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Information Manual (S16)

Staff Manual on Handling Complaints - Stage Three :Investigation

Introduction

An investigation is initiated when, having carried out a detailed examination, it appears to the Ombudsman that the body concerned has, as a result of some action or inaction on its part, adversely affected the complainant and has declined to rectify the problem or mitigate the adverse effect of its actions. However, an investigation may also be necessary where the complainant has received redress but, in the view of the Ombudsman, there is still an issue of maladministration (pursuant to Section 4 of the Act) involved. The Ombudsman may also initiate an investigation on his own initiative (without having a specific complainant) where it appears to him that circumstances so warrant - Section 4(3)(b).

Legal Provisions

The main provisions of the Ombudsman Act in relation to investigations are:

(a) an investigation shall be conducted "otherwise than in public" - Section 8(1).
(b) the body must be notified of the proposed investigation and be given an opportunity to comment - Section 8(2)).
(c) subject to the Ombudsman Act, the Ombudsman decides his own procedures for conducting an investigation - Section 8(3).
(d) the Ombudsman decides whether a person may be represented by "counsel, solicitor or otherwise" in an investigation - Section 8(4).
(e) the Ombudsman may require any person who has information or documents that are relevant to furnish that information or document or to attend before him for that purpose and the person must comply - Section 7(1)(a).
(f) a person to whom a request is made under Section 7(1)(a) shall have the same immunities and privileges as if he were a witness before the High Court - Section 7(2).
(g) a person shall not obstruct or hinder the Ombudsman in the performance of his functions - Section 7(3).
(h) where an investigation has been carried out and a report, recommendation or statement is prepared as a result, the Ombudsman shall not make a finding or criticism adverse to a person without first giving the person an opportunity to consider the finding or criticism and to make representation to him about it - Section 6(6). (In this context, a "person" includes a body or organisation as well as a natural person).

(i) the results of the investigation must be sent in writing to:
- the body about which the complaint was made -Section 6(2)(a)
- the parent Department of State, in the case of a body which has such a relationship with a Department of State (e.g., the Department of Health and Children in relation to a health board or the Department of Environment and Local Government in the case of a local authority) - Section 6(2)(b)
- any other person who is alleged to have taken or authorised the action, the subject of the complaint - Section 6(2)(c)
- any other body whom the Ombudsman considers appropriate - Section 6(2)(d).

(j) the person who made the complaint must be notified of the result of theinvestigation and the response (if any) of the body to the recommendation (if any) - Section 6(4).

(k) any publication by the Ombudsman as a result of an investigation shall be absolutely privileged -Section 6(8).
(l) The Ombudsman may recommend that:
- the matter complained of be further considered
- that specified measures be taken to remedy, mitigate or alter the adverse effect of the action
- the reasons for taking the action be given.
(m) if the Ombudsman is not satisfied with the response of the body to his recommendation, he may make a special report to the Oireachtas - Section 6(5) and (7).
(n) information obtained during an investigation shall not be disclosed for other purposes except (i) for the purpose of advancing the investigation or (ii) in relation to proceedings in connection with an offence under the Official Secrets Act - Section 9(1).

NOTE: In the event of a challenge to the Ombudsman's remit, or a request from a Minister of the Government under Section 5(3) of the Act to discontinue an investigation, the matter should be referred immediately to the relevant Senior Investigator. -

Preparation of the Case

The Director and the Ombudsman will be consulted about any proposed investigation. The file is submitted through the Senior Investigator who will ensure that:
(a) all relevant information and documentation has been assembled.
(b) a comprehensive report and analysis has been prepared by the investigator.

Consultation with the Complainant

When the Ombudsman decides to undertake an investigation of a complaint, the complainant will be so advised. The procedure involved, and the likely duration of the investigation, will be explained to the complainant. Any reservations the complainant might have with regard to the proposed course of action, together with any other considerations (e.g. complainant's state of health) will be noted and taken into consideration.

Notification to the Body

The notification to the body of the decision of the Ombudsman to carry out an investigation, under Section 4 of the Ombudsman Act, comprises three elements:

(i) a letter from the Director to the Head of the body - Secretary General, County Manager, Chief Executive Officer as appropriate;
(ii) a statement of complaint accompanies the letter to the Head - this is usually a short statement setting out the basis of the complaint, the apparent adverse effect on the complainant and the element of maladministration to which the complaint appears to relate;
(iii) copies of the letter and the statement of complaint are sent to our Liaison Officer in the body for his/her information.

Normally, the body is required to respond to the notification of investigation within 14 days. However, if the body requires more time, it may request an extension which will be considered by the Director or Senior Investigator. Otherwise, the Ombudsman sets his own deadlines for responses as they arise in the course of the investigation.

Response from the body

Where the body, upon receipt of the notification of the Ombudsman's decision to investigate, reviews its position and revises the action at issue, the Ombudsman may decide not to proceed with the investigation. However, if it is considered that the body still has a case to answer, or where an important point of practice or principle is involved, the Ombudsman may decide that the investigation should proceed.

Investigation Plan

When the Ombudsman decides to investigate, the investigating officer will prepare a plan for the investigation by
- identifying the key issues to be probed during the investigation
- identifying the key personnel involved in the decision-making process and likely to be required for interview
- drawing up a schedule which will include "complete by" dates for the various elements of the investigation process, including the preparation of a draft report.

"Complete by" dates will be agreed with the Senior Investigator and progress will be monitored by the Senior.

Liaison with Body re. Investigation Plan

Arrangements for interviews with relevant staff will normally be made by the body's Liaison Officer who will be responsible for ensuring that staff of his organisation are aware of the role of the Ombudsman, the nature of the particular investigation and the provisions of the Ombudsman Act in relation to investigations.

Information gathered during the Preliminary Examination

Information gathered from the body during the preliminary examination may be used for the purposes of the investigation. However, where information has not been obtained in writing, the body may be given a statement of the information in question and asked to confirm that it represents a true record of the evidence.

Conduct of Interviews

Interviews are normally conducted by two investigating staff (generally an Investigator and Senior Investigator). Before commencing an investigation interview, staff should ensure that the interviewees are clear as to :
- the background to the complaint and why an investigation is being conducted
- the procedures involved in an investigation (viz. notification to Head of the body - interviews - draft report - replies to draft report - final report and recommendation - powers of the Ombudsman if recommendation not accepted)
- the format of the interview, including note-taking and likely duration.

In the normal course, we can expect that our Liaison Officer in the particular body will have already briefed his colleagues (interviewees) in relation to these issues. However, to facilitate the smooth conduct of investigation interviews, it will be useful to remind the Liaison Officer of the need to brief his/her colleagues in advance of the interviews being held.

Nevertheless, in fairness to the interviewee, investigating staff should, at the outset, enquire if procedures are clearly understood and if the interviewee has any questions at that stage in relation to procedures.

Interviewees should not be subjected to "crossfire" questioning; one person should conduct the interview while the other takes notes. If supplementary questions are necessary, they should, as far as possible, be dealt with at the end of the question session.

At the conclusion of the interview the investigating staff should invite the interviewee to comment, if he/she wishes, on any point that has arisen in the course of the interview or to make any additional statement. He/she should be advised how, procedurally, the investigation may develop.

Notes of the interview should be written up or dictated as soon as possible following the interview. The original notes of all interviews should be retained until the case has been concluded.

Issues arising in relation to interviews

Subject to the provisions of the Ombudsman Act, 1980 the Ombudsman has discretion to establish his own procedures. This includes the detailed procedures for carrying out and recording interviews. Occasionally the following types of issues may be raised by the interviewee:

(a) a request to be represented or accompanied at the interview
(b) a request to be given a copy of the Ombudsman's record of the investigation interview or a request to be allowed make his/her own record of the proceedings
(c) reimbursement of costs
(d) refusal to answer questions or persistence in answering that s/he "does not know" or "cannot remember".

(a) Representation

The Ombudsman determines whether a person may be represented in an investigation - Section 8(4). Whether represented or not, a named person must comply with the Ombudsman's request to answer questions - Section 7(1)(a).

When the Ombudsman agrees to legal representation, this does not include any agreement to pay the costs of the representation.

The representative may enquire about general matters of procedure, and may object if he/she considers that a particular question is unfair, irrelevant or inappropriate. If the investigating staff consider the objection is not sustainable they should proceed with the question or may alter or exclude it as appropriate. The representative may also take notes of the proceedings but, otherwise, must not intervene in the course of the interview. The responsibility to answer questions at the interview rests with the interviewee and not with the representative.

(b) Record of Interview

An interviewee may enquire if the record of the interview will be made available to him/her. It is not the policy of the Office to provide such a record but, as an alternative solution, the interviewee may have a note-taker present at the interview. In any case, it should be explained to the interviewee that the Ombudsman must afford a person the opportunity to make representations to him if the proposed report contains a finding or criticism adverse to the person concerned.

(c) Costs

The Ombudsman, if he thinks it appropriate, may pay expenses to a complainant or to an official involved in an investigation provided such expense relate to
(a) travelling and subsistence properly incurred and
(b) compensation for loss of time.

The Minister for Finance determines the amounts payable - Section 7(5). A request for expenses is only likely to arise where the person concerned has been asked by this Office to travel to a particular venue and his/her expenses are not payable by any other authority.

(d) Refusal to answer

Where the interviewee refuses to answer a question(s) or persistently answers "Don't Know" or "Can't Remember", the investigating officer will have to assess whether anything useful is to be gained by continuing with the interview. If satisfied that the person is being deliberately evasive and obstructive in the nature of the replies, the investigating officer should advise the interviewee of the provision of Section 7(3) of the Ombudsman Act. Unless it is the view of the investigating officer that continuing with the interview would be entirely futile, they should seek to obtain whatever information the interviewee is willing to impart and ask each question as planned, despite the circumstances.

Investigation Discontinued

A decision by the Ombudsman to discontinue an investigation may arise in the following circumstances:

(a) where early in the investigation new evidence emerges of which the body was not previously aware and, in the light of which, the body revises its decision.

(b) where new evidence is presented by the body, or other person, which clearly shows that the basis of the body's position is justified.

(c) where the body concedes the case on the basis of the draft report of the Ombudsman (i.e. without a recommendation). In this situation the Ombudsman, having considered any representations made to him arising from his draft report, may proceed to issue his final report without a recommendation.

(d) where the complainant requests that the investigation be discontinued.

Where for whatever reason the Ombudsman decides to discontinue an investigation he must, under Section 6(1) of the Ombudsman Act, inform the complainant, in writing, of his reasons for discontinuing the investigation. The body concerned and any other person the Ombudsman considers appropriate should also be advised that the investigation has been discontinued.

Report of the Ombudsman Structure of the Report (Draft)

When the interviews have been completed and the matters arising clarified, the investigating officer will prepare a draft investigation report. Generally, the report will comprise of the following elements:

(i) The Complaint

This is the statement of complaint as outlined to the body at the beginning of the investigation. Where necessary, relevant background detail of the complainant's circumstances, and dealings with the body complained of, may be included.

(ii) Preliminary Examination

It is necessary to give a brief overview of the course of the preliminary examination in order to explain the reasons underlying the decision to investigate the complaint.

(iii) Legal and Administrative Background

The legal and/or administrative background to the decision, scheme or administrative procedure, the subject of the complaint, should be outlined. Normally, this will involve an explanation of the legal basis and/or of the administrative rules on which the action is based. If the Ombudsman has obtained legal advice in relation to the case, this should be referred to at this point.

(iv) Investigation

This section will usually commence with the response from the body to the notification of the investigation. The key issues in the investigation should be identified and evidence/arguments put forward by each side (the complaint and the body) presented under a heading for each of the issues identified. At this stage the presentation of the evidence/arguments is entirely objective and will not include comments or conclusions concerning the merits of the case or the validity or otherwise of actions taken by any individual.

(v) Analysis

In this section of the report the evidence is evaluated and conclusions drawn in relation to it. It will not always be possible to draw definitive conclusions in relation to all matters probed in an investigation; there may be conflicting arguments on particular matters in which case the Ombudsman can do no more than report on them. Conclusions should be balanced, fair and objective.

(vi) Findings

The findings of the Ombudsman are based on the evidence and on the seven headings of maladministration set out in Section 4(2)(b) of the Ombudsman Act, 1980. The findings should be clear, concise and unambiguous.

Circulation of Draft Report

The draft report should be referred to the Director and the Ombudsman for their consideration. When a draft has been agreed, regard must be had to the provisions of Section 6(6) of the Act . This provides that " the Ombudsman shall not make a finding or criticism adverse to a person in a statement, recommendation or report under subsection (1), (3) or (5) of this section without having afforded to the person an opportunity to consider the finding or criticism and to make representations in relation to it" to him. A decision must be taken as to whether the entire draft of the report, or extracts from it, should be made available to any individual for his/her consideration at this stage. If more than one individual is criticised in the draft report, they should be given the relevant extracts (relating to themselves) rather than a full copy of the draft report.

When any comments and representations from individuals have been taken into account, the body itself will also be entitled to an opportunity to make representations to the Ombudsman where it is proposed to make a finding or criticism adverse to it. The precise arrangements in this regard will be established on a case by case basis but always bearing in mind the overriding requirement for fairness in the Ombudsman's own procedures.

The draft report being circulated will not include the Ombudsman's recommendation in the case. Care should be taken to ensure that the draft report, or extracts from it, is clearly stamped "Draft Only" where it is being circulated to relevant persons.

Completion of the Report

Where a right to make representations under Section 6(6) applies, the investigation report may not be completed until the body and/or individuals concerned have been afforded a right to make such representations. When this procedure has been complied with, the investigating officer should complete the report - taking account of whatever representations (if any) have been made. If any new arguments or facts arise at this stage, they must be given full consideration.

Where appropriate a paragraph should be inserted in the completed report to indicate that the requirements of Section 6 (6) have been met. An appropriate insertion might be made at the start, or at the end, of the "Investigation" section of the report. The final report to the head of the body will, at this stage, include the recommendation of the Ombudsman.

In accordance with the provisions of Section 6(2), written statements of the results of the investigation should also be issued as required to the persons mentioned therein.

Publication of the Report

Once the investigation has been completed, consideration should be given to the possibility of publishing the investigation report or, alternatively, a summary of the report. Where the report is to be published, whether in full or in summary form, care should be taken to ensure that the identity of the complainant is not revealed.

Revised April 1998

OFFICE OF THE OMBUDSMAN

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