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Forging the Link, 28/04/2007 (28.04.2007)

Address by Emily O'Reilly, Ombudsman at the National Council of the Society of St. Vincent de Paul, National Iniversity of Ireland, Maynooth, Co. Kildare

Good Morning everybody.

May I say particular thanks to Brian O'Reilly, your National President, for inviting me to speak at this National Council Meeting. It was only last May that I addressed your From the Ground Up project in Galway which was organised by the Society's National Social Justice Policy Committee. Brian tells me that my presentation was well received and I hope this one goes as well today. Some of you may have been at that presentation in Galway so you may be aware of my role already, so I apologise if some of what I have to say today may seem a bit repetitive to some of you.

Back in March 2005 my Office took the initiative of writing to the Society to advise of my role and functions as I was anxious to increase the awareness of the Office among those individuals who have difficulties at the sharp end of public service delivery. I recognised that the Society, in its day to day work, is in touch with people who are likely to be poor and disadvantaged and in need of help or advice in their dealings with public bodies which have an impact on their daily lives. Following on from that letter we established contact with Brendan Hennessy in the Society's Social Justice and Policy area. Staff from my Office have met with Brendan personally and have been in contact with him on a number of occasions to discuss ways in which both our organisations could work together to ensure that the Ombudsman service could be made available to the vulnerable and disadvantaged in our society.

The core function of my Office is to protect individuals who avail of public services from unfair, unsound and unjust actions on the part of those who are entrusted to deliver those same services. I seek to ensure that those individuals are treated with dignity, respect and sensitivity, and that complaints from individuals or their families are handled in a proper, fair and understanding manner.

The Office of the Ombudsman was established under the Ombudsman Act, 1980. I have had two predecessors, Mr. Michael Mills who served as Ombudsman from 1984 up to 1994 and Mr. Kevin Murphy from 1994 to 2003.

As Ombudsman, I am independent of Government and my main role is to supervise public administration. I deal with specific complaints from the public about administrative injustice and maladministration. I have the power to investigate, report upon and make recommendations about individual cases and administrative procedures. I seek solutions to problems by a process of investigation and conciliation as opposed to the adversarial nature under which the courts operate. My authority and influence derive from the fact that I am appointed by the President and report to the Oireachtas. In dealing with complaints I seek to gather all information relevant to the complaint, which may involve face to face interviews with officials from the body complained about. If necessary, I also obtain the appropriate files from the body concerned for examination. If, during the course of a preliminary examination of a complaint, I consider the complaint to be justified, I may request the body to review the decision. If warranted, I may initiate a Formal Investigation, following which I may make appropriate recommendations for redress.

My Office does not have the power to nullify the disputed actions or decision, nor does it have the power to impose a legally binding solution to a complaint. These might seem to be significant obstacles to the effective operation of my Office, but, in fact, they are strengths. If a body refuses to implement my recommendations, I have the power under the Ombudsman Act to make a special report to the Oireachtas. To date only one case has arisen where recommendations made by the Ombudsman were rejected by the Revenue Commissioners. This followed on from an investigation by my predecessor concerning Redress for Taxpayers. He submitted his Special Report, pointing out to the Oireachtas, that, as Ombudsman, he did not make binding decisions and that the Revenue Commissioners were free in law to reject the Ombudsman's recommendations. However, he asserted that the only recourse open to the Ombudsman, when it was considered by the Ombudsman that a public body's response to a recommendation is unsatisfactory, is to make a Special Report to each House of the Oireachtas under the Ombudsman Act. Following his submission of the Report the intervention of the Joint Oireachtas Committee on Finance and the Public Service resulted in the full implementation of his recommendations.

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

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

With regard to the HSE the enactment of the Health Act 2004, is an important landmark in the development of the Office of the Ombudsman. This legislation makes provision for the establishment of a statutory complaints procedure in the health service, not only for those services actually delivered by the HSE but also for those agencies providing services on behalf of the executive. Examples of those agencies would be The Brothers of Charity, St. John of God's, St. Michael's House. The net outcome of this development is that with effect from 1 January this year those bodies and additionally all the major so-called Public Voluntary Hospitals in the country, will come within my jurisdiction, together with institutions nation-wide, providing services on behalf of the HSE to the intellectually disabled.

The Disability Act, 2005, which came into effect on 8 July 2005, imposes significant obligations on Government Departments and on public bodies to work proactively towards the improvement of the quality of life of people with disabilities. The Act also gave my Office new powers to investigate complaints about compliance by public bodies and others concerning accessibility of buildings and the provision of information and services to people with disabilities. My staff are at present liaising with the relevant bodies who are in the process of preparing sectoral plans as required under the provisions of the Act.

There are, however, some specific exclusions from my jurisdiction, the principal ones at present being: actions taken in the administration in 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 and An Gárda Síochána; actions taken in connection with clinical judgement by doctors in the care and treatment of a patient; the "reserved functions of Local Authorities", for example those functions exercised by elected representatives, and issues which have already been adjudicated upon by a court or where court action has been initiated by the complainant.

As Ombudsman, I often highlight shortcomings in service provision and, despite what many may think, I am conscious of the effect these remarks can have on staff morale. No one is immune from criticism, not me personally, not my Office and it takes a certain kind of courage but also a commitment to the overall public good to take those complaints and embrace them as an opportunity to improve the work that they do.

It is inevitable that my Office will be at odds with public bodies when things go wrong, but I am obliged to highlight what I perceive to be certain shortcomings. That, after all, is my job spec. There is nobody at this Conference, including myself, who can say that nothing has ever gone wrong in their workplace. Everyone makes mistakes. The crucial issue is how we react when we make such errors and how we deal with things when they go wrong.

Many complainants who cross my path do so because they want to ensure that service providers learn from their mistakes and that other people do not go through what they did. How often do we hear people saying that. Before I became Ombudsman I thought it amounted to little more than a platitude, a cliché, yet time and time again I am struck by how often people express it and how sincerely they want it to happen.

Financial compensation may or may not be involved. It is my experience that the vast majority of people who complain are seeking an acknowledgement that things did, in fact, go wrong, that they had been unfairly treated, and an assurance that practices will change as a result of their complaint. They need to have the itch of frustration that they feel scratched, they need the more powerful body that did them harm or wrong to own up and say that yes it was wrong and that furthermore they are sorry. Only then can people relax and get on with their lives, satisfied that an injustice has been put right, no matter how small.

My annual reports detail the myriad of ways in which my Office has impacted on the lives or ordinary individuals who have had cause to complain about our public services; families seeking answers from hospitals about the care of their loved ones (particularly where death has occurred), older people seeking affordable care to which they have an entitlement, parents seeking allowances for their seriously disabled children, homeless individuals seeking accommodation, pensioners seeking their pension entitlements, single mothers seeking welfare assistance or accommodation needs, individuals applying for medical cards or health related personal social services, Exceptional Needs Payments, Rent Supplements, Jobseekers benefits and Allowances, Illness Benefits.

I have no doubt that these are the types of problems that you meet on a day to day basis in your work in the Society. In fact, there have been situations where volunteers in the Society have made representations to my Office on behalf of clients, or acted as an advocate for them. In some cases I have also come across complainants who, at the time they made their complaint to my Office, they were actually in sheltered accommodation provided by your organisation.

In the first case a young mother, who was moderately mentally handicapped and living with her young daughter, was refused an Exceptional Needs Payment by the Community Welfare Officer. She had obtained a payment towards the cost of a washing machine in 2002, but was seemingly advised by her Social Worker to purchase same in a local shop which sells reconditioned models. This reconditioned model broke down beyond repair a short time after the twelve month guarantee was up. The woman sought a payment for another machine but this was refused on the grounds that she had recently received one.

The woman was living in a local authority house but had spent 8 years in care in a residential project. She had to bring her washing over to the project where it was done for her as there was no launderette in the area. The manager of the project helped her with the cost of a replacement machine and purchased one for her on the understanding that the cost would be reimbursed by way of the supplementary welfare system. However, the Community Welfare Officer continued to refuse the payment. My staff made contact with the Community Welfare Officer and the relevant Appeals Officer. They outlined the critical nature of the refusal and the effect it was having on the young mother. Following these discussions the case was reviewed and payment was issued.

In the second case a mother of 10 children, 6 of them schoolgoing, applied for a Back to School Clothing and Footwear Allowance. Her application was rejected as her income exceeded the guidelines laid down in the scheme. This is not a discretionary payment and there are specific income limits applying in the scheme. The woman appealed but her appeal was also turned down by the Health Board's Appeals Officer. A representative from a local family care centre subsequently wrote to the Board outlining the obvious exceptional circumstances of the case, to no avail. Following receipt of the complaint my staff obtained the relevant files. It was noted that the local Superintendent Community Welfare Officer had been asked by the Appeals Officer to consider an Exceptional Needs Payment as an alternative in view of the fact that there were 6 schoolgoing children in the family. This is a discretionary payment based on the individual circumstances of the individual case. However, despite the further correspondence from the woman and her representative this did not seem to have been addressed by anyone. My officials immediately pursued the matter and a payment, equivalent to the amount which would have been payable under the Back to School scheme, was paid to the woman.

In another case an old age pensioner had applied to her local Council for a full waiver of her service charges. In accordance with its interpretation of the terms of the scheme, the Council granted a 50% waiver of the charge on the grounds that her income was derived from pensions. A full waiver would be granted by the Council in these type of circumstances if an applicant were in receipt of a Living Alone Allowance. As the complainant in this case was not in receipt of a Living Alone Allowance she was refused the full waiver. Following discussion between my officials and the Council, it reviewed the case. It accepted that the intention of their scheme was that an applicant, in circumstances such as the complainant's, should benefit from the scheme. The Council accordingly granted her a full waiver. In addition, the Council reviewed the cases of thirty other similar applicants and agreed to grant them a full waiver.

In another case a pensioner complained that he had been refused a grant under the Essential Repairs Grant Scheme by his local 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. In support of its decision, the Council relied on the provisions of the Housing (Disabled Persons and Essential Repairs Grants) Regulations, 1993 which provided that a grant was not payable if a similar one had been paid at some time in the past. It was clear that the Council's interpretation was, strictly speaking, correct. However, my 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.

In addition, my 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.

In my final example a woman complained about the refusal of her application for Deserted Wife's Benefit in 1995. She said that she supplied all the necessary documentation in support of her desertion by her husband which included evidence of her application to the Circuit Court for a Judicial Separation. However, having examined her application, the Department wrote to her requesting further details from her about her desertion. The Society of St. Vincent De Paul wrote to the Department in 1996 enclosing evidence that the complainant's husband had given an undertaking to the Circuit Court that he would stay away from the family home until the Judicial Separation application had been heard. The Society also asked for an up to date position with regard to her application. On receipt of this information the Department commenced payment of Lone Parent Allowance to the complainant. However, no details were furnished to the Society about the status of the Deserted Wife's Benefit application.

The complainant subsequently learned in November 2003 that, because her son would be 18 years of age that month, and was not in full-time education, he would no longer be regarded as a child dependent. Consequently payment of her Lone Parent Allowance (at this time it was called One Parent Family Payment) was to cease.

In the course of my examination of the case I obtained the Department's files. Having examined the files I put it to the Department that it appeared to me the complainant, through the Society of St. Vincent De Paul, had provided sufficient evidence at the appropriate time to support her claim of desertion by her husband. In this regard she had provided evidence of her application for a Judicial Separation, an undertaking by her husband to stay away from the family home and a copy of the Judicial Separation itself which was subsequently furnished by her to the Department. I also formed the view that simply awarding her the Lone Parent Allowance, rather than dealing with the specific enquiry concerning the status of her Deserted Wife's Benefit application, was unfair.

The Department agreed to review its decision and payment of Deserted Wife's Benefit was put in place in November 2004. Crucially this payment will continue until she reaches pension age regardless of whether she has a dependent child or not, provided of course, she continues to satisfy the other relevant conditions. Appropriate arrears amounting to €4,269.44 were also paid to her as her claim was backdated to 1995. You can see from this case how the Society's input into the case was crucial to the resolution.

I would now like to return to your advocacy role that I mentioned earlier, and address, in particular, how the Society and my Office might complement each other in seeking resolution to such problems on an individual and a systemic basis.

My 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.

Most of you will be aware of the new National Programme " Towards 2016" which sets out an ambitious agenda for modernisation and change in all of our public services, including the health sector. It is crucial for improved health service performance that there is an active willingness on the part of all staff to participate in the examination of current service delivery arrangements. Co-operation with such changes go without saying if improved operational performance is to be achieved.

The establishment of the Health Service Executive has brought about concrete opportunities for a more integrated and cohesive approach to the way our health services are delivered. Earlier this year, I had an opportunity to meet with Professor Drumm and the new senior management team in the HSE. At that meeting, I presented a review of cases which I had compiled relating to the public health and social services sector since I took up office. I suggested that my role could be viewed as that of a critical friend. My vision is that we can achieve a health system that is fair and one which supports and empowers the individual to achieve full health potential.

"Towards 2016" allows us to critically evaluate how services are currently provided, and calls for the creation of an organisational climate that is receptive to change, and open to learning based on past experiences. Change is never easy – it means that we have to examine the manner in which we do business and be prepared to make appropriate alterations so that we can become more effective. It is much easier to bury our heads in the sand and resist new ideas but this is not in our best interests and certainly not good for the people we serve.

The Taoiseach in a recent address on the topic of the future of the public sector stated that society had become "more open, more culturally diverse and more outward looking". He said that we are "redefining our values – what we want for our children, our elders and our communities". In this context, the Taoiseach went on to point out that public service organisations are not passively observing these changes but are actively involved in responding to the additional complexities of modern Irish society and the impact this changing environment has on the delivery of front line services.

At the From the Ground Up Conference last May I referred to the fact that my Office, for a period of over ten years, has been in attendance for one day per month at Citizens Information Centres (CICs) in Cork, Limerick Galway and North Dublin. This attendance has afforded members of the public from these areas the opportunity to meet with my staff and explain the details of their complaints in person. At that time we had also just introduced, on a pilot basis, a new service in association with the CICs in certain locations throughout the Country. This is called the Ombudsman Link Service, which allowed members of the public easier access to the services of my Office. This involved staff from my Office visiting those CICs to provide training to the staff and volunteers of the Centres, which has enabled them to quickly identify matters that their clients raise which could be referred as complaints to my Office, ably assisted by the staff from the Centres. This Service has now been rolled out to all the CICs since the beginning of this Month and has since also been introduced in association with the Immigrant Council.

The Ombudsman Link Service will build on this existing monthly attendance by enabling people to call into Citizens Information Centres at any time to make a complaint to the Ombudsman. In addition, because of training provided to the staff and volunteers of the Centres, they will now be able to quickly identify matters that their clients raise which could be referred as complaints to the Ombudsman, and if their client so requests, the staff and volunteers of the centres will be able to assist them in making their complaint.

 In recent monthly surveys which I undertook to obtain feedback from complainants on the service provided by my Office, I ascertained that the old, the sick, the disabled and the disadvantaged required particular attention in facilitating them to complain when something went wrong for them. With this in mind I mentioned in my presentation at the From the Ground Up project that I would be very open to engaging in discussion with the Society as to the possibility and practicality of exploring the development of a similar Link service between my Office and the Society. I am, however, hopeful that, after today, we can discuss this concept in more practical terms perhaps in terms of a pilot project as with the CICs. Specific training for volunteers and staff would of course be provided by my Office on what would be required in order to help individuals formulate their complaint for eventual submission to my Office. This training could either be arranged at designated locations throughout the country to suit the Society, or in my Office in Leeson Street, Dublin. I would see this as a very practical and concrete expression of the commitment of my Office in conjunction with the Society to reach out to those individuals who are poor and marginalised; those same individuals that you deal with on a daily basis.

Thank you for your attention. If any of you have any questions on any aspects of the work of my Office, we will do out best to answer them.

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