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"The Challenges - who is excluded" (17.10.2003)

Address by Ms Emily O'Reilly (Ombudsman and Information Commissioner) at Comhairle National Conference

Introduction

There are three main topics which I would like to address in my presentation, drawing principally on my experiences as Ombudsman. The extent to which people might feel excluded or deterred from using the Freedom of Information Act following recent Government initiatives has already been well covered at other conferences at which I have spoken in my capacity as Information Commissioner.

I know that the majority of you here today work in one capacity or another with the Citizen Information Centre (CIC) network. And I am struck by the fact that up to 400,000 citizens' queries on civil and social rights and entitlements are processed annually by the CICs with the support of Comhairle. Given my statutory remit, I greatly value and appreciate the important work that you do on behalf of all members of the public. I also want to publicly acknowledge the strong support which my Office has received over the years from Comhairle and the CICs in making the services of my Office more accessible to people generally.

Given the theme of the conference, " Information - Gateway to Inclusion" I thought I might begin by saying a few words about the work of my Office. I will comment on some of the issues and areas which are not within my remit and which might be seen as excluding some sectors of the community from the alternative method of dispute resolution which is provided by the Ombudsman.

I then want to return to a topic which I covered in an address to the Insitute of European Affairs last July ie the Ombudsman's role in protecting social and economic rights. I will recount the experiences of various sectors of our society - older people, people with disabilities, asylum seekers and EU non nationals who have complained to my Office that they were wrongly denied access to state benefits and services. Finally, I will conclude with some thoughts on social policy in Ireland and the potential influence of the EU Charter of Fundamental Rights.

The Work of the Ombudsman's Office

What is an Ombudsman?

The International Handbook of the Ombudsman (1983) has this definition :

"The ombudsman is an independent and non-partisan officer...often provided for in the Constitution, who supervises the administration. He/she deals with specific complaints from the public against administrative injustice and maladministration. He/she has the power to investigate, report upon, and make recommendations about individual cases and administrative procedures. ..He/she seeks solutions to problems by a process of investigation and conciliation. His/her authority and influence derive from the fact that he/she is appointed by and reports to one of the principal organs of state, usually either the parliament or the chief executive."

My Office was established under the Ombudsman Act, 1980 and opened in January 1984. The Office is based on a model which is recognised across the world and, in very many respects, what my Office does is replicated in the work of other national Ombudsman Offices across Europe, in Australia, New Zealand and in Canada.

What I deal with are allegations of maladministration on the part of a public body which, it is claimed, lead to adverse effects for the complainant. Where this is found to have been the case, I will recommend suitable redress. The Oireachtas has given my Office quite substantial powers which include the power:

• to require any person (including the public bodies in question) to provide my Office with any information, document or thing which may be of relevance;
• to require any person (including officials of the public body concerned) who may have information of relevance to attend before me.

My Office does not have the power to nullify the impugned action or decision. Neither does it have the power to impose a legally binding solution. These might seem to be significant obstacles to an effective Ombudsman operation but, in fact, they are strengths. For one thing the Office has an excellent track record in having its recommendations, following investigations under the 1980 Act, implemented by public bodies. Another consideration is that the present arrangements enable a great deal of case work to be conducted on a relatively informal basis which is usually to the advantage both of the body and of the complainant.

Which Bodies?

The following are the public bodies subject to investigation by my Office:

• Government Departments and Offices (e.g. Department of Social & Family Affairs, Department of Education & Science)
• Local Authorities (all county councils, corporations, urban district councils and town commissioners)
• Health Boards and An Post

The Government intends to introduce a Bill in 2004 to amend the Ombudsman Act. This Bill, when enacted, will considerably expand the range of public bodies subject to the Ombudsman's jurisdiction. Amongst the bodies likely to be added are FÁS, the public voluntary hospitals, third level educational institutions and many other publicly funded organisations. So, for the time being at least, my jurisdiction in relation to the public service remains incomplete.

There are some specific exclusions from the Ombudsman's jurisdiction, the principal ones at present being:

• actions taken in the administration of the law relating to aliens or naturalisation (e.g. decisions in relation to asylum seekers, work visas, citizenship and rights of residence of non-E.U. nationals ). In a European or international context, it is quite unusual to find a national ombudsman whose jurisdiction does not cover these areas.;
• actions taken in the administration of prisons;
• issues which have already been adjudicated upon by a court or where court action has been initiated;
• issues in relation to which there is a specific statutory right of appeal to an independent tribunal or appeal body (e.g. An Bord Pleanála on planning issues).

Which Issues?

My Office receives about 3,500 complaints each year of which about 2,500 fall within jurisdiction. Roughly 43% of the valid complaints involve civil service bodies, about 35% relate to local authorities and about 22% involve the health boards. Social welfare complaints (e.g. relating to pension entitlements, unemployment and sickness payments) account for almost half of all the civil service complaints. In the case of the local authorities, housing complaints are the biggest single category. In the case of the health boards, the biggest complaint issue is entitlement to Supplementary Welfare Allowance.

The typical complainant has been refused a payment or a grant or believes he/she has been paid less than his/her entitlement. However, not all complaints have to do with payments; issues to do with customer service (e.g. delays, failure to explain decisions) and with alleged failure to fulfil a statutory function (e.g. planning enforcement) also feature regularly.

Dealing with Complaints

Procedures for taking and dealing with complaints are designed to be as user-friendly as possible. Complaints may be made in writing, by telephone or by calling to my Office in Dublin. In addition, my staff are available to the public through a regular programme of visits to regional centres and also on a monthly basis at Citizen Information Centres in Cork, Limerick, Galway as well as in Coolock, Dublin. And at this point let me say again how much I appreciate the very strong partnership that exists between Comhairle, the CIC network and my Office which has greatly facilitated access to our services at local level.

Details of a complaint will always be put to the public body concerned. Depending on the response, my staff may examine the body's files on the issue and will often also discuss the case with the relevant officials. Having heard from the body, and considered the matter, my Office will then generally discuss the case further with the complainant. To some extent, this procedure functions as a form of mediation and it can often result in a settlement acceptable all round. Only in a small percentage of cases does it become necessary to resort to a written investigation report with formal findings and recommendations. Such formal reports are necessary where the adverse effect to the complainant appears, on the face of it, to be significant and where the body is unwilling to take action to mitigate the claimed adverse effect. Formal reports are also resorted to where the issues raised are of general significance and where principles or interpretations of wider application may be developed.

Promoting Good Practice

An Ombudsman serves the public not just by dealing with individual complaints but also by promoting good practice within the public service. The Ombudsman's Annual Report has always served to highlight practices or laws which are unfair in their consequences. In more recent years my Office has taken the initiative to highlight and actively promote good administrative practice. The 1994 Annual Report set out certain Principles of Good Administration which should guide public bodies in their dealings with the public. These principles assert, for example, that:

• powers must only be used for the specific purpose for which they are given;
• powers must be applied with objectivity and impartiality - factors not relevant to the particular case must be disregarded;
• unfair discrimination must be avoided - like cases must be treated in like manner.

These principles were first developed in the 1980s by a Committee of Ministers of the Council of Europe and given the theme of this conference it is not at all difficult to see how relevant they still are today.

The 1994 Report also set out a list of rights which people should be able to invoke in their dealings with public bodies. These include: the right to be heard, the right to receive sufficient information, and the right to be given reasons for decisions that affect one. These themes were developed further in "The Ombudsman's Guide to Standards of Best Practice for Public Servants". This Guide sets out a set of standards under the separate headings of dealing with people "properly", "fairly" and "impartially". The guide, which was updated and reissued in March of this year, is set out under four headings - dealing with people properly, fairly, openly and impartially. The revised guide takes account of more recent developments such as freedom of information, ethics and electoral legislation, the principles of quality customer service and the provision of redress. The Office has also published a Guide to Internal Complaints Systems and a guidance note on the provision of redress entitled "Redress - Getting it wrong and putting it right". The role of promoting best practice is one which I am very keen to further develop during my tenure as Ombudsman.

Relating to the Courts

Only the courts can administer justice, in the full sense of that term. Like the courts, the Ombudsman is concerned with the administration of justice in the broadest sense. The Ombudsman's remit is narrower than that of the courts - confined to complaints made against the public service - and my mode of operation is different to that of the courts - usually inquisitorial rather than adversarial. Many of the issues raised with my Office could, in principle, be taken before the courts. In practical terms, before my Office opened in 1984, such cases were not to any great extent being taken to court. This may be a reflection of cost considerations, access, the need for professional advice and, indeed, the procedural complexities associated with using the courts. To this extent, my Office represents an alternative to, while at the same time complementing, the work of the courts. Availing of the services of the Ombudsman does not preclude a subsequent court action. But where the complainant sees that his or her case has got full consideration from the Ombudsman, and particularly if there has been redress provided, this must reduce the demands made on the courts.

My Office differs from the courts in a number of important respects. Perhaps the main differences are:

• the Ombudsman's method is usually inquisitorial rather than adversarial.
• the Ombudsman's service is relatively informal and does not give rise to any costs for the complainant.
• the Ombudsman is often able to invoke a wider set of decision-making criteria, and may often have more flexibility and discretion, than is the case with the courts.
• the Ombudsman's recommendations are usually published in an annual report whereas many cases going to court are settled in confidence on the steps of the court.
• the Ombudsman's recommendations are not legally binding but they have a strong moral and persuasive status; in addition to redress for the complainant, they often focus on procedural changes within public bodies.

Sir Brian Elwood, the recently retired Chief Ombudsman in New Zealand commented on the role of the Ombudsman and the role of the Courts in the following terms:

"A matter of administration I define as a matter associated with the process of government which itself is not a matter of law or a matter of law making. My approach is to see the office of the Ombudsman and the courts as complementary processes for ensuring that administrative decisions accord with the law, are fair, reasonable and not improperly discriminatory. This complementarity should not be seen as the creation of opposites but rather as a contrast between different methods of oversight, one determinative, the other recommendatory, one based significantly on precedent and the application of the law and the other on achieving an outcome reasonably acceptable to those affected."

The Ombudsman's Role in protecting Social and Economic Rights

Ireland's hosting of the Special Olympics has fuelled a debate about the rights of people with special needs. The Government's proposed Disabilities Bill has also generated public comment about the extent to which rights of this nature should be provided for in legislation and thus enforceable through the Courts. This, in turn, has led to wider discussion on the entire subject of social and economic rights and the question of whether it is appropriate to have enforcement of these rights determined by the Courts or whether the allocation of these rights should be a matter for resolution by the democratic political process.

In a recent paper, Rory O'Donnell, Director of the National Economic and Social Council succinctly described the polarity which has surrounded this debate. He characterises the government approach as one which is dominated by the idea that rights equals litigation; it focuses on avoiding justiciability and avoids anything which promises services that are, at present, hard to deliver because of (a) scarcity of resources and (b) organisational limits in the health and other services. He sees the pro rights approach as one which views the political system as not to be trusted and where only the courts can secure better services for disabled people with real unmet needs.

O'Donnell's central argument is that the focus on justiciability / non-justiciability is not helpful partly because it maximises disagreement and minimises consensus. He also sees compromise on justiciability as possibly leading to the worst of all worlds. It would mean losing the symbolic and solidaristic benefits which derive from defining rights in law but equally, as he sees it, existing appeal systems and remedies contain many of the disadvantages of a judicial system. I quote as follows:

"The rulings of court-like appeals systems, like those of the courts, can be arbitrary, expensive and selective. They are after-the-fact rather than forward looking. They often involve confidential settlement, which has limited value in either clarifying the law or generating useful information. Hence, while they resolve disputes, they do little to regulate behaviour.....In summary, a system which relied heavily on court-like mechanisms for appeals and remedies, might not deliver or achieve the kind of continuous improvement through standards, monitoring and stakeholder negotiation being achieved in the best systems of public administration and governance."

It seems to me that this analysis echoes many of the points which I have made above about the respective roles of the courts and the Ombudsman. And by default, if only by virtue of its informality and capacity to secure systemic change it firmly puts the spotlight on the Ombudsman as an institution which, arguably, can play an effective role in addressing matters relating to social and economic rights. However, some interests groups have argued that an Ombudsman is not an effective mechanism in the area of social and economic rights because he or she makes recommendations only and not binding decisions. Others have called for the creation of a Disabilities Ombudsman with enforcement powers which, of course, is at odds with the basic role and functions of an Ombudsman, and primarily the impartiality of that office.

The Ombudsman, in making recommendations, relies on persuasion, criticism, publicity and moral authority to have them accepted and this, I believe, is one of the great strengths - and not in any way a weakness - of the Office. It allows the Ombudsman to operate pragmatically and flexibly and to avoid the legalistic and adversarial approach of the courts and, unfortunately, of many administrative tribunals. I have no doubt that, if my Office had been given the power to make binding decisions, it would have found itself, especially in the early days, faced with many legal challenges. Instead we are able to recommend remedies which would not have been given by a court and to hold bodies administratively liable even where there is no legal duty of care or statutory liability. Another aspect, often overlooked - which I have already referred to - is that the majority of legal claims taken to court are settled out of court without any admission of fault or explanation. There is no assurance to the complainant that any action has been taken to prevent recurrence of the adverse action although this is often a matter of great concern to complainants. Many of the Ombudsman's recommendations are aimed at improving procedures and systems.

I accept the reality that rights to housing, healthcare and education are subject to resource constraints. And, of course, if I am not satisfied with the response of a public body to a recommendation, I may make a special report to each House of the Oireachtas. Thus, the matter comes for resolution before the democratic political process and not the courts.

The process was seen to good effect when my predecessor submitted his special report "Redress for Taxpayers" to both Houses following the rejection by the Revenue Commissioners of a number of his recommendations in an investigation report. The matter was considered by the Joint Committee on Finance and the Public Service which convinced the Minister for Finance that equity required the implementation of all the recommendations despite the not inconsiderable cost claimed by Revenue.

There were two very positive outcomes to the process, It demonstrated parliamentary support for the Ombudsman and the effectiveness of parliamentary scrutiny of administrative actions.

I fully appreciate the arguments on both sides of the debate about the "rights-based" approach to social policy, and there are no easy answers. Indeed, the NESC Report, "An Investment in Quality: Services, Inclusion and Enterprise" makes the point that "complex social and economic problems require complex solutions, many of which can only be discovered in practice". However, there are alternatives to the courts and, as I have already stated, the Office of the Ombudsman has an outstanding record of success in securing redress for members of the public who have suffered wrong-doing by public bodies. It is my objective to build on that successful record during my term of office.

Equally, I can well understand the calls by certain interest groups for a "rights-based" approach to social policy which would be enforceable through the courts. At one level, it reflects a lack of confidence that the Government is capable of delivering on this agenda without an enforceability mechanism. And, of course, many of the complaints which my Office receives do highlight deficiencies in the existing procedures in public bodies. I can further understand the frustration of those with disabilities and those caring for people with disabilities at the apparent capriciousness of government in relation to providing them often with core services. They feel that when the economy undergoes a downturn, they are the first to feel the pain. If I can make a very human analogy, if the Department of Education and Science is forced to cut its budget, my children are not going to be told that they can't go to school tomorrow. Yet time and time again, we hear of equivalent services for disabled children and young adults, be it in training or primary education, being cut for financial reasons.

While I accept that the rationing of resources is necessary, it is important that this be administered on a fair and objective basis. For example, in a complaint which I am currently examining I have found that many local authorities do not have schemes of letting priorities which allocate points to housing applicants. Thus, it is difficult for applicants to have confidence that schemes are administrated fairly and equitably and on the basis of objective merit.

My Office's report on Nursing Home Subventions described how the Department of Health and Children, when faced with resources constraints, had imposed obligations on individuals in an illegal manner and without legal authority. And in a recent report commissioned by the Human Rights Commission into older people in long-stay care, it expressed its concern that there are not clear rules about access to health board long-stay places and that the admissions system lacks transparency. A separate review of the nursing home subvention scheme commissioned by the Department of Health and Children noted that the absence of consistency and standardisation in the application of the Nursing Homes (Subvention) Regulations had led to inequity in the operation of the scheme within and across health boards. The report noted differences across the regions in the manner in which dependency, social circumstances and means testing are used to assess older people for nursing home placement.

My Office has received complaints from people with disabilities who have been refused grants, on grounds of age, to modify their homes to cater for their needs, even though the relevant scheme contained no age restriction. We are successful in resolving these cases to the satisfaction of the complainants, but they surface time and time again when resource constraints lead public bodies to ration entitlements in a manner which is not in keeping with the regulations. And following my Office's investigation of a complaint from a parent who had to make a 36 mile journey daily to transport her child with special needs to and from school, the Department of Education and Science agreed to devise and publish a school transport scheme for children with disabilities. An investigation concerning tax reliefs for passengers with disabilities resulted in thousands of cases being reviewed by the Revenue Commissioners and payments of approximately ?900,000 being made to some 100 carers.

My Office works hard to address problems of this nature on a systemic basis. However, despite our best efforts, some of these problems can and do recur because of certain basic features of our system of public administration. These features which are described in the Office's Report on Nursing Home Subventions, are as follows:

"the difficulties that the Houses of the Oireachtas face in attempting to monitor the growing mountain of regulations and other secondary legislation by which policy is implemented;

the weakness in the links between two separate legislative processes, the process whereby the Houses of the Oireachtas create new entitlements or benefits for the public and the process by which Dáil Éireann allocates resources annually to facilitate the actual provision of these entitlements or benefits;

the difficulties faced by members of the Houses of the Oireachtas in feeding into the Administration, in a formal and transparent way, their concerns and those which are brought to their attention by their constituents, or indeed by the Ombudsman's Annual Report, in a way which ensures an effective response"

Social Policy in Ireland - New Challenges

In addition to the organisational and structural shortcomings outlined above, new challenges to the effective development of social policy have emerged.

The NESC Report, "An Investment in Quality: Services, Inclusion and Enterprise" contains an analysis of the influences and pressures on Ireland's competitiveness, quality of life and fairness of opportunity and outcomes. Among the pressures on fairness of opportunity are earned and other income sources, health service inequalities, housing access, costs and location, education and learning inequalities, quality of work life, transport access, commuting time, quality and costs, availability and price of services. childcare, care of older people and people with disabilities, the availability of recreational and cultural amenities and the benefits and difficulties of immigration. The Report goes on to state that

"......unfair opportunities and outcomes are damaging to social cohesion, competitiveness and the quality of life. The fairness of opportunities and outcomes should be one of the primary goals of public policy, the social partners and Irish society, and not a secondary objective."

Other challenges are evident from the United Nations World Development Report 2002 which shows that the level of income inequality in Ireland is second only to the United States among OECD countries. According to the Economic and Social Research Institute, the proportion of the population living on incomes below half the average grew by five percentage points to 22% between 1994 and 2002. And in a recent column in the Irish Times entitled "Ill-health linked to inequality", Maeve-Ann Wren referred to Professor Richard Wilkinson's study "Unhealthy Societies - the Afflictions of Inequality" in which he argues that income inequality in any society is directly related to low levels of life expectancy and high levels of social evils such as violence, road accidents, drug and alcohol abuse etc.

The Immigration Council's report "Labour Migration in Ireland" reveals that up to 200,000 foreign immigrants have come to Ireland since 1996 comprising 5% of the population. The report points out that this is an irreversible change and calls for radical legal, cultural and economic adaptation rather than a temporary and pragmatic response to labour market conditions. It goes on to say that immigration and its intercultural consequences will be with us for the foreseeable future necessitating that legislation and policy should be framed to regulate them more effectively and justly.

Not surprisingly, my Office now receives increasing numbers of complaints about immigration issues, but as I said earlier, most of these are not within my jurisdiction. This raises for us (as it does for all public bodies) the issue of service provision to an increasingly diverse clientele - and the implications of this for the range and format of the information which we ourselves provide. The complaints concern refusals of visas, right to remain, asylum status, work permits, etc., as well as delays/discourtesy, lack of information about procedures, etc. One relevant area of complaint is the practice of the Department of Justice, Equality and Law Reform of not giving reasons when refusing visas - people have to apply if they want to know the reason. Other issues are family reunification and holiday visas for family members who may wish to visit relatives living in Ireland.

An area which is firmly within my remit concerns non nationals who are legally resident in Ireland and who complain to me about access to schemes and programmes. For example, we have ongoing complaints from non EU nationals about improper discrimination, on grounds of nationality, in the administration of the Higher Education Grants scheme. Up to the 2003/2004 scheme, candidates who had permission to remain in the state by virtue of marriage to an Irish national and who were non EU nationals were denied Higher Education grants (other categories of non EU national were allowed grants - those with refugee status or those granted humanitarian leave to remain the State).

It seems to me that international human rights instruments will increasingly represent a significant influence in the State's approach to service provision. Other issues of relevance here are the establishment of the Human Rights Commission and the recent enactment of the European Convention of Human Rights Bill, 2001. We have already seen the enormous influence which the European Union has had on our development, not just economically, but in the area of social policy also. And as I speak, EU leaders are meeting to discuss the draft EU Constitutional Treaty which incorporates the EU Charter of Fundamental Rights. Although the E.U. Charter will apply only to European Law and not to domestic law it is further evidence of the evolution of a "European Model of Society" and the move towards greater harmonisation among member states of social security, healthcare and freedom of movement of workers. The EU Charter places citizens' rights at the centre of the EU Constitutional Framework. The European Ombudsman, whose role is given constitutional recognition in the draft Constitutional Treaty, can play a significant role in the non-judicial enforcement of the Charter vis-à-vis the Union's institutions.

I see the debate on social and economic rights as an evolving one which increasingly will be influenced by the effects of globalisation and the E.U. agenda. Our partnership with the other E.U. member states will inevitably lead to an increased importance for these policies. This, is turn, will pose fresh challenges for us all - policy makers, service providers, advice and information agencies and those of us involved in protecting people's rights.

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