Michael Noonan (Limerick City, Fine Gael) | Oireachtas source

I understand the intention of Deputy McGrath's amendment, which seeks to oblige the ombudsman to hold oral hearings in certain cases. Oral hearings are best left best to the discretion of the ombudsman, in my view. This is common practice in many public bodies. For examine, An Bord Pleanála has the discretion to hold a hearing in any case of an appeal, referral or an application for permission or approval of strategic infrastructural development. In the case of strategic infrastructural development, it will normally direct the holding of an oral hearing unless the application can be readily assessed by way of written submissions. In appeals and other cases, it will normally grant an oral hearing only where this will assist its understanding of a complex case or where significant national or local issues are involved.

The reason I referenced An Bord Pleanála is that many of us who have served on local authorities will be familiar with the oral hearing provisions where the board of Pleanála has discretion to grant an oral hearing. What I have put on record are the considerations they take into account.

To begin, I am advised that the Financial Services Ombudsman agrees that it is very important to hear complainants. For this reason the FSO introduced new procedures and entirely reoriented its processes so that complainants can discuss their case at length with a dispute resolution officer who is trained to use mediation techniques to deal with the case. The new dispute resolution process is considerably more consumer friendly than the earlier more formal adjudication systems.

Notwithstanding the above, the adjudication process is still available to the parties if the case is not resolved in dispute resolution. During the investigation process, the ombudsman may determine that an oral hearing is required based on the circumstances of the case. It is the experience of the FSO that providers are usually well represented at oral hearings and, therefore, it can be a difficult process for the complainant who must undergo cross-examination in an adversarial environment. As a result, these are exceptions rather than the rule. The courts have, on a number of occasions, endorsed the ombudsman's decision regarding whether to hold an oral hearing.

Additionally, it would seem contrary to fair procedures to allow the complainant only to dictate when an oral hearing was held. There is a risk that the proposed amendment would have to allow the provider to also demand an oral hearing. If this were the case, it is the FSO view that complainants would be put to a significant disadvantage and potentially discouraged from taking cases in the first place.

I am advised that there is relevant case law that ruled that “The calling of experts on each side is an undesirable feature of a proceeding which is designed by an Act of the Oireachtas to be informal and expeditious.” Another case found the following:

It cannot be the case that the FSO has an obligation to hold an Oral Hearing merely because there is a conflict of fact. The requirement to hold an Oral Hearing can only arise where the fact in issue cannot be resolved without such Hearing. It seems to me that the FSO has a significant discretion in considering this issue to decide whether in fact the holding of an Oral Hearing would be likely to be of any assistance.

One of the requirements behind the Financial Services Ombudsman legislation is to provide an out-of-court redress facility. This helps the consumer to have a low cost and informal forum to have a case heard.

Deputy McGrath's proposed amendment requires an oral hearingwhere a complainant has made a request to hold an oral hearing, and where there is a discrepancy in the account of events between the parties that is fundamental to arriving at a conclusion. I appreciate what he is trying to achieve but this may have a negative impact on the consumer as there are always discrepancies at an initial stage when a complaint is made. I am advised that this could inadvertently impose a requirement for oral hearings in all situations.

The premise of the Bill is to support informal redress procedures. I am sure that the Deputy will agree that the best way to achieve this is through mediation. As I referred to earlier, the statistics from the FSO's annual report shows that mediation is now the first and preferred option for resolving complaints and has contributed to successful outcomes in the office. My Bill, as published yesterday, strengthens the role of the ombudsman in promoting engagement in the mediation process. It continues to provide for mediation as a tool for the ombudsman in cases where he sees fit. This allows for the ombudsman to take a more proactive approach to encourage participation.

Additionally, the High Court and Supreme Court have noted on a number of occasions that the FSO must follow fair procedures, that oral hearings may form part of those fair procedures and that the FSO should determine whether an oral hearing is required, taking into account all the circumstances of the case.

The ombudsman does hold oral hearings where necessary and it is more suitable that the power is maintained in a discretionary manner. While I appreciate the Deputy's desire to achieve a solution in difficult cases, it is clear that mediation should be the primary route. For that reason I do not support this amendment. If this section proceeds to the next Stage, I wish to put the committee on notice that I may bring forward amendments covering the issues mentioned and other technical drafting changes.

The differences are narrow enough. I favour oral hearings but the power to have an oral hearing should be vested in the ombudsman and should be invoked at his discretion analogous to what the Planning Appeals Board does now. Oral hearings can serve a very useful purpose but I do not want to make it mandatory on the ombudsman to have oral hearings on every case for the reasons I have outlined. Also, in terms of where the amendment is silent, it seems to me that if the right to request an oral hearing is vested in the complainant, the company or person against which the complaint is made might be able to invoke analogous rights and also insist that they have the right to go for an oral hearing. That will then complicate what is intended to be an informal process. The Deputy might reflect on it, as I will do, between now and Report Stage and we will come back and talk about it again.