Ombudsman & Agencies
Inclusion of Agencies
The Minister may, after consultation with the Ombudsman, the Ombudsman for Children and such committee of the Houses of the Oireachtas as he or she considers appropriate, and with the consent of such other Minister (if any) as appears to the Minister to be responsible for the entity in question, and having regard to the need to ensure appropriate accountability and oversight of entities referred to in this subsection, may by order declare to be a reviewable agency—
- an entity, being a company established under the Companies Acts in pursuance of powers conferred by or under another enactment, or any other entity, whether financed wholly or partly, or directly or indirectly, by means of money provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government,
- any other entity on which functions in relation to the general public or a class of the general public stand conferred by any enactment (but only in respect of those functions),
- a subsidiary (within the meaning of the Companies Acts) of a company to which the above relates, or
- an entity (other than a subsidiary that is directly or indirectly controlled by such an entity
An order may exclude certain elements of that entity from review. Where an order is proposed to be made which excludes certain elements of an entity from review, the proposed order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.
Investigation of Agency
The Ombudsman may investigate any action taken by or on behalf of a reviewable agency in the performance of administrative functions where, having carried out a preliminary examination of the matter, it appears to the Ombudsman that the action has or may have adversely affected an eligible person, 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, or
- otherwise contrary to fair or sound administration.
The Ombudsman shall not investigate an action unless—
- a complaint in relation to the action has been made to the Ombudsman by or on behalf of an eligible person, or
- it appears to the Ombudsman (on his or her own motion or on foot of a communication from a person who is not, in respect of the complaint, an eligible person having regard to all the circumstances, that an investigation under this section into the action would be warranted.
The Ombudsman shall not investigate an action taken by or on behalf of an exempt agency, or an action taken by or on behalf of a reviewable agency excluded from review under the Act .
Restriction
The Ombudsman shall not investigate a complaint by or on behalf of an individual into any action of or on behalf of another person where—
- that action affects such individual by virtue of being a member, officer, employee or agent of an entity or entities, and relates to the performance by such individual, whether alone or with others, of his or her functions as a member, officer, employee or agent of such entity or entities,and
- any such entity is financed wholly or partly, whether directly or indirectly, by means of moneys provided by, or loans made or guaranteed by, a Minister of the Government,
but the restriction by virtue of this subsection on the investigation of that action shall only be to the extent that it relates to the performance of such functions.”,
The person making the complaint must have taken reasonable steps to seek redress in respect of the subject matter of the complaint or, having done so, has not been refused redress, or satisfactory measures to remedy, mitigate or alter the adverse effect of the action on the person making the complaint have been, or are proposed to be, taken by the reviewable agency concerned.
Reports to Committee
The Minister may designate a committee of the Houses of the Oireachtas to receive periodic reports from the Ombudsman and make recommendations to the Ombudsman regarding the exercise of his or her functions under the Act.
The Minister, after consultation with the Ombudsman, the Ombudsman for Children and such committee of the Houses of the Oireachtas as he or she considers appropriate, and with the consent of such other Minister (if any) as appears to the Minister to have responsibility for that entity, and having regard to the public interest and the need to ensure a balance between appropriate accountability and oversight of entities subject to the Act , and the ability of those entities to conduct adequately their affairs, may by order declare an entity—
- to be an exempt agency (including an entity that immediately before the making of the order was a reviewable agency),
- specified in the Second Schedule to be a reviewable entity, or
- specified in Part II of the First Schedule to be a reviewable agency on the basis of different elements of that agency’s functions to those specified in that Part.
An order so made may specify the inclusion or exclusion of elements of an entity. Where an order is proposed, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.The Minister shall consult such committee of the Houses of the Oireachtas as he or she considers appropriate prior to taking any such action .
Dispute as to Reviewability
Where a dispute arises between an entity and the Ombudsman as to whether an entity is a reviewable agency, the question shall be submitted to the Minister whose determination shall be binding.”.
Duty on reviewable agencies to give assistance and guidance, etc.
When an action taken by or on behalf of a reviewable agency (‘the 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.
The agency shall, consistent with the resources available to the agency—
- 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.”.
Exemption
The Ombudsman shall not investigate any action taken by or on behalf of a person—
- if the action is one in relation to which—
- the person affected by the action has initiated in any court civil legal proceedings and the proceedings have not been dismissed for failure to disclose a cause of action or a complaint justiciable by that court whether the proceedings have been otherwise concluded or have not been concluded,
- the person affected by the action has a right, conferred by or under an enactment, of appeal, reference or review to or before a court in the State (not being an appeal, reference or review in relation to a decision of a court), or
- the person affected by the action has a right of appeal, reference or review to or before a person, other than a reviewable agency, who is independent in the performance of his or her functions in relation to the appeal, reference or review,
- if the action relates to or affects national security or military activity or (in the opinion of the Ombudsman) arrangements regarding participation in organisations of states or governments,
- if the action relates to or affects—
- recruitment or appointment to any office or employment, or
- the terms and conditions (including the terms and conditions upon and subject to which pensions, gratuities or other superannuation benefits are payable), being— the terms and conditions upon and subject to which a person holds any office or is employed in any capacity, or ) the terms and conditions of a contract for services,
- if—
- in a case where a complaint is made to the Ombudsman in relation to the action, the complaint is not made before the expiration of 12 months from the time of the action or the time when the person making the complaint became aware of the action, whichever is the later, or
- in any other case, a period of 12 months has elapsed since the time of the action,
- if the action was taken before the date on which the reviewable agency concerned first became subject to review under the Act , or was taken on a date on which the reviewable agency concerned was otherwise not subject to review under the Act ,
- if the action is one to which section 8 of the Ombudsman for Children Act 2002 applies,
- if the action—
- falls within a category of complaint or dispute to which paragraph (a), (b) or (c) of subsection (2) of section 131 of the Pensions Act 1990 applies, and
- is not excluded from the jurisdiction of the Pensions Ombudsman by virtue of regulations under paragraph (b) or (c) of subsection (7) of that section.
Investigation Nonetheless
Notwithstanding the above, the Ombudsman—
- may investigate insurability and entitlement to benefit under the Social Welfare Consolidation Act 2005 , and
- if it appears to the Ombudsman that special circumstances make it proper to do so, may investigate an action to which the first two exclusions apply.
This does not affect the power of the Ombudsman to investigate an action, taken within a reviewable agency having responsibility for the administration of laws relating to employment, that relates to a complaint made under such a law.
Investigation & Recommendation
In any case where the Ombudsman conducts an investigation under the Act, the Ombudsman shall send a statement in writing of the results of the investigation to—
- the reviewable agency concerned,
- the Department of State in which are comprised the business and functions of, or which performs functions in relation to, a reviewable agency (other than a Department of State) to whom a statement is sent under paragraph (a),
- any other person who has or, in a case where a complaint in relation to the action the subject of the investigation has been made to the Ombudsman, is alleged in the complaint to have taken or authorised the action, and
- any other person to whom the Ombudsman considers it appropriate to send the statement.
Where, following an investigation into an action, it appears to the Ombudsman that the action adversely affected an eligible person and was of a kind referred to, the Ombudsman may recommend to the reviewable agency concerned—
- that the matter in relation to which the action was taken be further considered,
- that measures or specified measures be taken to remedy, mitigate or alter the adverse effect of the action, or
- that the reasons for taking the action be given to the Ombudsman,
He or she may also request that the reviewable agency notify the Ombudsman within a specified time of the agency’s response to the recommendation.
Where the Ombudsman makes a recommendation to a reviewable agency in relation to an action of a particular kind, the Ombudsman—
- may make a recommendation in general terms to such reviewable agencies as the Ombudsman considers appropriate with regard to remedying, mitigating or altering the adverse effect on eligible persons of actions of that kind by any such reviewable agency, and
- may also request any such reviewable agency to notify him or her within a specified time of the response of that reviewable agency to the recommendation.
Where the Ombudsman carries out an investigation under the Act into an action the subject of a complaint , the Ombudsman shall notify the person who made the complaint of—
- the result of the investigation,
- the recommendation (if any) made in relation to the matter, and
- the response (if any) made to that recommendation by the reviewable agency concerned.
Powers of Ombudsman
A requirement shall be made by notice in writing given to the person to whom it is directed and shall specify the period within which and the place at which any information, document or thing is to be furnished to the Ombudsman or the place at which a person is to attend before the Ombudsman.”,
If it appears to the Ombudsman that a person has failed to comply with a requirement made, the Ombudsman may apply to the Circuit Court for an If the Circuit Court is satisfied as to the failure of the person concerned to comply with the requirement concerned, the Court may, , make an order directing that person to comply with the requirement. An application shall be made to the judge of the Circuit Court for the Dublin Circuit.”.
A person shall not, in connection with any trade, profession, business or occupation, use the title of ombudsman, either alone or in conjunction with another word or phrase, unless the person—
- is authorised to do so by or under an Act of the Oireachtas,
- has, by reason of the functions to be performed by him or her, obtained the prior consent in writing of the Minister to do so, or
- had commenced so to use that title before 9 July 2008.
The Minister shall, for the purposes of deciding whether to give consent, consult both—
- the Ombudsman, and
- such other Ministers of the Government as the Minister considers appropriate, having regard to the functions to be performed by the person who is seeking that consent.
A person who contravenes this provision commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 6 months or both..
Reviewable Agencies
PART I
- a Department of State;
- an entity established by or under any enactment, statutory instrument or charter (other than the Companies Acts) or any scheme administered by a Minister of the Government;
- a company (within the meaning of the Companies Acts) a majority of the shares in which are held by or on behalf of a Minister of the Government;
- any entity (other than an entity to which paragraph (a) or (b) relates) established or appointed by the Government or a Minister of the Government;
- a subsidiary (within the meaning of the Companies Acts) of a company to which paragraph (c) relates;
- an entity (other than a subsidiary to which paragraph (e) relates) that is directly or indirectly controlled by an entity to which paragraph (b), (c), (d) or (e) relates;
- an entity on which functions are conferred by or under statute, statutory instrument or charter, but only in respect of those functions;
- a higher education institution in receipt of public funding;
- an entity that immediately prior to the enactment of the Ombudsman (Amendment) Act 2012 was subject to review by the Ombudsman.
Exceptions
Part I of this Schedule does not include a reference to—
- the Adoption Authority of Ireland, insofar as it relates to the making of an adoption order or the recognition of an intercountry adoption effected outside the State, within the meaning of the Adoption Act 2010 ;
- An Bord Altranais, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of nurses under the Nurses Act 1985 and to its role as the competent authority for the purposes of mutual recognition of nursing qualifications obtained in or recognised by a Member State;
- Bord na Radharcmhastóirí, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of optometrists and dispensing opticians under the Opticians Acts 1956 and 2003 and to its role as competent authority for the purposes of the mutual recognition of relevant qualifications obtained in or recognised by a Member State;
- the Courts Service, except as it relates to an action taken in the performance of administrative functions under section 5 of the Courts Service Act 1998 ;
- the Dental Council, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of dentists and dental practitioners under the Dentists Act 1985 and to its role as the competent authority for the purposes of mutual recognition of dental qualifications obtained in or recognised by a Member State;
- the Department of Justice and Equality, insofar as it relates to an action—
- taken in the administration of the law relating to immigration or naturalisation,
- taken in the administration of the prisons or other places for the custody of persons committed to custody by the Courts,
- involving the exercise of the right or power referred to in Article 13.6 of the Constitution, or
- involving the remission of any forfeiture or disqualification imposed by a court exercising criminal jurisdiction;
- the Health and Safety Authority, except as it relates to an action taken in the performance of administrative functions under section 34 of the Safety, Health and Welfare at Work Act 2005 ;
- the Health and Social Care Professionals Council, except as it relates to an action taken in the performance of administrative functions under Part 4 of the Health and Social Care Professionals Act 2005 ;
- the Health Service Executive, insofar as it relates to an action taken—
- by persons when acting on behalf of the Health Service Executive and (in the opinion of the Ombudsman) solely in the exercise of clinical judgement in connection with the diagnosis of illness or the care or treatment of a patient, whether such opinion is formed by the person taking the action or by any other person; or
- an action taken by the Health Service Executive when acting on the advice of persons referred to in subparagraph (i), being actions of the Health Service Executive that, in the opinion of the Ombudsman, were taken solely on such advice;
- the Legal Aid Board, insofar as it relates to the provision of legal services (advice or representation) by solicitors of the Legal Aid Board, or by private solicitors working under the auspices of the Legal Aid Board, to clients;
- a local authority (within the meaning of the Local Government Act 2001 ), insofar as it relates to the performance of reserved functions within the meaning of that Act;
- the Medical Council, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of medical practitioners under the Medical Practitioners Act 2007 and to its role as the competent authority for the purposes of mutual recognition of medical qualifications obtained in or recognised by a Member State;
- the Personal Injuries Assessment Board, except as it relates to an action taken in the performance of administrative functions under Part 3 of the Personal Injuries Assessment Board Act 2003 ;
- the Pharmaceutical Society of Ireland, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of registers of pharmacists, pharmaceutical assistants and retail pharmacy businesses under the Pharmacy Act 2007 and to its role as the competent authority for the purposes of the mutual recognition of relevant qualifications obtained in or recognised by a Member State;
- the Pre-Hospital Emergency Care Council, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of registers of pre-hospital emergency care practitioners under the Pre-Hospital Emergency Care Council (Establishment) Order) 2000 ( S.I. No. 109 of 2000 ) and to its role as the competent authority for the purposes of mutual recognition of relevant qualifications obtained in or recognised by a Member State;
- the Private Residential Tenancies Board, except as it relates to an action taken in the performance of administrative functions under Part 7 of the Residential Tenancies Act 2004 ;
- the Property Services Appeal Board, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of licensed property service providers under the Property Services (Regulation) Act 2011 and to the specification of qualification and other requirements for property service providers under that Act;
- the Property Services Regulatory Authority, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of licensed property service providers under the Property Services (Regulation) Act 2011 and to its role relating to the specification of qualification and other requirements for property service providers under that Act;
- the Radiological Protection Institute of Ireland, except as it relates to an action taken in the performance of administrative functions under section 7 of the Radiological Protection (Amendment) Act 2002 ;
- the Veterinary Council of Ireland, except as it relates to an action taken in the performance of administrative functions relating to the establishment and maintenance of a register of veterinary practitioners and a register of veterinary nurses under the Veterinary Practice Act 2005 and to its role as the competent authority for the purposes of the mutual recognition of veterinary qualifications obtained in or recognised by a Member State.”.
Exempt Agencies
- 1. Abbey Theatre
- 2. Aer Lingus
- 3. An Bord Pleanála
- 4. An Post
- 5. Army Pensions Board
- 6. Arramara Teoranta
- 7. Bantry Bay Harbour Commissioners
- 8. Bord Gais Éireann
- 9. Bord na gCon
- 10. Bord na Móna
- 11. Broadcasting Authority of Ireland
- 12. Bus Átha Cliath — Dublin Bus
- 13. Bus Éireann
- 14. Central Bank of Ireland
- 15. Coillte Teoranta
- 16. Coimisinéir Teanga
- 17. Commission for Aviation Regulation
- 18. Commission for Communications Regulation
- 19. Commission for Energy Regulation
- 20. Commission for Public Service Appointments
- 21. Commission to Inquire into Child Abuse
- 22. Commissioners of Irish Lights
- 23. Comptroller and Auditor General
- 24. Córas Iompair Éireann
- 25. Cork Airport Authority plc.
- 26. Coroners appointed under the Coroners Act 1962
- 27. Criminal Assets Bureau
- 28. Data Protection Commissioner
- 29. Defence Forces
- 30. Director of Public Prosecutions
- 31. Drogheda Port Company
- 32. Dublin Airport Authority plc.
- 33. Dublin Port Company
- 34. Dun Laoghaire Harbour Company
- 35. EirGrid plc.
- 36. Electricity Supply Board
- 37. Employment Appeals Tribunal
- 38. Environmental Protection Agency
- 39. Equality Tribunal
- 40. Financial Services Ombudsman
- 41. Galway Harbour Company
- 42. Garda Síochána Inspectorate
- 43. Garda Síochána
- 44. Garda Síochána Ombudsman Commission
- 45. Health Insurance Authority
- 46. Horse Racing Ireland
- 47. Housing Finance Agency plc.
- 48. Human Rights Commission
- 49. Iarnród Éireann — Irish Rail
- 50. Irish Auditing and Accounting Supervisory Authority
- 51. Irish Aviation Authority
- 52. Irish Bank Resolution Corporation Limited
- 53. Irish Film Board
- 54. Irish Financial Services Appeals Tribunal
- 55. Irish National Petroleum Corporation Limited
- 56. Irish National Stud Company Limited
- 57. Judge Advocate-General
- 58. Judicial Appointments Advisory Board
- 59. Judicial Studies Institute
- 60. Labour Court
- 61. Labour Relations Commission
- 62. Law Reform Commission
- 63. Marine Casualty Investigation Board
- 64. Medical Bureau of Road Safety
- 65. Mental Health (Criminal Law) Review Board
- 66. Mental Health Commission
- 67. Mining Board
- 68. National Advisory Committee on Drugs
- 69. National Asset Management Agency
- 70. National Concert Hall
- 71. National Development Finance Agency
- 72. National Disability Authority
- 73. National Economic and Social Development Office
- 74. National Lottery Company (within the meaning of the National Lottery Act 1986 )
- 75. National Oil Reserves Agency
- 76. National Pensions Reserve Fund Commission
- 77. National Tourism Development Authority
- 78. National Treasury Management Agency
- 79. New Ross Port Company
- 80. Office of the Attorney General
- 81. Office of the Confidential Recipient
- 82. Office of the Director of Corporate Enforcement
- 83. Office of the Information Commissioner
- 84. Office of the Inspector of Prisons
- 85. Office of the Ombudsman
- 86. Office of the Ombudsman for Children
- 87. Office of the Ombudsman for the Defence Forces
- 88. Office of the President
- 89. Pensions Ombudsman
- 90. Poisons Council
- 91. Port of Cork Company
- 92. Port of Waterford Company
- 93. Private Security Authority
- 94. Private Security Appeal Board
- 95. Raidió Teilifís Éireann
- 96. Railway Procurement Agency
- 97. Referendum Commission
- 98. Refugee Appeals Tribunal
- 99. Refugee Applications Commissioner
- 100. Residential Institutions Redress Board
- 101. Rights Commissioners
- 102. Shannon Airport Authority plc.
- 103. Shannon Foynes Port Company
- 104. Social Welfare Tribunal
- 105. Standards in Public Office Commission
- 106. State Pathologist
- 107. Teilifís na Gaeilge
- 108. Valuation Tribunal
- 109. Voluntary Health Insurance Board
- 110. Wicklow Port Company”.