Mr. Peter Tyndall:

I am grateful for the opportunity to address the committee and pleased that it has taken the initiative to investigate the development of the Ombudsman provisions in Ireland and how they might be enhanced. This is a valuable and timely initiative and I welcome the opportunity to contribute to it.

The Ombudsman is ultimately the top point of the complaints system. It is the point that a complainant reaches before going to the courts. The service that we provide is free and independent. It is not an advocacy service; it provides a balanced review of complaints. Where a complaint is judged to be justified and where there has been a failing by a public service provider, we seek to put the individual concerned back into the position he or she would have occupied if the injustice had not occurred, or achieve some other form of justice where the situation has gone beyond that kind of redress.

The defining point of the Ombudsman as a scheme for providing administrative justice is that the Ombudsman will not only seek to put things right for the individual, but also aggregate complaints, whether by looking at a series of complaints on the same topic or by finding systemic causes in individual complaints, in order to use the information drawn from complaints to improve public services. There is, therefore, a unique balance between putting things right for individuals and addressing any difficulties in public services that may lead to complaints. The Ombudsman's casebook, which I have discussed previously with the committee, issued for the first time this week. It is available on our website and it is the first of a quarterly series of reports. There has always been some focus on learning from the bigger cases and in the annual reports but otherwise they have been confined to the body and the person who made the complaint. The casebook makes the learning more widely available and we hope it will play an important contribution to improving public services in Ireland.

I have examined some of the issues arising in respect of the legislation in Ireland. The legislation was amended as recently as 2012 and in many respects it represents good international practice. As I do not wish to be too negative in this regard, I will focus on ways in which the legislation might be enhanced or extended. The committee has asked me to address the issue of recommendations. From my perspective, the democratic process is the correct way of dealing with Ombudsman recommendations in the public domain but the implied suggestion in the committee's questions about whether the current arrangements are sufficient deserves debate. For example, it was suggested that a certain level of majority might be needed in deciding whether recommendations should be implemented.

I have also examined other issues raised. Independence is important. It is also important that people can believe that their complaints will be adjudicated by an organisation that is independent of the body about which they are complaining. If they have not been able to get satisfaction, they need to be confident that the body to which they are complaining is not simply going to take the same line as the body to which the complaint pertains. It is also important that the bodies in respect of which complaints are made can believe that the office is independent and objective in its consideration.

My predecessors have spoken about the need to provide a constitutional status for the office. I believe that is important. The appointment of the Ombudsman by the President on the recommendation of the Oireachtas following a vote is a good way of securing independence but constitutional status would give the office a better standing than underpinning it by statute. However, real independence requires more than a legal status; it requires that the office has the resources needed to do its job. We all know what happened in the past when one of my predecessors, Mr. Michael Mills, was deemed by the Government to be too critical and an attempt was made to cripple the office by cutting its funding sharply. Although ultimately that was undone, given the importance of having sufficient resources to do the job properly, this should be a matter for the Oireachtas rather than the Government of the day because the decisions of the Government of the day are often within the jurisdiction of the office and while, as members will see from the casebook, as often as not we do not uphold cases, on occasions there will inevitably be tension. It is the Ombudsman's job to hold public service providers to account and this will generate tension on occasions. It is important, therefore, to separate the funding and accountability mechanisms. I have emphasised how much I value reporting to this committee. We saw the relevance of this in recent times, both with the annual report and the report, A Good Death, in respect of which the committee was able to take on board recommendations from the office and provide a route to the Oireachtas rather than just to the Government.

The committee will be aware of my concerns about the changing way in which public services are delivered and the fact that over time certain public services have gone out of the remit of the office. Interestingly, I need to update the committee on my written report because a voluntary agreement has been reached between the energy regulator and Irish Water which, curiously, went live on its website just before I arrived here. I am pleased to see that I continue to have some impact on pronouncements. As members will know, however, I do not believe a voluntary arrangement is the way to provide statutory access to redress. I do not doubt that Irish Water will face many complaints and I think it was wholly wrong to take water services out of the jurisdiction of my office at the point when complaints were going to be made about Irish Water and when there should have been access to independent redress. Other aspects of our public service, which we have discussed previously, are also out of redress. I mention two in particular, prisons and direct provision. These are areas which give rise to considerable public concern and many vulnerable individuals are caught up in those systems. Access to independent redress is required. These are oversights in our jurisdiction which I would like to be addressed.

I also have a personal concern about the fact that clinical judgments are not in my jurisdiction. People complaining about the health service believe they should not have to make two separate complaints about the same issues.

The professional bodies are not the correct ones to consider complaints about health services. They properly have a high threshold for dealing with complaints, as they consider whether someone is fit to practice. What I handle are complaints from people about the treatment they or their family members have received. They want joined-up answers. This should also be within the jurisdiction of the HSE, as it is not just the case that my office cannot provide independent redress. The HSE cannot consider complaints about clinical judgment either. This lacuna needs to be addressed. These are the issues concerning clinical judgment and jurisdiction and I have discussed the issues of accountability to the Oireachtas and funding.

I have a couple of issues with where services are privately provided. Democratic accountability in that respect does not work in the same way, as the providers are outside the direct control of the Oireachtas and Government. It would be better if bodies in receipt of substantial State funding, for example, nursing homes, came under the State's jurisdiction, which I hope will happen soon because the legislative provision exists to enable such, because I would then be able to make binding recommendations in those instances. It presents a difficulty that such bodies are not accountable to the Oireachtas like the HSE or a contracted service provider is. I would like to see a change in that respect.

I have encountered a difficulty that I have not seen in other jurisdictions, namely, the bodies in my jurisdiction must get permission to comply with my recommendations. The Ombudsman legislation should give them the explicit ability to comply without needing to ask for permission.

In the course of my work, I have been unable to gain access to the materials I need to see. The 2012 amendment Act provided a way forward in this regard, but it could be improved upon by making it absolutely clear that bodies are required to comply with my request for access to information. In no way would the information be put into the public domain. I am referring to situations in which, for example, a body states its legal advice asserts the body is right and I am wrong, but when I ask to see that advice, I am told that I cannot because it is covered by legal privilege. This type of situation is not conducive to the delivery of effective public services and redress.

I have discussed with the committee issues like having a standard approach to making complaints. At the heart of all this are the questions of how to ensure people using our public services have unhindered access to independent redress when something goes wrong and how to ensure our public services are improving and learning from their mistakes. The kind of changes I am seeking are designed to do this, namely, to give people an opportunity to have matters put right when they go wrong and to ensure our public services are learning from the mistakes identified following complaints.