From 1 May 2013, about 160 public bodies have become “reviewable agencies” under the remit of the Ombudsman and the office of the Ombudsman for Children (“OCO”), each of whose remit was significantly extended by the Ombudsman (Amendment) Act 2012 (the “2012 Act”). Both regimes look at resolving complaints of poor administration effectively, in the public interest, and without the necessity for formal legal procedures.
The Ombudsman was established under the Ombudsman Act 1980 (the “1980 Act”) and may examine complaints by eligible persons about administrative actions of reviewable agencies which are public bodies. Where an eligible complaint is on behalf of a child (a person under 18), the complaint is handled by the OCO under a separate but similar regime in the Ombudsman for Children Act 2002 (the “2002 Act”). An indicative list of the additional “reviewable agencies” prepared by the Ombudsman is included below. Broadly speaking, all public bodies, except a few which are specifically excluded, now come under the Ombudsman’s and OCO’s remit. The Ombudsman and OCO have been engaging with the new “reviewable agencies” to explain their roles, to encourage effective systems of complaint resolution at local level and to establish liaison arrangements.
How the Ombudsman and OCO Schemes Work
The Ombudsman is an independent officer of the State appointed by the President, and is empowered to conduct preliminary examinations and investigations, on foot of complaints by eligible adult persons, or on her own initiative, into public service administrative action1, and to make nonbinding recommendations. The OCO regime was established by the 2002 Act as a parallel system with a special focus on children. The OCO is also an independent officer, and performs her functions having regard to the best interests of the child concerned and, in so far as practicable, giving due consideration, having regard to the age and understanding of the child, to his or her wishes. While it may in some respects appear to be a burden for new “reviewable agencies” to have to deal with Ombudsman/ OCO complaints and investigations, the regimes allow expert independent consideration by the Ombudsman/OCO of controversial administrative practices and facilitate the resolution of controversies in a less formal, less public and less costly way than by using hard legal dispute resolution procedures.
Certain complaints are excluded from examination by the Ombudsman or OCO. These include2:
unless it appears to the Ombudsman/ OCO that special circumstances make it proper to do so-
- if the action complained of is the subject of civil legal proceedings by the complainant;
- if the complainant has a statutory right to have the subject of the complaint considered by a court by way of appeal, reference or review;
- if the complainant has a right of appeal, reference or review to or before a person, who is independent in the performance of his or her functions in relation to the appeal, reference or review: for example, an effective internal appeal or review procedure;
- if the action relates to or affects (i) recruitment or appointment to any office or employment, or (ii) the terms and conditions (including as to pensions and benefits) by which any office or employment is or of any contract for services;
- in the case of a complaint to the OCO, if the action relates to the results of an examination;
- unless it appears to the Ombudsman that special circumstances make it proper to do so, if the complaint is not made within 12 months of when the action occurred or when the complainant became aware of the action, whichever is later (i.e. essentially a limitation period for complaints);
- unless it appears to the OCO that special circumstances make it proper to do so, if the complaint is not made within 2 years of when the action occurred or when the child concerned became aware of the action, whichever is later,
- if the action was taken before the reviewable agency concerned first became subject to review under the 1980 Act or 2002 Act (as the case may be), or was taken when the reviewable agency concerned was not subject to review (so that the Ombudsman/OCO can only entertain complaints in respect of administrative action taken by new reviewable agencies after 30 April 2013), or
- if the action is one which is reviewable by the Pensions Ombudsman.
The Ombudsman or OCO regime is usually activated by a complaint by or on behalf of a person affected. Before initiating an investigation, the Ombudsman must carry out a preliminary examination. (This may often be based on the written material submitted by the complainant). The OCO is not obliged to conduct a preliminary examination but often will. The purposes of the preliminary examination are to establish in a quick and informal way whether a formal investigation is justified and to enable complaints to be resolved without particular formality, especially in more straightforward cases. In practice, where a complaint can be resolved by some other action available within the public body concerned, which has not been taken, the complainant will be referred back to exhaust his or her recourse within the public body before the Ombudsman or OCO will advance a complaint to full investigation stage. The Ombudsman’s office or OCO will usually informally encourage the public body to take more active steps to resolve the matter.
The Ombudsman or OCO may decide3 not to proceed beyond preliminary examination, or discontinue an investigation which has been begun, where she forms the opinion that—
- the complaint is trivial or vexatious,
- the complainant (or child on whose behalf a complaint was made) has an insufficient interest in the matter,
- the complainant (or child on whose behalf a complaint was made) has not taken reasonable steps to seek redress in respect of the subject matter of the complaint or, if he has, has not been refused redress, or
- in the case of a complaint to the OCO, lapse of time since the occurrence of the matter complained of makes effective redress impossible or impracticable.
Criteria to be Met for Investigation to Proceed
To decide following a preliminary examination that a full investigation is justified, the Ombudsman must be satisfied4 that the action has or may have adversely affected an eligible person (i.e. complainant), and that the action was or may have been—
- taken without proper authority,
- taken on irrelevant grounds,
- the result of negligence or carelessness,
- based on erroneous or incomplete information,
- improperly discriminatory,
- based on an undesirable administrative practice,
- a failure to comply with section 4A (which relates essentially to the duty, discussed below, of reviewable agencies to assist those affected by administrative action), or
- otherwise contrary to fair or sound administration.
The OCO may investigate where5 the action has or may have adversely affected a child, and was or may have been in one of these eight categories (other than failure to comply with section 4A, which does not apply in the OCO regime).
Availability of Other Remedies
Plainly, certain of the grounds which may justify an investigation by the Ombudsman or OCO will overlap with grounds for a complaint or appeal within a reviewable agency’s established grievance or internal appeals procedures and with the grounds for judicial review. Therefore, in many cases, recourse to the Ombudsman or OCO will be unavailable, unless the Ombudsman or OCO determines that special circumstances make it proper to do so (which might, we suspect, include a genuinely-held belief that an internal procedure is biased or prejudiced against the complainant, or is disproportionately costly).
However, in most cases, if the complaint is, for example, that a decision was made without the proper authority, legal recourse should already be available within the reviewable agency through a grievance procedure, or by an appeal, or by judicial review and, absent “special circumstances”, this existing recourse should be used first.
The Ombudsman or OCO regime is likely to be more attractive to a complainant as an option in cases where it is not clear that legal recourse would clearly be available through the existing channels, for example where the complaint is on the basis that the action was taken based on an undesirable administrative practice.
A key disadvantage for complainants to the Ombudsman or OCO is that the Ombudsman or OCO may not award a legal remedy, such as annulling a decision, as an internal complaints or appeal procedure or a court might. The Ombudsman or OCO may only make recommendations. The effect is essentially persuasive; public bodies can be encouraged into taking action to change their practices. A further tool of persuasion is that the Ombudsman or OCO may make a special report to the Oireachtas6 where it appears that the response to a recommendation is not satisfactory. This is a power which is rarely used. When it is, it may reflect a sense of frustration by a perceived unreasonableness or unresponsiveness by the public body. Availability of a binding legal remedy makes existing internal and court-based avenues of recourse more attractive to most complainants.
Commonly enough, complaints about administrative rather than statutory schemes, because a legal right of recourse, such as an appeal, is usually available where an application under a statutory scheme is refused. Complaints reported on recently by the Ombudsman include in respect of Revenue procedures on seizing vehicles; disability allowances; motorised transport grants; the mobility allowance scheme (age limit); and the Nursing Homes Support Scheme. Often there are multiple complainants. The complaints seem principally to relate to erroneous or unsatisfactory decisions to refuse access to particulars schemes or services, or poor service quality.
Individual grievances are likely to be dealt with internally to a complainant’s satisfaction (so that the Ombudsman or OCO regime is unlikely to be invoked) if an agency’s internal complaints and appeals procedures are robust in providing efficient and effective redress where a complaint is proved. The Ombudsman or OCO is more likely to be invoked where the legal basis on which particular decisions are made is unwritten, for example where they are driven by something in the nature of custom and practice rather than clearly expressed guidelines and criteria or where the manner in which access to services or facilities is administered appears overall to have a discriminatory effect, though individual decisions may be perfectly sound.
Where investigations are undertaken, these are in private. The Ombudsman or OCO has the power to compel people with relevant information or documents to attend or provide those documents7. Where a person failed to comply with a request provide specified information or documents in the context of an investigation, the Ombudsman or OCO may apply to the Circuit Court to compel the person to do so8.
The procedure for conducting an investigation is left open; plainly, however, the rules of natural justice must be observed. The Ombudsman or OCO must report on the outcome of investigations. Arising from an investigation, the Ombudsman (but not the OCO) may refer a question of law arising to the High Court for determination, essentially what is known as a case stated9.
Reporting of Outcomes
Where a complaint is not taken beyond a preliminary examination, or is discontinued, the Ombudsman or OCO must send the complainant a written statement of reasons for that decision10.
Where an investigation is conducted, the Ombudsman or OCO must send a written statement11 of the results of the investigation to all concerned parties.
Where, following an investigation, the Ombudsman or OCO concludes that the action adversely affected an eligible person or child and met one or more of the criteria mentioned above (lack of proper authority, etc), the Ombudsman or OCO may recommend to the reviewable agency concerned that the matter in relation to which the action was taken be further considered or that measures (or specified measures) be taken to remedy, mitigate or alter the adverse affect of the action. The Ombudsman or OCO may also request the reasons for taking the action, and may request the reviewable agency to notify its response to the recommendation within a specified time. The complainant is notified of any recommendations and any response by the reviewable agency complained of.
Where the Ombudsman makes a recommendation to a reviewable agency in relation to action of a particular kind, the Ombudsman may make a recommendation in general terms to such reviewable agencies as the Ombudsman considers appropriate about remedying, mitigating or altering the adverse effect on eligible persons of actions of that kind by any such reviewable agency, and may request all such reviewable agencies to notify their response within a specified time12. Agencies can therefore receive recommendations for action arising from investigations of complaints against other agencies operating in the same space, and be asked to respond. The OCO may achieve similar outcomes through a slightly different legal route, by encouraging reviewable agencies, schools and voluntary hospitals to develop policies, practices and procedures designed to promote the rights and welfare of children13.
Duty to Give Reasonable Assistance and Guidance
A new feature introduced by the 2012 Act is that bodies under the Ombudsman’s remit will, in the context of performing certain administrative actions, be legally obliged14 to give reasonable assistance and guidance to members of the public and deal with them properly, fairly, impartially and in a timely manner. As the scope of this provision is yet untested, it seems likely that it may be the focus of a good number of complaints.
The duty arises when an action taken by or on behalf of a reviewable agency in the performance of administrative functions affects a right, privilege or other benefit to which an eligible person is or may be entitled, or an obligation, liability, penalty or other detriment to which an eligible person is or may be subject. In such circumstances, the reviewable agency must, consistently with the resources available to it:
- give reasonable assistance and guidance to that person in any dealings of the person with the agency in relation to the action taken by the agency, having particular regard to the needs of the person as a result of any disability,
- ensure that the business of the person with the agency in relation to that action is dealt with properly, fairly, impartially and in a timely manner, and
- provide information to the person on any rights of appeal or review in respect of that action and on the procedures for, and any time limits applying to, the exercise of those rights.
The element of information provision may easily enough be dealt with by publicising the rights and procedures concerned, on the agency’s website, by leaflets, etc. The other elements may in some cases already be addressed by customer charters, service standards, etc. There is no amendment to the 2002 Act requiring the giving of assistance and guidance in relation to the OCO regime; however, bodies which deal with both adults and children will plainly have to make reasonable assistance and guidance available to all members of the public, regardless of age.
Public bodies which have become reviewable agencies should actively engage with the efforts made by the Ombudsman and OCO to spread the message about the application of the regimes, and agree to set up liaison points so as to be able to ensure effective participation in the process if invoked.
Such public bodies should also familiarise themselves with the guidelines published by the Ombudsman for public bodies which reflect her views of (a) the types of redress which should be available; (b) best practice in establishing and operating internal complaints systems and (c) best practice service standards for public servants and on the material published by the OCO concerning how complaints and investigations have been handled to date.
Indicative List of Additional Public Bodies Brought Under the Ombudsman's and OCO’s Remit
Click here to view list.