Mr. Fintan Butler:

The main point in the jurisdictional challenge from the HSE was that the Ombudsman does not have jurisdiction to deal with the decisions of appeals officers. It argued that the decisions of appeals officers are not administrative actions and that administrative actions are what the Ombudsman is empowered to deal with. That jurisdictional issue was raised back in 1985 or 1986, particularly in the area of social welfare where, by definition, 95% of the complaints that came to the Ombudsman would have gone through the social welfare appeals process, which is a statutory appeals process. An argument was made at the time that the Ombudsman should not be dealing with decisions of appeals officers statutorily appointed and that the Ombudsman should confine his or her activities to looking at administration in the very small narrow sense of sending out letters, communications and so on but not substantive issues. That argument about jurisdiction was despatched fairly rapidly back in 1985 or 1986.

The consequences of accepting the HSE's argument now would be that virtually all social welfare cases would not be within the Ombudsman's jurisdiction and a great deal of the health service activity would be outside the Ombudsman's jurisdiction, as would the decisions of agricultural appeals officers. The issue is not only the appalling vista of those areas being taken outside the jurisdiction of the Ombudsman but also a legal one about what is an administrative action. We are very confident from advice we have got over the years that the actions of appeals officers are actions which are administrative actions. They are not legislative actions or judicial actions and there is only one other box into which they can fall, which is that of administrative actions. That question has been thoroughly deal with. As to why this issue is being raised now, we can all wonder about that but it is something that has long since been despatched.