 when it was first offered to them.

Accordingly, while acknowledging there was fault on both sides, I asked the Council to review its handling of the case, particularly the sequence of events in the period 1995 to 1999. The Council agreed to offer the complainants a refund of €3,640 on the net purchase price of €49,390 which they had paid in April 2005. This refund represented 50% of the increase of €7,280 on the original offer price.

I considered the Council’s offer in the light of the history of the case and, on balance, I was satisfied that it represented a reasonable outcome to the case. This was on the basis that mistakes were made on both sides and these mistakes collectively contributed to the delay and difficulty in progressing matters. The complainants were happy to accept the refund.

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