Oireachtas Joint and Select Committees
Wednesday, 10 October 2012
Joint Oireachtas Committee on Public Service Oversight and Petitions
Office of the Ombudsman Annual Report 2011: Discussion with the Ombudsman
4:40 pm
Peadar Tóibín (Meath West, Sinn Fein)
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The committee will now sit in its capacity as the Oireachtas Joint Sub-Committee on the Ombudsman to consider the annual report of the Office of the Ombudsman. I invite Ms O'Reilly to make her presentation with regard to that.
Ms Emily O'Reilly:
I would like to make some comments on my annual report for 2011. In overall terms, 2011 was the busiest year for my office since its establishment in 1984 with 3,602 valid complaints received, which was a marginal decrease from the 2010 record high of 3,727. The total number of cases dealt with in 2011 was 4,420, which was an increase of 38% on 2010 and my office dealt with 11,541 inquiries, which was an increase of 23% on 2010.
In 2010, 61% of cases were received and dealt with in fewer than three months, which was up from the equivalent of 47% in 2010. Our increased productivity was achieved as a result of a major organisational review which was completed in early 2011 leading to a more efficient and effective operational model. I explained the detail of that change management process in my annual report. In terms of the breakdown of the valid complaints received in 2011, 46.6% related to the Civil Service, 27.7% related to local authorities, just about one-quarter related to the HSE, 1.5% related to An Post and 0.1% related to my separate statutory role under the Disability Act 2005. The Civil Service total of 1,670 included 1,135 complaints against the Department of Social Protection, which comprised just over 30% of the overall number of complaints received by the office in 2011.
In my introduction to the annual report, I reflected on my office's role in dealing with complaints against public bodies prompted by the consequences of the economic downturn. Needless to say, it is a matter for the Government to make difficult high-end fiscal policy decisions, which can mean that at a local level, services or benefits are either abolished or reduced, and it is not the role of the Ombudsman to interfere in such decisions. I do, however, have a legitimate role in examining how such decisions are implemented when a complainant comes to me after having been adversely affected. I am of the view that it is unacceptable if cutbacks are not communicated at all, communicated in a confused manner or implemented in an apparently unfair or arbitrary way.
To give a practical example if, for example, a long-running scheme is closed down at short notice, I do not think a public body could treat people who had already applied for such a scheme and had submitted valid applications in the same way as people who had not submitted applications before the decision was announced. In such cases, applicants have acted in good faith and have a legitimate expectation that their applications will be considered in the normal way having regard to the published eligibility criteria. Furthermore, I do not think it acceptable for public bodies to seek to achieve savings by stealth by, for example, arbitrarily raising the bar in terms of eligibility criteria where discretion is available to grant or deny a particular allowance. Decisions must be made based on clear-cut published criteria and individual decisions to deny a particular allowance must be fully explained and made in a manner consistent with the relevant criteria.
In addition, where a public body has discretion available to it, the blanket fettering of the exercise of that discretion so as to deny an allowance or an opportunity to mitigate a penalty is not only unacceptable but would amount to maladministration. Cutbacks can also lead to the introduction of a prioritisation system, formal or informal, to cope with limited resources. When this happens, people should be told that this is the case and have it explained to them, including the reasons for the system and the guiding principles determining any prioritisation of one applicant or beneficiary over another. I do not propose to go through in detail the individual cases outlined in the annual report as I hope they are self-explanatory but if members have any questions on its contents, I will be happy to deal with them later.
I would like to make some comments on my relationship with this committee. I take this opportunity to underline how pivotal I see my office's relationship with this committee. The Office of the Ombudsman is a creature of Parliament and has a statutory duty to report to the Houses of the Oireachtas annually and in respect of investigations and special reports. In order to fulfil the inter-relationship, it is of the utmost importance that there is a follow-through at parliamentary level when the Ombudsman submits a report. This committee now provides a formal avenue whereby such reports can be given due consideration and debate while at the same time respecting the statutory independence of the Office of the Ombudsman in carrying out its complaint examination function.
I would characterise the relationship of the committee with the Ombudsman as that of a "critical friend". We offer each other mutual respect but we are not afraid to say what needs to be said if the situation demands it. I also acknowledge the committee's stated determination to carry out its work in a non-partisan fashion by setting political allegiances aside, which is also crucial. The committee's role in accepting petitions is now getting off the ground and I have arranged for officials from my office to engage with the committee's secretariat in order to agree operational procedures with the committee in that context. This will cover such matters as the referral of complaints from the committee to my office, if appropriate, and the feedback process when my office completes its examination of such complaints. We also need to avoid duplication and overlap in carrying out our respective complaint examination functions. I can assure the committee that my office will bring its long experience to bear in assisting the committee in its vetting and handling of petitions in every way possible either formally or informally.
Finally, I would like to inform the committee that I hope to bring a special report to it in the coming weeks under section 6(5) of the Ombudsman Act. I hope the committee will understand that I am not in a position to discuss it today as the report is not yet finalised but when laid before the Oireachtas, I would welcome the opportunity to reappear before the committee to discuss it in detail and to answer any questions it may have.
Peadar Tóibín (Meath West, Sinn Fein)
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I thank Ms O'Reilly for the excellent and fascinating report and the work that has been done on it. As she noted earlier, her office does re-balance the power individuals experience vis-à-vis the State. I also thank her for her statement of intent with regard to co-operation with this committee.
The issue of non-compliance arises on page 59 of the report. My understanding of this sub-committee is that, like the Ombudsman, it makes sure that there is compliance on the part of the State in respect of how citizens interact with it. Would Ms O'Reilly care to detail that issue of non-compliance and give her opinion on how we can help to get it ironed out?
Ms Emily O'Reilly:
It related to the mobility allowance scheme. This gives a monthly payment to people who have difficulty getting out and about by virtue of age, isolation or disability to allow them to use taxis or whatever means possible to get out so that they are not housebound or to get respite care. The Department had an upper age limit of 66 for the scheme so anybody over the age of 66 could not benefit from the scheme. When we looked at this, we discovered it was in breach of the Equal Status Act under the age category. We wrote to the Department accordingly and recommended that the woman in question be paid €6,000 in arrears for a benefit she would have received had she been given the allowance in the first place. We also recommended that the Department make changes and inform people that from now on, people over the age of 66 are perfectly entitled to apply for this and get it if they meet other criteria. The Department fully agreed with our analysis and accepted our recommendations. There was no issue whatsoever in terms of how we had analysed it. The Department accepted it was in breach of the Equal Status Act and what we expected to happen was that a circular would be issued to all relevant bodies and people would be able to apply for the scheme.
We waited but nothing happened. The individual was paid the €6,000.
A similar issue had arisen previously with regard to motorised transport grant and the Department sent a circular to everybody and the issue was fixed. In this instance we were told the person had to await a decision from the Government and we are still waiting. In our view the person does not have to await a decision from the Government because we have found, and the Department agreed, it is in breach of the Equal Status Act, and therefore it should be changed. We made a recommendation in April 2011 and it is now October 2012 so 18 months later nothing has happened.
4:50 pm
Peadar Tóibín (Meath West, Sinn Fein)
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I propose we send a letter to the Secretary General of the Department to ask why he has not fulfilled his responsibilities with regard to this issue and to outline our determination that this issue be resolved as soon as possible. Is that agreed? Agreed. Do any committee members wish to raise other issues?
Trevor Ó Clochartaigh (Sinn Fein)
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Has the Ombudsman engaged with any Department or Minister on the proposed amalgamation of the Office of the Ombudsman, An Coimisinéir Teanga and the Ombudsman for Children? I have raised the issue of the Official Languages Act with the Office of the Ombudsman. It has been brought to my attention that the Ombudsman has done a huge amount of work on the issue and very little fault is to be found with the office on this. However, clearing the scheme through the Department of Arts, Heritage and the Gaeltacht has stalled. Will the Ombudsman comment on this?
Ms Emily O'Reilly:
The amalgamation of offices was first mooted in the McCarthy report which came out in 2009 and various levels of amalgamation were proposed. It was proposed that An Coimisinéir Teanga would be merged fully with the Office of the Ombudsman. It was proposed that the back office administrative functions of the Ombudsman for Children would come under the same remit. It was also proposed that the Data Protection Commissioner would come under the broad umbrella of the Office of the Ombudsman. Very little has been done. Mr. Morgan has been tic-tacing on this.
Ms Emily O'Reilly:
There has been a merger with the Commission for Public Service Appointments but it involved only a handful of people. There was some tic-tacing on An Coimisinéir Teanga. I have followed the debate on this but I have had no discussion whatsoever with anybody on it. I met An Coimisinéir Teanga at a meeting several weeks ago and stated that nobody has come to us about it.
Trevor Ó Clochartaigh (Sinn Fein)
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At any stage.
Trevor Ó Clochartaigh (Sinn Fein)
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A great big kite.
Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I thank the Ombudsman for her report. Quite a number of files or documentation submitted to various Departments seem to have gone missing of late. The biggest number of complaints I receive is about medical cards whereby people have submitted or registered them but they do not appear. Another area is social welfare appeals. In the past, a large number of complaints were made about Dublin City Council receiving documentation but not processing it. All of this leads to consequences for the individual. A person who has applied for a medical card and presumes it is being processed will telephone the Department to be told he or she must resubmit and wait in line. It is the same with social welfare appeals. What is the view of the Office of the Ombudsman if people were to complain to it because they felt they were abiding by the rules and making submissions and had proof-----
Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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There seems to be an increase in the number of people complaining to me about it.
Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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With regard to the medical card it is because the processing has been centralised and documentation seems to be getting lost.
Ms Bernie McNally:
With regard to medical cards, the Oireachtas worked actively with the HSE and the primary care reimbursement service. We also met them because we received a number of complaints about applications getting lost. In most of these cases we got a resolution for the complainant. We also had several meetings with senior managers in the HSE with regard to improving the procedures of the primary care reimbursement service and I know the Deputy worked on this also. It now has much more efficient procedures in place and files are not getting lost as much as was happening.
We received some complaints about files going missing in the Department of Social Protection and we always pursue these complaints. We look for evidence and if we are reasonably satisfied the complainant did send in an application or the necessary paperwork we require the Department to act reasonably.
Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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I will give one example. Last week a woman came to me with a registered post slip with regard to a social welfare appeal, so she has proof. In this day and age the fact that something can get lost-----
Michael Healy-Rae (Kerry South, Independent)
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To support Deputy Ó Snodaigh so the witnesses realise it also happens on the other side of the country, I have had the same experience and it has been since the processing of medical cards was centralised. Previously we did not have the problem to the same extent. The problem has increased because more people are making applications but having said this, pro rata there are definitely more problems and issues since it was centralised. Many people do not send their applications using registered post. While they state they sent it, they do not have proof and to be honest I believe somebody approaching the Ombudsman with such a case would be wasting his or her time if he or she cannot produce-----
Ms Bernie McNally:
I certainly think it would be worth the person's while making contact with us. The HSE has acknowledged it lost some applications at a particular stage when it was inundated and its systems are much better now. We have received assurances it is not happening as much as it did in the past. Any member of the public who has suffered adverse effects from something such as this should come to us and we will see whether there is anything we can do. We have strong liaison with the primary care reimbursement service and we will try to see if we can do something.
Susan O'Keeffe (Labour)
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Based on the Ombudsman's comments on the annual report she is decrying four issues, which are: fairness for people who applied to schemes which have been abolished and who got caught in the system; the notion of achieving savings by stealth and people not knowing this; the notion of discretion being used and changed; and the introduction of a prioritisation system which is either formal or informal. If the Ombudsman has observed these and is making a point of calling our attention to them, what response has she had from the various bodies when she has tried to cope with any or all of the specific examples she has come across? Is she stating this will continue? Is she stating she does not know what to do? Is she stating she has been dealing with these four issues and she can see progress in them?
5:00 pm
Ms Emily O'Reilly:
We deal with issues on a case-by-case basis. To some degree, tough political decision making is clashing with bureaucracy. Money is being saved. As the Ombudsman, I do not have an opinion on policy. If a Department decides to abolish a scheme or benefit for whatever reason, that is its decision. I deal with how the Department goes about it.
Let us take an example of someone who used to be in receipt of domiciliary care allowance in respect of a child with autism but who no longer receives it. The child has not necessarily improved or worsened, but the scheme has been tightened. We were finding that, in schemes where there was an element of subjectivity or discretion, one doctor might say "Yes" while another might say "Maybe not". In the Celtic tiger years, the discretion went one way. Now that there is a recession, it is going the other way. Any Minister can truthfully claim that nothing has changed, the scheme is the scheme and the rules are the rules, but it does not feel that way to people because the discretion has changed.
I have been trying to get the message across at meetings such as this and through our annual report. We are in the process of drafting a new set of principles of good administration and complaint handling. Sometimes people believe this is like motherhood and apple pie, but we have found these sets of principles useful when it comes to letting public bodies know how they should treat people and deal with the schemes under their remit. When we publish the principles, I hope that the committee and the Departments of the Taoiseach and Public Expenditure and Reform will buy into them so that the message can go out that this is the way matters should be handled.
No one likes to impart bad news. What tends to happen is that people are not being straight about cuts. People can cope with cuts to a degree, but it is difficult to cope with not knowing whether they are entitled or why they are no longer receiving payments despite having had an entitlement six months previously and nothing having changed in the meantime. Some people received grants to buy cars because they had disabilities, etc. We have noticed that, whereas the granting used to be flathulach, that is no longer the case. I am not sure what the Irish word for "mean" is.
Ms Bernie McNally:
We have engaged closely with the Department of Social Protection during the past nine months. Its Secretary General recently corresponded with us and accepted a number of the points that Ms O'Reilly made when she published the annual report earlier this year. The Department has commissioned a review of the domiciliary care allowance, which will pick up on some of the issues the Ombudsman mentioned at the launch of her annual report. We have sent the allowance's independent reviewer copies of our correspondence with the Department. We have received positive feedback from the Department and assurances that it is trying to improve the transparency and equity of its decision making in this regard.
We have also worked closely with the HSE, but we have not seen as much of a tangible outcome yet.
Susan O'Keeffe (Labour)
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To sum up, the Ombudsman is in a half-way house. She is neither terribly positive nor dreadfully negative at this point, as it is too soon to say. While draft principles might be necessary, she probably has an opinion as to how they will play out.
Ms Emily O'Reilly:
There can be a time lag. It is one matter to draw up principles and get everyone to stick them up on an office wall. One of my ombudsman colleagues in the UK has an expression, namely, "Live it, do not laminate it". When we draft principles, we want them to be lived. For this reason, we are planning a programme of stakeholder engagement. It is a horrible expression, but it means that this will not just be a case of my colleagues and me publishing principles in a nice press release. We will engage with the committee and relevant line Departments to ensure that the message trickles down.
Susan O'Keeffe (Labour)
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I would welcome the committee's engagement on those principles.
Peadar Tóibín (Meath West, Sinn Fein)
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I have experienced that element of discretionary power being used one way or the other in respect of quite a number of constituents. When one asks about the criteria being used to judge eligibility, the person refuses point blank to detail what they are. This leaves the citizen powerless to work or-----
Peadar Tóibín (Meath West, Sinn Fein)
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-----campaign on his or her case. Where the Ombudsman identifies concerns, it is important for us as a committee that we not let them stop at our door. We must ensure that they are brought to the public service providers. I propose that we write a letter regarding the concerns outlined in the paragraph on long-running schemes, etc., to the Departments to which they are relevant and ask them to revert to us with their opinions on the issues in question. Given the fact that this is the first annual report of the Ombudsman in the committee's time, I would hate to believe that we might not bring the issues highlighted in it to the attention of those who make the decisions and wield influence.
Susan O'Keeffe (Labour)
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Would a debate on the guidelines be of any assistance in their drafting? We could invite the Departments to debate the issues.
Mr. Tom Morgan:
In terms of the question of discretion, I have recently become aware of an emerging issue. We are receiving many complaints against local authorities concerning the administration of the non-principal private residence, NPPR, charge. Legally speaking, local authorities have the discretion to mitigate penalties in individual cases if the circumstances demand it. I have found that, when they interact with people who are in dispute with them, they are coy about pointing out that they have this discretionary power. Standard letters are being issued claiming that there are no waivers or discretions when that is legally not the case.
As this issue has started cropping up in so many places throughout the country, I have written to the Department of the Environment, Community and Local Government about it. I am due to meet the Department in the coming weeks. It is an ongoing issue that I hope we can resolve with the Department, but there is a concern that local authorities are not using their statutory discretion in individual cases.
Peadar Tóibín (Meath West, Sinn Fein)
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It has been proposed that we meet and discuss the overall issue. Is that agreed? Agreed. At that point we might send letters concerning the information detailed in this report. Is that agreed? Agreed.
Ag an bpointe seo, ba mhaith liom míle buíochas a ghabháil leis na finnéithe go léir as teacht isteach agus eolas iontach maith a chur ar fáil. Tá a lán le déanamh againn sa choiste seo. I thank the witnesses for attending and we look forward to working with them in the near future.