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Information Manual (S15)

THE OMBUDSMAN ACT, 1980

The Ombudsman Act, 1980 provides for the establishment of the Office of the Ombudsman and sets down the procedures and conditions governing the appointment of the Ombudsman. The Act also delineates the powers of the Ombudsman as regards the examination and investigation of complaints made to him. The Act also defines the Ombudsman's reporting relationship with the Dáil and Seanad.

SIGNIFICANT FEATURES OF THE OMBUDSMAN ACT, 1980

The most significant features of the Act are as follows:

Appointment Appointment is made by the President on the passing of a resolution by both Houses of the Oireachtas recommending the person concerned.

Removal from Office The Ombudsman holds Office for a period of six years. In addition, the following conditions apply:

He may be relieved of his office at his own request by the President.

- He may be removed from office by the
President but only for stated misbehaviour, incapacity or bankruptcy and then only on resolutions passed by both Houses of the Oireachtas.

- He must vacate the office on reaching the
age of 67 years.

Independence The Ombudsman is independent in the performance of his functions.

Investigation The Ombudsman can, either on his own initiative or where a complaint has been made to him, investigate an action where, following a preliminary examination of the matter, it appears to him:

- that the action has adversely affected a
person, and

- that the action was or may have been:

* taken without proper authority
* taken on irrelevant grounds
* the result of negligence or
carelessness
* based on erroneous or incomplete
information
* improperly discriminatory
* based on an undesirable
administrative practice, or
* otherwise contrary to fair or sound
administration

Preliminary Examination The purpose of the preliminary examination stage is twofold:

- to establish in a quick and informal way whether a formal (and obviously more detailed) investigation is warranted, and
- to enable complaints to be resolved with the minimum of formality particularly in the more straightforward cases.

Conduct of Investigations Investigations must be conducted in private. The procedure for conducting an investigation is such as the Ombudsman himself considers appropriate.

When conducting an investigation or a preliminary examination the Ombudsman may call for relevant papers and persons.

Findings and Reports The Ombudsman is empowered to make recommendations only, his findings are not binding.

When the Ombudsman carries out an investigation, he must inform the complainant of the result of the investigation. He must also indicate how the body complained against has responded to any recommendation he may have made.

Where it appears to the Ombudsman that the response to a recommendation which he has made is not satisfactory, he may make a special report on the matter to the Oireachtas.

Before the Ombudsman makes a finding or criticism adverse to any person or body in a report or recommendation, he must afford that person or body concerned an opportunity to consider the matter and make representations in relation to it to him.

The Ombudsman must make an annual report on the performance of his functions to the Houses of the Oireachtas.

Scope Originally the Ombudsman could only investigate the actions of central Government Departments and Offices and their officers. The Government subsequently made an Order bringing Local Authorities, Health Boards, and An Post within the Ombudsman's remit, with effect from 1st April 1985.

Excluded from the Ombudsman's
jurisdiction are cases:

- where the matter is, or has been, before the courts

- where the aggrieved person has a statutory right to appeal to the courts

- where there is a right of appeal to an independent appeal body (in this case, as with the two preceding cases, the Ombudsman has a discretion to accept a complaint "where special circumstances make it proper to do so")

- relating to recruitment or terms or conditions of employment

- concerning the administration of the law relating to aliens or naturalisation

- relating to pardon or to remission of Prison sentences or other Court penalties

- relating to the administration of prisons

- relating to actions of An Garda Síochána

- where the action relates to national security or is an action of the Defence Forces.

With regard to the Health Boards, the Government Order excludes from the remit:

a) persons when acting on behalf of health boards and (in the opinion of the Ombudsman) solely in the exercise of clinical judgement in connection with the diagnosis of illness or the care or treatment of a patient, whether formed by the person taking the action or by any other person, or

b) health boards when acting on the advice of persons acting as aforesaid, being actions of health boards that, in the opinion of the Ombudsman, were taken solely on such advice.

In the case of the local authorities, the Ombudsman may not deal with complaints which relate to the reserved functions of the elected members of the authorities. Those functions exercised by the staff of the local authorities are, however, subject to the Ombudsman's jurisdiction.

The Government has announced its intention to introduce legislation to amend the Ombudsman Act, 1980. The main intention of the proposed amending legislation is to extend the range of bodies which are subject to investigation by the Ombudsman. In particular, it is expected that all publicly funded hospitals, vocational education committees, and non-commercial state bodies (such as FÁS and Teagasc) will come within the jurisdiction of the Ombudsman following the proposed amendment of the Ombudsman Act.

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