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Information Manual (S16)

Staff Manual on Handling Complaints - Stage Two : Preliminary Examination

Notification of Complaints/Requests for Reports

Notifications of complaints and requests for a report are generally made in writing to the body. However, in less complex cases, and where a level of expertise has developed within the section, it may not be necessary to write to the body seeking a report in a particular case as the requisite information may be established by telephone enquiries or by the body, on request, forwarding its papers for direct examination. In this context, regard should be had to the liaison arrangements agreed with the particular body.

Format of Request for Report

Where letters of notification and requests for reports are issued they are generally addressed to the designated Liaison Officer in the particular body. The objective is to have the letter of notification and request for a report issued within one working week of receipt of the complaint, or receipt of additional material from the complainant, whichever is appropriate. The letter takes the form of a summary of the complaint. It should clearly indicate that the details are as supplied by the complainant. All points raised by the complainant should be referred to in the letter. If, however, aspects of the complaint are not included in the letter to the body, the complainant should be so advised and given the reasons for this. The body is requested to furnish a detailed report setting out its position on the matter in order to enable the Ombudsman to carry out a preliminary examination of the complaint. Generally, the letter passes no comment on the merits of the complaint. But if the issue raised by the complainant is one which has already been the subject of a number of complaints against that body, it may be appropriate to draw this to the attention of the body from the outset.

In cases where we are not familiar with the background legislation, or where a scheme is referred to by the complainant and copies of the scheme are not to hand, the body is also requested to furnish details or copies of the legislation/scheme as appropriate.

Requests for files

If, in the course of the examination of a complaint, it becomes necessary to examine a body's files in relation to a complaint, the file will normally be requested through the Liaison Officer

Action While Awaiting Reports

Bodies are required to respond to a request for a report within three weeks. The report should cover all the points raised in the complaint. If not, a further report should be requested. If a body fails to respond, written reminders or telephone reminders are made as judged appropriate. The main factor which influences the decision as to which course is followed is the 'track record' of the body concerned. Where a response is not provided following a reminder (or reminders), it may be necessary to formally invoke the provision at Section 7(1)(a) of the Ombudsman Act and summon the relevant official to attend at the Ombudsman's Office. Such a summons should not be issued by a staff member below the rank of Investigator.

Interview Procedure

In the course of a preliminary examination, it may be necessary to interview the complainant or officials of the body e.g. to discuss questions of interpretation or to elicit information. In all cases, the Ombudsman's procedures are explained (if the individual) is not already familiar with them), the purpose of the visit is stated and the individual(s) are told that the visit is part of the preliminary examination. It should also be clarified that the proceedings may also form part of an investigation, should it become necessary to conduct one.

(a) Interviewing the Complainant

Where it is decided to interview a complainant the interview is conducted in an informal manner. While an accurate record will be required, the note taking should not intrude on the complainant. Staff should be careful to ensure that they take the necessary time and apply appropriate skill to acquire the confidence and trust of the complainant particularly where the complaint may concern the disclosure of private family/personal details.

At the end of the interview, a check should be carried out with the interviewee to ensure that the account contained in the notes is accurate.

(b) Interviewing Officials

Generally, our Liaison Officer in the particular body will be involved in making the arrangements for Ombudsman staff to interview staff of that body; but in the case of some bodies, this Office will make the arrangements directly with the relevant staff of the body. Interviews with officials are arranged in advance and by agreement with the officials concerned. In general, interviews with officials will concern one or more of the following:

(a) seeking additional information relevant to the action or decision
(b) teasing out the views/opinions of officials concerning the points made by the complainant
(c) discussing the administrative practice involved in the decision and whether it complies with good practice and/or the law
(d) where the evidence suggests that the case may not have been dealt with fairly, suggesting that the body might consider a review of the case.

Case Analysis

At the end of the information-gathering process, the investigating officer should be in a position to consider whether:

(a) the case should be concluded, or

(b) the case should be pursued at a higher level with the body involved,

(c) legal advice should be obtained, or

(d) an investigation should be carried out.

In relatively simple cases, it is not always necessary or appropriate to write up a detailed report e.g., where all that is required is the relaying of information or giving advice on the best course to take with the body in order to resolve the problem.

In other cases, the extent of the analysis depends on the complexity of the issues involved and the frequency with which the matter is the subject of complaint to the Ombudsman. In the case of regularly recurring topics, it may not always be necessary to analyse in detail the relevant legal provisions. These may be taken as already understood. However, where the complaint concerns complex or non-routine issues, the analysis section of the preliminary report should be comprehensive. In addition to the relevant legal provisions, the analysis may include reference to court judgements or other similar cases already examined together with an assessment of how these relate to the case in hand.

Concluding the Preliminary Examination

As a general rule, case workers will not close a complaint as "Not Upheld" without submitting the case to a more senior colleague for a second opinion.

The preliminary examination process will usually be concluded with a report recommending one of the following:

(i) the case may be closed on the grounds that
(a) the complaint cannot be upheld or
(b) the body has resolved, or offered to resolve, the problem.
(ii) the case should be investigated

In all cases the recommendation will be approved by the Investigator or Senior Investigator, as appropriate. In more significant cases, and particularly in cases where an investigation is being recommended, the approval of the Director and/or Ombudsman will be necessary.

Letters to Complainants

The following are the circumstances in which, generally speaking, it will be necessary to write to the complainant:

(i) by way of acknowledgement when a written complaint is received in the Office.

(ii) when screening, if it becomes clear that:
(a) more information is required of the complainant
(b) the person has not made sufficient effort to resolve the matter directly with the body or availed of an appeal process which is available to him/her
(c) the matter cannot be pursued with the body because the Ombudsman does not have jurisdiction in the matter. The complainant should be advised of the reason why the complaint cannot be pursued and, if appropriate, a copy of the relevant section of the Ombudsman Act may be enclosed with the letter.
(iii) where the complaint is on-going for some time, and unlikely to be resolved in the near future, the complainant should be advised accordingly and kept up to date on progress by way of regular interim letters .
(iv) where the complaint has been examined and a conclusion reached, the letter will advise the complainant that
(a) the matter has been resolved with the body (generally, such letters are relatively short but may include an explanation as to why the body has changed its position and the factors that were taken into account in deciding to revise the decision), or,
(b) the Ombudsman, having examined the case, is unable to recommend that the body should change its position. Such a letter will normally include the views of the body concerning the complaint, the relevance of any legal provision and its effect on the case and, in general terms, the reasons why the Ombudsman cannot uphold the complaint or pursue it further with the body.

Letters referred to at (ii)(b), (ii)(c), and (iv) above are known as final letters but, of course, do not preclude the complainant from asking the Ombudsman to look at the case again if he/she is unhappy with his decision.

Letters to Public Representatives

Where a complaint is made by a public representative on behalf of a named individual that person is advised, in writing, that the complaint has been received. Any further letters regarding the progress or the outcome of the examination are sent to the complainant along the lines as set out earlier and are normally copied to the public representative with a short covering letter.

Letters to Professional Advisers

Some complaints are made to the Ombudsman by professional advisers such as solicitors and accountants. Such professionals are regarded as acting on behalf of their client (the complainant). In this situation the Office may enter into correspondence with the adviser and/or with the complainant.

By keeping the complainant informed of developments in the case, and by providing them with copies of any letters received by the Office from their professional adviser, we can guard against complainants having to incur unnecessary expense by having to communicate through a professional adviser.

Closing a Complaint

Once a final letter has issued to the complainant, the complaint file may be closed. The main details form on the CES is endorsed with:

(a) the result

(b) date file closed

(c) any other relevant details are entered e.g.
- Annual Report
- Any Significant Point
- Legal Advice
- Procedural Change
- Comments

Re-opening Cases

Sometimes a complaint which has been closed will be re-opened e.g., where the complainant has provided some new evidence or argument. Where the issue remains substantially the same as in the original complaint, the practice is to open a new file and attach the original file to the new file. Where the original file has only very recently been closed, it may be possible to re-open the original file and record all new work in that file. (Please check with IT Unit before re-opening a closed file on the CES).

General Issues Arising From Cases

Where a general issue arises from an individual complaint, or a number of individual complaints, normally the individual complaint is pursued initially, and when brought to a conclusion, the general issue is then raised with the body. In these instances a general file is opened and the relevant general issue pursued with the body under cover of the general file. This work will be tracked in the Office Files database. Further correspondence and documents relating to the general issue are attached to the general file.

Complaints in Irish

The Ombudsman recognises the right of any individual to conduct business with the Office in Irish. In cases where the complaint is made in Irish, whether in writing or otherwise, all communication from this Office should be in Irish. Each Section of the Office is required to have procedures in place to provide services in both English and Irish.

Staff should ensure that complaints made in Irish should be registered as such in the CES. The "Mode" field on the main details form of the CES should be completed with the option "Irish". This enables the Office keep track of the volume of cases in which Irish is the preferred language of the complainant.

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