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"Disability and the Ombudsman" (10 November 2001) (10.11.2001)

Address by Kevin Murphy (Ombudsman) at Annual General Meeting of Forum of People with Disabilities

Introduction

May I begin by saying that I admire the objectives of your organistion and the focus you place on a rights based approach for people with disabilities. I hope that by speaking with you and answering any questions you may have, you will gain a fuller picture of my role in relation to people with disabilities, and how my Office can be instrumental in the enhancement and protection of such rights.

Some of you will be aware of the role of the Ombudsman generally but, for those of you who are not, I will explain the background briefly.

The Office of the Ombudsman is 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 the 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 no Ombudsman recommendation, made following an investigation under the 1980 Act, has ever been rejected by the public body concerned. Another consideration is that the investigation process can also be flexible and informal rather than legalistic and adversarial.

Which Public Bodies?

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

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

There is a proposal before Government at present to 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. In addition, the Eastern Regional Health Authority is presently examining mechanisms whereby the entire range of its service providers, including those dealing with people with intellectual disabilities, can be brought within my jurisdiction.

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 and citizenship);
• 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 4000 complaints each year of which about 3000 fall within jurisdiction. Roughly 50% of the valid complaints involve civil service bodies, about 25% relate to local authorities and about 17% 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. Complaints from farmers about various agriculture schemes and grants are next highest. In the case of the local authorities, housing complaints are the biggest single category. In the case of the health boards, somewhat surprisingly perhaps, the biggest complaint issue is entitlement to Supplementary Welfare Allowance which is not a health service in the strict sense.

The typical complainant has been refused a payment or a grant or believes he has been paid less than his entitlement. However, not all complaints have to do with payments; issues to do with customer service (e.g. delays, failure to explain decisions, patient care in the hospital system ) 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. My staff are available to the public on a monthly basis at Citizen Information Centres in Cork, Limerick, Galway as well as in Coolock, Dublin. In addition a series of visits to other provincial centres is arranged on an annual basis. My staff also pay visits to the homes of complainants where appropriate.

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, including getting public bodies to set up their own complaints systems. In my 1994 Annual Report I set out certain Principles of Good Administration which I believe should guide public bodies in their dealings with the public. Of particular interest to you will be those principles which assert 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;
• public bodies must ensure that an appropriate balance is achieved where a body must decide between the needs of the common good and the rights of a particular individual.

In the 1994 Report, also, I 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, the right to be given reasons for decisions that affect one and the right to assistance and representation. You will see shades of your own advocacy policy in these rights.

In 1996 I developed these themes 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". Of particular interest to people with disabilities would be those standards which provide that dealing " properly " with people includes being sensitive to any disability they may have; dealing " fairly " with them includes the acceptance that whilst rules and regulations are important in ensuring fairness, they should not be applied so rigidly or inflexibly as to create inequity: dealing " impartially " with them includes being careful that one's prejudices are not factors in a decision. Copies of this Guide, and of The Ombudsman's Guide to Internal Complaints Systems which I published in 1998, are available on request as well being available on my Office website.

The Office and Particular Groups

I mentioned earlier that I admired the focus which your organisation place on a rights based approach for people with disabilities. Whilst the Ombudsman institution relies on both law and broader concepts of justice and equity in the fulfillment of its mission, because the treatment of persons by the administrative branch of government is under scrutiny, human rights issues may be implicated in a complaint. The language of the human rights arena is not, generally, been invoked by complainants, but human rights principles have certainly helped shape my response to complaints. Very many of the issues which my Office has dealt with, and commented upon, over the years are human rights issues, though this parlance has not generally been used. The rights of travellers, of people in long-stay residential care, of children with special educational needs, the equal right of women to social security payments, issues of unfair discrimination - these are amongst the human rights issues with which the Office has dealt. More generally, to the extent that the Ombudsman is there to ensure fairness and equity by the public service in its dealings with the public, this is fundamentally an exercise in the promotion of human rights and in part a domestic human rights defensive mechanism.

How then can my Office be of particular relevance to people with disabilities? Let me say here that I never differentiate between those complainants who have a disability and those who have not. In this context I think it is important to emphasise that I do not make representations on behalf of individuals. In the process of effecting a fair and independent examination of an issue presented to me as a complaint, I seek to ensure that public service activities and, in particular, the exercise of decision-making powers, whether discretionary or otherwise, are carried out not only in a proper legal manner but in a manner consistent with fairness and good administrative practice, irrespective of any characteristics of the complainant. Notwithstanding this stance people with disabilities can benefit in a more generalised manner from the work of my Office.

Since the Office was established, over fifty thousand complaints have been handled and in approximately forty per cent of cases some form of redress has been achieved. Examination of individual complaints often leads to the identification of systemic defects in procedures, approach or even attitudes and at this level valuable feedback can be given to the bodies within remit. Procedures and systems can then be improved in order to ensure that particular complaints do no recur. In addition, without usurping the role of the Oireachtas I can, and do, draw attention in my reports to anomalies, inadequacies or inequalities in the law or the application of same. It is in these areas that I am able, to some degree, to level the playing field for disadvantaged groups in our society. Examples include changes in the school transport scheme for disabled children; revenue relief for carers in respect of cars adapted for use by passengers with disabilities; and administrative procedures for dealing with applications from parents of children with special needs for Domiciliary Care Allowance ( DCA ), which resulted from my examination of individual complaints. Let me outline some details;

The refusal by Revenue Commissioners to grant tax relief on vehicles adapted for the transport of passengers with disabilities

This investigation examined how three carers, responsible for the transport of close family members suffering from a qualifying disability, were refused tax reliefs available under relevant legislation. The Revenue Commissioners refused the relief because, in their view, the Regulations required that the applicant had to reside with the passenger with disabilities and the three applicants in question did not meet this fundamental prerequisite for eligibility under the scheme.

In the course of my investigation it emerged that

• residency was not a fundamental requirement of the scheme. In fact, the Revenue Commissioners had discretion to waive the residency requirement in exceptional circumstances and had already done so in another case;
• the residency requirement was deemed by Revenue to have been met in another case where the passenger and applicant were not resident in the same household;
• the residency requirement was also deemed to have been met in other cases where the passenger with disabilities was being cared for in a residential nursing home;
• the scheme actually allows passengers with disabilities to qualify for tax relief without having to meet a residency requirement if they purchase the vehicle themselves. In the cases which were the subject of the investigation each of the disabled passengers could have purchased the vehicles themselves and qualified for the relief without any material change in their circumstances.

The investigation also brought to light serious issues relating to the general administration of the scheme and the treatment of the applicants by the Revenue Commissioners. These included the making of explicit threats as to the possibility of legal proceedings, vehicle seizure and the imposition of penalties for false declarations where a right of appeal had yet to exercised. In this connection, the Ombudsman found that Revenue's actions fell far short of any acceptable standard of dealing properly, fairly and impartially with its clients. Furthermore, by insisting that the residency requirement was a fundamental requirement for eligibility under the scheme and by failing to make the applicants aware of the type of circumstances where the residency requirement could be waived, the Revenue Commissioners failed to provide full and accurate information to enable the applicants to pursue their entitlements.

I recommended that each of the three complainants should be regarded by Revenue as eligible for the tax reliefs available and applied for under the Regulations. I also recommended that Revenue effect a review of other cases where applicants were refused the reliefs available under the Regulations on grounds which were similar to those applicable in the cases investigated.

In addition, I recommended that documentation relating to the scheme should be reviewed with a view to giving more information to potential applicants, in particular, with regard to the waiver of the residency requirement, an outline of acceptable exceptional circumstances where a waiver has been granted in the past and of the appeal procedures available. I also asked that that this information be included in the Revenue Commissioners' Section 16 Freedom of Information Manual ( the publication of such a Manual, detailing information regarding rules and practices in relation to certain decisions, is a legal requirement under the Freedom of Information Act 1997 ).

Finally, I recommended that administrative procedures and documentation used in the processing of applications and informing applicants of the result of their applications be urgently reviewed and amended where necessary to reflect good administrative practice.

The failure of the Department of Education and Science to provide an adequate system of school transport for a child with disabilities

The complaint concerned transport arrangement for a child with disabilities which were unsatisfactory. The child in question had spina bifida , used a wheelchair and had a learning disability. His mother contended that the offer of service from 2.3 miles from her home was unfair in that other children were provided with service from their homes. She believed that her child should be offered the same service. In the course of my investigation I found that;

The transport grant system was inadequate to avoid hardship in the case of particular children who require transport to school because the grants bore no relationship to actual travel costs by road and there was no provision to allow the particular circumstances of individual cases to be considered on their merits.

In particular, the school transport scheme for children with special needs made no provision for special consideration of children who live in isolated areas and may result in improper discrimination against them.

The school transport scheme, as it applied to children with special needs, could not be considered to meet the requirements of fair and sound administration. It was both undocumented and unpublished and therefore could lead to an inconsistent approach to individual cases.

As a result of my investigation I recommend that:

• Compensation be paid to the child's mother for the hardship caused as a result of the inadequate transport service offered to her son;
• The Department of Education and Science devise and publish a school transport scheme for children with special needs;
• Cases involving exceptional circumstances not catered for in the general scheme be dealt with on their merits and not by reference to arbitrary restrictions;

The published school transport scheme for children with special needs should include:

• a provision that children with special needs would not, as far as possible, be disadvantaged by their distance from schools or by their isolation from other such children;
• provision for a right of appeal to an official or authority other than the initial decision-maker;
• guidelines used by the DES in making provision for exceptional cases;
• a provision that the level of transport grants payable be related to the actual costs of travel by road.

The Secretary General of the Department of Education and Science accepted my recommendations, subject to the sanction of the Department of Finance, where this was required. The Secretary General of the Department of Finance also accepted my recommendations.

Domiciliary Care Allowance ( DCA )

Many of you are aware of the requirements for the grant of this allowance. DCA may be paid to parents of children with a disability from birth to age 16 years. The qualifying criteria lay down that payments may be made in respect of children who, by reason of being mentally or physically handicapped, require, over an indefinite prolonged period, special care or attention from another person, substantially in excess of that normally required by a child of the same age or sex.

Over the years many complaints have been received by my Office from parents who were unaware of the existence of the allowance, most only became aware through a third party. While their applications were approved, as the qualifying criteria were met, arrears were refused on the basis that payment could only be made from the date of application. Complainants argued that, despite contact with the Health Board from the birth of the child, no indication was ever given that such an allowance existed. They had, as a consequence, lost the opportunity to apply for the allowance from an earlier date at which the child might have been eligible, which could well be from the birth of the child.

The general public do not have the same level of familiarity with schemes and services as do the staff of the health boards, and I considered that health boards should, therefore, ensure that there are appropriate information systems in place to advise parents of their possible entitlements. My Office developed principles by reference to which we would deal with such complaints, viz: Health Boards have a duty, where they are professionally involved in the management of handicapped children, to impart information about specific allowances for the handicapped, in good time, to the parents of such children. The health boards accepted my conclusions and agreed, that applications for retrospective payment of DCA should be examined in the context of the prior professional involvement of the Board, and not disallowed simply because an application was not made at the appropriate time.

One of the critical elements of my Office is independence. I act as the arbiter between the citizen and the public service within my jurisdiction. As such I have to have the confidence of the citizen and the respect of the public service. I acknowledge the importance of the work which your organisation is pursuing, and I hope that my presentation today has helped to bolster your own appreciation of this independence and confidence and exponentially that of the people with disabilities whom you represent.

Thank you
Kevin Murphy
Ombudsman

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