Joint Committee on Justice debate -
Tuesday, 21 May 2024

Property Services Appeal Board: Chairperson Designate

An Cathaoirleach

The purpose of today's meeting is engagement with Ms Dorothy Donovan BL, who has been appointed chair of the Property Services Appeal Board. I congratulate Ms Donovan on her appointment and welcome her to the meeting. Ms Donovan will make her opening statement and we will then take any questions members may have. Some members in the room while others are online around the Leinster House campus.

I remind members and witnesses of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. If I ask them to discontinue, it is imperative that they do so.

I invite Ms Donovan to make her opening statement.

Ms Dorothy Donovan

I thank the Cathaoirleach for his congratulations on my appointment to the role of chair of the Property Services Appeal Board. I was appointed to the board in April 2024. While I am relatively new as chair, I have been an ordinary member so I have a good idea of the working of the board.

The core function of the board is hearing appeals of the decisions of the Property Services Regulatory Authority, PSRA. We are a quasi-judicial body unlike many State boards. Accordingly, we have a duty to act independently in the hearing of appeals in like manner as the independence of the Judiciary. That is an important point that does distinguish us from many other State boards. We have some corporate State board functions and as regards those, we are aware of, acknowledge and abide by the code of practice for the governance of State bodies but, again, our core and main function is the hearing of appeals.

As the committee will be aware, the Property Services (Regulation) Act 2011 with commencement dates in April to July 2012 set up a new regulatory regime for property service providers. In the main, these are auctioneers and letting agents. The new system provides for registration or licensing of property service providers but it also set up a complaints system whereby complaints can be made against property service providers. They are made initially to the authority, which is the first instance body. Parties aggrieved by decisions of the authority can appeal them to the board and this is where we come into play. Most decisions are appealable to the board except for major sanctions such as what we would call striking off or withdrawing a licence. They go from the authority on appeal to the High Court.

What can I tell the committee about the board? I return to the importance of acting independently when we are dealing with our appellate function. To a degree, this curtails any interaction we might have with stakeholders in the same way other State bodies would have because we must remain independent. The board consists of a chair and four ordinary members who are initially appointed for four years with the provision for re-appointment. We hear and determine appeals from the PSRA.

What is my vision for the board? We recently had an external effectiveness review and was found to be fit for purpose other than some very minor recommendations mainly to do with keeping up to date with cyber risks, which has become a buzz phrase for all of us. In the main, we were found to be fit for purpose. My vision would be for us to maintain that and be vigilant about remaining fit for purpose. What does "fit for purpose" mean? It means hearing appeals in a fair manner, acting impartially and hearing appeals with the minimum delay. That is what fit for purpose means. It also means furnishing appellants and respondents with a good reasoned decision so that they can read it and say, "Well, this is why the board allowed or disallowed my appeal."

There is not much more I can say about that other than we do strive to carry out our appellate function to the best of our ability. We meet twice a month and hear appeals. Compared to other appellate statutory bodies, we process appeals quite promptly. I am open to questions anybody might have.

An Cathaoirleach

Ms Donovan supplied an opening statement with a bit more of her CV. That will be published as part of the engagement. She is welcome to speak to that if she wishes.

Ms Dorothy Donovan

I gave a brief synopsis of my background. I came to the legal profession as a second career. I have been practising at the Bar since 2004 and am a former vice chair of the now dissolved Employment Appeals Tribunal. I had quite a substantial number of commercial landlord and tenant cases and I had done some of the multi-unit development Act cases when it came in first but in the main, my practice has been employment law.

Deputy Pa Daly

I thank Ms Donovan for coming before us and for her presentation. What is the most usual type of case the appeals board deals with?

Ms Dorothy Donovan

At one stage, there was a significant number from property service providers regarding licences, for example, where a licence was refused or whether they met the criteria. In latter years, many of the caseds have tended to be complaints about property service providers. The authority does carry out investigations that are not prompted by complaints and may impose sanctions. If the licensee is unhappy with a sanction, it can appeal that to us so we do get some of those. They would be in the main minor sanctions and they may appeal those to us. A lot of them are complaints. Complaints are generally from people who would have been availing of a property service but we do get a significant amount-----

Deputy Pa Daly

Does Ms O'Donovan mean tenants?

Ms Dorothy Donovan

Maybe people buying a house who engaged an auctioneer. We get a significant number from owners living in multi-unit developments, such as blocks of flats. The managing agent for these developments is most likely a property services provider or auctioneer. The owner of a unit might be unhappy with the way a managing agent is working and complain to us, but many times, their matters are outside our jurisdiction. In the first instance, they may be matters to be raised with the owner's management company or under the Multi-Unit Developments Act.

Deputy Pa Daly

They feel that the services that they paid sometimes four-figure sums for are not being provided to them by the managers of their multi-unit developments.

Ms Dorothy Donovan

The management agent. Regrettably, that is generally a matter between the owner of a unit and the owners' management company, OMC. It will not always be.

Deputy Pa Daly

Apart from the ones that are ruled out, what other types of case are there?

Ms Dorothy Donovan

Going back to those that are ruled out, every appeal is treated with gravitas even if we do not have any jurisdiction. Sometimes, somebody gives an auctioneer a property to sell and may be unhappy with the way something has happened and complain, or a potential purchaser may complain to us about the conduct of an auctioneer, querying the bidding. Auctioneers are obliged to keep lists of the bidding. These all go to the authority first and it carries out an investigation, but sometimes it will decline to carry out an investigation. The reason is usually that it is outside its remit or jurisdiction, but that decision too can be appealed to the board.

Deputy Pa Daly

Do vendors of properties complain about the amount that they are charged and that they did not know what it would be?

Ms Dorothy Donovan

Very little of that-----

Deputy Pa Daly

What types of case would vendors of properties complain about?

Ms Dorothy Donovan

The number of those is small. They might complain that they did not get the service, for example, if they asked for something in a particular advertisement and it was not done.

Deputy Pa Daly

Has Ms Donovan noticed any trends in recent years? Has it been going a particular way, with more of a particular type of complaint than others?

Ms Dorothy Donovan

There are some trends. Many of them are regrettably outside the remit of the authority and then of the board on appeal.

Deputy Pa Daly

What about ones that are in the Property Services Appeal Board's remit?

Ms Dorothy Donovan

Sometimes, a property is repossessed and the mortgage company or bank appoints a receiver. The receiver appoints a property service provider to deal with the sale or whatnot. The complaint will come in from the owner against the auctioneer.

Deputy Pa Daly

The registered owner.

Ms Dorothy Donovan

Yes. We understand it is an emotional time for somebody. Much of the time, we do not have jurisdiction and it is a matter for the court or outside our remit.

Deputy Pa Daly

What type of complaints would they have against the receiver?

Ms Dorothy Donovan

They feel that the auctioneer, which I will say because it is easier than property service provider, should be taking instructions from the owner, not from the receiver, but their argument is often with the receiver or lender.

Deputy Pa Daly

What are the owners' complaints?

Ms Dorothy Donovan

They say that the auctioneer is not taking instructions from them but from the receiver, but the receiver is appointed. That is how the system works.

Deputy Pa Daly

Do they feel that properties are maybe not being sold at a fair price or they are being undersold?

Ms Dorothy Donovan

It usually is not that. It is because they feel they are left out of the loop. It is the receiver and the auctioneer.

Deputy Pa Daly

Is Ms Donovan saying there is an implication that the receiver is excluding them from the bidding?

Ms Dorothy Donovan

Definitely not. I am just saying that is the nature of the complaint. The Deputy asked me what the nature of the complaint was, and that is it. These are matters that would be generally outside our remit, though maybe not always.

Deputy Pa Daly

Would the board ever have complaints that the registered owner feels the receiver is excluding other people from the bidding and it is not quite open?

Ms Dorothy Donovan

No. The ones we receive would be more general rather than specific. Generally, they are matters between the registered owner and the receiver or between the parties and their lender, as opposed to the auctioneer, who is appointed. Remember that when an auctioneer is appointed by the receiver, the receiver is the auctioneer's client, and the auctioneer's duty under our Act is to act in the best interest of his or her client.

Deputy Pa Daly

Does Ms Donovan know what percentage of cases are appealed from the Property Services Regulatory Authority to the Property Services Appeals Board?

Ms Dorothy Donovan

In our last report, which was in 2022, there were 32 or 33 cases. This year, there could be more. We generally deal with four or month. We operate for ten months. We do not hear any in August. The last number was 33, and the number for 2023 could be around 40.

Senator Robbie Gallagher

I welcome Ms Donovan and thank her for her presentation. I congratulate her on her important role and wish her well in that regard. Following on from my colleague, the board deals with a ballpark number of cases in the high 30s. What percentage is that number of the complaints made to the Property Services Regulatory Authority?

Ms Dorothy Donovan

I would not have those numbers. All we know are the ones we are given. Remember that we are independent of the authority, so we would not be-----

Senator Robbie Gallagher

Ms Donovan would not have access to that information.

Ms Dorothy Donovan

The information will no doubt be available in its annual report but we just deal with the complaints to us. Our engagement with the authority would generally be if we decided that a particular appeal before us needed to be remitted back to it. We sometimes have jurisdiction under the Act to remit appeals and sometimes we do so. That is our main interaction. When an appeal comes before us, the authority would be a party to the appeal and we would get submissions from it as we do from the licensee. I cannot say what number.

Senator Robbie Gallagher

When the board receives a complaint, what is the general timeframe from receiving the complaint initially to a final deliberation?

Ms Dorothy Donovan

With processing and listing, it is about three months and sometimes a bit less.

Senator Robbie Gallagher

If the party is still not satisfied with the outcome, is that the end of the road? What options are available?

Ms Dorothy Donovan

Parties can appeal on a point of law to the High Court. That can involve cost jeopardy. Since my appointment to the board in February 2017, I think it has had four cases that went to the High Court. One was discontinued. In the latest one, the court held in our favour. I think one of the earlier two might have succeeded because it was on a point of law. In fact, that particular case was more to do with an initial decision as opposed to the appeal.

Senator Robbie Gallagher

Are any costs attached to someone who complains to the PSAB or appeals a decision?

Ms Dorothy Donovan

There is no fee. The Act provides that the Minister may, by regulation, decide on a fee but there is no fee to come to us.

Senator Robbie Gallagher

In regard to staff numbers, is Ms Donovan satisfied that there are adequate staff to carry out the function within the timeframe outlined?

Ms Dorothy Donovan

We have a board secretary, Ms Fitzpatrick, who is extremely efficient. We manage. However, when we are doing our board function as opposed to our quasi-judicial function, it is something we keep an eye on all the time. At the moment it is working well.

Senator Robbie Gallagher

I thank Ms Donovan.

An Cathaoirleach

I thank Senator Gallagher. We are going around the table. Senator McDowell is next.

Senator Michael McDowell

I am sorry I was late. I was at the Seanad procedures committee meeting which clashed with this. I am purely here to acknowledge Ms Donovan's presence and to wish her well in all her endeavours. I thank her for her statement.

An Cathaoirleach

I thank the Senator. It is kind of him to say that. I have a couple of questions unless the members online are offering. Nobody is.

I notice in Ms Donovan's opening remarks that she mentioned that the board is a quasi-judicial body. There are of course many quasi-judicial bodies. They were put collectively and individually in the spotlight by the Zalewski decision of the Supreme Court a couple of years ago, which related to the Residential Tenancies Board or the Workplace Relations Commission, WRC.

Ms Dorothy Donovan

It was the WRC.

An Cathaoirleach

The WRC, yes. There was a finding that quasi-judicial bodies had to observe the same practice and procedure to the extent that the courts normally would, certainly in terms of fair procedure and due process. It is a concern of mine that not all such bodies have adopted this to the same degree, or have considered their processes and systems, so much so that to my surprise they seem to be somewhat unaware of the Zalewski decision. Is that something that Ms Donovan is mindful of? Has she had a review or does she propose to look at those in her new role?

Ms Dorothy Donovan

It is early days yet but I am very familiar with the Zalewski decision. What was happening in the WRC was the oath was not being taken. Decisions were being redacted. It was not public as such. It was decided that, as it was quasi-judicial, that could not happen.

Our hearings are in private. That is something I will be looking at. Our hearings are done on the basis of written submissions, unlike the WRC. The question of somebody taking the oath is not applicable. We have a provision for oral hearings, of which we have had a couple. In those instances we follow the oath. We sit as a body, often remotely now. It is working well because we are small in number and it is done on the basis of written submissions. The parties do not come and give evidence unless they request an oral hearing and we grant it, or we decide of our own motion that this requires an oral hearing.

An Cathaoirleach

Very good, it primarily involves written submissions and the PSAB decides on that basis. I notice in the opening statement supplied to the committee, for which I thank Ms Donovan, that there is a concern about the vacancies. There are five members but currently the board is down one member and two more vacancies are expected to arise in the near future. The vacancies need to be filled expeditiously by the Government, is that right?

Ms Dorothy Donovan

Yes. No fault can be laid at anybody's feet for this. The Public Appointments Service process must be gone through. Engagement is already happening about getting the process going for the current vacancy. Two are coming up in February. There is provision for reappointment. Those members may decide to go but it is something we will keep an eye on. With a small board, there is a quorum of three. We are down to four. If somebody becomes conflicted we can manage but if this were to happen to two people, it would delay appeal hearings. That is an unacceptable situation.

An Cathaoirleach

Does the board need to increase in size or does the quorum need to reduce in size, or both maybe?

Ms Dorothy Donovan

A quorum of three is necessary. Otherwise-----

An Cathaoirleach

An odd number is needed. More board members are needed.

Ms Dorothy Donovan

It is working well enough with five but if the Minister decides at any stage the board needs to be bigger, that is fine. I have been here since February 2017 and we have not really had a difficulty.

An Cathaoirleach

When advertising positions, is there good recruitment interest?

Ms Dorothy Donovan

I do not actually know the numbers. We have always got somebody. Recruiting and appointing is a good process. Regretfully, it is required to have so many days to advertise and so forth.

An Cathaoirleach

Another issue that was mentioned in the written submissions was around some of the appeals that are coming through. The legal term used to describe them would be that they are destined to fail - they are frivolous, vexatious or unstatable in a court situation. That is a challenge. I am sympathetic to the concern about dealing with a case and giving it due attention and procedure, even when one's instincts are saying it is probably a non-runner. There is a cost to doing that. How might that be better managed? Is a toll gate missing to somehow head these appeals off when they come in first?

Ms Dorothy Donovan

The authority does an assessment. It may decline to carry out a full statutory investigation. It will have done some investigation. If it is determined that even if what is being alleged is true, it is outside our remit, it is going to fail. It is difficult because people have a right to lodge a complaint. Once an appeal comes before us we treat it with gravitas and sometimes with sympathy but regretfully we may not have any jurisdiction. Mainly, using terms like "frivolous" or "vexatious" in response to somebody will get the response "my complaint is not frivolous", but that is a legal term. The term "frivolous" was explained in the Farrelly case in the High Court, when Mr. Justice Barron said it is a term that really means "bound to fail". That wording is in the Act itself and in many other Acts. The term "vexatious" may need to remain because some complaints will be vexatious but maybe it is time for the word "frivolous" to go.

Senator Michael McDowell

As a formula people feel insulted by it, but it is given a case law meaning of "bound to fail". No matter how properly annoyed a person may be, if they are bound to fail they are deemed to be frivolous and vexatious. Frivolity is not a word that we would choose in the 21st century.

Ms Dorothy Donovan

That is my point exactly. It is time for it to go.

An Cathaoirleach

Very good. It is interesting. I notice Ms Donovan, in her own practice, had a lot of experience with the Multi-Unit Developments Act 2011, which I am sure will be relevant in her new role. I remember when that was coming out. It was introduced to great fanfare. It was certainly heralded as a new departure for the complications that often arise with this type of development. In practice, has it made much impact? Has it simplified the landscape? Has it assisted litigants or how is it working out?

Ms Dorothy Donovan

In its initial years, when developers were handing over units, it provided a system where a management company had not been set up. In fact, I did a case which involved a person who had purchased an apartment and had difficulty getting a loan with the bank because the unit had not been taken over by the owners, essentially, or by the management company. The 2011 Act had a provision for that and was able to do an opinion on it. She was able to draw down her loan. I suspect at this stage developers are more up to speed on what needs to be done.

An Cathaoirleach

Practice has improved across the board within the sector.

Ms Dorothy Donovan

One of the difficulties with the 2011 Act for an apartment owner is probably that if it is a smallish complaint, their avenue of redress is to the Circuit Court.

If it is a smallish complaint, the avenue of redress is through the Circuit Court. There is no statutory body they can go to.

An Cathaoirleach

Does that refer to section 18 of the Multi-Unit Developments Act. I think any dispute can be heard by the Circuit Court related to a multi-unit development, MUD, issue. Is that correct?

Ms Dorothy Donovan

Yes.

An Cathaoirleach

Is Ms Donovan saying it would be better not to have a board like hers seized of it?

Ms Dorothy Donovan

That is not for me to say. I am just saying it is easier for somebody who is aggrieved when there is a statutory body to which they can refer their compliant, as opposed to going to court.

An Cathaoirleach

I understand. That is very good. I thank Ms Donovan for that.

As no other members are offering, that will conclude our engagement. I know this was relatively succinct, but it was valuable to the committee to hear Ms Donovan's testimony and instructions. We wish her every success as she gets into the role in the time ahead. I thank her for that.

I ask the members to stay as there are one or two items of other business.

Ms Dorothy Donovan

I thank the members. Even though it was short and sweet, I appreciate the invite. This was useful.

An Cathaoirleach

That is good. We wish Ms Donovan well and thank her very much.

The joint committee went into private session at 4.41 p.m. and adjourned at 4.45 p.m. until 4 p.m. on Tuesday, 28 May 2024.