Case number: OIC-61438-B5W6R9
19 August 2020
To put this decision into context, the HSE issued an invitation to tender (ITT) on 17 May 2018 for the provision of Home Support Services (HSS) for older people in the various CHO areas, where HSE directly employed staff are not available to deliver such services (direct provision). The ITT included details of the approximate number of home support clients in a full year and the maximum number (X) of approved providers for each CHO area. It said that the top X in each CHO area will be recommended to become Tier 1 Approved Providers and that tenderers falling outside the top X in a CHO area will be offered an opportunity to be a Tier 2 Approved Provider. It said that the Tier 2 Approved Providers will be utilised if the Tier 1 Approved Providers are unable to provide a service within HSE specified timelines. The ITT also said that if the number of Approved Providers for a particular CHO is less than the maximum proposed for that CHO, all eligible Approved Providers for that Lot (i.e. all service providers who pass the minimum requirements) shall be Tier 1 Approved Providers.
The applicant represents a number of not-for-profit home care providers in Ireland. On 14 May 2019, it made an application to the HSE under section 10 of the FOI Act for a statement of reasons regarding the HSE’s decision to move Tier 2 Approved Providers of HSS in CHO 6 into Tier 1 and regarding its decision not to apply any similar approach in any other CHO areas. It made the application on behalf of 15 of its members.
The HSE’s decision of 24 June 2019 provided the applicant with a statement of reasons. The applicant sought an internal review on 22 July 2019, saying that the statement was not sufficiently detailed or complete and that it appeared from records released to it under the FOI Act that it excluded additional reasons for the HSE’s decision. The HSE’s internal review decision of 20 August 2019 effectively affirmed its decision on the section 10 application. On 28 January 2020, the applicant applied to this Office for a review of the HSE’s decision.
Delays arose because the applicant was, very understandably, unable to respond to material issues put to it in the course of the review because of the Covid-19 pandemic. I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out that review, I have had regard to the above exchanges and contacts between this Office, the HSE and the applicant. I have also had regard to the provisions of the FOI Act.
The scope of this review is confined to whether the applicant’s 15 members are entitled to a statement of reasons and, if so, whether that statement is adequate for the purposes of section 10 of the FOI Act.
Section 10(1) of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. For the purposes of section 10, an act of the body includes a decision of the body.
Subsection (5) of section 10 provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates:
"if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member."
In other words, where the act of an FOI body affects a wide class of people (i.e. a class of significant size having regard to all the circumstances) and applies equally to all members of the class, an applicant who is a member of that class does not have a material interest.
Under subsection (13), benefit is defined as including any advantage to the person, or the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.
This Office considers that the applicant bears the burden of proof in establishing the standing necessary to be entitled to a statement of reasons for an act of an FOI body, i.e. the applicant bears the burden of showing that he or she has been affected by the act in question and also has a material interest in the matter.
The HSE is of the view that the applicant has a material interest in its decision to award Tier 1 status to Tier 2 providers in CHO6, who thus received a benefit. It says that the 15 members of the applicant’s organisation that are Tier 1 and Tier 2 providers in other CHOs have a material interest in the decision because the expansion of any other Tier 1 approved provider list would have the potential to negatively impact on their access to offers of work by increasing the number of competitors in each CHO.
In summary, the HSE’s statement of reasons said that the maximum number of Approved Providers in each CHO area as set out in the ITT was based on the HSE’s assessment of the required number of new packages of HSS in each CHO, based on the information available at the time. It intended, in the ordinary course, that service requirements could be delivered at all times by the Tier 1 pool. However, if these did not or were not in a position to provide service capacity, the HSE would be able to call on a supplemental pool of service providers (of unlimited number) to provide the requested services. It said that, subsequent to the award of contracts and following a review of capacity requirements in CHO 6, the HSE’s full year projection for 2018 was that there would be approximately 50% more clients in that CHO than that anticipated by the ITT. It said that, as there is no direct provision available in CHO 6, it must rely on the capacity of the Approved Providers to deliver the necessary services. In a situation where vulnerable members of the public might not otherwise receive urgently needed HSS, the HSE decided to effectively promote the Tier 2 providers to Tier 1. It said that the capacity concerns arose in the context of CHO 6 only and thus the HSE’s decision is confined to this CHO.
The HSE considers the statement that it provided to the applicant is adequate for the purposes of section 10 of the FOI Act. It says that the statement ensures that the applicant is fully informed of the basis for its decision. It also says that while the applicant may believe otherwise, the released records show the significant increase in anticipated demand that necessitated the HSE’s decision. It also says, however, that section 10 cannot be used to challenge the decision itself.
The applicant says that the HSE’s decision to move certain Tier 2 approved providers of HSS in CHO 6 into Tier 1 and to increase the price payable to Tier 1 approved providers in CHO 6 confers a benefit on such providers that was not similarly conferred on Tier 1 and Tier 2 approved providers in any other lot, including 15 of its members. It says that certain additional reasons for the HSE’s decision should be included in the statement. It disputes the HSE’s position that it was entitled to promote the Approved Providers in order to address a significant increase in client volumes. The applicant says that the records released to it show the HSE’s position to be factually incorrect. It complains about the way in which the HSE conducted the procurement process. It says that it wrote to the HSE about these matters on 28 August 2019 and sought confirmation that the service would be re-tendered as well as a complete statement of reasons in light of this information. It says that almost a year later the HSE has still not replied.
Analysis - material interest
This Office’s Investigator wrote to the applicant on 12 March 2020. She said that it was open to this Office to take a different view to the HSE regarding the applicant’s entitlement to a statement of reasons in the first place.
The possibility that the HSE might make further decisions to expand any other Tier 1 Approved Provider list is not a basis on which I could find that 15 members of the applicant’s organisation have a material interest in its decision regarding the CHO 6 area.
Even if I accept that the applicant’s members are affected by the HSE’s decision, this does not necessarily mean that they have a material interest in a matter affected by the decision or to which it relates for the purposes of section 10 of the FOI Act. As I have explained above, where an act of an FOI body affects a wide class of people (i.e. a class of significant size having regard to all the circumstances) and applies equally to all members of the class, an applicant who is a member of that class cannot be deemed to have a material interest in a matter affected by that act or to which such act relates for the purposes of section 10.
While the consequence of the act for which a statement of reasons was sought in this case (the conferral of tier 1 status on Tier 2 providers) was to confer on the Tier 2 providers in CHO6 a benefit, that same benefit was withheld from all other Tier 2 providers in other CHO areas. I consider all other Tier 2 providers in other CHO areas from whom the benefit was withheld to be a class of persons of significant size having regard to all the circumstances. The particular 15 members of the applicant’s organisation that have sought this review are part of that class. As such, I find that none of the members of that class can be said to have a material interest in a matter affected by that act or to which it relates, having regard to the provisions of section 10(5).
In light of this finding, it is not necessary for me to consider the adequacy of the HSE’s statement for the purposes of section 10. However, if it were necessary for me to do so, I would find it to be adequate.
As the applicant is aware, the Information Commissioner does not expect statements issued under section 10 to necessarily be required to contain a detailed clarification of all issues identified by an applicant as relevant to a particular act or decision. I have summarised the HSE’s statement already in this decision. It seems to me to set out adequately why it decided to reclassify the Tier 2 providers in CHO 6. The fact that the applicant takes issue with the details in that statement does not provide me with any basis to direct the HSE to provide any further details.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE’s decision. I find that the applicant (on behalf of 15 of its members) does not have a material interest in the particular act the subject of its section 10 application and therefore is not entitled to the statement applied for.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.