I am very pleased to be invited to address the committee members as they begin work in this new and important Oireachtas committee. I am delighted that, at long last, a formal channel of consultation and collaboration between the Oireachtas and the Ombudsman is about to be set up. I wish the committee every success and I look forward to working with it in our collective aim of serving the interests of people of this State. In my presentation I will say a few words about the functions of my office, how it relates to the Oireachtas and how important that relationship is. I will conclude with some suggestions as to how my office and the committee might work together to support each other in our work.
The Office of the Ombudsman was established under the Ombudsman Act 1980 and commenced its work in 1984. After 27 years in operation it is easy to take the office for granted but before its creation, aggrieved complainants had few avenues of redress outside of the courts. There were few, if any, internal complaints systems in public bodies, and apart from making representations to the appropriate Minister, the only other slight hope of dislodging a civil servant and his or her Minister from a chosen position was a carefully crafted parliamentary question. One commentator at the time described the creation of the Ombudsman's office as "one of the most significant events in the history of Irish administration". It is an accolade that my predecessors and I have tried to live up to by enabling people to have recourse to a redress facility which can be used, without the help of professionals, by any person who feels he or she has been done down by the administration. Quite apart from providing redress for individual complaints, the office has succeeded in securing long-term improvements in the standard of Irish public administration.
The Ombudsman is appointed by the President following a resolution passed by both Houses of the Oireachtas and serves for a six year term which is renewable. I was first appointed in June 2003 and was reappointed for a second six year term in June 2009. I also hold the separate statutory post of Information Commissioner. The Office of Information Commissioner was established in 1998. I am an ex officio member of the Standards in Public Office Commission and the Commission for Public Service Appointments. The secretariats of both commissions are provided by the Office of the Ombudsman. The staffing, finance and information technology requirements of the four functions are managed in accordance with a shared services arrangement which respects the statutory independence of each function, although legislation giving effect to the CPSA merger has yet to be put in place. The director general of my office is the Accounting Officer.
The Office of the Ombudsman deals with complaints relating to the administrative actions of Departments and Government offices, the Health Service Executive, local authorities and An Post. Under the Disability Act 2005 I am also empowered to examine complaints about accessibility to public bodies and the services they provide. Furthermore, my office and the Northern Ireland Ombudsman's Office have jurisdiction with regard to the implementation bodies established following the Good Friday Agreement of 1998. The arrangement has legal effect and provides for liaison and cooperation between the two offices in dealing with complaints against these bodies. The jurisdiction of my office covers "actions taken in the State by or on behalf of the bodies" and a parallel provision relating to actions taken in Northern Ireland applies in the case of the Northern Ireland Ombudsman.
By the end of 2010, the Office of the Ombudsman had handled just over 77,000 valid complaints since it was established. The number of valid complaints received in 2010 was 3,727 which was a 30% increase on 2009, a year in which complaints received had been the highest in more than ten years. The rising numbers are not necessarily an indication of increased wrongdoing by public bodies but are more likely due to the economic downturn which has meant that more and more members of the public have had to engage with State agencies for benefits and other supports, particularly in the area of social welfare. In 2010, 45% of complaints received were in the Civil Service sector, 27% related to the HSE, just over 26% related to local authorities and 1.5% to An Post. The Department of Social Protection accounted for 70% of all complaints against the Civil Service. The resources available to the Office of the Ombudsman and its constituent offices amount to €7.5 million in 2011 with a staffing complement of 92.
It is open to anyone to make a complaint to the Ombudsman and many complaints are submitted by representatives of complainants such as public representatives, solicitors, residents associations and so on. The service is free. Generally speaking, before taking a complaint, my office must be satisfied that it is within jurisdiction, that the action complained of has, or may have caused adverse effect, that the complainant has already sought to resolve the matter with the public body and has exhausted any local appeals processes available to the complainant. We normally ask that complainants put their complaint in writing but this is not an absolute requirement. Complaints can be made at our office in person or through our annual outreach programme where members of the public can meet our staff at regional centres to make a complaint. There is also a facility whereby complaints may be made on-line.
I am legally obliged to report annually to the Houses of the Oireachtas on the carrying out of my functions. I may also lay investigation reports or special reports before the Houses of the Oireachtas from time to time as I see fit. I will speak further about such reports later in my presentation.
An Ombudsman (Amendment) Bill was before the Houses of the Oireachtas immediately prior to the fall of the previous Government but had not been enacted.
Among other things, the Bill provided for an extension of the Ombudsman's remit to 95 additional public bodies in the non-commercial State sector and the third level education sector, including universities and other third level colleges.
The Government's programme for national recovery includes a commitment to extend the remit of the Ombudsman and freedom of information legislation to all publicly funded bodies. While the precise timescale for bringing forward these amendments is not yet clear, I look forward to early progress on these fronts. The establishment of this committee was also proposed in the Government's programme and is an important step in supporting the work of my office.
One of the essential characteristics of a national or parliamentary Ombudsman is the power to make non-binding recommendations to remedy the adverse effects of wrongdoing or maladministration by public bodies. Non-binding recommendations are an essential component of the informality of the Ombudsman approach to alternative dispute resolution - alternative, that is, to the courts. The process is inquisitorial rather than adversarial. The Ombudsman's investigations are conducted in private rather than in public and come at no cost to the complainant. While public bodies are free to reject the Ombudsman's recommendations, they almost always accept them because they respect the authority and credibility of the office.
However, a mechanism is also needed to deal with those instances where public bodies decide not to accept them and this is where the Oireachtas comes into play. To be fully effective, it is important that a national or parliamentary Ombudsman has a supportive relationship with Parliament. It is easy to see why this should be the case. The Executive proposes legislation, the Legislature enacts it, the Executive implements it and the Ombudsman polices the administration of it through his or her complaint investigation role.
My office's annual report, presented to the Oireachtas, is an annual review of that policing role. From time to time, I submit other reports to the Oireachtas. So called "special reports" will highlight instances referred to where a public body has rejected my recommendations to remedy adverse effect arising from a complaint or group of complaints.
On foot of such a report, the Oireachtas or an appropriate committee can choose to call the relevant Minister to account for his or her Department's decision or the decision of an agency under its aegis, to reject the Ombudsman's recommendation. Only two such reports have ever been submitted by my office. One was in 2002, called Redress for Taxpayers, and one was in 2009, called Lost at Sea.
Thanks to the assistance of the Oireachtas Committee on Finance and the Public Service, the recommendations in Redress for Taxpayers were accepted and implemented by the Revenue Commissioners. However, to my great disappointment, the Oireachtas Committee on Agriculture, Fisheries and Food rejected the recommendations in the Lost at Sea report.
I also submit reports from time to time on so-called "systemic" issues, by which I mean trends uncovered by my office through the examination of groups of individual complaints - for example, my investigation of the fees charged to members of the public by local authorities for photocopies of planning documents.
Some other reports may deal with matters of significant public interest which I choose to bring to the attention of the Oireachtas and-or the public generally - for example, the Who Cares? report which I published in late 2010, just some months before the dissolution of the previous Dáil. This investigation looked at the actions of the former Department of Health and Children and of the Health Service Executive. It was based on 1,200 complaints received by my office over 25 years relating to the failure of the health boards and later the HSE to provide for older people in public nursing homes with the result that many had to avail of expensive private nursing home care. The report attracted considerable media attention but again I was disappointed that it was not considered by an Oireachtas committee.
I have provided members with a list of reports of the more important investigations published by me over the years. Many of these reports dealt with issues of a systemic nature and included recommendations on improving administration in the areas related to the complaints which led to the investigations.
The Ombudsman Act 1980 recognises through its provisions the importance of this relationship with the Oireachtas, in particular sections 6(5) and (7) which enable me to submit annual, special and other reports to it, but why is this relationship important? Apart from acting as a valuable support for the work of the Ombudsman, a good working relationship can help to give much needed impetus to the importance of administrative accountability just as the Comptroller and Auditor General and the Committee of Public Accounts do in the area of financial accountability. Second, the relationship can help to forge a democratic link between Parliament and the people. The Ombudsman oversees or supervises the Executive on behalf of complainants and the people generally and reports on its performance to the elected representatives of the people. In this way the Oireachtas, through the Ombudsman, can acquire a body of evidence which facilitates it in holding the Executive to account. That is the theory.
Unfortunately, the experience of my office in interacting with the Oireachtas has fallen some way short of the ideal. Perhaps now is not the time to dwell on these past experiences but rather to look forward to the new beginning which this committee now promises. This brings me to some suggestions on how my office and this committee might work together to best effect.
The programme for Government proposes that the committee will be "a formal channel of consultation and collaboration between the Oireachtas and the Ombudsman, responsible for receiving and debating her annual and special reports and for ensuring that her criticisms and recommendations are acted upon". I suggest that the committee, as a matter of course, would debate my annual report following its submission to the Oireachtas. In addition, it would debate other reports which I submit from time to time. In all, this might amount to two to three debates in a typical year.
My annual report includes case summaries of completed complaints and the committee may want to explore trends in these complaints - for example, repeat patterns of the same or similar complaints against a particular public body. My report may also include a commentary on issues arising from particular complaints - for example, instances where although a public body has acted within the law, the law itself has unfair or had unintended consequences.
An example is my office's investigation report, Lost Pensions Arrears, which was based on the complaints of 200 pensioners who discovered that, because they were late in claiming a contributory pension, they were penalised with the loss of substantial pension arrears. The matter was eventually resolved with the assistance of the then Department of Social, Community and Family Affairs. The committee may want to consider how it could seek to progress amendments to legislation in other cases arising.
The report gives details of the number of section 7 summonses I issue to public bodies. These are notices I issue to public bodies that have failed in the normal course to respond to a request to provide me with information or documentation necessary to examine a complaint. The notice requires them to appear before me with the relevant information on a particular date and, in all cases, they have the required effect. Fortunately, I issue no more than a handful of such notices in any given year, but they are, nevertheless, a useful indicator of the level of co-operation I receive from public bodies. Again, the committee may want to focus on the reasons some public bodies and not others fail to co-operate fully with my office.
Bearing in mind my earlier comments about my special reports and other reports, the committee's potential role in regard to them is self-evident. However, there is one important factor I ask the committee to bear in mind when considering my special reports. A special report, as it will recall, is one I choose to submit to the Oireachtas following a decision of a public body to reject my recommendations to remedy the adverse effect suffered by the aggrieved complainant. The remedy might involve an apology, financial compensation, the payment of a benefit or entitlement wrongly withheld or a change to the operating procedures of the public body. A decision by a public body to reject my recommendation is a rare occurrence. It has happened only twice since my office was established. A recommendation for a remedy will follow from a finding that the public body concerned has been guilty of maladministration.
Following submission of my report, the committee will have to decide whether to uphold my findings and recommendations or, alternatively, the decision of the public body to reject my findings and recommendations. Often this can create a conflict between the public interest, as represented by my office, and the interests of the public body. Obviously, I fully accept that the committee is entitled to reject my findings and recommendations in any particular case, provided that a decision to do so is based on reasoned argument. However, based on my previous experiences with other Oireachtas committees, it would be less than satisfactory if in arriving at its decision in any particular case, the Government applies the party whip to any vote on the matter. These considerations may also apply to other reports which can raise significant public interest matters which may be in conflict with Government interests. In short, my reports can be critical of Government and its Departments, offices and agencies and the committee needs to be mindful of this. The programme for Government proposes that the committee receives: "parliamentary petitions from individuals and groups in the community seeking redress of grievances connected with the public services of the State and with the public administration generally. Its functions would be to act as a "clearing house" directing complaints to those bodies most competent to act on them: the Ombudsman, the Data Protection Commissioner, the Local Government Auditor, the Oireachtas Committee that has oversight of the relevant Department, and so on."
The first matter for consideration is whether the committee will have a deciding role in regard to petitions or whether it will forward them to an appropriate complaint handling body for examination. As far as my office is concerned, we would be happy to receive from the committee new complaints or petitions on matters falling within my jurisdiction and process them to finality in accordance with our standard procedures. We would be happy to communicate the outcome of each complaint to the committee. However, I point out that the Ombudsman's jurisdiction is not all-embracing. There are significant parts of the public service that are excluded from my remit. Some of these lacunae were to be addressed in the Ombudsman (Amendment) Bill, to which I referred.
Several significant omissions would remain following the enactment of that legislation. Subsection 5(1)(e)(i) of the Ombudsman Act 1980 provides that the Ombudsman shall not investigate actions taken in the “administration of the law relating to aliens or naturalisation”. My office is one of the few Ombudsman offices in Europe whose jurisdiction is restricted in this way. I have repeatedly expressed the view that this restriction is unwarranted and that the full range of administrative actions in this area should be subject to investigation by my office in accordance with the terms of the Ombudsman Act. The Council of Europe’s Commissioner for Human Rights, Mr. Thomas Hammarberg, in the 2008 report of his visit to Ireland to assess the human rights situation, noted this gap in the Ombudsman office’s jurisdiction and observed that most Ombudsman offices in Europe have full jurisdiction in this area of administration. One of the recommendations in his report is that there be a review of the mandate of my office, among others, with a view to rectifying this matter. The Ombudsman (Amendment) Bill as currently drafted does not remove this constraint.
A separate restriction is set out in subsection 5(1)(e)(iii) of the Ombudsman Act 1980, which prevents my office from examining complaints relating to actions “taken in the administration of the prisons or other places of custody of persons committed to custody by the courts.” This is a restriction which does not apply in the case of many Ombudsman offices in other jurisdictions and it will not be lifted under the provisions of the Ombudsman (Amendment) Bill as currently drafted. While the Inspector of Prisons and Places of Detention, as appointed by the Minister for Justice and Equality, operates on a non-statutory basis in overseeing conditions in prisons, there is no independent oversight of complaints relating to the administration of such institutions. The committee should consider how it might deal with petitions in this and other areas where there is currently no independent oversight in place.
A third matter for consideration is how the committee might propose to deal with petitions from complainants who are dissatisfied with the decision of the Ombudsman or other independent complaint-handling body on their case. As far as my office is concerned, there are only two avenues open to such complainants. The first is to seek an internal review of the decision, to be carried out by a staff member not involved in the original decision on the complaint; and the second is to seek judicial review of the decision by the courts. As matters stand, the committee would have no role in reviewing my office's decisions on individual complaints. Were it to seek to do so, there would be serious implications for its independence. A fourth issue is where complainants whose case is currently being considered by the Ombudsman complain to the committee on the basis of a delay by my office in completing their case. It will be for the committee to decide whether it wishes to deal with such complaints or, alternatively, whether they should be referred to my office for its attention.
In summary, there are three important principles attaching to the design of a petitions system. First, it should not seek to replicate the role or remit of existing independent complaint-handling bodies. Second, it should seek to respect and protect the independence of those bodies. Third, it should seek to avoid becoming the default location for complaints and petitions relating to areas of public administration where there is currently no independent oversight in place.
I welcome the creation of this committee, which has great potential to support the work of my office and to promote and develop better parliamentary oversight, particularly in the area of administrative accountability. Administrative accountability is an imperative which ought to underscore the public service reform agenda that is now under way. I wish members every success and look forward to working with them.
