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Annual Report of the Ombudsman 2007

Chapter 4 : The Year in Review (Part II)

Public Access and Awareness

During 2007 my Office continued its outreach services to the general public throughout the country in order to bring those services to as wide a spectrum of people as possible and to ensure that those services are accessible. During 2007 my staff carried out monthly visits to a number of Citizens Information Centres (CICs) and there were also one-day regional visits to six other locations.

In 2007, the CIC visits were to Cork, Galway, Limerick and Coolock in North Dublin. A total of 261 new complaints were received during these CIC visits of which 162 were valid and 90 (or 34%) were invalid. This important work could not have been carried out without the ongoing support of the local CICs.

Staff from my Office also made one-day visits to Clonmel, Killarney, Nenagh, Portlaoise, Tipperary and Waterford. Staff met 2 95 callers during these visits and 2 9 new valid complaints were received. The combined total of new valid complaints received as a result of the monthly and one-day visits amounted to 391. Details of the 2008 programme of visits are available from my Office’s website [www.ombudsman.ie].

Visitors to my Office

In August I met with Professor Gerard Quinn from NUI Galway who is the Director of the Disability, Law, Policy and Research Unit. Professor Quinn is also a member of the Irish Human Rights Commission. The purpose of the meeting was to discuss issues relating to the establishment of the Unit at the university and how its future research might be of benefit to my Office.

In October a delegation from Lesotho visited the Office to explore the role of my Office and our working methodologies. The delegation included Mrs Mpeo Mahase-Moiloa, Minister for Justice, her Principal Secretary, Ms. Pontso Lebotsa, Mr Sekara Mafisa, Ombudsman for Lesotho and Her Excellency, Mrs. Mannete Ramaili, Ambassador of Lesotho in Ireland. The delegation took a particular interest in the Office’s IT systems and it is hoped to facilitate a follow up visit to the Office in 2008 by an IT staff member from the Office of  the Ombudsman for Lesotho.

During November I had a meeting with Mr Jon Bills, Director of Healthcare Quality at the Health Information and Quality Authority (HIQA) and his colleague Ms Marion Witton, Chief Inspector of the Social Services Inspectorate at HIQA. At the meeting the HIQA representatives outlined the role of HIQA in respect of the inspection and registration of residential services for older people, children, and people with disabilities and in the drawing up and monitoring of standards in health care provision.

ISSUES ARISING FROM INDIVIDUAL COMPLAINTS

Local Authorities and Compliance with the Law

The theme of my 2006 Annual Report focused on the importance of public bodies acting correctly in accordance with the law and any other rules and regulations. I referred to the need for the decisions made on a daily basis by public servants to be based on some form of authority, statutory or otherwise. I outlined a number of cases which illustrated where individual public bodies had exercised their authority improperly or unfairly, had exceeded their authority, or, indeed, had no authority to take the action complained of. During the year my Office dealt with further complaints in this area as follows:

Cork City Council

I received several complaints against Cork City Council in relation to its refusal to grant parking permits to residents who lived in various apartment complexes in the city area, on the grounds that private off street parking was available to them. The Council’s position was that the Residents Parking Permit Scheme is administered in accordance with the Parking Bye-Laws which came into operation in July 2005. The bye-laws prescribe the conditions which apply to the issue of residents’ parking permits. According to the Council, in addressing applications for residents’ parking permits, the Council has regard to these byelaws which do not provide for residents of multi-purpose developments, with private off street parking, to be issued with a residents’ parking permit.

Having examined the relevant byelaws, I was of the opinion that they did not support the Council’s policy because the bye-laws stated that a resident on a public road in the residential parking permit zone shall be issued with a resident’s parking permit and residents of multi-purpose developments were not excluded. On this basis the Council was asked to review its position. Subsequently, the Council accepted that there were some inconsistencies between its parking bye-laws and the policy adopted by the Council. As a result, in August 2007 Cork City Council amended its policy on the issuing of residents’ parking permits. My complainants were advised to contact Cork City Council again following which they would be issued with their parking permits.

Tralee Town Council

I also received a complaint against Tralee Town Council from a resident of Tralee who had been refused a residents’ parking permit on the basis that another member of the household was in receipt of a permit and the Council’s policy was that only one permit would issue per household. The Town Council had also issued several parking fines to several members of the household and a Court summons to one member of the household for non-display of a valid parking disc/parking permit.

My examination of the case revealed that the Council’s solicitor withdrew the summons on the day of the Court appearance as “there was no reasonable prospect of success on the matter”. The basis on which this decision was made was that “there is no legal basis for the practice of restricting one permit per dwelling, and any such practice operated by Tralee Town Council is contrary to the provisions of the byelaws”. Subsequently, however, the Council continued to restrict the grant of parking permits to one per household and continued to issue parking fines to residents for parking in the area without displaying a permit/valid parking disc.

Following further contact from my officials, the Council advised my Office that :

§  Summonses would not be issued in relation to the traffic fines in this case;

§  The Council planned to amend the traffic and parking bye-laws to include a provision restricting resident parking permits to one per household, and

§  That there was a tacit arrangement with the traffic wardens that no further traffic fines would be issued, pending resolution of this issue.

I considered that

§  The Council had acted in breach of its own bye-laws and was continuing to do so, pending the introduction of amended bye-laws;

§  It had issued parking fines in the full knowledge that it would not be in a position to pursue legal action in the event of non-payment of the fine, and

§  My complainant had incurred legal  expenses in preparation for a Court defence.

When my views were conveyed to the Council, it reviewed the matter and accepted that the practice it followed was not supported by its bye-laws. Tralee Town Council undertook to change its practice and to issue additional permits to my complainant and other qualifying residents. It also confirmed that it was willing to compensate my complainant in relation to any legal fees incurred.

I am disappointed that I continue to receive complaints about such issues. Clearly some local authorities continue to adopt and implement policies without proper authority, resulting in significant adverse affect on members of the public.

Tax Relief on Personal Pensions

I received a complaint from a woman concerning a refusal by the Revenue Commissioners to allow her tax relief in respect of contributions to a personal pension plan. The woman in question was a separated person, who was in receipt of maintenance payments from her former spouse. These maintenance payments constituted the main source of her income, and were taxable in her hands. When the taxpayer sought to claim tax relief on the contributions made to her monthly personal pension plan, she was informed by the Revenue that the question of what income could qualify for relief was provided for in law. The legislation in question provides that the relief applies to income from ‘relevant earnings’, essentially meaning income from an office, employment, trade or profession. Maintenance payments are not considered to come within the definition of ‘relevant earnings’ and consequently no relief is allowable.

In this instance the legislation was clear and the Revenue appeared to have interpreted the rules correctly in the case of the taxpayer. However, the complaint does highlight an apparent inequity and the fact that the legislative arrangements in this case may not best serve current social policy in regard to pension provision. For some years now the public in general and women in particular, have been encouraged to take personal responsibility for pension provision and reference has been made to the possible tax benefits associated with pension plans. This case highlights the fact that taxpayers, separated persons in this case, whose main source of income derives from legally binding maintenance payments, are lawfully prevented from availing of tax reliefs available to others, while at the same time being liable to income tax on such payments. Any change in the position of separated persons in this area would require a change in the law, and this is a matter for the Oireachtas to consider. The consideration of social policy and the enactment of related legislation is the responsibility of the Oireachtas and, in this context, my role is limited to drawing the attention of the Oireachtas to issues such as this which may deserve more considered examination.

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