Here are some submissions and proposals the Ombudsman has made about changes in legislation and governance issues.
Improving Public Services
2019
Office of the Ombudsman
Role of the Ombudsman
As Ombudsman, I investigate complaints from the public about public service providers such as government departments, local authorities, the HSE and third level education bodies. Where I establish that a person has been treated unfairly or there is maladministration, I can recommend redress, such as an apology or compensation. Where a person has failed to obtain a grant, benefit or service to which they are entitled, I can recommend that this is addressed. If the failure has also affected other people, I can ask the body to put things right for them as well, and to make changes to processes or procedures to stop the injustice from happening again.
In the course of my work, I often become aware of issues that can be addressed by the Oireachtas, whether that is to improve services, introduce new legislation or improve the powers and jurisdiction of my Office. As you are planning for the next Oireachtas, some of the key issues arising are set out below for your consideration.
A home of their choice
The current system of funding social care services for people who need support is completely unsatisfactory. Many people who have brought complaints to my Office tell me that they want to remain in their own homes as long as possible. International experience has shown that people living in their own home have a better quality of life. It can also serve to take some of the pressure off our hard-pressed hospitals. Funding for supported living needs to be placed on a statutory footing to remove the current financial bias towards nursing home care.
I am currently carrying out an investigation into the situation of some 1,300 people under 65 who are inappropriately placed in nursing home care. There are also people with intellectual difficulties still in institutional care as there is insufficient funding to meet their support needs, even in some instances when appropriate housing has been identified and adapted. Support for people with disabilities inappropriately placed in healthcare settings has never been a priority. Despite the many scandals in institutional care including the Magdalen laundries, there has never been consistent and sufficient funding to support people to remain in, or return to, their own communities. Properly funding a move away from congregated settings to appropriate community provision needs to be a key priority for any incoming government.
To facilitate this, support for social care should be separated from the health service. It has been and will remain a low priority in this context when compared to the pressing needs of emergency admissions and acute care. In addition, the health model of disability is inappropriate and needs to be replaced by a person centred approach which respects the rights and preferences of individuals and allows them to be engaged and respected members of their local communities.
Transport for Persons with Disabilities
There is an urgent need for statutory reform in the area of transport supports for disabled persons.
Disabled Drivers Scheme
I have considerable concerns about the eligibility criteria for the Disabled Drivers Scheme. The criteria are extremely narrowly focused and prescriptive. They only allow for the assessment of applications on six specific medical grounds and do not allow for the exercise of any wider discretion to decision makers to consider cases which do not fall strictly within the narrow confines of the criteria. This means that very many severely and permanently disabled applicants have no prospect of qualifying under the scheme as currently framed. I continue to receive complaints about the scheme, many of which have been brought to me from public representatives from across the political divide.
Mobility Allowance and Motorised Transport Grant schemes
The Mobility Allowance and Motorised Transport Grant schemes were closed down to new entrants following investigation reports by the then Ombudsman in 2012 which found them to be in breach of the Equal Status Act 2000.
In June 2013 the Government announced that new statutory provisions would be introduced in relation to financial supports for disabled persons with mobility needs. The proposed ‘Transport Support Payment Scheme’ does not appear to have advanced since then. The delay in providing a replacement scheme for new applicants compounds the injustice being suffered by disabled persons who urgently need personal transport and who are also denied support under the Disabled Drivers Scheme because of its unacceptably restrictive eligibility criteria.
Direct Provision / Asylum application process
Provision of Emergency Direct Provision accommodation
I can investigate complaints relating to services provided to residents of direct provision centres. I have established a comprehensive Outreach programme and my officials have visited, or are in the process of visiting, residents of all direct provision centres to discuss concerns residents might have. Therefore, I believe that my Office is well placed to comment on how aspects of the system could be improved.
One such improvement would be to end the use of emergency accommodation. I understand the reasons why such accommodation has been used. However, developing State-owned facilities to accommodate applicants for protection should, if done correctly:
According to the State’s International Protection Accommodation Service (IPAS) the cost for keeping people in emergency accommodation is roughly €100 per night per person. The cost of accommodating people in a State-owned direct provision centre is just under €22 per person per day. While this figure does not include capital costs, it does include operating costs such as catering, utility bills and insurance.
Such facilities should be provided as a matter of priority.
Extend the Ombudsman’s jurisdiction to the Inspectorate for direct provision
The ‘National Standards for accommodation offered to people in the protection process’ provide for the establishment of an Inspectorate for direct provision centres. As with almost all other public services I would expect my Office to have jurisdiction over complaints against the proposed Inspectorate.
Extend the Ombudsman’s remit to the application process for international protection
Decisions on applications for international protection are properly the responsibility of the Minister for Justice and Equality. However, as with other administrative processes there is no reason why my Office should not be able to investigate complaints about the process leading up to those decisions. For example, I have remit over the administrative processes underpinning the administration of the planning process but I do not have remit over actual planning decisions.
Where people are unhappy about time lags and unnecessary delays in the decision-making of public service providers generally, they have the right to complain to my Office. However, that right does not extend to applicants for international protection who currently have no avenue of complaint about the administration of their applications. Most Ombudsman offices internationally have remit in this area.
Health
‘Clinical judgement’ exclusion
Currently I cannot examine complaints about clinical judgement decisions (for example, diagnosis or decisions about the type of care provided) in complaints about the Health Service Executive and private nursing homes. This restriction does not apply in other similar Offices in neighbouring jurisdictions. In the interests of complainants this restriction should be removed.
Many complaints to my Office in the health area involve both clinical and non-clinical issues. The current regime for dealing with complaints about clinical judgement through ‘professional bodies’ such as the Medical Council was fatally undermined in the Supreme Court judgment in the ‘Corbally v The Medical Council’ (2015 IESC 9) case which raised the bar so high that the majority of clinical complaints would not be examined. There is no independent redress for the public.
In recent years there has been an increase in the number of complaints about the care and treatment provided to patients in hospitals and private nursing homes. In particular, I have seen an increase in complaints about the care provided in Emergency Departments. The focus is not about finding fault with an individual doctor or nurse but rather with resolving the individual complaint while generating improvements to patient safety. If I had the power to examine the clinical treatment provided in such instances, it would help to improve patient safety and potentially reduce resulting legal action.
Prisons
Extension of remit to Prison complaints
In April 2016, the then Inspector of Prisons, Judge Michael Reilly, published a report in which he was highly critical of the current complaints system within the Irish prison service and recommended that the Ombudsman be given jurisdiction to deal with complaints about the prison system. Then Tánaiste and Minister for Justice and Equality, Frances Fitzgerald, welcomed the report and said that prisoners should be able to have their complaints independently investigated by the Ombudsman. In January 2019 the Minister for Justice Charles Flanagan indicated that once the new local complaints system has been introduced and bedded down (which is expected in 2020) and that the Ombudsman’s remit would then be extended. I have had extensive discussions with the Irish Prison Service and the Department of Justice and Equality and the change can be achieved through a Statutory Instrument by the Department of Public Expenditure and Reform.
The ‘Venice Principles’ - Supporting good administration
As a member of the Council of Europe, Ireland voted for the adoption of the ‘Principles on the Protection and Promotion of the Ombudsman Institution (The Venice Principles).
The 25 Venice Principles represent the first, independent, international set of standards for the Ombudsman institution. They are the equivalent of the Paris Principles which set out the standards against which national human rights institutions are judged. The next Government should commit to reviewing the legislation governing my Office to bring it in line with the Venice Principles and international best practice.
Office of the Information Commissioner/Office of the Commissioner for Environmental Information
Office of the Information Commissioner
Bring all bodies in receipt of significant exchequer funding within the scope of Freedom of Information (FOI) legislation
The Programme for Government for 2011 to 2016 contained a commitment to extend Freedom of Information legislation to ensure that all statutory bodies and all bodies significantly funded from the public purse are covered. While I was very pleased to welcome the significant extension of FOI legislation to all public bodies under the FOI Act 2014, further progress on extending the scope of the legislation to capture those bodies in receipt of significant exchequer funding that are currently outside its scope is needed.
The introduction of regulations making provision for the management and maintenance of records held by public bodies
In 2014 the Department of Public Expenditure and Reform published a Code of Practice for FOI aimed at ensuring the effective and efficient operation of the FOI Act 2014 and at assisting public bodies in the performance of their functions under the Act. The Code acknowledges that records management poses a very significant challenge for public bodies, not least due to the advent and adoption of new information and communication technologies, and that records management relates to a broader set of corporate responsibilities than FOI. It also acknowledges that there is a compelling need for sound record management practices and systems in order to facilitate the smoother operation of FOI in public bodies. I would welcome the introduction of regulations, as provided for under the Act, to make provision for the management and maintenance of records held by public bodies.
A complete review of the FOI Act to determine if it is achieving its objectives and to allow for necessary amendments and recommendations for improving the Act.
Given the complexity of FOI legislation FOI Act and the significant amendments the 2014 Act introduced, I believe it is now opportune to consider if the Act has achieved its intended aims and if it is operating efficiently and effectively. I have a number of specific suggestions for amendment with a view to improving its efficiency and effectiveness and to address technical issues that have arisen.
Introduce a new appeal mechanism
Currently, appeals against my decisions go to the High Court. This is costly and time-consuming, as well as very resource intensive for my Office and public bodies. A new mechanism drawing on international best practice should be introduced to simplify and speed this process.
Commissioner for Environmental Information
Better alignment of the AIE and FOI regimes
The role of the Commissioner for Environmental Information is legally independent of the role of Information Commissioner but is carried out with the assistance of staff of the Office of the Information Commissioner. The Commissioner reviews decisions of public authorities
where applicants are not satisfied with the outcome of requests for environmental information under the EC (Access to Information on the Environment) Regulations. There have been positive developments in the areas of resources and reduction in the appeal fee. However, operating two different access regimes can be complicated for the public, public bodies and my Office. I believe that the two regimes should be merged.
Standards in Public Office Commission (SiPO)
Staff from my Office provide the secretariat to the Standards in Public Office Commission. As Ombudsman I am an ex-officio member of the Commission. I make my comments in that capacity and I am not speaking on behalf of my fellow Commission members.
New ethics legislation
The current ethics framework is complex, with a number of bodies responsible for its oversight, including the Standards in Public Office Commission, Oireachtas Committees on Members Interests, and ethics registrars within local authorities. Moreover, it is out of step with international best practice in the area of ethics regulation, particularly as regards rules on disclosure of assets and liabilities, acceptability of gifts and benefits, nepotism and use of influence, and enforcement. Of particular note are criticisms of the Council of Europe’s ethics oversight body, GRECO, which has rated Ireland as “globally unsatisfactory” in its fourth round evaluation.
New ethics legislation is urgently required to produce a simple, proportionate and effective framework of reassurance.
Lobbying and former public officials
In 2015, the Regulation of Lobbying Act commenced, bringing with it the requirement for those lobbying elected and appointed officials to register and submit returns of lobbying activity. The Register of Lobbying has greatly enhanced transparency in respect of the government’s decision-making processes in respect of policy, legislation and funding decisions. The Standards in Public Office Commission oversees the operation of the Register, and has the authority to investigate and prosecute certain breaches of the Act.
The legislation also introduced a one-year cooling-off period for certain designated public officials once they leave office. For a one-year period, they are prohibited from lobbying, or being employed by someone who lobbies, their former public body or former colleagues.
While the legislation is generally operating well, the provisions in respect of post-employment are not enforceable. The Standards Commission, in its annual report for 2018, reported on a breach of the Act’s post-employment provisions and that it does not have the power to investigate or prosecute breaches of those specific provisions.
A legislative amendment is needed in order to strengthen and enhance the Act’s post-employment provisions, and to bring it in line with the rest of the Act.
Electoral reform and the establishment of a new commission
The current electoral system faces a number of challenges:
It is therefore recommended that the establishment of an electoral commission be progressed, as well as a comprehensive review of the electoral legislation with a view to bringing it up to date and ensuring it is fit for purpose.
Suggestions for the Open Government Partnership National Action Plan
March 2014
As the newly appointed Ombudsman, I warmly welcome the initiative of the Minister for Public Expenditure and Reform, Mr Brendan Howlin, in securing Government agreement in May 2013 to join the Open Government Partnership. The Office of the Ombudsman is very glad to have an opportunity, in conjunction with other stakeholders, to contribute to the development of a concrete and ambitious OGP Action Plan.
Such a Plan, if properly implemented, could do much to build public confidence and trust in our public institutions and the democratic process. Trust must also be reciprocated; public bodies also need to demonstrate that they trust citizens. It is one of the jobs of the National Ombudsman to strive to foster good relations between the citizen and government.
This brief document contains a number of suggestions which might be considered for the Action Plan; each suggestion is attainable within the two year time frame envisaged for the plan and each suggested commitment relates to one or more of the five Grand Challenges as required by the Open Government Partnership.
Open Government Partnership Grand Challenges
1. Improving public services – measures that address the full spectrum of citizen services including health, education, criminal justice, water, electricity, telecommunications and any other relevant service areas, by fostering public service improvement or private sector innovation
2. Increasing public integrity – measures that address corruption and public ethics, access to information, campaign finance reform, and media and civil society freedom
3. More effectively managing public resources – measures that address budgets, procurement, natural resources and foreign assistance
4. Creating safer communities – measures that address public safety, the security sector, disaster and crisis response, and environmental threats
5. Increasing corporate accountability – measures that address corporate responsibility on issues such as the environment, anti-corruption, consumer protection and community engagement
Four Core Principles
The four core principles which underpin the Open Government initiative are - transparency, citizen participation, accountability, and technology and innovation.
Transparency
True transparency requires that information on government activities and decisions is open, comprehensive, timely, freely available to the public and meets basic open data standards. A proactive policy of publication of government information could have the useful side effect of reducing the number of Freedom of Information requests to public agencies. Transparency is founded on a policy which requires that public bodies create, capture and ensure the survival of essential public records. Without good records and information management, there can be no transparency.
Citizen Participation
As far as citizen participation is concerned, governments should seek to encourage citizens to engage in public debate, provide input, and make contributions that lead to more responsive, innovative and effective governance. One important form of such citizen engagement is to welcome and encourage feedback, including complaints, from citizens. Citizen engagement in the democratic process, including at elections and referendums, is also essential for the health of our public institutions.
Accountability
Accountability means that public agencies are required to justify their actions, act upon criticisms or requirements made of them, and accept responsibility for failure to perform with respect to laws or commitments. In the case of complaints from individual citizens those agencies must consider these and provide appropriate redress where this is warranted. In addition, public agencies must inform their clients of any other avenues of redress open to them – particularly their right of recourse to the Ombudsman.
The independence, authority and standing of the Office of Ombudsman should be reinforced by implementing the 1996 recommendation of the Constitution Review Group to provide for the Ombudsman in the Constitution. This is also a Council of Europe recommendation – the Parliamentary Assembly concluded in 2003 that establishment at constitutional level was essential if any institution of Ombudsman was to operate effectively (Recommendation 1615 (2003) – The Institution of Ombudsman). That Recommendation also describes as an essential characteristic of any Ombudsman institution that it should have the authority to give opinions on proposed legislative and regulatory reforms with a view to improving administrative standards and respect for human rights.
The fundamental tenets of a properly established Public Service Ombudsman are independence, objectivity, fairness and transparency. Constitutional status would help to satisfy complainants that the office is independent and that its decisions are objective.
Technology and Innovation
In relation to technology and innovation, open government requires that governments embrace the importance of providing citizens with open access to technology, the role of new technologies in driving innovation, and the importance of increasing the capacity of citizens to use technology. Well designed applications can simplify government systems for citizens. Regard must also be had however to the digital divide and those citizens who do not have access to information and communications technology. In harnessing technology to serve citizens, public bodies should not lose sight of the need to deal with citizens as human beings; to show empathy, to be prepared to customise services and not use technology as an excuse to dispense with personal contact. The Ombudsman is uniquely placed to bear witness to the whole spectrum of citizen interaction with public bodies.
The UK Experience
The UK’s first National Action Plan was published in September 2011 and concentrated on commitments in relation to open data and corporate accountability. The second Plan was published in November 2013 with a much broader focus including the themes of –
Ireland’s Action Plan
Ireland now has the opportunity to draw up a comprehensive Action Plan, implementation of which could transform the relationship between citizens and government and re-establish trust and confidence in our public institutions. The Office of the Ombudsman, the Office of the Information Commissioner and Commissioner for Environmental Information, together with our staff members who serve the Standards in Public Office Commission, the Commission on Public Service Appointments and the Referendum Commission are very keen to play a part in meeting the 5 OGP “grand challenges” of improving public services, increasing public integrity, more effective management of public resources, creating safer communities and increasing corporate accountability.
Trust in Government
Trust in government in Ireland is at a low ebb. The recent OECD publication Government at a Glance 2013 highlights the fact that between 2007 and 2012, Ireland suffered the highest fall in confidence in government across the OECD, from 63% to 35%.
The drop of 5 percentage points in the average OECD figure seems to point to a trend of falling confidence levels. However, it should be noted that for the same period, the United Kingdom showed an increase from 36% to 40%.
Ireland also scored well below the OECD average in relation to open and inclusive government. On asset disclosure, for example, the OECD average of was a score of 50 and Ireland scored 40. The UK, in contrast, scored 58.
The current review of ethics legislation provides an ideal opportunity to address any deficiencies in Ireland’s disclosure of interests regime.
Suggestions
The National Action Plan might include the commitments outlined below. Only those with a direct relevance to the statutory functions performed by the Ombudsman and Information Commissioner and the staff of the Office as a whole are summarised here. The suggestions are grouped under four key themes of accountability and fairness, integrity, citizen engagement, and transparency. Each suggestion relates to one or more of the OGP Grand Challenges.
1. Accountability and fairness
1.1 Constitutional recognition for the Office of the Ombudsman.
The Report of the Constitution Review Group in 1996 recommended that the independence of the Office of the Ombudsman be guaranteed in the Constitution. The Group stated - “A constitutional guarantee for this independence would reinforce freedom from conflict of interest, from deference to the executive, from influence by special interest groups, and it would support the freedom to assemble facts and reach independent and impartial conclusions".
Constitutional status akin to that of the Comptroller and Auditor General would greatly reinforce the authority of the Office and enhance its ability to hold public service agencies to account. Submissions to the Constitutional Convention have supported this proposal and the Parliamentary Assembly of the Council of Europe recommends that constitutional recognition is essential for any Ombudsman institution to operate effectively. The decision to seek constitutional status could be underpinned by a thorough review of the arrangements to safeguard the independence of the office, including appointment, funding and accountability.
1.2 Recognition of the Ombudsman as the guardian of the public interest.
The constitutional recognition for the Office of Ombudsman should explicitly assign to the Office the role of guardian of the public interest. It was the distinguished former Ombudsman and former Secretary for Public Service Management and Development in the Department of Finance, the late Kevin Murphy who suggested, that the role of assertion and protection of public rights should be properly be the role of the Ombudsman.
This suggestion has also been supported in presentations made to the Constitutional Convention. In addition, it is consistent with the recommendations of the Council of Europe Parliamentary Assembly on the essential characteristics of an Ombudsman institution.
In a presentation to the Constitutional Convention on 30 October 2013, Professor Donncha O’Connell of NUI Galway proposed that the office of Ombudsman be reconfigured as a constitutional office (akin to the Comptroller & Auditor General) with a clearly defined mandate to protect human rights. He continued to say “... A ‘constitutionalised’ office of Ombudsman could provide a framework for other agencies such as the Human Rights & Equality Commission and be explicitly designated as an emanation of the Oireachtas thus emphasising its independence, and that of statutory bodies within its framework, from the Executive. ... It would alter the political culture by rebalancing things as between the Parliament and Executive and allow for the possibility of amplifying systemic injustices as opposed to individual grievances. If effective it could even lessen the kind of litigation that is so feared by opponents of justiciable socio-economic rights.”
1.3 Administrative accountability and compliance with the Ombudsman’s principles of good administration.
Accounting Officers or equivalents should have a statutory duty to ensure that their Departments and agencies are administratively accountable for their actions. Each Accounting Officer should report annually – perhaps to the Ombudsman – on the measures taken to ensure that citizens are treated legally and fairly by their organisations.
In 2013, the Ombudsman published a guide to good public administration – Six Rules for Getting it Right. In summary these require public bodies to –
i) Get it right.
ii) Be customer oriented.
iii) Be open and accountable.
iv) Act fairly and proportionately.
v) Deal with errors effectively.
vi) Seek continuous improvement.
1.4 Public bodies should be required to share their legal advice with the Ombudsman.
Ombudsman investigations are held otherwise than in public. The Ombudsman can require any person who, in the opinion of the Ombudsman, has information relevant to an examination or investigation to supply that information to the Ombudsman and the person must comply. Some agencies have begun to rely on claimed legal professional privilege to deny the Ombudsman access to their legal advice and furthermore have refused to waive that privilege when requested to do so. Except in cases where there is a current legal action involving the agency and the Ombudsman and the advice relates directly to those proceedings, there should be an explicit duty on the agency to share their advice and the request for such advice, in confidence, with the Ombudsman. It should also be made clear that the Ombudsman must also be permitted access to relevant in camerarecords.
It may also be worth considering a joint request for legal advice on the part of both the agency and the Ombudsman. This option might be a cost-effective alternative to the Ombudsman’s power to refer any question of law arising in an investigation to the High Court for determination.
1.5 Comprehensive remit for the Ombudsman
The Irish Ombudsman is one of the few Ombudsman institutions in Europe and internationally to be excluded from certain areas – notably complaints in relation to immigration matters and prisons. While acknowledging that the Ombudsman’s remit has been significantly extended by the recent amendments to the Ombudsman Act, no area of public service should be arbitrarily excluded from the remit of the Ombudsman. A further review of the Office’s remit should be conducted in year 2 of the Action Plan to ensure that this is the case.
1.6 Directive 2013/11/EU on alternative dispute resolution for consumer disputes
The ADR Directive is in the course of being transposed into Irish law. This is an opportunity to grant to the Ombudsman a coordinating role in relation to ADR entities. There should be a default position that access to redress for public services, whether provided by public or private organisations, should be via the Ombudsman. However, where public services are provided by private organisations, the costs of those aspects of the Ombudsman’s service should be funded by levy.
Section 1A of the Ombudsman Act 1980, as amended, also now grants the Minister for Public Expenditure and Reform the power to extend the Ombudsman’s remit to other types of organisation who are involved in delivery of public services and who receive significant public funding to this end. This option should now be activated by the Minister to ensure that no citizen is denied recourse to the Ombudsman in relation to a complaint about a public service simply because of the manner in which it is delivered.
2. Integrity
2.1 A statement of public service values
Both the Mahon and Moriarty Tribunals emphasised the need for the highest ethical standards among both elected and appointed public servants and made many recommendations in relation to both ethics and electoral legislation. In its response to the Mahon Tribunal report, the Government indicated that it would carry out a root and branch review of the ethics legislation and this is in progress.
The development of a clear and simple statement of the values and principles to which each and every public servant must adhere should form a central part of this review. Such a statement – to be based in statute or a statutory code – has been a long standing recommendation of the Standards Commission. The statement should be widely available and visible to all public servants and to the general public. The “Nolan Principles” developed by the UK Committee on Standards in Public Life would serve as a useful starting point. These have been adopted by the Northern Ireland Assembly and adapted for the particular circumstances there.
The Welsh Assembly has also embraced these seven principles of conduct and incorporated them into the Assembly Code of Conduct. The seven principles are: selflessness, integrity, objectivity, accountability, openness, honesty and leadership ( CSPL - seven principles ).
2.2 Liabilities should be a registrable interest
The Standards Commission has recommended that liabilities should be declared by public representatives and public servants in their annual statements of interests. The Ethics Acts provide for annual disclosure of 'registrable interests', but these do not include liabilities. A public representative or public servant who has significant liabilities to, for example, a financial institution, could be materially influenced in the course of performing their duties where such duties involve dealing with that financial institution and where the actions of the public servant could conceivably affect their own interests.
It is in the public interest that such liabilities be appropriately disclosed. The ethics legislation should be amended to provide that a liability above a certain threshold be regarded as a registrable interest.
2.3 Publication of beneficial ownership details
There should be a publicly accessible central registry of company beneficial ownership information so tax collection, law enforcement agencies and others know who really owns and profits from Companies. Equally beneficial interests in a company or in an asset held by another person should be a registrable interest.
2.4 Cross-government anti-corruption plan
Responsibility for anti-corruption measures is distributed among several government departments and agencies. A coherent anti-corruption plan is needed to coordinate efforts in this area. For example, responsibility for anti-corruption legislation in the public service is split between the Departments of Public Expenditure and Reform, Justice and Equality, and Environment, Community and Local Government.
2.5 A public service code of conduct
Other than the Civil Service Code of Standards and Behaviour, and the Codes of Conduct for Employees and Members of Local Authorities, there is no statutory code of conduct for the wider public service under the Standards in Public Office Act 2001. There is provision for such a code in section 10 of the 2001 Act, but it has not been drawn up by the Minister. The purpose of such a code would be to indicate the standards of conduct and integrity required in the performance of their functions to employees and directors of public bodies. Such a code might also provide for annual certification by the Accounting Officer or equivalent that those covered by the code are in compliance with it.
2.6 A broad definition of “public servant”
In the UK, the terms of reference of the Committee on Standards in Public Life have recently been clarified so that the definition of “holder of public office” now embraces all those involved in delivery of public services, not solely those appointed or elected to public office. The role of the UK Committee is to examine concerns about standards of conduct of office holders and to recommend any changes that may be required to ensure that the highest standards are maintained. The view of the Committee is that the broader definition had become increasingly relevant to its work as moves to outsource or contract public services gained pace. Similar considerations are relevant in this jurisdiction.
3. Citizen Engagement
3.1 Foster citizen engagement with public bodies, including complaints systems
Government and public bodies should pro-actively engage with the people whom they serve. One very useful way of doing this is to encourage feedback through complaints systems. Each public body should provide clear and timely information about methods by which people can appeal or complain. They should also consider providing information about possible sources of help for the citizen, particularly for people who may find a complaints process difficult. In addition, public bodies must advise people of their right of recourse to the Ombudsman.
An effective complaints procedure is one which investigate complaints thoroughly, quickly and impartially and which can provide an appropriate range of remedies to the complainant and any others similarly affected when a complaint is upheld. As a minimum, an appropriate range of remedies should include an explanation and apology to the complainant, any possible remedial action, financial compensation for the complainant or a combination of these. The remedy offered should seek to put the complainant back in the position they would have been in if nothing had gone wrong. Where this is not possible, the remedy offered should fairly reflect the harm the complainant has suffered.
In 2013, the Ombudsman published Listen, Respond, Learn, Improve– a guide to complaints systems; this guide emphasises that complaints are a valuable source of feedback for a public body. They can provide an early indication of failures in service delivery. When well handled, complaints provide an opportunity for public bodies to improve their service and enhance their reputations.
Consideration might also be given to recognition of the Office’s thirty years of experience in dealing with complaints from citizens and to acknowledge the Office as the national Complaints System Standards Authority. There is a plethora of complaint mechanisms operating across public services. There is no evident added value in this diversity and these should be standardised in the interests of citizens. This would reduce cost, provide a consistent service to complainants, facilitate training and make access easier. Making the Ombudsman the Complaints Standards Authority, as in Scotland, is one way to achieve this.
3.2 Pilot “open policy-making” exercises involving NGOs and citizens
There have been some very successful initiatives in engaging the public and interested organisations in development of policy proposals in recent years – particularly in the case of the Minister for Public Expenditure and Reform’s development of Regulation of Lobbying policy and legislation and reforms to the Freedom of Information regime. These excellent initiatives need to be extended to other areas.
3.3 A campaign for voter registration and exercise of the franchise
Successive referendum commissions have expressed concern about low voter turnout in constitutional referendums – particularly where referendums are not held in conjunction with a national election of some kind. There should be ongoing active campaigns to encourage voter registration and to encourage people to vote. A single organisation with an appropriate statutory remit – perhaps an electoral commission – would be the most suitable body to do this.
3.4 Target second level schools and develop citizen activism programmes
A worrying feature in research conducted by each referendum commission has been the low turnout among young people and among less well-off groups in society. One way of addressing this might be to focus on second level schools by providing resources for citizen activism programmes and incentives for voter registration.
4. Transparency
4.1 Duty to create, capture and ensure the survival of essential public records
There should be a statutory duty to publish and implement efficient records management policies. The creation, use, storage, retrieval, retention and destruction of information is an increasingly difficult challenge for public bodies. Records are central to the work of all organisations. Among other things, an efficient and effective records management policy supports process efficiency, consistency in decision-making, and ensures the preservation of important records.
Ensuring the creation, capture and survival of essential public records is the ultimate guarantee of transparency for governments. Without good information management, there can be no transparency. There are no records for public scrutiny and use and evidence-based policy making is rendered even m ore difficult.
By introducing a statutory duty on public bodies to introduce records management policies, it should be possible to define clearly what records public bodies need to keep in the digital era, both in paper and digital format, and to enable them to do this efficiently and effectively. This will help to ensure that information is available and survives for scrutiny both now and in the future.
4.2 Develop a public service data transparency code
Transparency is the foundation of accountability and the key that gives people the tools and information they need to enable them to play a bigger role in society. The availability of data may also open new markets for business, the voluntary and community sectors and social enterprises to run services or manage public assets.
In principle, all data held and managed by public bodies should be made available to people unless there are specific sensitivities (e.g., protecting privacy, vulnerable people or commercial and operational considerations) to doing so. The data needs to be presented so that it can be understood by citizens and community groups, reused in web and mobile phone applications to drive innovation and business growth, analysed and compared, and commented and consulted on in social media.
The government should encourage public bodies to view data as a valuable resource not only for themselves but also for citizens.
4.3 Amalgamation of AIE and FOI regimes into a single access process
The Commissioner for Environmental Information has previously referred to a number of practical difficulties relating to the operation of the Access to Information on the Environment (AIE) regime in Ireland, a number of which appear to relate to the fact that the AIE and Freedom of Information (FOI) regimes have not been amalgamated into a single access process as is the case in the UK.
Consequently, a considerable amount of avoidable confusion between AIE and FOI access rights and procedures seems to exist among public authorities and the public alike. On a general level, the amalgamation of the AIE and FOI regimes would serve to promote awareness of the right to environmental information and would provide a more user-friendly access regime for citizens.
4.4 Establish a virtual library
To simplify access to a range of government information available to the public establish an online searchable repository of published Government documents of all kinds (e.g., publications, consultant reports, government research, presentations, white papers, etc.). Public input should be sought in developing the library to make sure that it reflects the needs of citizens.
The library should include FOI disclosure logs for all public bodies. The usual instruments of transparency are well known and include, among other things, comprehensive access to information laws and voluntary disclosure practices by key organisations. In recent years, while there have been some worthwhile developments in some public sector organisations in the area of voluntary data disclosure, there is significant scope for improvement. In some jurisdictions, public bodies are required to publish FOI disclosure logs.
The release of material made available under freedom of information requests in a discoverable, accessible fashion would clearly increase transparency; it would have other citizen-centred benefits, such as greater availability of government data for reuse by the public.
Summary of commitments
The suggested commitments are summarised under each of the four themes in the following tables; an indication of the relevant grand challenge for each commitment is also given.
Open Government Partnership Grand Challenges
1. Improving public services – measures that address the full spectrum of citizen services including health, education, criminal justice, water, electricity, telecommunications and any other relevant service areas, by fostering public service improvement or private sector
Innovation.
2. Increasing public integrity – measures that address corruption and public ethics, access to information, campaign finance reform, and media and civil society freedom.
3. More effectively managing public resources – measures that address budgets, procurement, natural resources and foreign assistance.
4. Creating safer communities – measures that address public safety, the security sector, disaster and crisis response, and environmental threats.
5. Increasing corporate accountability – measures that address corporate responsibility on issues such as the environment, anti-corruption, consumer protection and community engagement.
Theme 1 – Accountability and fairness
| Commitment | Contributing Office | Grand Challenge | ||||||
| No. | 1 | 2 | 3 | 4 | 5 | |||
| 1.1 | Constitutional recognition for the Ombudsman | Ombudsman Referendum Commission | X | X | X | |||
| 1.2 | Recognition of the Ombudsman as the guardian of the public interest | Ombudsman | X | X | X | X | X | |
| 1.3 | Administrative accountability and compliance with Ombudsman’s principles of good administration a statutory duty of Accounting Officers | Ombudsman | X | X | X | X | X | |
| 1.4 | Statutory requirement for public bodies to share legal advice in confidence with Ombudsman | Ombudsman | X | X | X | X | X | |
| 1.5 | Comprehensive remit for Ombudsman to include immigration matters and prisons | Ombudsman | X | X | X | X | ||
| 1.6 | Ombudsman role in ADR Directive | Ombudsman | X | X | X |
Theme 2 - Integrity
| Commitment | Contributing Office | Grand Challenge | |||||
| No. | 1 | 2 | 3 | 4 | 5 | ||
| 2.1 | Develop and promulgate a statutory statement of public service values | Ombudsman Standards Commission | X | X | X | X | |
| 2.2 | Include liabilities as a registrable interest in the ethics legislation | Standards Commission | X | X | X | ||
| 2.3 | Publication of the beneficial ownership of companies | Standards Commission | X | X | |||
| 2.4 | Develop a cross-government anti-corruption plan | Ombudsman Standards Commission | X | X | X | X | |
| 2.5 | Publish a public service code of conduct | Ombudsman Standards Commission | X | X | X | X | X |
| 2.6 | Broad definition of “public servant”. | Ombudsman Standards Commission | X | X | X | X |
Theme 3 – Citizen Engagement
| Commitment | Contributing Office | Grand Challenge | |||||
| No. | 1 | 2 | 3 | 4 | 5 | ||
| 3.1 | Foster citizen involvement in public agencies, including complaints systems | Ombudsman | X | X | X | ||
| 3.2 | Pilot “open policy-making” exercises involving NGOs and citizens | Ombudsman | X | X | X | ||
| 3.3 | Campaign for voter registration and exercise of the franchise | Referendum Commission or proposed electoral commission | X | X | |||
| 3.4 | Target second level schools and develop citizen activism programmes | Proposed electoral commission | X | X |
Theme 4 - Transparency
| Commitment | Contributing Office | Grand Challenge | |||||
| No. | 1 | 2 | 3 | 4 | 5 | ||
| 4.1 | Duty on public bodies to create, capture and ensure the survival of essential public records | Information Commissioner | X | X | X | X | X |
| 4.2 | Develop a public service data transparency code | Information Commissioner | X | X | X | X | X |
| 4.3 | Amalgamation of AIE and FOI regimes into a single access process | Commissioner for Environmental Information Information Commissioner | X | X | X | X | X |
| 4.4 | Establish a virtual library | Information Commissioner | X | X | X | X | X |
Published: 2013
The Ombudsman made the following submission to the Convention on the Constitution in April this year. The submission proposes that a new Article be inserted into the Constitution providing for recognition of the Office of the Ombudsman and making other provisions similar to those already applying to the Comptroller and Auditor General. The role of the Office of the Ombudsman is to monitor administrative accountability by ensuring that public service activities are carried out properly, fairly and in accordance with good administrative practice. Explicit recognition in the Constitution would ensure that administrative accountability is taken as seriously as financial accountability.
Role of the Office
The Office of the Ombudsman was established as an independent statutory body charged with the objective examination of complaints, to identify causes and instances of maladministration, to recommend redress and to suggest improvements in administration. The Ombudsman gives the citizen the capacity to question the administrative actions of organs of the State and often represents an avenue of last resort for the aggrieved citizen. The service is free of charge for complainants and, in many cases, is a viable alternative to the courts. In its almost 30 years of existence, it has dealt with over 80,000 complaints and assisted with several hundred thousand enquiries.
Administrative Accountability
An effective democracy requires that government (and public administration as a whole) should be held accountable for its actions. The Constitution already recognises the Office of Comptroller and Auditor General. The role of that Office is to monitor financial accountability by ensuring that monies raised by, or given to, public authorities are used properly, efficiently and effectively. The role of the Office of the Ombudsman is to monitor administrative accountability by ensuring that public service activities are carried out properly, fairly and in accordance with good administrative practice. Administrative accountability is just as important as financial accountability. An example in this regard relates to the Department of Health which presided over the illegal charging of medical card holders for long-stay care provided by the health boards between 1976 and 2004. This was despite the fact that the Department had known since 1976 that the charges were illegal. The question of the legality of these charges was raised consistently by the Ombudsman with the Department from 1988 onwards. Over 300,000 people were charged illegally during 28 years. In the end, the Health Repayment Scheme was put in place to compensate those who had been charged illegally. To date, about €500 million has been paid out. This example demonstrates the potential cost to the state of poor administration and the important role played by the Ombudsman in identifying and addressing it detailed in Chapter 3 of the report [external-link Failure to Refund Illegal Nursing Home Charge | Failure to Refund Illegal Nursing Home Charges ].
Protection of the Office
Commentators have, over the years, called for the Office of the Ombudsman to be given clear constitutional recognition noting that increased protection of the Office would come with explicit recognition in the Constitution. For example, Donncha O’Connell's January 2011 article in the Irish Times entitled “Constitutional protection needed for inquiry bodies”. It would also serve to ensure that administrative accountability is taken as seriously as financial accountability.
The Ombudsman must be, and be seen to be, independent of the Government or any other body or person. Statutory independence is formalised under section 4 of the Ombudsman Act 1980 (which provides that the Ombudsman shall be independent in the performance of his functions) and through his or her appointment by the President following nomination by the Government of the day and a positive resolution of both Houses of the Oireachtas. Under the Ombudsman (Amendment) Act 2012, such nomination and resolution may also now be preceded by a transparent consultation with an Oireachtas committee.
In 1996 the Constitution Review Group recommended that a new Article should be inserted into the Constitution confirming the establishment of the Office of the Ombudsman, providing for the independent exercise of such investigative and other functions of the Office in relation to administrative actions as may be determined by law and making other provisions similar to those applying to the Comptroller and Auditor General and consistent with the Ombudsman Act 1980, as amended. The recommended new Article would have read as follows, though it should be noted that some of these provisions may no longer be appropriate e.g the Ombudsman now holds other offices such as the Office of the Information Commissioner.
The Taoiseach shall duly notify the President of any such resolutions as aforesaid passed by Dáil Éireann and Seanad Éireann and shall send him or her a copy of each such resolution certified by the Chair of the House of the Oireachtas by which it shall have been passed.
Upon receipt of such notification and of copies of such resolutions, the President shall forthwith, by an order under his or her hand and Seal, remove the Ombudsman from office.
Although all political parties endorsed this recommendation at the time, no further definitive action was taken to implement it.
The International Landscape
It should be noted that the majority of democracies already provide for an Ombudsman in their constitutions, sometimes with an additional role in relation to human rights. New democracies in Eastern Europe have been particularly proactive in affording constitutional status to their recently created Ombudsman Offices. Countries which contain constitutional provisions on the role of the Ombudsman include, amongst others, Austria, Estonia, Finland, Poland, Spain and Sweden. Constitutional underpinning has been advocated by the Council of Europe. In particular, the Parliamentary Assembly of the Council of Europe concluded that establishment at constitutional level is an essential characteristic for any institution of Ombudsman to operate effectively. Recommendation 1615 of 2003 refers.
Status of the Office of the Ombudsman
The Office of Ombudsman has traditionally been provided with a similar institutional pedestal to that occupied by the judiciary of the Superior Courts or the Comptroller and Auditor General – both of which enjoy constitutional recognition. For example, traditionally the Ombudsman’s salary has been tied to that of a judge of the High Court. This link was broken in recent years by the Financial Emergency Measures in the Public Interest (Amendment) Act 2011. He or she can be removed from Office either at his or her own request or for stated misbehaviour, incapacity or bankruptcy and upon resolutions passed by both Houses of the Oireachtas, as per Section 2 of the Ombudsman Act, 1980. In a recent Dáil debate , the Minister for Finance reflected on the fact that the independence of the Office of the Comptroller and Auditor General is copperfastened by virtue of its constitutional status. In particular, he drew attention to the fact that Article 33 provides that the Comptroller and Auditor General may be removed from Office for stated misbehaviour or incapacity which “underlines the independent status of this important Office”.
The Ombudsman has a status akin to that of a High Court judge and can demand information, documents, or any other thing relevant to an examination or investigation. Similar provisions and protections as apply to a High Court witness are also provided in respect of material provided to the Ombudsman.
The Ombudsman can however do much that the courts cannot do. For example, the Office is inquisitorial in nature rather than adversarial; it can therefore act on information that may not be available to the complainant. It can also act on maladministration that may not be unlawful and has a flexibility in identifying an appropriate remedy that is often not available to the courts – where the courts can normally award damages or injunctions, the Ombudsman can recommend an apology, an explanation or improvements to administrative systems and procedures in order to ensure that the problem does not occur again.
Unlike the courts, the Ombudsman can also draw on the experience of dealing with individual complaints to identify and report on systemic problems within public administration. The Office has developed a role in contributing to the elimination of what may be termed the root causes of many of the complaints encountered. Over the years, the Ombudsman has identified and investigated many issues of systemic significance including the treatment of late social welfare pension claims, serious maladministration in nursing home subventions and the operation of waiver schemes in waste collection
Role in Reforming Public Services
It is clear that the work of the Ombudsman has impacted significantly on the mindset of public servants. It has contributed to a widespread appreciation in the sphere of public administration of the right to fair procedures, the value of learning from complaints and the need for clear communication and explanations for decisions. While the core function of the Office continues to be protection of the individual from unfair actions of the State, its role in helping public servants improve the services they offer is of no less importance.
The Office of the Ombudsman has grown in confidence and competence over the years. This is reflected by the Ombudsman’s reports moving from specific and individual concerns to also covering the sphere of national and central government. Over the years, the Ombudsman has not been afraid to criticise government processes and indeed has done so explicitly in such reports as Who Cares? An Investigation into the Right to Nursing Home Care in Ireland . The evolved and strengthened role of the Office has been recognised by the development of a more structured relationship with the Houses of the Oireachtas through the Public Services, Oversight and Petitions Committee, as well as a significant expansion of her remit under the Ombudsman (Amendment) Act 2012. It is estimated that approximately 190 additional bodies will come within the Ombudsman’s remit from 1 May 2013 including the higher education sector, statutory regulators (e.g. the Health Information and Quality Authority ( HIQA)) and other bodies with quasi-judicial functions (e.g. the Adoption Authority of Ireland).
Why Constitutional Status is Required
The Constitution confirms various personal and other rights which traditionally have been protected by the courts. In addition, Article 45 contains directive principles on social policy, which, although non-justiciable, nevertheless set out important principles including a pledge to safeguard with especial care the economic interests of the weaker sections of the community and to ensure that the strength and health of citizens shall not be abused.
Constitutional recognition of the Office of the Ombudsman would be an extension of all of these rights wherein the existence (and independence) of another institution tasked with the protection and realisation of these rights would be guaranteed. After all, as commentators have pointed out, the more difficult it is to change the legal basis for the Office of the Ombudsman, the more likely that the Office will be permanently established (See Note 1). The Ombudsman will be free to continue to comment or indeed criticise, without fear that the Office will be abolished or unnecessarily restricted.
The enhanced independence of the Ombudsman, through constitutional recognition, will undoubtedly increase public confidence in the Office as well as requiring the public service to ensure its engagement with the Office is genuinely co-operative. This independence (and indeed neutrality) of the Ombudsman and the fact that he or she is universally respected by both complainants and those involved in public administration, are vital to the proper functioning of the Office of Ombudsman. (It would also appear to be anomalous that the local authority sector, which is subject to the Ombudsman’s remit, enjoys constitutional status at present whereas the Office of the Ombudsman does not. )
The symbolism of the term “constitutional” should also not be underestimated. Whether a matter or institution has constitutional status or not can affect the behaviour and decisions of those able to make and implement decisions – be it politicians, officials or others.
Note 1:
Dean M. Gotteher and Michael Hostina, “Essential Characteristics of a Classical Ombudsman” in Righting Wrongs : the Ombudsman in Six Continents, International Institute of Administrative Sciences, 2000
February 2011
On 2 February 2011 the Ombudsman sent a paper to all political parties and Oireachtas members entitled “Developing and Optimising the Role of the Ombudsman”. This explained how she believes that the Ombudsman could play a fuller role in supporting the checks and balances required for good government. The Ombudsman detailed four specific proposals, which would allow the Office to maximise its contribution to Government reform and rebalance the relationship between the Ombudsman and the Government so as to further increase public confidence in the effective working of the Institution of the Ombudsman.
The proposals are:
Most of the changes the Ombudsman has put forward for consideration will need new legislation, and little or no additional expenditure. In fact the changes proposed are likely to result in savings in other areas.
The Programme for a National Government, published in March 2011, took into account some of the suggestions in my document. Of particular note were the comments about extending the remit of the Ombudsman to all publicly funded bodies and the establishment of a new Oireachtas Committee - the Investigations, Oversight and Petitions Committee.
The Ombudsman has already made some suggestions to the Department of Public Expenditure and Reform relating to the practicalities of implementing the proposals to broaden her Office’s remit. She is hopeful that early progress can be made in delivering on this commitment which she sees as an essential component of the public service reform programme.
Reform starts at home - root and branch overhaul of complaint handling procedures
During 2010, the Office of the Ombudsman underwent a significant structural and process transformation - perhaps the most radical change management project since the Office was established in 1984.
The Office’s Strategic Plan 2010-2012 identified improved and speedier complaint handling as central to the future success of the Office. It was drafted against the backdrop of Exchequer resource constraints, the requirements of the Public Service Agreement 2010-2014, the significant increase in the number of complaints to the Office and the proposed extension of the Ombudsman’s remit.
One of the key objectives of the Strategic Plan is to ensure that the Office’s structure, systems and processes properly support an organisation that is fit for purpose and delivers its services fairly, efficiently and effectively to its customers.
With this in mind, and with external assistance, the Office assessed its existing organisational structure and business processes and identified changes needed to ensure:
This assessment got underway in October 2010 and the new structure and processes went “live” on 1 March, 2011.
Fundamentally, the new structure and process signify a move away from what, heretofore, were specialised complaint handling units dedicated to particular sectors (e.g. government departments, local authorities, social welfare and health etc.). In its place we have put a more fluid model where these divisions have been removed and the organisation simplified to optimise complaint throughput; to increase flexibility and to allow rapid deployment of staff resources to deal with rising demand in any particular unit.
The Office now comprises three process units, enquiries, assessment and examinations. These units deal with all types of complaints, regardless of the public body complained of, and each unit’s primary purpose is to resolve each enquiry or complaint as early in the process as possible. A fourth unit, the investigations unit, deals with the more complex complaints which cannot be resolved informally. It also handles systemic investigations which address alleged patterns of bad practice which may be common to groups of complaints, or indeed, a number of public bodies. It is anticipated that, over time, the new arrangements will reduce considerably the amount of time and resources allocated to each complaint and, in turn, deliver quicker and more responsive complaint outcomes to our clients.
In addition, and bearing in mind the need to effect improved efficiencies across the public sector as a whole, the Office has asked for the assistance of all public bodies under its remit in providing relevant files and information to the Office within shorter time frames. The assistance of public bodies to date in this respect has been most welcome.
The Ombudsman wholeheartedly commended her management team and staff for the “can-do” approach they adopted to designing and implementing the revised structure and processes in such a short space of time. They displayed great willingness to embrace very significant change and to work to bring about further improvements in the service the Office delivers to its clients.
Published July 2012
Submission From The Office Of The Ombudsman to the Nursing Home Support Scheme Review
16 July 2012
Contents
This review is taking place at a time of unprecedented pressure on health funding, at a time when the structures for delivering health care are in the process of being dismantled and replaced, and at a time when a new and radically different model of health provision (Universal Health Insurance) is proposed to be put in place over a period of years. Much of the detail of the proposed new structures and of the model itself remains to be provided.
The Nursing Home Support Scheme (NHSS) was introduced in 2009 in response to a decades old gap in provisions to meet the needs of elderly people requiring long-term residential care. The NHSS was introduced into a health system characterised by a lack of overall coherence and clarity and by the absence of a clear model. The Ombudsman has in the past characterised our health services as being half-in and half-out of a statutory framework; certain services are required by law to be provided, while other services lack any specific legal basis.
The role of the State in healthcare has not, in recent times, been articulated in an unequivocal way. What we have for the most part is a fused public/private system with the private, commercial element enjoying very considerable support and subsidisation – in the form of tax concessions, training of medical personnel, use of facilities and other public infrastructure – from the public purse.
Healthcare remains one of the key ideological battle grounds of our time and it is arguable that an ideology of private, market-based provision has been promoted almost by stealth. In the meantime, many fundamental aspects of our healthcare arrangements remain uncertain and, perhaps, deliberately so.
For example, what responsibility (if any) has the State either to provide healthcare or, alternatively, to ensure its provision? Are our arrangements intended to be rights-based (reflected in legislation), or entirely discretionary, or a mix of the two? Are our services intended to be delivered within a public service ethos (by public bodies and/or publicly–funded bodies), or within a private market ethos, or some mixture of the two?
The Ombudsman has in the past drawn attention to the fact that, in an area as important as healthcare, the manner and extent of the State’s involvement is both a reflection, and a determinant, of the kind of society we are and want to be:
"It seems to me that a state's public health service should amount to far more than arrangements to ensure services are provided. Though of course it is essential that services are provided - after the first five hours waiting on a trolley in A&E one rapidly looses interest in the philosophy underlying the public health service! The context in which services are provided, the institutions providing them, the financing of the services, the governance arrangements for those services, the extent to which one is entitled to services - these are all factors which both reflect and support the maintenance of the kind of society we want to be. Health services made available on the basis of the exercise of consumer choice within a purely commercial private market do nothing to promote social solidarity or good citizenship. On the other hand, services provided through state agencies which are dysfunctional are not the answer either." (Health Care in Ireland - An Ombudsman Perspective - Doolin Memorial Lecture 2011)
In summary, therefore, the NHSS is a stand-alone set of arrangements for a particular (and very pressing) area of need. The NHSS was not developed as the expression, in a particular area, of an existing model of public healthcare which has been well articulated and widely understood and accepted. In fact, as described below, the NHSS reflects a model which is at odds with what appeared to be the model hitherto (in so far as one can discern) of the State’s involvement in healthcare.
Presumably, the shape of the State’s future involvement in the area of long-term residential care for the elderly will be determined ultimately within the context of the new healthcare model and structures proposed by the Government. Thus, conducting a meaningful review of the NHSS at this particular point, when the details of the proposed new healthcare model and related structures are not fully available, is problematic.
In chapter 7 of her investigation report of November 2010, Who Cares? An Investigation into the Right to Nursing Home Care in Ireland , the Ombudsman dealt at considerable length with the NHSS. The Ombudsman summarised what she understood to be the Department’s understanding of the NHSS:
The most striking aspect of the NHSS, as explained to the Ombudsman by the Department, was that it represents a new model of provision. For decades, the Department and successive Ministers supported a model based on State provision of long-term care where the State took responsibility for providing the service but sought a contribution from the individual or the family towards the costs (see Note 1 below). The NHSS model is quite different. The model now is based on the principle that responsibility for long-term care rests primarily with the patient and/or family; the State may support the patient/family financially but this is subject to the availability of resources and to the individual satisfying a means test. Support under the NHSS is not guaranteed and the Scheme is not demand-led. If demand outstrips the availability of resources then the applicant may be placed on a waiting list until such time as resources become available (see Note 2 below). There is no legal entitlement to financial support.
The Ombudsman, in the Who Cares? Report , summarised her conclusions regarding the NHSS Act as follows:
The Ombudsman also drew attention to the fact that, if the Department is correct in its analysis of the legislation, the HSE could choose not to provide nursing home services at all and leave this area of service to the private and voluntary providers. Indeed, since the publication of the Who Cares? Report in November 2010, there has been a continuation of the trend whereby the involvement of the HSE in providing long-stay care places has been in decline in favour of increasing provision by the private, commercial sector (see Note 3 below).
The Ombudsman takes the view that, whatever arrangements are made to provide long-term residential care for elderly people, these arrangements should reflect a policy which has been enunciated clearly in public. As matters stand, in the case of the NHSS it is more a case of inferring a policy from the Scheme rather than the Scheme reflecting an established policy.
Note 1
The State also paid subventions to those who chose private nursing home care and to those who had no option but to avail of private care because of the scarcity of public nursing home beds
Note 2">Note 2
This has already happened, most significantly in the first half of 2011.
Note 3">Note 3
The HSE National Service Plan 2012 envisages the closure of “a minimum of 555 public beds” in Community Nursing Units during 2012
1. Administration Process">1. Administration Process
It is vital that there is consistency in the assessment of older people and the processing of applications. The Ombudsman is also concerned to ensure that there are no undue delays in processing applications under the Scheme. This has taken on an added importance since the change in date of provision of financial assistance from the date of application to the date of approval under the Scheme. There is a danger that pressure will increase on acute hospitals as patients wait for approval before entering a nursing home.
It is also uncertain whether clear and accessible information is being provided to residents and/or families regarding their options under the NHSS. At the commencement of the Scheme, the Department and the then Minister emphasised the concept of a “minimum retained income threshold” – where the spouse or partner remaining at home is left with 50% of the couple’s income or the maximum rate of the State Pension (Non-Contributory) whichever is the greater. However, we have confirmed with the Department that the “minimum retained income threshold”, applies only if the applicant has applied for ancillary state support. Many complainants to the Ombudsman do not seem to be aware of this.
2. Provision of ancillary services">2. Provision of ancillary services
It is important that there is, at the very least, clarity on the issue of the provision of ancillary services and, in particular, as to what is and is not covered under the NHSS. There is a perception that “add-on” charges (and therefore the shortfall to be paid by residents and their families) are increasing to cover the costs of therapies and other services provided to residents, irrespective of whether they hold a Medical Card or not. The Ombudsman has received a significant number of complaints regarding the refusal of services, such as therapies, to medical card holders based purely on the applicant’s residence in a private nursing home. While some of these complaints were ultimately resolved, it is not clear if there is equitable and needs based access to such services across the country. It is hoped that the HSE Working Group on the Provision of Ancillary Services has addressed this and will publish its report shortly on this matter.
In this regard, the definition of long term residential care services as constituting “maintenance, health or personal care services appropriate to the level of care needs of the person” is inadequate. There is no interpretation of what this actually means. While the Department is of the view that it is not possible to be prescriptive in legislation, as each resident may have different care needs, in practice it is being interpreted quite narrowly to include bed and board, basic aids and appliances and nursing care only. The reality is that many of those in need of long-term care require more than this. If the Department is considering further expanding the Scheme into the mental health and disability sectors (where there is often a great need for therapies and other supports) and if the same interpretation is applied, it is anticipated that the additional costs for those availing of such services would increase even further.
3. Suitability of scheme for those aged under 65">3. Suitability of scheme for those aged under 65
The Ombudsman has concerns about the suitability of the Scheme for those aged under 65 or “young chronic sick” as they are sometimes categorised. It must be remembered that for those aged under 65 and their families, there may be costs associated with ordinary daily living such as travel costs to work, that those over 65 do not, as a whole, have to contend with. In addition, many of those aged over 65 have the benefit of the Household Benefits Package awarded by the Department of Social Protection and other supports which are often not available to those aged under 65 who instead have to pay household bills without any subsidy. While the Ombudsman welcomes the regulation that allowed mortgage payments to be deducted in the means assessment, we are concerned that, aside from a provision relating to an asset transferred prior to October 2008, there remains no discretion to allow for an applicant’s (and their families’) financial and other circumstances in life to be taken into account.
It is also a reality that many of the younger applicants, some with acquired brain injuries or neurodegenerative disorders, require much more than bed and board, basic appliances and nursing care. Like some older people, they require rehabilitation services, sometimes at intensive levels. The NHSS was designed for elderly residents with similar needs that can mostly be provided by nursing and care staff. The NHSS envisaged that other services would be accessed via primary or community care services, but this is not what has routinely transpired. The NHSS model does not fit the needs of all persons requiring long-stay care. In many respects, the Scheme is not appropriate for the needs and requirements of high-dependency residents with significant medical, nursing and therapy requirements. Instead, many of the applicants and their families are reliant on the discretion of the local HSE Disability services or other services on the ground to provide “top-up” funding to meet the costs of nursing home care. This is an uncertain and unsustainable situation.
The Ombudsman is of the view that there should be a greater emphasis on allowing persons to remain at home for as long as possible. Home Help hours, Care Assistant hours, Home Care Grants and other supports should be viable alternatives to entering long-term care. These services should be available nationally under a transparent, objective and equitable process that is highly responsive to emerging needs. Indeed where possible, there should be greater planning for the needs of vulnerable older people living in the community, thus limiting sudden and reactionary admissions to Hospitals and Nursing Homes when a situation deteriorates. There is also a need to develop further rehabilitation services at in-patient, day patient and community level, once again using a national, equitable and needs based model. According to a recent report, it is likely that 80% of people assessed for long-stay care had not been considered for or offered home care alternatives (“Still no way out for discharged delayed”, Irish Times, 26 June 2012).
The NHSS does not appear to be appropriate for an intermediate service facilitating patients to step-down to care in their own home. (Any such step-down provision is provided outside the terms of the Scheme and consists of short-term programmes on the initiative of the Minister of the day, for example the Transitional Care Initiative which is currently being funded from money diverted from the NHSS and the National Treatment Purchase Fund. The Ombudsman is aware of one case where an applicant was refused assistance under the Scheme as it was his wish to return home – which he did after a short stay in a nursing home. However, his family was refused financial assistance under the Scheme for this very reason leaving them to pay the full amount of nursing home fees for the stay.) As the Scheme currently operates, there would appear to be little incentive for a patient to aim towards returning to their own home.
Emily O’Reilly, Ombudsman
16 July 2012
Introduction
There is a strong public expectation that, following the General Election, there will be a radical re-shaping of the political and administrative landscape. There is a public demand that government must be fair, effective and accountable and it is clear that the institutions of government must be re-drawn to ensure this is achieved. Two key elements in meeting this demand are consistency and fairness in the application of the law and in the provision of public services that focus on individuals’ needs.
Like the Courts, the Ombudsman’s Office helps to uphold the rule of law. But it also plays a role in ensuring better government. There is broad consensus that the Office, through its independence and impartiality, has proven itself to be a significant player in public governance; since its establishment in 1984, it has won widespread public support and is respected by the public service because of its achievements. Its establishment was widely seen at the time as one of the most significant events in the history of Irish public administration.
At another critical time for Irish society, the Ombudsman believes that much more could be done – with Governmental and Parliamentary support - to enable her Office to play a greater role in complementing whatever measures are put in place to meet the current public demand for better government.
The purpose of this document is to explain how the Ombudsman can play a fuller role in supporting the checks and balances required for good government and to outline what needs to be done to ensure this happens.
Ombudsman Role – General
The Ombudsman investigates complaints against public bodies and, where appropriate, recommends redress. The Ombudsman is given substantial powers by parliament to conduct investigations. While Ombudsman recommendations are not usually binding, they are nevertheless normally implemented by public bodies. Where a public body refuses to implement a recommendation, the Ombudsman reports this to parliament which will usually consider the matter in the relevant committee. Except it is shown that the Ombudsman’s investigation was flawed, the parliamentary committee will find a means to ensure the Ombudsman’s recommendation is implemented.
The work of the Ombudsman is complementary to that of the courts. Unlike the courts, the Ombudsman draws on the experience of dealing with individual complaints to identify and report on systemic problems within public administration.
Ombudsman – Ireland
Since 1984 the Ombudsman has received roughly 80,000 valid complaints including 3,894 complaints received in 2010. Over the years the Office has identified and investigated many issues of systemic significance including the treatment of late social welfare pension claims, serious maladministration in nursing home subventions, failure to provide nursing home care for the elderly as well as issues to do with planning and with the operation of waiver schemes in waste collection.
The work of the Ombudsman has impacted significantly on the mindset of public servants. As a result, there is now a widespread appreciation of the right to fair procedure, the value of learning from complaints and the need for clear communication and explanations for decisions. The Ombudsman has been to the fore also in identifying fundamental weaknesses in our governmental arrangements. As early as January 2001, in a report dealing with nursing home subventions, the Ombudsman identified dysfunctions in government as the root cause of the very bad practices described in that report. The Ombudsman in 2001 pointed to imbalances in the relationships (1) between the Executive and the Oireachtas, (2) within the Executive between Ministers and their senior civil servants and (3) between Departments and other public bodies (such as the then health boards). These same issues have surfaced in recent debate on reform of government.
There have also been missed opportunities when the Ombudsman highlighted serious issues which, if dealt with at that time, would have saved the State from significant compensation having to be paid at a later stage. The illegal charging of medical card holders for nursing home care is a case in point. This issue could have been resolved when the Ombudsman began to draw attention to it in 1991/1992; instead, it remained unresolved until 2006 when the Oireachtas legislated to refund those charged illegally. Roughly €500 million has since been paid out in refunds to those charged illegally.
Recently, the Ombudsman’s relationship with the Government has come under some strain arising from two particular investigations - the Lost at Sea case (involving a scheme for awarding replacement tonnage for fishing vessels lost at sea) and the Who Cares? report (dealing with the obligation on the HSE to provide nursing home care for older people). It will be very important to restore the Ombudsman’s relationship with Government at the earliest opportunity.
Optimising the Ombudsman Role
There are some specific changes which, in the Ombudsman’s view, should be made in order to optimise the impact of her Office. Most of these changes will require new legislation – the Ombudsman Act 1980 has never been amended in any significant way – but should not involve much new spending. In fact, the changes proposed are likely to result in savings in other areas. These changes include:
Constitutional status for the Ombudsman
This was recommended in 1996 by the Constitution Review Group in order that the Ombudsman would be seen to be independent and to be “able to operate without being influenced by Government action”. This would place the Ombudsman in the same position as, for example, the Comptroller and Auditor General thus ensuring that administrative accountability will be taken as seriously as financial accountability. The enhanced independence of the Ombudsman, derived from Constitutional recognition, will undoubtedly increase public confidence in the Office as well as requiring the public service to ensure its engagement with the Office is genuinely co-operative.
Improve the reporting relationship with the Oireachtas
As in many other countries, the work of the Ombudsman will be enhanced where there is a direct reporting relationship with a specific Oireachtas Committee which both monitors and supports the work of the Ombudsman. The Ombudsman envisages that such a Committee would have regular constructive and critical interaction with her. In the event of a recommendation being rejected, it is to this Committee that the Ombudsman would report. The Ombudsman would expect to have her investigations and recommendations reviewed critically by this Committee which would make its own assessment of her work. Provided the Committee acted independently, and not on a party whip basis, the Ombudsman could have no complaint should the Committee take the view that her recommendation should not be supported. There is also scope for considering whether the Oireachtas, through this Committee, might ask the Ombudsman to conduct specific enquiries on its behalf (see Note 1 below).
Extend remit to include the prisons and all issues relating to immigration, refugees, asylum seekers and naturalisation
There has never been any good reason why these areas have remained outside the Ombudsman’s jurisdiction. For other national Ombudsman Offices these areas have always been a central element of the overall jurisdiction. In the absence of access to the Ombudsman, asylum seekers in particular are left with no alternative other than the High Court when they are unhappy with how they have been treated. More than half of all judicial review applications (749 applications in 2009) are asylum related. There is little evidence that the improvements in public administration generally, mentioned above, have been a feature of the administration of these areas which have remained outside the Ombudsman’s remit (see Note 2 below).
More transparent procedures for appointing Ombudsman
Under the Ombudsman Act 1980, the Ombudsman is appointed by the President following a resolution passed by the Dáil and Seanad. In effect, the appointment is in the gift of the Government of the day. In the interests of transparency, there is a strong case for having a prospective Ombudsman attend some kind of confirmation hearing before the Oireachtas Committee charged with monitoring and supporting the work of the Ombudsman.
Conclusion
It is important that the impetus for governmental reform, so evident at the moment, is acted upon at an early stage following the formation of the next Government. The Ombudsman will be happy to discuss these ideas with any of the political parties whether in advance of the General Election or afterwards.
Office of the Ombudsman
February 2011
Notes:
Note 1
As suggested by Donncha O’Connell of NUIG in his submission of 12 January 2011 to the Oireachtas Joint Committee on the Constitution - http://debates.oireachtas.ie/CNJ/2011/01/12/00004.asp
Note 2
The Ombudsman (Amendment) Bill 2008, which had been passed by the Dáil (but not by the Seanad) prior to its recent dissolution, proposed to retain the exclusion of these areas from the Ombudsman’s jurisidiction. The Ombudsman proposes that any new Ombudsman (Amendment) Bill should extend her jurisdiction to these areas.