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Chapter 6 - Interpreting Rules and Regulations Correctly

Chapter Six

Interpreting Rules and Regulations Correctly to Ensure Proper, Fair and Impartial Treatment

Many complaints centre around the way a public body has interpreted or applied rules, regulations or legislation. The following four cases illustrate the problems which can arise.

Western Health Board - Refusal of Arrears of Nursing Home Subvention

A woman complained that the Western Health Board (WHB) had unfairly refused arrears of nursing home subvention from the date of her application. The complaint centred around the way the WHB had applied the terms of the Nursing Homes (Subvention) Regulations 1993.

Under Article 9.1 of the Regulations, a health board, having decided a person qualifies for a subvention on grounds of dependency and means, may take into account the circumstances of the person. The Regulations defined circumstances as including the capacity of a son and/or daughter - aged twenty-one years and over and residing in the jurisdiction - of a person who has qualified for a subvention to contribute towards the cost of nursing home care of his or her parent. Article 9.2 provided that, for this purpose, a health board could request information and conduct interviews with the person, or his or her spouse and a son and/or daughter aged twenty one and over.

The applicant complained that the WHB had incorrectly determined that it was mandatory that her children's income be taken into account in determining the level of subvention payable. The WHB stated that the woman's sons and daughters, resident in the jurisdiction, had co-operated fully when requested to furnish details of their personal incomes.

The woman appealed her case to the WHB and maintained that there was no legal obligation, nor did the subvention legislation create such obligation, on her children to provide statements of circumstances to support her application. She also argued that her children had been misled by the Board i.e. they had been told that if they failed to provide the information her application would be refused. The WHB had, in fact, advised her children in writing that failure to return details of their circumstances would result in her application being refused. She argued that the information provided was thus given under false pretences and they wished to withdraw it.

In determining her appeal the WHB noted that it appeared that the applicant's children did not want to continue to make a contribution to her maintenance, and if this was the case, the Board was prepared to increase the level of subvention by disregarding the circumstances of her children. This reassessment of the level of subvention was to date from the time the appeal was decided and the WHB refused to apply it from the time the subvention was first granted, despite such a request having been made by the applicant to the WHB.

In considering the complaint the Office analysed the relevant regulations. Article 9 of the regulations gave a health board discretion to take into account the circumstances of the person qualifying for the subvention. For this purpose a designated officer could request information and conduct interviews with the person or her spouse and a son and/or daughter aged 21 years and over. It was clear from a reading of the regulations that any such assessment of circumstances could only occur after the board has decided that an applicant qualified for a subvention. However, there was no sanction provided for, either explicitly or implicitly, in situations where the children declined to furnish information. The sanction which the WHB purported to impose in the event of family members failing to co-operate was thus contrary to the provisions of the regulations. It did not seem to be reasonable for the Board to claim, therefore, that the family members co-operated fully when they were, in fact, misled by the Board into providing the relevant information.

In the course of enquiries made by the Office with the Department of Health and Children it was noted that the Department had previously written to another health board regarding a similar case. The Department had explained that the regulations enabled a health board to enquire into the circumstances of sons and daughters of applicants but did not provide for compulsory payments by sons or daughters. The advice went on to state that where sons or daughters declined to contribute, a health board should treat the applicant as if his or her circumstances had been assessed at zero and the applicant should receive the subvention to which he/she was entitled on the basis of his/her means and level of dependency. The Office was aware that the Department's advice was circulated among the other health boards.

The Office concluded that the WHB had incorrectly interpreted and applied the regulations leading to an adverse effect for the complainant and it was requested to review its position and apply the higher level of subvention from the date of the original application. The WHB agreed to do this and as a result, a payment of �3,174 was made to the complainant.

This case encapsulated the central elements of a large number of other similar cases which formed the basis for the Ombudsman's special report on the payment of nursing home subventions by health boards which was submitted to the Houses of the Oireachtas in 2001.

Department of the Environment and Local Government - Refusal of New House Grant

A public representative made a complaint to the Office on behalf of a woman concerning the Department's refusal to approve payment of a New House Grant.

The Department had refused the application because the woman was not in a position to prove hardship, a condition of the scheme which must be met by persons who had previously owned a house. In view of the cost of purchasing the house the complainant had borrowed a considerable amount of money from her parents and she claimed that financial hardship would be caused as a result of the Department's refusal to pay the grant. She also indicated that she was in receipt of a Lone Parents Allowance, which was means tested, and was trying to repay her parents. The Department explained to the Office that its policy in relation to assessing hardship was based on the statutory requirement that it be in a position to ascertain whether hardship resulted for applicants in the event of a refusal to pay a grant. In doing so the Department did not take private borrowings into account only those from lending institutions.

While the Office accepted that the Department would need to assess evidence of hardship in the context of the relevant legislation it did not seem reasonable that in doing so it did not take into consideration private borrowings. The Office discussed the matter with the Department and asked it to re-consider its policy of refusing to accept evidence of hardship in relation to borrowings from any source other than lending institutions.

The Department agreed to change its policy and indicated that it would be prepared to consider private loans as evidence of hardship provided a binding legal agreement was entered into and the applicant could show that repayments were made on a regular basis. The complainant was able to meet these conditions and the Department approved payment of the grant.

Mayo County Council - Refusal of Essential Repairs Grant

A pensioner complained that he had been refused a grant under the Essential Repairs Grant Scheme by the Council on the basis that he had been paid a grant under this scheme 21 years earlier. The repairs involved the replacement of the roof of his house at an estimated cost of �7,500. In support of its decision, the Council quoted Article 5(3) of the Housing (Disabled Persons and Essential Repairs Grants) Regulations, 1993 which provided that :

"a grant shall not be paid under this article unless- (ii) a grant has not previously been paid in respect of the house under this article, article 23 of the Regulations of 1980, or section 23 of the Housing Act, 1966."

It was clear that the Council's interpretation was, strictly speaking, correct. However, the Office took the view that it was unreasonable for the Council to decline the payment of a grant to the pensioner on the basis that a grant under the scheme issued to him over 21 years previously. This was longer than the lifetime of an average mortgage. In addition, the Office took the view that the earlier "essential repairs" were not envisaged to exclude any further necessary repairs in the case where the applicant occupied the house for a further 20 years or more.

The Council was asked to review its handling of the case. Having consulted with the Department of the Environment and Local Government, the Council agreed to approve payment of the grant to the pensioner. Subsequently, the Department introduced the Housing (Disabled Persons and Essential Repairs Grants) Regulations, 2001. These regulations consolidated and revoked the earlier 1993 regulations and made legal provision for, among other issues, the payment of a second Essential Repairs Grant to an applicant in certain circumstances.

Office of the Revenue Commissioners - Dispute Over Tax Relief

A woman was employed in a temporary unestablished capacity in a Government Department. The terms of her contract specified that she had to participate in the Department's spouses and orphans superannuation scheme for unestablished staff even though she would not receive any benefit under the scheme and deductions would be refunded to her at the end of her term of employment.

Prior to her employment in the Department, she had been self employed for 12 years and had taken out a personal pension plan for which she received a tax-free allowance under Section 787 of the Taxes Consolidation Act, 1997. Under this section retirement annuity premia are allowable as deductions for tax relief purposes from the taxpayer's 'relevant earnings'. A taxpayer's 'relevant earnings' referred to remuneration from a non-pensionable office or employment. The woman's employment in the civil service was technically pensionable employment as defined in the tax legislation and, therefore, she could not now qualify for the relief previously available to her.

The Office took up her complaint and asked Revenue to review its decision given that:

• it appeared it had discretion to grant relief in this type of case by way of extra-statutory concession;
• the refusal to allow the relief appeared to be in conflict with stated Government policy on the issue where positive encouragement is given to individuals to participate in private pension schemes whereas the Revenue decision made such schemes less attractive to potential participants, and
• at a time when the public service was endeavouring to recruit more employees, the practice acted as a disincentive to individuals, who had subscribed to private pension schemes, from taking up such employment.

The Revenue reviewed the matter and agreed to allow the relief.

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