Seanad Éireann debate -
Thursday, 17 Oct 1985

Vol. 109 No. 5

Report of Ombudsman: Motion.

Mr. McGonagle

I move:

That Seanad Éireann takes note of the Annual Report of the Ombudsman for the year ended 31st December, 1984.

As a former Ombudsman I would quite clearly have more than an ordinary interest in the first report of the Ombudsman in the Republic for 1984 and I look forward to the 1985 report, more especially since his remit has been extended to cover local authorities and the health boards effective in that year. I welcome the report in that it presents a fairly wide picture of the nature and complexities of questions related to citizens' grievances in a complex society. It pinpoints the basic democratic philosophy that the State and its bureaucratic machinery is to be seen working as a servant of the people and not the other way round. This is precisely where we in democratic societies differ from totalitarian regimes, authoritarian, and indeed sometimes despotic.

The area in which the Ombudsman operates can be best described as a grey area. From experience it was found that the legal machinery could not provide all the remedies and the same is true of the political and administrative apparatus. One has only to look at the report to see the truth of this assertion. On these matters, legal, administrative and perhaps political I will make this observation and qualification. On the question of access to the courts the Ombudsman normally does not intrude, that is, he does not investigate. However, it is possible for the Ombudsman to take a case if he is satisfied that in the public and the peculiar circumstances it is not reasonable to expect the complainant to go to the court. The same principle applies in the case of tribunals if a person complains that the injustice sustained by him remains unremedied. These are serious qualifications and very important ones. Again, the normal political machinery does not operate to the depths that the Ombudsman's investigation operates and that is why in civilised democratic communities all over the world we have Ombudsmen's offices.

On page 11 of the report I note there were a number of legal challenges on points of law by different Government Departments to the authority of the office to conduct investigations. There is nothing peculiar about this. I think the Ombudsman would have welcomed it; I know I would. I am pleased to see that these exercises have, in fact, cleared the air — that is what they were designed to do — and the action taken by the office was correct. This removes the uncertainty and the anxiety arising as it did from differing interpretations of the legalities. This brings me to pages 8 and 9 of the report. The relationship between the Ombudsman's office and the Civil Service is a very important element in the working of the office. Traditionally the head of a Civil Service Department regarded himself as having the final say in all matters, especially employment, relating to his Department. It would, therefore, be somewhat disconcerting for him to find that his or his Department's decisions would be looked at by an outside party. That is natural. It does, and it will, take time to get used to the new position and the new idea, but in my experience that will be overcome eventually. It is very important that it is seen to be overcome. There cannot be a bad relationship between the Civil Service on the one hand and the Ombudsman's office on the other, or between the local authorities and the Ombudsman's office.

On page 25 the Ombudsman said:

The experience of the first year and the level of co-operation achieved from the various government Departments, despite some continuing tensions, promises well for the future development of the Office of Ombudsman.

Here we have it from the Ombudsman that relationships have improved and are now stabilised. This is a good thing and I am glad to note that. Again, I point to my experiences as Ombudsman in Northern Ireland where the Civil Service and the local authorities and other bodies subject to investigation take the stance of actually advising the complainants to go to the Ombudsman. We do this because we feel confident that their decision is the right one. It is common sense and intelligent to tell a complainant that if he does not like the decision, the Ombudsman will clear up the matter because he is independent. That stance has developed and I believe there is a good relationship between the Ombudsman's office and the Civil Service, the local authorities and the health authorities, as the 1985 report will, I hope, show.

Everybody recognises the fact that the very existence of the office keeps administrators on their toes. It is nice for a complainant to find that the Ombudsman has found in his favour, but what about the people for whom he cannot find in favour? There is this to be said about that: there will be a small minority of people who never will be pleased. On the other hand, among the people for whom he cannot find in favour, the average consensus of opinion is that an independent mind looked at the case and they are satisfied they were wrong and that the Department or local authority were right. That is very important. It is important that people are satisfied that an independent, in-depth investigation was carried out, that it was properly carried out and that the right decision was made, even if it was not in favour of the complainant.

The Ombudsman investigates allegations of maladministration, a sinister word which is not defined in the dictionaries. Dick Crossman, when Minister in the British Labour Government, gave as good a definition as I have found — bias, neglect, delay, ineptitude, perversity, arbitrariness, discrimination of the religious, political or racist. Good administration means more than doing what is precisely legal. It means fairness, taking care and good communications. The essential function of the Ombudsman's job, therefore, is to promote fairness. The word "Ombudsman" means fair play man, justice-man and, as I said, the very existence of the Ombudsman's office means that the administrators will see to it that they and their Departments do not have the Ombudsman knocking on their door too often.

There is a fair picture in the report of how the communications system works. This island is divided into 26 counties, and complaints came from every county. This is commendable. Nevertheless, more can be done in the publicity area. Television, radio and the press are there and I have been informed that the Ombudsman is providing this kind of service everywhere he goes. I would like to see more posters at railways stations and more pamphlets at post offices explaining what the Ombudsman does. When speaking to people in the Republic, especially students, I make a point of asking them if they know they have an Ombudsman and what he does. There is still room for better communication through posters, pamphlets, radio and television. I used them extensively in the North and I suggest that the Ombudsman could have another look at extending the publicity in the Republic since his remit has been extended to cover local authorities and health authorities.

Among the matters mentioned was the question of delay. On pages 22, 23, and 24 the heading is "Delay — a matter of serious complaint." On page 42 there is the heading "Delayed Payment". Under that heading it is stated:

A man who claimed disability benefit from the Department of Social Welfare in 1981 was paid at the wrong rate. Three years later he queried the payments made in 1981 and as a result received arrears for an amount in excess of £1,000.

Three years delay: human error, computer error, or whatever, and the Ombudsman has said that within the definition laid down by Crossman delay is a serious matter. This was serious. In a reply he got from the Department asking them to comment on that man's appeal for payment of interest, the Ombudsman went on to say:

In view of the implications such payments would have for all Government Departments with paying responsibilities it "is most unlikely that the Minister for Finance would agree to such an extra statutory payment, . . . . ."

That statement is irrelevant. I does not arise for the very simple reason that the Ombudsman need not rely on the Minister for Finance to make a statutory payment, to make it law for delayed payments. All the Ombudsman has to do — and it is within his powers to do it — is to make a recommendation for an exgratia payment by way of compensation. That is relevant.

The Department go on to say, "Over the years there had never been any consistent demand for interest on delayed payments". That is irrelevant. The fact that there were no demands for interest payments means nothing to the case. The complainant could still be right. Not knowing his rights he did not bother to make any complaint about the delay or, for compensation, not interest, which may be equivalent to interest, but not necessarily. What I am saying is to assist the Ombudsman. I am trying to make constructive, not destructive criticism.

The Ombudsman goes on to say:

I accept that the Department's decision in this case is consistent with its practice over the years —

Of course, it could be consistent. Consistency has nothing to do with justice or fairness. It could be consistent malpractice over the years and probably is.

— and with its view that it should continue with the efforts to eliminate the causes of avoidable delay in all its payments. But I am concerned about the inequity that operates between "paying" Departments and Departments who collect money, e.g. Revenue Commissioners who may charge interest on money due.

Of course, there is inequity between the payment Departments and the Departments which collect money. He went on to say that there was also the more serious problem of the loss and hardship endured by persons who are denied their due entitlements at a time when the need is greatest but he did not make a decision to have compensation paid to the complainant.

I am perturbed about that because as a former Ombudsman I would have made the decision for compensation. I am not saying the Ombudsman was drastically wrong but he has bowed to officialdom because of the implications for other paying Departments. I would suggest this by way of relieving the pressure on the Ombudsman from officialdom. There is in Westminster a select committee called the Parliamentary Commissioners Select Committee for Administration and the Ombudsman in Northern Ireland and in the UK keep in touch with the all-party committee, exchange views, iron out difficulties and do their best to help the Ombudsman navigate a course of direction which would show that his decisions are based on fair judgment.

I am recommending, therefore, that an all-party committee be set up — it may not be called a select committee — to meet the Ombudsman at least once a year and exchange views. The Ombudsman requires this support in his navigation course and what he does and why he does it, and the premise on which he acts. If he reaches a dilemma by way of a recommendation not carried out by the Civil Service he must depend on the will of the Houses of the Oireachtas to give credence and credibility to his recommendation. What better way to prepare the way than an all-party committee meeting at least once a year with the Ombudsman to do that. His geographical page showing that the counties had all complained and his comparisons with other countries who had ombudsmen did not contain a comparison with Northern Ireland. It should have done that, especially since the former Northern Ireland Ombudsman is now a Member of the Seanad. Northern Ireland had an Ombudsman many years before the Republic. That is relevant too. The comparison between the Republic and Northern Ireland should have been in the report as well.

Minister for the Public Service (Mr. Boland)

It is indeed a privilege and personal pleasure for me, as Minister for the Public Service, to be able to address the House in relation to the annual report of the Ombudsman. The report, of course, is the first annual report produced by the Ombudsman and I welcome its publication. The provisions of the Ombudsman Act, 1980, gave the Ombudsman a very special reporting relationship with the Oireachtas. It means in effect that he reports only to the Oireachtas and that he is totally independent of all other agencies in the exercise of his functions. It is appropriate, therefore, that the Members of the Oireachtas should have an opportunity to discuss this report and the general operation of the Office of the Ombudsman during the past year.

Even a casual glance through the report is sufficient to show that 1984, the year covered by the report, was a busy and eventful one for the Ombudsman and his staff. In his first year of operation the Ombudsman received more than 2,000 complaints from all over the country and from people in all walks of life. The nature and extent of the complaints received clearly underline the need for the office and justify its establishment. By the end of December, the office had dealt with 1,736 complaints. This represents about 77 per cent of the total number of complaints received and is a tangible benchmark of success. It underlines too, the efficient manner in which the Ombudsman and his staff have been discharging their responsibilities

The report raises a great number of issues both of a general and a specific nature. Before going on to discuss these issues I think that it would be useful to make a few general comments about the role of the Ombudsman.

As Members of the House will be aware the Ombudsman was appointed by the President on 8 November 1983 following resolutions passed in both Houses of the Oireachtas recommending his appointment. He took up office on 3 January 1984. Above all else the Ombudsman was appointed to speak and act on behalf of individual citizens. On their behalf he examines the actions of public officials and seeks a satisfactory remedy in those instances where he finds that a citizen has a genuine grievance. He deals with day-to-day administrative decisions rather than with the broad scheme of Government policy or national affairs. During his first 12 months in office he has been examining the actions of Government Departments and their associated offices.

The Ombudsman, of course, is independent in the exercise of his functions. While he has no power to force a body to accept his recommendations, his recommendations do carry a significant moral authority. He is empowered to make a special report to the Oireachtas, to whom the administrators are responsible if he is not satisfied with the response to his recommendations. There can be no doubt in anyone's mind that no official will take lightly the possibility of such public criticism of his Department from such a high and independent source.

While the Ombudsman acts on behalf of the citizen, I must emphasise that he is not an enemy of the bureaucracy. The Ombudsman is not intended to be some kind of overlord avenging the misdeeds of bloody-minded bureaucrats. Rather he is an independent and easily reached mediator. His role is purely to investigate and report. His importance lies in his power to investigate the actions of administrators and to report on those to the Oireachtas.

Going on the experience of Ombudsmen abroad it can be expected that a fair proportion of investigations will show that the administrative actions complained about were fair and reasonable in the circumstances. I think that this is borne out by the statistics in the report which show that quite a number of complaints were not upheld.

To the man in the street, the Ombudsman is seen as an important and independent figure, a known form of redress. Informality, speed and accessibility are the keynotes of his office. In essence, therefore, the Ombudsman is an impartial and independent referee, or, as he himself put it in his report "a kind of mediator between the public and the administration". I am glad to note, and Members of the House I am sure will feel likewise, that the Ombudsman's perception of his role is concerned not only with the legal aspects of complaints, but also with the question of equity and fair play. They will also note the emphasis on informality with which I wholeheartedly agree.

Turning now to the report itself, the statistics show that the Ombudsman received a total of 2,267 complaints during the year. As the report indicates, these complaints came from all over the country and from people in all walks of life. These figures reflect, in my view, the major impact which the Ombudsman has made in his first year in office. Indeed to my mind, they indicate the confidence of the people of Ireland in the office itself and in the appointment of Mr. Michael Mills as our first Ombudsman.

A total of 1,544 of the complaints came within the jurisdiction of the Ombudsman. This represents 68 per cent of the total number of complaints received. The Ombudsman succeeded in completing his investigation of 1,013 of these cases and the balance of 531 were carried forward. I note from the report that apart from resolving 400 cases, the Ombudsman was able to provide assistance in 148 cases. In general, this means that the Ombudsman did not uphold the original complaint but was able to point the complainant in the direction of other benefits or other schemes or other courses of action that were open to him and from which he was likely to benefit. This I think is an aspect of the Ombudsman's work which is worth nothing.

We all have a tendency to think in terms of cases which are resolved or not upheld. It is reassuring to see that even where cases cannot be "resolved", assistance can nevertheless often be given. The fact, of course, that a sizeable number of cases were not upheld is, as I have already said, evidence that the Ombudsman acts impartially and is not involved in any type of "witch-hunt". He is, therefore, in a real sense the man in the middle. He is the friend of the public but he is not an enemy of the bureaucracy.

The original complaint was not upheld in 294 cases. The report indicates that 122 of these referred to the system of averaging insurance contributions for the purposes of contributory old age pension. There are no details given of what the balance of these complaints referred to. However, I understand that in general they referred to items such as claims for social welfare benefits, grants, and refunds of tax, to which the complainants felt that they were entitled but which, on examination by the Ombudsman, proved to be unfounded.

There were 171 cases where the complaint was discontinued or withdrawn. Again, we do not have a specific breakdown of these cases. In general, I understand that in some of these cases, the complaint was withdrawn because the complainant received satisfaction from the body concerned before the Ombudsman had completed his investigation. In other cases, complaints were withdrawn when the facts presented by the body concerned, refuting in detail the complaint made, were put to the complainant. In some other cases, the complainant would have also been referred to a solicitor and on reconsideration the complainant might have opted for a legal course of action rather than pursuing his case through the Ombudsman.

Almost all Departments and offices listed in Part 1 of the First Schedule to the Ombudsman Act, 1980 were the subject of complaint. Not altogether surprisingly the bulk of the complaints were in the areas administered by the Revenue Commissioners and the Department of Social Welfare. These are areas of public administration which affect the daily lives of almost every citizen in one way or another.

I was interested also in the relatively high number of complaints which lay outside the Ombudsman's jurisdiction. The total involved was 723 and constituted almost 32 per cent of the total number of complaints received. I was very happy to note that the Ombudsman was able to resolve some of these cases despite the fact that they were outside his jurisdiction. Many of these related to health boards and local authorities. These bodies are of course now within the remit of the Ombudsman since 1 April last.

A number of others related to such issues as pensions, conditions of service, recruitment and so on. The whole area relating to personnel matters is specifically excluded from the Ombudsman's remit at present. The case has been made to me on a number of occasions about the possibility of the Ombudsman investigating this area. I remain still to be convinced of the necessity for it. At the time the legislation was going through the House in 1980 the then Minister of State did not favour this idea. I should also mention that a very detailed procedure has been agreed with staff interests regarding steps that are to be taken when a civil servant finds himself in dispute on a particular matter with his employer. That is a very detailed procedure and leaves open to the individual recourse to quite a series of steps.

The other potential objection, as I have pointed out before in this House, to the concept of the Ombudsman investigating areas such as this is that the Ombudsman might well become a personnel grievance officer in so far as civil servants are concerned and that might not be the best image for the Ombudsman to have. However, I still have a relatively open mind on this issue.

Other complaints referred to the Garda, courts and Defence forces which are all excluded from investigation by the Ombudsman. The exclusion of the Garda was recommended by the all-party committee, after detailed consideration. They were excluded on the grounds that their work is mainly subject to the scrutiny of the Judiciary or else related to security or subject to existing appeals machinery. The courts are excluded as it was never the intention that the Ombudsman would interfere with the judicial process. The Defence Forces are excluded on the grounds that they do not greatly impinge on the everyday life of the ordinary citizen.

There were also a number of complaints about State bodies. Senators will be aware that a major extension of the Ombudsman's remit took place on 1 April last. This extension covered local authorities, health boards, An Post and Bord Telecom Éireann. In deciding on the framework for the extended remit, the Government took into account the availability of resources and the areas where resources could be employed to the optimum advantage. In essence, resources had to be balanced against priorities. Even with the major increase in staff resources, it was necessary for the Government to make a choice as to which areas the extended remit should cover. Since An Post and Bord Telecom Éireann were established at the same time and since their operations had such an important and immediate impact on the public in the postal and telecommunications area as a whole, it was decided to include these two State bodies in the Ombudsman's remit.

The position of other state bodies will have to be considered at a future date. I intend to keep the legislation under review and further additions could be made to the Ombudsman's remit as appropriate.

Another point about the statistics given in the report on which I would like to comment briefly is the number of complaints received in the closing months of the year. This is graphically illustrated on page 60 of the report. I have said before in the House that it is vital that the public become fully aware of the Ombudsman's role, especially now that his remit has been expanded. I was interested to hear Senator McGonagle's remark regarding the necessity for a continuing campaign of publicity so that the greatest number of people are aware of the existence and operation of the Ombudsman's office. Following discussions which I had with the Ombudsman last year, he launched a major publicity campaign. The result of this campaign was the large inflow of complaints to his office in November and December of last year. This is probably a major factor in the number of complaints carried forward into this year. The need for adequate publicity for the office, especially in its early years, is vital to ensure its effective operation. I am sure that the Ombudsman will take the remarks of the Senator into account in deciding on the type of publicity campaign and literature which might be employed in the coming months.

The geographical spread of complaints is also interesting. Complaints were received from every county. This will raise in many people's minds the question of the Ombudsman and his staff operating in some way on a regional basis. This is all the more important now that he is dealing with complaints about health boards and local authorities. Any discussion of this issue must take cognisance of the independence of the Ombudsman in deciding how to carry out the functions of his office. I know there have been requests from time to time from Members of the Oireachtas that there might be even regional offices established.

The Ombudsman has recently decided that members of his staff should visit regional areas for the purposes of interviewing complainants at a local level. It is intended that these visits will be a regular feature of the work of the office. During these visits, members of the public, who have an unresolved complaint against certain public bodies, are able to meet with the staff of the Ombudsman's office to have their complaints examined.

Navan, Monaghan and Dundalk were visited during the week commencing 9 September 1985 and Limerick and Ennis were visited during the week commencing 23 September 1985. Longford and Mullingar were visited during the week commencing 7 October 1985 and it is intended to visit Cork city on 22 and 23 October. Other areas will be visited over the coming months.

As part of the arrangements for these visits temporary offices for the Ombudsman's staff are established in local hotels. Posters advertising the visits are displayed in post offices, libraries, community welfare offices, tax offices, employment offices and other offices of that type and advertisements are placed in the local papers. Where possible, interviews are held with local journalists to ensure adequate advance coverage of the visit. Members of the public are invited to call to the hotel to meet the Ombudsman's staff during ordinary office hours and in the evening time between 7.30 p.m. and 8.30 p.m.

Experience to date has shown that these visits are well worthwhile and beneficial to all concerned. Firstly, there has been a steady stream of callers to each of the centres indicating a clear demand for this service. Secondly, it has been found to date that few, if any, of the complainants interviewed would have been prepared to go to Dublin. They would not have put their complaint on paper, generally because they felt that their complaint was too complex and they felt that they were unable to commit all the details to paper. Expenses of those required to travel distances in connection with investigations by the Ombudsman may be recouped.

I would like now to turn to an aspect of the report which is of deep concern to me. The Ombudsman reports that while the response of many civil servants to the creation of his office was most encouraging, some senior civil servants resented its intrusion, particularly when their decisions were under scrutiny. He also reports that there were legal challenges to his authority which seemed to be more concerned with preventing an investigation into particular complaints than the question of whether the complaints were justified. This was also referred to earlier by Senator McGonagle.

The efficient discharge of the Ombudsman's role depends, to a large extent, on the co-operation he receives from the bureaucracy. Bearing this in mind, my Department issued guidelines to all Departments before the office of the Ombudsman was established about the procedures to be followed during the investigation of complaints by the Ombudsman and his staff. These guidelines did not leave any civil servant, irrespective of at what level he was serving, in doubt that they were expected to co-operate fully with the Ombudsman and his staff.

I am very concerned and disappointed, therefore, that the Ombudsman should have been hindered in any form while attempting to carry out the functions of his office. I need hardly say that I regard this absence of co-operation as tantamount to frustrating the intentions of the Government and of this House. Any lack of co-operation with the Ombudsman, irrespective from what quarter it emanates, will not be tolerated.

Some public officials may be hiding behind the illusion that, because the Ombudsman has no powers to force a body to accept his recommendations, they need not co-operate with the Ombudsman and will remain untouched. I would remind officials that the Ombudsman can make a special report to the Oireachtas where he is not satisfied with the response that he gets. If such were to happen, I need hardly say that a very serious view would be taken of the matter.

It was understandable, as the Ombudsman points out, where points of principle were involved or where, as in the case of the appeals officers of the Department of Social Welfare long established procedures were in question that legal clarification would be sought. However, legal challenges to prevent the Ombudsman from investigating specific complaints are totally unacceptable.

Early suspicions were, of course, to be expected. Senator McGonagle drawing from his own experience has confirmed that. This has been the international experience. However, the full co-operation of all the agencies covered by the Ombudsman's remit, and indeed each individual member of their staff, will be expected from now on. I will be keeping a close eye on this matter and I hope that no further adverse comments will be called for.

Another item which the Ombudsman considered to warrant special comment in his report was the unnecessary delay on the part of various Government Departments and offices in replying to letters and decisions. As the Ombudsman has pointed out, delay, in any circumstance, is frustrating for people. Very often it can also result in real hardship, particularly when the most vulnerable sectors of our society are involved — the old and the needy.

I am particularly concerned about the comments of the Ombudsman in relation to instances of apparently unreasonable delays in administration. I am sure that all Departments — especially those specifically cited in the report — will note the Ombudsman's comments and take action to eliminate or reduce the sources of delay. My Department have been addressing this problem, and will continue to do so, in the course of their efficiency reviews in Government Departments and offices. Progress in eliminating delays will be a major element in improving service to the public.

Apart from efficiency reviews my Department are endeavouring to improve service to the public by providing an increased level of training for those in face to face contact — both oral and written — with the public. A special unit has been established in my Department to improve the presentation and layout of Civil Service forms.

Another important change — what I call the personalisation of the Civil Service — has been made. Civil servants dealing with the public, whether face to face, by telephone or by letter, are required to have their names and designation typed below their signature on all correspondence and to wear name badges when serving in offices open to the public. Other proposals are included in the White Paper which I have recently published. Improved management methods and greater use of technology are central to these proposals.

The office of the Ombudsman has now been in operation for almost two years. The office is carrying out a function that is entirely new to the experience of this country. Obviously, the creation and staffing of such a new office was likely to give rise to some problems initially for the office and its staff. I note that the Ombudsman reports that the appointment of staff by the Civil Service Commission gave rise to some problems during his first year in office.

The recruitment of staff by the Civil Service Commission ensures a fair and independent means of selection. It is very important for the independence of the office, and its future effectiveness, that the staff are seen to be independent of the political system. Therefore, it is necessary that the system of recruitment is fair and seen to be fair. This can, however, involve the commission in detailed selection procedures.

There were no problems with the appointment of most of the staff to the office. The director and senior investigator were appointed in January and April 1984, respectively, but officials were in fact serving in a temporary capacity in these posts from 1 January 1984. Similarly, there were no problems in regard to the appointment of clerical and executive staff. Such positions were filled without any delay. The only problem arose in relation to the appointment of permanent investigators. However, I should emphasise that temporary investigators were appointed to the Ombudsman's office from the outset. The problem in appointing the permanent investigators arose because there is a time scale involved in the recruitment of staff by open competition. However, this is the only way that I can see to ensure that the best people are recruited and that there is no interference of any kind in the recruitment process.

I would like to speak briefly about the future of the office. The remit of the Ombudsman was extended on 1 April of this year to cover local authorities, health boards, An Post and Bord Telecom Éireann. This is a major expansion in the Ombudsman's remit. It means that the actions of an additional 100,000 public servants approximately fall within the Ombudsman's jurisdiction. This represents, in numerical terms, almost a threefold increase in his initial remit. Given that the Ombudsman has been in operation for a relatively short period, I think that the expansion that has just taken place must, by any standards, be considered a major one.

An additional 12 investigators and three senior investigators have been appointed, together with back-up clerical staff, to cope with the additional workload. This staff were assigned on the basis that one senior investigator and four investigators would be assigned to each of the areas of the local authorities, the health boards and telecommunications. Before these staff were recruited consultations took place with the Ombudsman as to what would be deemed the appropriate level of investigative staff which might be required. The Ombudsman was satisfied that the number of staff recruited would be adequate to cope with the additional workload.

The additional senior investigator and investigator posts represent a threefold increase in the existing staff complement of the Ombudsman's office at these levels. The authorised staff of the office has now been increased to a total of one director, four senior investigators, 16 investigators and some 20 support staff for the discharge of his extended remit. It underlines the Government's firm commitment, at a time of necessary cutbacks in the public service, to the concept of administrative justice.

I would now like to refer to one aspect of the Ombudsman's remit which I think is particularly important. A suggestion was made last year during the debate on the Ombudsman (Amendment) Bill, 1984 that the Ombudsman should highlight those areas where grievances can be remedied only by reforming legislation. I believe that the Ombudsman has an important role to play not merely in investigating individual complaints, but also in pointing to areas where general remedial action is needed through changes in legislation.

The all-party committee saw this as a very important aspect of the Ombudsman's role. In doing this, of course, he would be of considerable help to the Oireachtas which, because of pressure of business, has not always the time to review the impact of legislation on an on-going basis. The anomalies identified, no matter how slight they might be, could still give rise to very serious problems for large sections of the community.

I am very happy to see, therefore, that the Ombudsman has included a section in his report which suggests that certain areas of social legislation might be reviewed. The report has been brought to the attention of the Ministers concerned and the Government have asked each Minister to take appropriate action to remove them in so far as it is possible to do so within the resources available.

In some cases remedial action has already been taken. The Finance Act includes a provision to remove the tax anomaly which which deprives some widows and other single persons of the single person's tax allowance. The dates in regard to the revision of rateable valuation of property have been altered and the Minister for the Environment issued a circular to each rating authority requesting them to notify individually the owners of property affected by revised valuation together with the details of the rights of appeal. Legislation is at present in preparation which will confer a new general power on local authorities which should enable them to deal with cases similar to that reported by the Ombudsman under the heading "Antiquated law". It is, of course, only right to say that some of the anomalies highlighted in the report involve many complexities. The contributory pension scheme is a case in point. Detailed analysis of this issue shows that to modify the statutory contribution conditions for the people affected would in turn create further inconsistencies for other groups. The cumulative costs of the modification would be of the order of £50 million in estimated 1987 price terms. The deserted husband is another case in point. The Commission on Social Welfare are looking into the whole area of the needs of single parents. The Seanad will readily agree, I know, that any attempt to sort out this problem must again avoid the creation of new anomalies. Again I am sure it is not necessary for me to refer to the complexities involved in the whole area of domicile. Suffice it to say that proposals being developed by the Minister for Justice will have the effect of doing away with the present rule under which the domicile of a married woman is deemed to be that of her husband. As I have said, the Government have asked each Minister concerned to take appropriate action on these anomalies, wherever possible.

Of course, I should add that remedial action is dictated by the financial and economic parameters within which we find ourselves. However, the Government have taken serious note of the Ombudsman's suggestions for the review of legislation and, as I have pointed out, action has already been put in train in a number of the areas involved.

It is clear from the report that the Ombudsman is optimistic about the future development of the office. I share that optimism, having seen the achievements of the office during the first year and I take this opportunity to wish the Ombudsman and his staff every success in the future.

Mr. Lanigan

I welcome the report of the first 12 months of operation of the office of the Ombudsman. In a relatively short period the office seems to have got its act together and to have had a very successful first year. The only non successes seemed to be due to lack of co-operation from Departments of State. It occurs to me that if it were not for the Departments of State not doing their job there would have been no need for an Ombudsman in the first place. There is no doubt about the need for the Ombudsman because of the tardiness of certain officials within Departments in doing the job for which they are employed in the first place.

In the first few years of the operation of any new scheme difficulties are bound to arise, many of them because of the lack of knowledge by certain people as to why the Ombudsman was appointed in the first place. It comes across quite plainly in the report that a number of the complaints that were made were about matters for which the Ombudsman had no control. Nevertheless it is disappointing to read that the only challenges to the office of the Ombudsman or the role of the Ombudsman relates to specific Departments, the Department of Posts and Telegraphs, in the first place, and Bórd Telecom Éireann in the second place, the Department of Education and the Department of Social Welfare. It is strange to think that an office which was set up to help the public should be hindered by public servants who are there in the first place to help people who have problems.

The main thrust of the argument that is put forward in the report against civil servants is that they do not seem to realise the difficulty people have when they are in a socially deprived situation. A number of the cases mentioned here are cases where people have not got their rights under law in the social welfare area. There is a major problem by way of delays and apparently as a result of lack of knowledge because it would appear that people in the Department of Social Welfare are not aware of what they are supposed to do when somebody is socially deprived. As a public representative I can say that one of the most savage indictments of the social welfare system is the non-arrival of a cheque on a Thursday morning to somebody who has no money. There are people in this House who will have a salary cheque at the end of every month. They know it is coming. There are people in this House who are in business and there are some here who have second salaries, so even if the cheque from the Department of Finance is delayed at the end of the month it does not matter at all that much. But to somebody who has borrowed from his local shopkeeper in the expectation of getting a cheque through the post on a Thursday morning the story would be very different. If such a person is told on phoning the Department that his cheque has not been processed all that means to the civil servant giving the reply is that the cheque has not been processed. It does not make any difference to the civil servant but it does make a difference to the person down the country who has not got one solitary penny in his pocket and who has run out of credit in his local supermarket. In appealing to people who deal with problems such as these and looking at them in terms of the report of the Ombudsman, if we are to get any equity in payments we must computerise at regional level the payment of social welfare benefits. We talk about this here every time a Finance Bill is before us and every time we deal with Department of Social Welfare matters but nothing is being done to remedy the position. I can phone my secretary in Dublin and she can ring a special number to get information but that is if there is not a work to rule going on in the Department, in which case they will not accept telephone calls from anybody.

It is all right for my secretary to ring the Department of Social Welfare and to be told, "Sorry, due to a work to rule we cannot take telephone calls", but consider the person down the country who has borrowed 50p from his next door neighbour to ring the Department of Social Welfare only to be told that the Department are not taking telephone calls. The 50p has been lost but it must be repaid from the social welfare cheque whenever it arrives. I am appealing to the Minister who is present to improve matters in this area. I know from very close contact with him at local level that he not only has a knowledge of the problem but has been trying to do something about it. If that communication problem could be overcome much of the annual report of the Ombudsman could be squeezed into a very much thinner volume than is the case at present.

The Department of Posts and Telegraphs — now Bord Telecom — in their attitude towards their consumers have been deplorable right through the years.

Mr. M. Higgins

Hear, hear.

Mr. Lanigan

What they seem to forget is that the people who have telephones are customers and as customers are entitled to know at all times how much every telephone call costs. There should be a proper monitoring system on every telephone. If this is going to cost them money it is money that will be well spent, both in terms of PR and in terms of their own working. So long as they know on a monitored basis the extent to which each telephone is being used, they will know how much they should charge certain groups of people in the community. They can adjust charges and make those telephones which are less economic more economic possibly by adding a surcharge for telephones which are not used. They could give discounts where telephones are used to a large degree and they could have a proper monitoring of the problem.

Again one notices that in relation to the Department of Finance many of the problems brought to the Ombudsman are communication problems with the Revenue Commissioners whether relating to PAYE, to PRSI, to certificates or anything else. In every area there seems to be a tardiness in answering specific correspondence about specific cases. There should be no need for an Ombudsman to become involved in a situation like that. The Ombudsman should not be there to deal with day-to-day normal workings of any Department of State. His role should be to get in when all fruit fails, when there is no further avenue that a citizen can pursue in trying to get his rights. His remit has been extended to local authorities and this is a good thing.

Sometimes we hear that local authorities are very bad in their communications, that their PR work is bad and that they do not do their job very well, but from what I can gather since the remit was extended to them the number of complaints has not risen to the extent that the people who decry or who try to run down local authorities staffs would have us believe. People who work at local authority level are closer to the people of the area. This is why in general they do a better job in the public perception than is done by civil servants who are too remote. Civil servants should not hide behind a computer error or computer input. I have had specific cases during the year at times when telephones in the Department were being answered but queries were not being dealt with. On one occasion when I had to go to Store Street to deal with a specific social welfare matter I found that seven of the nine desks were not in use and that at the two in use about 300 people were waiting to be dealt with by two people. That was at a time when there was a work to rule in terms of telephone communications. Nobody could tolerate that. I stayed there in one instance for over two and a half hours and then had to leave without reaching the counter. A fault I have with many of the offices of Departments in Dublin is that the people at the front desk are not exactly the greatest PR people for the Departments that they are supposed to serve. It may be that they are not being paid to be PROs but if people are meeting the public, at least they should have the courtesy to deal with the person coming in. Whether they be recipients of social welfare benefits or benefits of any kind or ordinary members of the public who are coming in to make a query, they should all be received civilly.

The Ombudsman's role is one which will become definitive only after it has been operating for a number of years. That role at present is inhibited in the sense that too many of the problems that people have with Government Departments are problems which come about because of legislation. Most of the problems, particularly on a contributory pension basis, are laughable when one reads them, but they are not laughable to the people involved. There is the instance of the report of a complainant's record of stamps through a period from 1953 to 1984. In 1953 he had 52 stamps, in 1954 32 stamps, 1955-73 nil, 1974-84 520, making up a total of 604 stamps, or of reckonable social welfare income. His friend had stamps as follows: 1953 nil, 1954 nil, 1955-73 nil. In 1974-84 he had 520 reckonable stamps. The complainant's total is divided by 31 for 1953-84 and comes out with an average of 19.48 stamps per year, whereas if he had 20 he would have been elegible for all the benefits. His friend only had stamps for 10 years. The total 520 was divided by 10, so he came out with 52. It is a ludicrous situation, to which we in this and in the other House must have due regard. It is a very telling example of bad legislation making bad law and bad law resulting in this type of situation.

I am not too sure whether contacts with Ombudsmen from abroad is particularly useful, except as an exercise, because things differ from country to country. I do not think we would base our views of the role of an Ombudsman on what is happening in other countries. As an intellectual exercise it might be useful to keep in contact with people who are writing on what an Ombudsman does in another area, but I am not too sure that it is of major importance.

I am glad that the report raises questions and areas in which reviews of social legislation should take place. The anomalies in the law of domicile, an area mentioned, are so great that one could spend the rest of the afternoon discussing them. There was mention of these this morning in some of the contributions on the Report of the Joint Committee on Marriage Breakdown that is before us. In relation to divorces which took place abroad people are trying to change the situation here, and the domicile rules are totally ludicrous and out of date.

Contributory old age pensions are mentioned. There is also the deserted husband anomaly as against the deserted wife. There is no reason why, as is set out here, the deserted wife should get £20 a week more than the deserted husband in a similar situation. It is right that the Ombudsman should raise this. However, the role of the Ombudsman should not be to deal with anomalies. We in this House should be able to see these anomalies and bring them forward. Having said that, it is useful that every opportunity be used to highlight the type of anomaly evident in this report.

On the trade issue, problems were mentioned which arose when people had, in effect, been locked out. The Minister present knows that the situation in a factory in south Kilkenny was one of the reasons why there were changes made to deal with that specific case but just because that case was dealt with in a specific way does not mean that there are not still problems in that area, on which people should approach the Irish Congress of Trade Unions about legislation. I would suggest equally that they should get in touch with the legislators rather than the Irish Congress of Trade Unions. If a specific union have a problem, let them go to the Irish Congress of Trade Unions, but the buck stops in these two Houses of the Oireachtas and we should recognise the situation. Mention was made — and I am sure that there will be other speakers who can elaborate on this more than I can — of delays in payments. Mentioned in the report is the case of somebody who made a claim in 1977, which claim was not fixed up until 1984. The person in 1984 got the 1977 settlement figure without any adjustment for income tax or for loss of income during that time, without making any adjustment for the fact that money values had dropped significantly in the meantime. I do not know of any other country in which interest was not paid on such delayed payment. People should get interest if payments are delayed for a period like seven years. It is ludicrous that they should have to bear the loss of value in monetary terms over, in that case, a very significant length of time. The 1977-84 case stands out, but it was not the only case in which there was a significant number of years involved in the settlement of claims.

One of the problems we have in social welfare legislation is the matter of dealing promptly with delayed payments. For various reasons, a payment or claim might be delayed because the person was not entitled to the claim, but surely there should be some way of speeding up the process. Why have people to be brought down from Dublin all the time to settle claims? Why can they not be dealt with on the spot by the local social welfare officer without the person having to go to the local Department of Labour employment office, have the case referred to the local social welfare office, have it referred to Dublin, and the case will then be referred back to the local social welfare officer. The case will then be identified by the local social welfare officer and then will be referred back to Dublin for final adjudication on the merits of the case as seen by the local officer.

If the local officer is not going to have the final adjudication on it, why get him involved in the first place? Why not let him do the whole job? A social welfare officer should be quite capable of adjudicating on a local matter and having the matter finished at local level. That would stop many of these delays.

In many cases delayed payment would probably not be the best description: delayed settlement would be a better word. Community welfare officers around the country are taking the brunt of the inadequacies in the social welfare system some of which have been mentioned in this report. Were it not for the community welfare officers around the country there would be a revolt. The number of people dependent on supplementary benefits, pre-payments from community welfare officers is growing at an enormous rate. Why? We are told it is because of the increase in the number of people who are unemployed. But if there is an increasing number unemployed and there is an increasing need for service from the Department why not increase the staff in the Department to deal with these demands.

There is an embargo on employment in the public service. But surely an embargo on employment in the public service should not be paid for by the people who can least afford it, by the people who have not got a solitary penny in their pocket, by the people who do not really know how to go about getting a pre-payment when a dispute arises or who have to go because their computer hiccups. Indeed computers do not hiccup; it is the people who feed computers who hiccup. If they are on a one day strike or on a go slow it is the person who has not got a solitary penny in their pocket who will suffer. It is not the Civil Service, individual civil servants or the Minister who will suffer. Rather it could be the local shopkeeper who decides to extend a customer's credit by a day; inevitably it is the harassed person who goes to the post office to discover there is no letter for them in the post.

There is absolutely no doubt that the Ombudsman can do nothing about antiquated law. There is a need for consolidation of all laws that have passed through this House in the last 100 years. There were a couple of attempts made at that but there has not been a full consolidation of legislation passed in either House. We need a consolidation of social welfare legislation and that in many other areas such consolidation would eliminate many of the problems that arise. It would make it easier for legislators to deal with legislation. Hopefully, if we get a consolidation Bill or a series of consolidation Bills they will be written in language lay people can understand, they will not be written in archaic legal jargon with no meaning in terms of the way people now speak.

The office of the Ombudsman has attempted successfully to support people with problems. It is interesting to note that the largest number of such problems related to staff problems within the Civil Service which could not be resolved through the normal channels, so these people had to resort to the Ombudsman. That is an indictment of personnel management within the Civil Service. There must be a continuation of effort within our Civil Service that would give each and every member of the Civil Service from the highest to the lowest, the feeling that there is an opportunity for him or her to discuss problems with their superior officer and, in a lot of cases when I say "superior officer", I am thinking of going as far as the Minister himself.

The report is an indictment of many Departments of State and semi-State bodies. The number of queries received by him and which could not be dealt with because of statutory obstacles is too big. The number of queries received other than those, which could not be dealt with, was not the fault of the Ombudsman. There was the case of the man who came into the country with his golf clubs with two letters, one of which was open and the other which was not open. It appeared to the junior customs officer that the right thing to do would be to confiscate the golf clubs, give a receipt for them, and that they could be recovered on the passenger's way out, but that did not happen. It was suggested that he was smuggling in the golf clubs. It was suggested that there was a letter to prove that he was smuggling in the golf clubs for his sister. Yet, when the Ombudsman got involved, that client got his money back, he got his golf clubs back and went back to the United States with everything.

One must ask: would that happen somebody who came in here and who had to remain in this State? The Ombudsman found that the junior person involved at customs level, at whichever airport, had a better grasp of the situation then had senior civil servants. That is only another indication that the Ombudsman got involved and, because he became involved, there was a resolution of the problem to everybody's satisfaction except, probably, the intermediary, the poor person at mid level of management who probably got rapped on the knuckles because he did not do what his senior officers felt he should do.

To the Ombudsman and his staff I would say: well done for the first year of operation. I sincerely hope that, within the next 12 months or couple of years, the frustrations they have suffered because of lack of co-operation from Departments of State will be reduced. When that happens the role of the Ombudsman might be able to fade into oblivion because, if things were operating properly, there would not be the need for that office.

Mr. M. Higgins

I should like to join other Senators in welcoming the first Annual Report of the Ombudsman for 1984 and to join those who complimented the Ombudsman, his investigators and staff. I clearly recall the context in which the office of Ombudsman was discussed for a number of years in both Houses of the Oireachtas. When Basil Chubb published his article in the sixties, going around persecuting civil servants, the role of the Irish TD, discussion ensured in the popular newspapers in which people began to refer to TDs, Senators and public representatives as messenger boys, when people on television programmes would frequently have the question put to them: are you a legislator, or are you a messenger boy and so forth? Thus, when the office of Ombudsman was being discussed, people suggested that, when established, it would put a great deal of what were referred to as the clientless politicians out of business.

None of us ever took that very seriously. The office of Ombudsman in any one of the countries in which it was introduced has made a very slight reduction in the total volume of complaints that citizens have against the State. If one took all the countries which have an Ombudsman you would probably find that there is not a reduction of 15 per cent in any country. That is the first point. Therefore, it was never really seriously suggested that it would answer all questions of grievance between citizens and the State. The office has been very successful, as the report tells us, although there are a number of important modifications in future reports to which I would look forward and which to some extent Senator McGonagle has anticipated. For example, in future reports it will be very valuable to have more detailed discussion of the basis upon which the Ombudsman's office came to a particular decision. That is very important for a number of reasons.

The office of the Ombudsman should indeed have the informality to which the Minister for the Public Service made reference in his contribution to this motion but while it should seek a resolution in individual cases it also has an exemplary function in so far as it takes these cases as examples of the interaction between citizens and the State. If we are to benefit from the procedures of the office to the best degree, we need to know the basis upon which the Ombudsman came to a particular decision, for example, in relation to An Bord Telecom an arrangement for investigating telephone accounts has now been arrived at. I am glad that a certain proportion of people who are disturbed at the enormous bills that they received for one reason or another have had their grievances resolved but I am still anxious to know what kind of arrangement was made. We need to know this not only to have the benefit of the findings for reforming legislation but also to be able to look at the areas where there may be breaches of natural justice.

To follow on from the points made by previous Senators, including Senator Lanigan, I have no doubt that delay in the giving of a benefit to somebody at appropriate and current rates can offend against natural justice. I know the old argument will be that the person was not entitled to the benefit until the day that he or she was judged eligible for it but that is an administrative legal decision and does not take priority over issues of natural justice. For example, the whole establishment of the different benefits in the social welfare code were justified on their introduction on the basis of appropriate need. Therefore, from once the need was in existence and the person had notified the State of that need, in all conception of natural justice and the Social Welfare Acts within it the person is entitled to benefit from that date and the person is entitled to the benefit of income from that date. Thus one cannot have, except in a very backward State — and this is a backward State in many regards — the total absurdity whereby the Revenue Commissioners can seek interest on the sums due to them and that those who have been in need and have satisfied that need after a long procedure are not entitled to the money value adjusted to present day standards or indeed to be compensated for such additional expenditure incurred in the vindication of their rights under the Social Welfare Acts.

I call to mind the hucksters' attitude of the commercial banks which have the beautiful notion that if, on the one hand, the bad debts of a bank for Revenue Commissioner purposes include not only the capital sum but also the interest that is calculated as due on the capital sum and which is recovered on a pound for pound basis from the Revenue Commissioners or their other beautiful mechanism of instantly debiting their customers with money due by way of interest and not paying interest on deposits for a three day period afterwards due to their own processing system. I have my own view about the morality of that but it is perfectly clear that in this country, when one looks at it from the perspective of jurisprudence, there is a different criterion of relationship accepted in terms of the recipients of housing, social welfare, health and other benefits and that which is encountered, for example, in the commercial world. I would ask any public representative in this or the other House to reflect on the different treatment by people who manage private labour mobility exchanges, private labour exchanges and public ones, the private housing market and estate agents, the public local authority housing market and their clients. There is an ethos of the poor law system.

When the supplementary welfare allowance was introduced people said there would be an end to the dole mentality and so forth and that we were making a great qualitative leap forward in legislation. I doubted that at the time because the exchanges remained the same and they are a disgrace to the public. The circumstances under which people who are unfortunate enough to lose their jobs and people who have some disability or another have to come to these exchanges is an absolute scandal. I also suspect — and I would like to return to this — that there is a distinction between the treatment of men and women in relation to their interaction with public services provided.

I welcome the reforms being made within the public service and I compliment the Minister on humanising the public service so that people can identify with whom they are speaking. I have written elsewhere about this and said that at times I wondered about the fact that promotion with the public service seems to mean that one had reached the pinnacle of promotion when one had moved backwards and upwards in such a position where people no longer knew where one lived — at that stage the person had achieved a position of supreme authority. I have said that the Irish system was really deficient in so far as the people who were at the point of interaction with the public were often people who were not the most experienced or senior. That is a deficiency.

Equally, within the system there is a legacy brought over from the old British Civil Service days which is absolutely disastrous which is that the Irish public service is hierarchical, centralised, bureaucratic and is categorical in the way it operates in relation to rules. It is hierachical in so far as the number of decisions which are retained at the very top of the system and the amount of authority which is not delegated is totally counterproductive. It is centralised in so far as the most major decision making powers are very tightly centralised and I am not talking about geography. People have this absurd notion that decentralisation is about putting clerk typists and typewriters into vans and sending them off to remote parts of the country. I am talking about centralised decision making, people above a certain level who are located at the centre of the system. It is bureaucratic in so far as the manner in which decisions are communicated — and this comes through in the report — is totally impersonal. I welcome the fact that people at least sign their letters but the impersonality which is brought to bear in decisions from time to time is totally unsatisfactory. It is categorical in so far as there is this appalling obsession with, under pain of great penalties I suspect, of operating outside a strict interpretation of the rule. The easy way out is take no decision other than the standard decision indicated, ignore the human suffering.

I challenge again a comparison between public and private modes of consumption of services in that regard. The average estate agent would not deal with a customer in relation to the housing market in the way that a housing officer will be forced to take a categorical decision in relation to an applicant for public housing. In relation to the question of employment exchanges the same applies and I repeat it in relation to a whole range of services. This creates a great many problems. People write learned articles about the price we pay for proportional representation but perhaps the wasteful competition that exists because of proportional representation in a multi-seat constituency contributes to some of our difficulties. Perhaps the dependency which exists explains the clientalism that is at the back of our practices. However, there is a deficient complaints mechanism in the country and the Ombudsman's office has been a very important contribution to redressing that balance in favour of the citizen vis-á-vis the State. For that reason we should all welcome the fact that the office has been able to function so well.

I agree with what the Minister said about the obstructions placed in the way of the early operation of the office. If the office is to function it requires co-operation from everybody and in that regard we are not addressing any pious aspiration. The view of the Oireachtas has been explicit and has been voted upon. We require that co-operation. There is a tragic element in the report in many ways and that is that the greatest volume of complaints are in the area of social welfare and in the area of delays. What that is telling us if we extend it is that those with the least capacity to survive delays are those who are carrying the greatest burden of the features of bureaucratic centralism and of the whole question of hierarchy and abuse of authority. All of the features of the central state I mentioned are duplicated at the level of the local state and the local authority system.

Debate adjourned.