Frank Fahey (Galway West, Fianna Fail)

Amendment No. 148a arises from proposals by Deputies on Committee Stage that there should be provision for extending the period for a complaint. I agreed to review the matter of exceptional cases. Having done so, I have decided to insert wording in section 22 that will allow the regulations to provide for an extension of the period where there is a reasonable cause for not meeting the deadline for receipt of complaints. It also brings the complaints process closer to a similar administrative process, notably in the area of social welfare regulations on which the Bill is modelled, as outlined by Deputy Lynch. The amendment also responds to the concerns sought to be addressed in amendment No. 149 which I hope will satisfy Deputy McGrath.

Section 14(2) provides that a complaint must be made within timeframes to be specified in regulations under section 20. Amendment No. 105 would mean there would be no time limit for making a complaint. The removal of this provision would create an unacceptable situation where complaints might fall to be processed a long time after the Health Service Executive or education service provider had dealt with the matter in question. It would have a knock-on effect for the appeals process also.

Amendments Nos. 106, 110, 111, 128, 140 and 142 seek to detail changes to the complaints procedure in the Bill. Section 14(2) provides that an applicant must make a complaint "as soon as reasonably may be after the cause of the complaint has arisen". It also provides that the timescales for complaint can be prescribed in regulations. Government amendment No. 148a will allow the time period for receipt of complaints to be extended by regulations.

Amendment No. 106 seeks to impose a timescale to be determined when the cause of complaint becomes known to the individual or their representative. It is not clear how this would operate in practice and would be completely reliant on evidence as to when the matter first came to the attention of the individual. The provision in the Bill provides a far more reasonable approach to identifying the timing of the problem and thus a consistent and measurable timescale for making the complaint. I do not propose to accept amendment No. 106.

Amendments Nos. 110, 111, 128, 140 and 142 would require that the opinion of the complaints officer as to whether a complaint is frivolous or vexatious must be reasonably held and would apply the same criteria to the decision of the appeals officer in regard to deciding whether an appeal can be resolved through mediation. Such a provision is unnecessary as any review of the decision and actions of these statutory officers would, as a matter of course, take account of the reasonableness of their opinions as well as the other factors. I do not propose to accept these amendments.

Section 15(4) provides for the complaints officer to refuse to entertain a complaint where he or she considers it to be frivolous or vexatious. It also requires the reasons for such a decision would be outlined in a written report to be provided to the applicant and other parties concerned.

Amendment No. 128 would allow an applicant to appeal such a decision directly to the appeals officer. This is not generally the case in other similar legislation. The purpose of the section is to enable the effective and efficient management of genuine complaints by ensuring that any complaints that do not have a sound basis can be rejected.

I am satisfied the independent structures established in the Bill are fair and just and will ensure that all genuine cases can be processed. Ultimately there is the option of judicial review of the decision of the complaints officer in a frivolous or vexatious case. This is the appropriate approach in respect of this issue. I do not propose to accept this amendment.

Amendment No. 140 proposes the insertion of a new subsection relating to the Data Protection Acts. The provision runs counter to subsections 18(6) to 18(8) which give substantial powers to the appeals officer in investigating a case. The subsections allow him or her for the purpose of resolving the appeal to have access to information and other material that would normally be protected by the Data Protection Acts and other legislation under the rules of law.

The alternative is that the appeals officer would be required to have access to more information than any other citizen with consequential implications for his or her effectiveness and authority.

In any event, the Data Protection Act 1988, as amended, provides that any restrictions in the Act on the processing of personal data do not apply where the processing is required under any enactment or by rule of law or order of a court. The amendment would be of little use where information is required to be provided to an appeals officer under section 18. I do not propose to accept amendment No. 140.

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