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Chapter 8 - Learning from Complaints - Reviewing Policies, Procedures and Legislation

Chapter Eight

Learning from Complaints - Reviewing Policies, Procedures and Legislation

The lessons learned from individual complaints can lead to improvements in administrative procedures or the policies of public bodies. On occasion they can lead to improved legislation as a result of difficulties highlighted by the Office of the Ombudsman. This can result in benefits for other citizens in the future. The following three cases bear the point out.

Drogheda Corporation - Parking Ticket Dispute

A woman complained that she was issued with a parking ticket because she parked in a "disc only" area and did not have a parking disc on display. She said she was a stranger to the area, did not know where to purchase the discs, was heavily pregnant and was on her way to visit the doctor in Drogheda. She said there were no signs up indicating where the discs could be purchased. She said she called to Drogheda Corporation's offices during lunch time to purchase a disc but the offices were closed. She said she appealed the imposition of a fine but that her appeal was unsuccessful.

The Corporation did not dispute the facts as outlined by the complainant. It indicated that its offices were closed every day for an hour at lunch time and that there were no signs on display indicating where parking discs could be obtained. The Corporation stated that discs could be purchased at certain outlets in the town.

The Office discussed the complaint with the Corporation and suggested that the circumstances were such that its decision not to withdraw the fine should be reconsidered. The point was made that that the onus was on the Corporation to provide the necessary information to enable the general public, particularly those unfamiliar with the area, to buy the parking discs.

The Corporation agreed to refund the cost of the fine to the complainant and stated that it would be putting up signs indicating where the parking discs could be purchased.

Department of Social and Family Affairs - Disputes Over Back to Work Allowances

During 1998 and 1999 the Office received a number of complaints against the Department in relation to its Back to Work Allowance Scheme (BTWA). The scheme, which was introduced in 1993 to deal with the then chronic levels of long term unemployment, was designed to provide a financial cushion to the long term unemployed to help them return to work. Persons admitted to the scheme could retain a percentage of their social welfare payments and could also retain secondary benefits for a three year period after taking up employment.

The Department viewed the scheme as an incentive to individuals who, otherwise, would not be motivated for financial reasons to take up a job. The vast majority of the complaints to this Office related to late applications which, in the complainants' views, were wrongly rejected. The Department had taken a strict line on the acceptance of late applications for the BTWA. Its approach was that where applications were not received in advance of the individual commencing work, it would generally refuse BTWA on the grounds that there were doubts about whether it was proper to award the BTWA incentive to applicants who had already decided to take up employment. Since the commencement of the scheme the Department had dealt with approximately 40,000 applications for the allowance of which 2,000 (5%) had been late applications. The Department was receiving about 400 applications per week at the time.

However, after a period, the Department had, on its own initiative, decided to extend the closing date for receipt of applications to four weeks after the date of commencement of employment. Many applications were being received by the Department during that period and the applicant's employer was often either slow in returning the completed application form to the Department or in completing part of it for the applicant to return. The Department subsequently applied this "four week" rule in a very strict manner.

In one complaint which the Office dealt with a man was refused BTWA because he had applied some eight weeks after commencing low paid employment. He had been unemployed for over fifteen years and, therefore, was one of the people the scheme was specifically targeted at. From examining the case the Office became aware that the applicant had literacy problems which would have affected his capacity to inform himself about the scheme. Following the intervention of the Office the Department agreed to grant the applicant BTWA from the date of the commencement of his employment.

In view of the number of individual complaints received and following a complaint from a public representative about the way the scheme was being administered, the Office examined the general operation of the scheme.

Applications were vetted centrally in the BTWA Section. In reality, however, any application which did not meet the "four week" rule was almost invariably rejected on appeal, regardless of the circumstances. The Department explained that it had already decided to delegate decisions on applications to Social Welfare Local Offices which would be responsible for vetting applications. Appeals on local decisions would continue to be handled centrally. The Office expressed the view that in relation to the acceptance of late applications, the decision-maker should have regard to the individual merits of each case. Thus, where an applicant could show a valid reason for the late application (such as a delay by the employer in completing particular parts of the application form or where the employer's administrative headquarters was based abroad) then the Deciding Officer should consider that reason and not have regard solely to the "four week" rule. The Office's view was that the rules governing the scheme should not be applied so rigidly or inflexibly as to create inequity in a particular case.

The Office also pointed out that an internal review system for examining adverse decisions, by someone not involved in the original decision, is a prerequisite to good administrative practice. It was noted that the Department had decided that, henceforth, initial decisions on applications would be made locally and responsibility for deciding on appeals would rest with the BTWA Section. The Office suggested that applicants for the BTWA should be informed of the existence of an appeals mechanism at the time they were refused the allowance. In addition, good administrative practice would dictate that such information should also be included on the actual application form.

In dealing with appeals the Office advised that every effort should be made by the Department to ensure that all information relevant to the appeal would be considered, particularly as appellants would not have an opportunity to furnish oral evidence in support of their appeal to the BTWA Section. The Office also suggested that the appellant should be afforded every opportunity to furnish any additional information that would support his/her appeal (for example, a letter from the employer confirming delay) before adjudicating on the appeal.

The Department agreed to take on board the Office's observations in drawing up the guidelines and in dealing with future appeals, and this resulted in a considerable reduction in the number of complaints of this type received by the Office.

Kilkenny County Council - Problems Caused by Planning Permission Notice

A woman complained to the Office about the Council in connection with the location, by ESAT Digifone Ltd., of a planning application Site Notice for the erection of a 30 metre high triangular mast with additional antennae and cabin at a Garda Station.

The Council had granted permission, with conditions, for the proposed development and as it received no objections to the proposal within the statutory timeframe, the grant of planning permission was a valid one. The Office's statutory remit does not allow it to question planning decisions made by planning authorities. However, it can examine the administrative procedures surrounding the processing of a planning application by a planning authority. In the course of examining the complaint the Office received a copy of the Site Notice, the site location map and photographs of the Site Notice as it appeared in the window of the Garda Station. The erection of a planning application Site Notice was governed at the time by Article 16 of the Local Government (Planning and Development) Regulations, 1994. This Article provided as follows:

"(1) A site notice erected or fixed on any land or structure... (a) shall be ... printed ... on a durable material and (b).. securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from a public road or on any other part of the land or structure adjoining a public road, so as to be easily visible and legible by persons using the public road" (our emphasis).

The Office was not satisfied that the Site Notice was legible and easily visible by persons using the public road. The notice was behind frosted, reinforced wire glass. It was also positioned in the uppermost corner of a window at a height of approximately 8 feet. The Office took the view that the erection of the particular Site Notice fell short of complying with the Planning Regulations. The Office could not, however, influence the outcome of the planning permission which had already been granted.

Having received other somewhat similar complaints and being aware that at the time the Department of the Environment and Local Government was undertaking a comprehensive review of planning legislation the Office decided to write to the Department about the inadequacy of the particular section of the legislation.

Subsequently, the Planning and Development Act, 2000 was passed and regulations were made under the Act (Planning and Development Regulations 2001) which consolidated all planning and development legislation as well as introducing a range of amendments. The particular defect which this case highlighted was addressed by means of new regulations which required that a Site Notice be placed in a conspicuous position or near the main entrance to the land or structure and, where there is more that one entrance, on or near all such entrances.

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