Tony Killeen (Clare, Fianna Fail)

On the contrary, successful applicants had to provide a replacement vessel from their own resources, and pay for its running costs, to be able to make use of the capacity awarded. In the case of the family in question, no replacement vessel had been purchased and no immediate family member had continued in fishing in the 20-year period between the accident and the inception of the scheme. Given that the scheme was intended to allow families to continue a family tradition of sea fishing, it is difficult to see how it can be sustained that the family was disadvantaged by the failure of an application made 20 years later. The family, perhaps understandably, left the fishing industry for the subsequent 20 years after the sinking. In the exchange of correspondence, the Ombudsman contends that the substantial insurance pay-out received by the family was not relevant to her investigation or to the scheme. The compensation figure of €245,570 that was recommended by the Ombudsman was arrived at by means of the methodology and rates used in the 2008 decommissioning scheme. This completely separate and unrelated scheme involved being paid to voluntarily give up a working active vessel and its capacity, to pay to have it dismantled and to lose the future stream of income from it. In her special report, the Ombudsman outlines the basis on which she believes the amount recommended is reasonable.

At the Ombudsman's request the Department provided calculations on the basis of those rates and the tonnage of the lost vessel on the understanding that this was a starting point in her consideration of an appropriate amount of compensation. The Ombudsman cites the average payments to the successful applicants under that scheme as being comparable. I do not believe that the situations are in any way comparable. In the case of the decommissioning scheme, the vessel owners had the expense of purchasing and maintaining a vessel. The rates payable under that scheme were intended to incentivise and compensate those owners to voluntarily decommission their vessels entirely and forego the income they would get into the future were they to continue to operate them. The Ombudsman is mistaken in her belief, as cited in her letter of 5 June 2009, that successful applicants under the decommissioning scheme had the option of selling on their vessel as the decommissioned vessel had to be scrapped at the owner's expense and the tonnage could not be sold on or otherwise transferred. I reiterate that I am of the view that payment in the case investigated is not warranted in the amount specified or any amount in this case.

The Department remains concerned that the recommendation regarding this specific case would give rise to major financial liabilities arising from claims from others who were unsuccessful applicants under the scheme. The report asserts that the recommendation relates to this case only, that the analysis, conclusions and findings flow from the particular circumstances of that case alone and that it has no implications for other unsuccessful applicants. Following full consideration and on foot of legal advice, I do not accept that this assertion is consistent or logical.

The Ombudsman's finding was that the design of the scheme itself and the manner in which it was advertised were "contrary to fair and sound administration" and that the Byrne family had been treated unfairly as a consequence. I do not accept this. The scheme as applied to the Byrne family was the same scheme as that applied, equitably, as the Ombudsman has acknowledged, to all the other applications received. The considered legal advice given to the Minister contends that it is inevitable that the Ombudsman's recommendation regarding monetary payment may result in other unsuccessful applicants to this scheme seeking the same consideration and the material circulated by the Ombudsman yesterday confirms the view that this is the case.

I am not convinced that unsuccessful applicants would not pursue cases, were the recommendation to be accepted. Furthermore, some of the successful applicants for the scheme, who could not take up the capacity awarded because of the strict conditions, might seek to use the precedent created by any change in the conditions of the scheme, which would happen were the Ombudsman's recommendations acceded to. In addition, those who contacted the Department in the year after the scheme had closed or who might have applied in that period also would seek to build a case on the basis of the Ombudsman's recommendation.

While it is impossible at present to estimate precisely the financial outlay or potential liability that might be involved, there is no doubt that it is likely to be substantial and to have a serious financial impact. There are also, perhaps more importantly, implications for the operation of other administrative schemes across Government that have application deadlines. Members are familiar with schemes that operate to strict deadlines that are enforced and affect people's daily lives directly. Deadlines are a fundamental feature of most schemes and are strictly enforced and adhered to generally in accepting or rejecting applications under schemes. Totally discounting the deadline in this scheme and accepting the validity of an application that was more than a year late, as the Ombudsman suggests, could have very wide and probably incalculable financial and other implications for public administration in Ireland.

Since the conclusion of the Ombudsman's investigation in November 2008, the Department has been engaged in correspondence with the Ombudsman with regard to her findings in this case and her proposal to award financial compensation. In summary, I reiterate that the complainants did not apply for the scheme within the timeframe and were more than a year late in applying. The family did not meet some of the criteria of the scheme. The Department maintains its position that the scheme was scrupulously fairly administered, in that each applicant was treated fairly under the scheme within specific terms, rules and conditions. The Ombudsman acknowledges that there is no evidence that the scheme was not applied equitably. The scheme was advertised in a targeted way to the target audience, that is, those with a family tradition of fishing and who would return to fishing if successful under the scheme. Accordingly, there is no basis for the award of payment in this case.

As I stated at the outset and now wish to reiterate, I have the highest regard for the Ombudsman, for the Office of Ombudsman and for the Ombudsman's team. The issue investigated and reported on by the Ombudsman is a very difficult one and has taken much time and effort on the part of both the Ombudsman's office and the Department. I have taken on board the points raised by the Ombudsman regarding the design of the lost at sea scheme and I assure Members that relevant points will be taken into account in the design of any future schemes in this Department.

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