Office of Ombudsman
The Ombudsman’s office was established in 1980, in order to offer redress to persons who have suffered loss or harm, due to “maladministration”. It offers the possibility of redress without the expense of court action and with the need to show identify illegality in administrative action.
Apart from the time, cost and risk involved a Judicial review challenges will not succeed on the basis of maladministration alone.Judicial review does not look at the merits of a decision, but rather its legality. It will not second guess the decision, unless it is so flawed, as to be outside the decision maker’s powers.
Traditionally, members of the public have directed complaints about the administration through their elected representatives. They did and continue, to a very large extent, to use the moral authority of their representative to remedy grievances in relation to government services.
The Ombudsman is constituted so as to be independent of government. The has its own independent estimate, so that it has a measure of financial independent. He is appointed by the President on the recommendation of a resolution of the both houses of the Oireachtas. He may not be a public representative nor hold any other office. He may only be removed for stated misbehaviour, capacity or bankruptcy on resolution of both houses of Oireachtas.
The Ombudsman is an independent office which is designed to secure redress for persons who suffer loss or harm due to maladministration by public bodies. A wide range of bodies are within its scope. These include Government Departments, public bodies and many semi-state and commercial state-sponsored bodies.
The Office, which was set up in 1980, is intended to be inexpensive and accessible. Part of the purpose was to substitute the role of TDs and Senators in holding the administration to account.
The decision must relate to action taken in the course of administration. This excludes decisions of the Courts and the Oireachtas itself in its lawmaking capacity. If the maladministration arises from policies or laws, the Ombudsman has no authority to deal with the case.
They may criticise the laws concerned in their annual reports. The Ombudsman has succeeded in having policies and circulars changed where they have been shown to have an unnecessarily adverse effect.
The Ombudsman’s powers are limited to public bodies. If the response to the Ombudsman’s report is not satisfactory, the Ombudsman can make a report to be the Oireachtas. This is rarely necessary. The Ombudsman staff does not include legal personnel.
Many key areas of the administration have their own appeals system, such for example the Revenue Appeals Commissioners and An Bord Pleanala. In these cases, the Ombudsman’s powers are largely inapplicable. However, the Ombudsman may consider matters other than decisions, which may be appealed. The Ombudsman has upheld complaints regarding poor procedures by the Revenue and Planning Authorities.
The Ombudsman has power to investigate most public bodies. The complaint must relate to a matter which has adversely affected some person. The complainant must have an interest in the matter. The complainant will usually be the person who has been affected by the administrative action. Complaints may be made on behalf of persons by a broad range of people, including family members, advisers, community representatives and public representatives.
The Ombudsman may hear complaints about Government Departments, Local Authorities and the wide range of other public authorities listed in the legislation. It includes quasi-judicial bodies which make decisions in relation to person’s rights and entitlements under legislative schemes.
The matter must relate to something done or not done in the course of administration. The failure in administration must fall into one of the specified categories. The Ombudsman jurisdiction does not extend to the merits of the underlying rules and laws. The Ombudsman, does on occasions, comment on the unfairness of legislation and takes a view that the manner in which the legislation is implemented even by way of Statutory Instrument, is within his agreement.
Basis of Review
The Ombudsman can act if a person has been adversely affected by the actions of a body in the public service. Generally, a complaint is necessary. The person complaining should have some interest in the matter. In some cases, third parties and advisers may make complaints. However, there must be a complainant who is affected by the decision.
The Ombudsman reviews decisions, on the basis of legality and also on broader principles of fairness and merits. The Ombudsman may look at policy matters behind decisions, where they are relevant to the failure of administration. The Ombudsman has upheld complaints for a range of reasons, from unfairness, failing to take account of relevant facts, failures to follow fair procedures, failing to give information about rights, and failing to communicate with the public in a comprehensible manner.
Broadly speaking, the Ombudsman reviews administrative decisions. These include administrative action and so-called quasi-judicial decisions. The Ombudsman may investigate actions which appear to be
- without proper authority;
- taken on irrelevant grounds;
- as a result of negligence or carelessness;
- based on erroneous or incomplete information;
- improperly discriminatory;
- based on undesirable administrative practice; or
- otherwise, contrary to fair and sound administration.
The Ombudsman expects the Administration to deal with citizens properly, fairly and impartially. Decisions and processes should be dealt with properly and without undue delay. They should be completed correctly in accordance with law and rules governing their entitlements. They should be handled sensitively having regard to the person’s circumstances, age and abilities.
The Administration must simplify procedures and forms for claiming entitlements. They must maintain records and provide clear and concise details of relevant matters. They must deal fairly with citizens and must treat people in similar circumstances equally. Rules and regulations should not be applied rigidly. They must avoid disproportionate penalties out of proportion to what is necessary to secure compliance with rules.
- review rules and procedures,
- giving notice of change of rules which will adversely affect them.
- have an internal review system,
- inform people how they can appeal,
- act impartially
- base decisions on relevant considerations and ignoring what is irrelevant,
- avoid bias in particular on the basis of culture, language, religion, sex, marital status, ethnic origin, attitude, reputation,
- ensure that the scheme or priorities underlying a service are open and transparent,
- ensure that prejudicial factors do not affect decision making.
The Ombudsman promotes the making available of information by the public authorities. Information should be supplied where relevant to personal circumstances. Information should be given on rights. Information should be given by public bodies in language which is capable of being understood. Formulaic replies should be avoided. Information to be given about rights and rights of redress.
There are exclusions from the ombudsman’s jurisdiction for obvious reasons of policy. The ombudsman has no jurisdiction where the person has initiated a civil claim in relation to the matters.
The ombudsman has no jurisdiction where there is an appeal to an independent entity outside of the relevant department or other state authority.
Where there is a right to appeal in relation to a decision of the court, jurisdiction is also excluded. This requires a decision on the merits rather than the possibility of a judicial review application.
Where a court claim is taken erroneously without a legal basis and struck out, the ombudsman has jurisdiction of it. Generally, it is possible that a person may take legal action notwithstanding has failed with prior complaint to the ombudsman.
If legal proceedings have been initiated, the Ombudsman will not have powers to examine the case. The matter is not exempt simply because legal proceedings could have been taken.
Where there is an appeal to a person other than a Department of State, the Ombudsman has powers no jurisdiction. He does have jurisdiction if the appeal is to a Minister or civil servant in a department. Therefore appeals to Bord Pleanála or the (tax) Appeal Commissioners may not be considered.
The Ombudsman has no jurisdiction in relation to matters of national security, military activity or participation in international organizations. There are exclusions in relation to the laws relating to aliens, naturalisations, administration of prisons and, pardons. There are also exclusions relating to recruitment and appointment to certain bodies, terms and conditions of employment and private contracts with public bodies.
A Government Department may restrain the Ombudsman from investigating matters by making a request setting out the reasons. Any such request must be communicated in writing and must be passed by the Ombudsman to the complainant and recorded in the Ombudsman’s report.
The Ombudsman may not hear a complaint if it is vexatious or trivial. The complaint must be made within 12 months of the time when the complainant became aware of the matter. Exceptions may be allowed in special circumstances if the Ombudsman believes it to be proper.
Ombudsman’s Procedure I
There is no fixed form of complaint. The Ombudsman may adopt whatever procedure, he deems appropriate. The Ombudsman’s investigations take place in private. The initial procedural steps are relatively informal. The matter is investigated privately.
A preliminary examination is made of the complaint, in order to vouch whether it appears to fall within one of the above exclusionary grounds. The vast majority of complaints are resolved informally at an early stage. A Department or public body may be prepared to change its position, before awaiting a formal investigation.
Investigations are conducted privately by the Ombudsman either pursuant to a complaint or acting on its own initiative. The Ombudsman usually carries out a preliminary examination of the complaint. Certain complaints for which there is no jurisdiction or for which there is no obvious merit, are weeded out.
The Ombudsman has made arrangements with Government Departments and other bodies for initial contact points in dealing with complaints. Most complaints are concluded at the initial stage. A small number go to a full investigation. This is usually reserved for more serious complaints.
In the case of less serious complaints, the matter is usually dealt with by correspondence. Replies are usually furnished within a month. The public body may accept the Ombudsman’s suggestions. The matter may be resolved by the Ombudsman writing to the public body explaining the matter and suggesting that it review the matter in a particular way.
In a more formal investigation, the Ombudsman writes, following its preliminary examination to the head of the organisation indicating that is proceeding with the complaint. A field investigator makes investigations, checks documents and conducts interviews.
The Ombudsman has access to all relevant files and may require all information relevant to at a matter. There are certain exceptions. The Ombudsman can choose its own procedure subject to the legislation provided that he follows basic principles of constitutional justice.
On conclusion of the investigation, a first draft is prepared and sent to the head of the Department or body for comment. After this is done, the report is completed and recommendations are made.
Ombudsman Procedure II
The number of formal investigations is relatively small. In a formal investigation, the Ombudsman sets out the complaint to the head of the relevant body. The head may give a reply. The Ombudsman’s office then investigates the matter. This may include interviews and examination of documents and attendance onsite.
A draft report is prepared and sent to the head of the Department or other public body comments. After consideration of the comments on the report, recommendations are made. If the complaint is upheld, the Ombudsman may recommend that the action be reconsidered, that reasons be given or measures taken to remedy or mitigate the adverse effect of the actions.
The Ombudsman has a right of access to all the relevant records. It may not obtain records relating to proceedings of the Government and its committees. If a minister gives notice that disclosure of documents would be prejudicial to the public interest, it may be given to the Ombudsman, but may not be disclosed to anyone else.
Although Ombudsman procedures are informal, he must abide by basic fair procedures in the manner in which he uses the power. In recent cases relating to the financial Ombudsman has powers to make a warrant, the courts have required the fair procedure. It not clear to what extent the general public service Ombudsman is limited by requirements of fair procedure. Such requirements may significantly impede the efficiency of the office and undermine the principle of informal investigation
Powers and Recommendations
The Ombudsman can make three types of recommendations to a Department or other public matter;
- that the action be reconsidered;
- that reasons be given or
- that the measures be taken to remedy, mitigate or alter the adverse effects.
The objective of the Ombudsman is to achieve a reasonable outcome The Ombudsman has significant discretion in relation to the measures which may be required to be taken by the public bodies concerned. An apology may be required.
The Ombudsman may make recommendations, including for the payment of money. This is the most common remedy. Awards are generally quite modest. The payment of money wrongfully denied is a commonly required measure. There may not necessarily be a legal obligation to pay the money.
The Ombudsman may allow compensation for frustration and inconvenience. In principle, awards may be made for actual loss suffered, including financial loss. Awards by public bodies in relation to grants and entitlements may involve a reinstatement of a benefit including a payment of arrears wrongfully withheld. Notwithstanding that the Ombudsman makes recommendation, public service authorities will invariably abide by them.