Peter Tyndall

NUI Galway - 19 February 2014

I’m very pleased to have this opportunity to speak here today as part of your celebration of the first ten years of the LL.M in Galway.  This year also marks the thirtieth year of the Office of the Ombudsman in Ireland, giving us two causes for celebration.  Although the Office of Ombudsman has been around for 30 years in Ireland, it is in fact more than 200 years since the first ombudsman institution was created.   

I want to reflect a little at the outset on the development of the ombudsman institution from its birth in Scandinavia to its widespread adoption across the world.  I will look in particular at the development of the office in Ireland, before going on to consider the subsequent development of the role of Information Commissioner, and the complementary nature of both offices in promoting openness, transparency and sound administration.  I will look at the implications of the recent legislative change affecting my role as Ombudsman, and the imminent legislation in respect of Freedom of Information.

I will then go on to consider the role of the ombudsman within the wider system of administrative justice, before looking at potential and desirable elements which would further enhance the access of people in Ireland to redress and to information.

The modern use of the term Ombudsman began in Sweden, with the Swedish Parliamentary Ombudsman, an office created in 1809, to safeguard the rights of citizens by establishing a supervisory agency independent of the Government.  Although this institution shares many characteristics with the institution of Ombudsman as it has developed worldwide, it also has the characteristics of a regulator, having oversight of the courts and prisons, for example.  It was the development of an Ombudsman institution in Denmark however, which marked the forerunner of the offices of Ombudsmen we are familiar with today.

The Danish Parliamentary Ombudsman was established in 1955 to investigate complaints brought by an individual or by the Ombudsman using his or her own initiative, in all matters relating to public governance, including maladministration by central or local authorities.  The Danish Ombudsman can investigate both individual cases and problems affecting many people, so called systemic investigations.  The Ombudsman is appointed by the Danish Parliament.  This model has since been widely adopted across the world, and is very close to the model subsequently adopted in Ireland.  The wide spread of the Ombudsman concept is evidenced by the fact that the International Ombudsman Institute now has members in more than 90 countries.

In Ireland Michael Mills was appointed by the President as the first Ombudsman in January 1984.  He was a widely respected political journalist who had the challenge of setting up the Office and establishing its independence and impartiality from scratch.  Often commended for his integrity, Michael was known for his strong views and was always prepared to fight for justice. His role as Ombudsman was not always an easy one and the very existence of the Office was threatened in its early days.  Cuts in public expenditure from 1986 onwards had a severe impact on the Office’s ability to do its job.   Michael Mills was forced to make a public stand and report to the Oireachtas that the Office could no longer function.  Eventually resources were restored.  The Ombudsman had won an important victory. 

Michael paved the way for his successors.  By his final year as Ireland’s Ombudsman, the Office was accepted and recognised as an independent and impartial body that examined complaints objectively and worked to provide redress for users of public services who had suffered an injustice.

Sadly, Michael Mills passed away in 2008 after 10 years as Ombudsman. 

Kevin Murphy succeeded Michael as Ombudsman in 1994.  A former Secretary General in the Department of Finance his appointment may have been met with some suspicion that the State had appointed ‘one of their own’.  However, nothing was further from the truth.  Kevin’s familiarity with public administration and knowledge of how it worked; together with an ability to listen – and the ability to sense when the plausible just was not true or was deliberately incomplete; made him a formidable Ombudsman.  Building on the work of Michael Mills, Kevin encouraged public bodies to establish internal complaints systems and he produced guidelines for public bodies on good administration.

Kevin had a number of successful battles with the system including the ‘Redress for Taxpayers’ investigation which involved individuals who had been wrongly overtaxed in the 1980s.  Kevin’s investigation not only provided repayments for those concerned, but resulted in a scheme of compensation for ‘loss of value’ in respect of refunds of taxes.

In 1998, Kevin was also appointed Ireland’s first Information Commissioner, responsible for dealing with appeals of decision made by public bodies on Freedom of Information requests.   Under Kevin’s stewardship the Office produced clear, comprehensive, well-argued decisions that not only stood up to legal challenge in the Courts but to scrutiny from academics and public bodies.  Kevin used the introduction of the radical new FOI Act to promote and foster an attitude of openness among public bodies.

Kevin retired as Ombudsman and Information Commissioner in 2003 and, sadly, passed away in 2012 after a lifetime of service to the public. 

My immediate predecessor, Emily O’Reilly was, like Michael Mills, an accomplished journalist.  She was also an author and broadcaster. Apart from taking on the roles of Ombudsman and Information Commissioner Emily was appointed Ireland’s first Commissioner for Environmental Information.  Later in her term she oversaw the merger of the Commission for Public Service Appointments with her Office.

During her 10 year term, Emily instigated many high profile investigations including those on the Mobility Allowance and on the Motorised Transport Grant schemes.  She highlighted that these schemes were being operated illegally by including criteria that were in breach of the Equal Status Acts. 

Her ‘Who Cares?’ report in 2010, detailed her investigation into the actions of the Department of Health and Children and of the HSE, regarding the right to long-term nursing home care for older people. The Ombudsman found that there was a failure by the HSE to provide for older people in public nursing homes. 

There were some difficult times during Emily’s tenure with the economic downturn resulting in cuts to the resources of the Office, at one stage seeing a 16% reduction in staffing.  The reduced staff had to deal with rising complaint numbers with a record number of complaints received in 2010.  In response, Emily oversaw a major change in processes within the Office that resulted in a significant increase in the volume of complaints dealt with despite the reduction in resources.  However, like all other public bodies, the reduction in resources did have an impact and led to significant backlogs of work.  Although the resource position has improved, those residual backlogs represent a major challenge for the future.

During 2012, her final year as Ombudsman, the Ombudsman Amendment Act was enacted having being initially proposed as far back as 1987.  I will talk more about the implications of the act in a moment.

Emily’s high reputation at home and abroad was reflected in her appointment as European Ombudsman last year.  She has already had a significant impact and has demonstrated her fearlessness and tenacity in typical style by taking on two European superpowers in her recently announced investigation.  I refer of course to Barcelona and Real Madrid, who stand accused of benefiting from unfair tax advantages.  In case there is anyone who hasn’t heard of them, suffice to say they are Spanish football clubs!

The Ombudsman Amendment Act marked a major step forward in the development of the office.  It saw an extension of our remit to cover the administrative actions of around 200 additional ‘reviewable agencies’ who are now subject to examination by the Ombudsman, including:

a)   All publicly funded Third Level education institutions, such as NUI Galway, all other universities and VECs (now known as Education Training Boards), and SUSI.

b)   Bodies such as FAS, HIQA and the National Transport Authority,

c)   And certain functions of some agencies such as the Legal Aid Board  and the Courts Service,

The Act now places a duty on reviewable agencies to provide reasonable assistance and guidance to the public to ensure that they are dealt with fairly and impartially, and to provide information on any rights of appeal or review they may have.  I can now apply, through the Circuit Court, for an order directing that a reviewable agency provide information or documents to the Ombudsman – previously there had been no legal obligation to do so, and the Ombudsman may now seek clarification on interpretation on questions of law from the High Court where it is considered necessary, for example, if a certain provision is unclear or if a public body’s interpretation differs from that of the Ombudsman.

One element of the legislation which is due to be implemented soon is the extension to bodies with significant public funding.  We have an increasingly diverse world of public service where substantial elements of provision are delivered by private sector or voluntary bodies.  I believe that even where a public service is delivered by another organisation, independent redress should be retained or provided through my office or another appropriate route.  I will return to this theme later.

I thought it might be helpful to illustrate the work of the office with some examples, including some local complaints.

In January I published a report of my investigation following a refusal by the HSE to award a Long Term Illness Card to a boy diagnosed with Attention Deficit Hyperactivity Disorder. 

The HSE refused the LTI card on the grounds that the boy did not meet the medical criteria for eligibility.  The complainant said that her son did meet the relevant medical criteria and she said that had he lived elsewhere in Ireland (he lives in Wexford), her son would have been awarded a LTI card. 

The regulations governing the Long Term Illness Card scheme state that mental illness in a child under the age of 16 is an illness which qualifies for the LTI scheme.  Personally, I am a not persuaded that the use of the term mental illness is appropriate here but that is the way in which this legislation is framed.  I am in no doubt that children with the condition often can need extra help.

My investigation found that in some areas, children under 16 with this condition were getting LTI cards while in others, they were not. The HSE accepted that this system was inequitable and said that the scheme was already being reviewed by the Department of health.

As a result of my intervention, the HSE issued a LTI card to Ms Kelly for her son.  However in response to a draft report of my investigation, the HSE initially said that it would no longer accept people onto the LTI scheme where ADHD is the disorder involved. The HSE also said that it would await the outcome of the Department of Health’s review of the scheme.

I am pleased to say that, ultimately, the HSE agreed to:

  • award the complainant's son an LTI card;
  • refund the cost of medications for the period from the original application to the time when the application was granted (approximately €3,000), and
  • administer the LTI scheme on a uniform basis across Ireland by including ADHD as a qualifying condition.

I should add that there is a medical threshold that must be met before being eligible for the card. 

This is an excellent example of a systemic investigation leading to significant change affecting many individuals beyond the original complainant.

A woman was turned down for a housing transfer by Laois County Council. The woman had sought a transfer following serious social problems and a fire in her Council accommodation. The Council had turned down her request on the grounds that all transfers had been suspended due to financial constraints except in ‘exceptional medical or social circumstances’.

When we looked at the case we were concerned about the manner in which the Council had dealt with the application for a transfer. There appeared to be no evidence in the Council’s files to show that it had considered the application to see if exceptional medical or social circumstances applied, and it seemed that the Council’s assessment of the application was not properly documented.

The Council was asked to review its procedures and to invite the complainant to formally apply for a transfer.

Following receipt of the application and a further assessment, the Council placed the complainant on its Housing Transfer list and the woman accepted an offer of transfer. The Council also reviewed its administrative procedures relating to transfer requests. It said that:

  • Formal written requests are now required from applicants. All applications are acknowledged and an assessment of the applicant’s circumstances is carried out.
  • In order to strengthen its procedures the Council has introduced a database system to record applications received, processed, and the resultant decision. This database is now reviewed on a monthly basis.
  • The Transfer Form will require the recommendation of the Senior Executive Officer in the absence of the Senior Social Worker, and the final signature of the Director of Services (Housing).

Once again, this case demonstrates how a single complaint can trigger changes to benefit more individuals in the future.

I will talk about some cases now which are more local to the west of Ireland.   My office examined a case against the HSE in relation to the Nursing Homes Support Scheme.

This is a scheme of financial support for people who need long-term nursing home care. Under the Scheme, the person requiring care makes a contribution towards the cost of his/her care and the State pays the balance. A Financial Assessment looks at the person's income and assets in order to work out what their contribution to care will be. To determine the weekly payment to be made, any property must be valued.

In this case the complainant's mother owned 2 small adjoining houses in County Roscommon. For the purpose of establishing the value of the two houses, two valuations were submitted to the HSE.  The Auctioneer for the family valued the two properties at €21, 500 and €10,500. The property he valued at €21,500 had the narrative added "The property is in need of Modernisation" while the narrative for the property valued at €10,500 was "The property has been neglected for some time and is in need of major repairs".

However, the HSE did not accept these valuations and got its own valuations which valued the houses at €50,000 each. This Auctioneer stated that one of the two houses had been completely renovated involving significant investment prior to him carrying out his inspection. He also advised that while the second house was not in as good a condition, it was habitable at the time, was clean and there was no sign of damp. This was after a visible inspection of both properties after the Auctioneer had been shown around both of the properties.

Because of the large discrepancy in the description and value of the properties, my office asked the HSE to get a third valuation of the properties. Following the third valuations of the property, which the HSE paid for, the houses were valued at €20,000 for each house.

When these valuations were applied, it meant that the weekly bills for the family for the nursing home were reduced from €68 to €4. The complainant also received a reimbursement of €3,500 which had been paid in error using the original HSE valuations.

Another complainant, from Galway, was in receipt of Carer's Allowance from November 2007 in respect of her son.  In November 2012 the Department's Medical Assessor was of the opinion that he did not need full-time care and attention.  The complainant's appeal was refused despite submitting additional evidence.

When the complainant wrote to my office she included further additional evidence to support her case. We asked the Department to review the case based on the further evidence. Having reviewed the case the Medical Assessor was satisfied that the medical condition for Carer's Allowance was being met and the Carer's Allowance has been reinstated with effect from 3 January 2013.  Arrears of over €10,000 were also paid.

A man complained to my office about the care and treatment his wife received in University Hospital, Galway (UHG) prior to her death in January 2007. He felt that the HSE had failed to diagnose his wife quickly enough to save her life. His wife had mobility difficulties and her family had noted that her toes were black. However, none of these details had been documented in her notes despite the fact that she had been assessed several times both as an in-patient and an out-patient. Independent clinical advice which we sought and received in relation to his wife’s care confirmed that there was no evidence of a full body, comprehensive assessment being conducted in the months before her death. My Office raised concerns with the hospital that the hospital’s failure to identify these very significant symptoms could have restricted their ability to diagnose and treat the woman’s condition which ultimately proved to be very serious and indeed fatal.

In its response to the complaint, UHG accepted the limited recording on the woman’s admission notes in September and in December 2006. It noted that the general history taking was quite detailed on both occasions, but the documentation of the examination was limited. It accepted that there was no documentation about her toes being black. 

UHG apologised for the deficiencies in the woman’s examination. It indicated that, from a learning perspective, the hospital would take on board the family's comments and concerns and the need for full history and examination on each presentation and, in particular, documentation of same. It acknowledged that a thorough examination should be made on each and every occasion a patient presents and that comprehensive documentation is an essential part of the care of the patient. UHG undertook to circulate a memo requesting all clinical teams to ensure that this is done.

UHG also said that it would develop a Quality Improvement Process and follow up on this with a random audit of charts to ensure that all clinical staff are compliant.  Once again this shows how one complaint can benefit future service users.

People using public services expect that they will receive their entitlements and be treated fairly.  In order to achieve this, they expect that public bodies will have good administration, and that there will be access to redress when things go wrong, as they inevitably will, even in the best run organisations.  This redress can either be provided in house, or, where this fails to resolve a dispute, through independent processes.  The system of redress associated with public services is often classified as administrative justice.

I believe the Ombudsman is an integral part of the system of administrative justice.  This has been variously defined but perhaps the definition offered by Buck, Kirkham and Thompson in their publication, ‘The Ombudsman Enterprise and Administrative Justice’ provides a useful summary.  They suggest that there are three elements -

1.   all initial decision-making by public bodies impacting on citizens – this will include the relevant statutory regimes and the procedures used to make such decisions (‘getting it right’) ;

2.   all redress mechanisms available in relation to the initial decision-making (‘putting it right’);

3.   the network of governance and accountability relationships surrounding the public bodies tasked with decision-making impacting upon citizens and those tasked with providing remedies (‘setting it right’).

The Law Commission for England and Wales suggested that administrative justice can be considered to have four major components, which they describe as the Four Pillars, but it may be more helpful to think of them as four domains.

The first domain comprises internal complaint schemes. These can provide an informal, efficient and inexpensive resolution of complaints for both the complainant and public body involved.

The second domain is that provided by tribunals and, occasionally, public inquiries.  Tribunals in Ireland, of course, have a particular resonance and are associated with lengthy and expensive processes.  Elsewhere however, tribunals are generally regarded as offering a simple, less formal alternative to the courts.

The third domain is that of public sector ombudsmen.  We offer another non-court based form of redress, based on an inquisitorial, rather than an adversarial approach.  The service is free; objective; focuses on fairness, and is not confined to compliance with legal or procedural requirements.

The fourth, and final, domain of the administrative justice system is the courts. While the first three pillars of redress are vital to providing an effective system of administrative accountability, these non-court avenues will not be able to provide appropriate redress in all cases. In practice, there will always be cases that for various reasons require the court’s attention, particularly where there the case hinges on the interpretation of a legal point or where the complainant is seeking compensation or a substantial financial settlement.

The role of the Ombudsman is to determine whether the public body complained about has caused an injustice to a service user through a failure on its part, and if so, to seek to put this right.

On some occasions it is possible to put the service user back in the situation they would have been in had the maladministration or service failure not occurred.  Otherwise, it may be necessary to provide other redress where the damage cannot be undone.  The Ombudsman’s role is unique in that it first requires a dispassionate consideration of the facts, but should an injustice have occurred, it then requires the vigorous pursuit of redress.

However, there is a dimension to the work of the Ombudsman that is more developed than that of any other domain of the administrative justice system, and that is putting systems right.  Many complainants are clear that what they seek to achieve is not just an explanation and apology for what happened to them, they also want to make sure that it will not happen to anyone else in the future.

To achieve this it is necessary to consider the causes of things going wrong.  Sometimes there is a simple one off mistake, a human error perhaps, which could not have been foreseen and is unlikely to be repeated. 

On other occasions, the error is one arising from failures by the individual delivering the service.  In these cases, there may be a range of actions available, better training or supervision, or even in more serious cases, disciplinary action or a referral to a professional body.  I should stress that disciplinary matters are not for ombudsmen to deal with.  They are a matter for employers.

Other failures arise from systems which do not work properly.  This can include poor managements, flawed processes, bad record keeping or failures in communication.  In these instances, ombudsmen will make systemic recommendations designed to bring about changes to correct the propensity of the system to deliver poor outcomes.  Such complaints typically affect more than one, and sometimes many people.  Identifying systemic failures can be a product of an investigation of a single complaint, where it becomes obvious to the investigator that the cause of the failure is such that others are likely to have been affected.  On other occasions, multiple complaints on the same topic can alert the Ombudsman to the likelihood of systemic failure.

Finally, on some occasions it can be clear to the Ombudsman that the failure or injustice arises from flaws in legislation or guidance.  The Motorised Transport Grant was one such, where the provisions were not consistent with the Equality Act.  In these instances, the Ombudsman will normally draw the attention of Government to the failings and ask them to address them through revised legislation or guidance.

Learning from complaints is a key characteristic of well performing organisations.  It’s good to learn from your own mistakes.  Better yet to learn from those of others.  The phrase Right First Time is a useful description of a key characteristic of good administration, and of course, the avoidance of mistakes saves time and money, as well as enhancing reputation.

One key innovation which we are introducing to promote learning is our new case digest.  This will be issued quarterly from the summer and will includes summaries of cases which have been examined, and some cases which have been settled, as well as those which have been investigated.  At the moment, only a small number of cases are published, and a selection of others is included in the annual report.  By publishing summaries of many more cases on a regular basis, we believe that service providers can learn from the failures of others, and it will also help to reveal patterns of failure which may prompt future systemic investigations.

Incidentally, I believe that effective organisations will aggregate the lessons of their failings in a similar way.  A hospital, for example, might look at the outcomes of complaints dealt with in-house, court actions, critical incidents and any Ombudsman’s reports in considering what is going wrong and how they might put it right. 

Ownership of processes of this kind needs to be at the top of the organisation, often resting with non-executive board members, to ensure that the commitment to change is embedded.  I believe that learning from failure is a fundamental element of good governance.

I will turn now to my role as Information commissioner, and Commissioner for Environmental Information.  This role complements that of Ombudsman by promoting openness and transparency in the decision making of public bodies alongside the promotion of good administration by the Ombudsman. 

In practice though, the approach is necessarily different.  My role is to consider appeals that bodies subject to Freedom of Information or Environmental Information requirements have failed to provide information which should have been released.  Necessarily, this is a much more legalistic consideration and not amenable to the exercise of discretion which characterises the work of an Ombudsman.

Ultimately, I have to determine if the reasons given for declining to release information were correct.  As these decisions can be appealed to the High Court, there is a requirement to undertake this work in a very thorough and legalistic way. The time and process required to do this can sometimes disappoint appellants.  In the coming months, there will be major changes to the FoI regime when the new legislation is enacted.

The implications of the FOI Bill include an extension of the remit of FoI. The FOI Act currently applies to approximately 480 public bodies.  The FOI Bill proposes to extend FOI Act to a range of additional public bodies (up to 100).

The Act will extend to significant public bodies, such as An Garda Síochána for its administrative records, public financial bodies such as NAMA, the NTMA and the Central Bank, and other quasi-judicial bodies such as the Office of the Refugee Applications Commissioner and the Refugee Applications Tribunal.  The Act will also apply to the Education Training Boards (previously the Vocational Education Committees).

The Act will also make provision for its extension to all other bodies significantly funded by the Exchequer.  Irish Water has recently been brought into the FoI regime in a similar fashion.

The FOI Bill proposes to reverse the majority of the substantial restrictions which were introduced in the 2003 Amendment Act, including

a)   Reversing the very wide definition of ‘Government’ introduced in the 2003 amending legislation;

b)   Curtailing the time period within which Government records cannot generally be considered for release from 10 years to 5 years repealing the restriction also put in place in the 2003;

c)   Restoring the discretion available in specific circumstances to release Government records within 5 years where they relate, for example, to factual information already in the public domain following publication of Government Decisions;

d)   Reducing internal review and appeal fees for non-personal requests from €75 and €150, to €30 and €50 respectively.

However, the Bill does not fully restore the legislation to its pre-2003 state.  Certain records containing information relating to security defence and international relations remain protected as a class, regardless of whether or not release might cause a particular harm.  

The Bill contains proposals to introduce publication schemes which will specify the classes of information that the body holds and has published or intends to publish. 

The Act is likely to be passed in the summer with a lead-in time of six months for new bodies.

The number of applications for review accepted by the OIC over the past five years has not changed significantly, although the number received in 2013 is the highest of the last five years (10% increase on 2012).

We have estimated that the extension of the FOI Act to additional public bodies could result in an increase of 20% in additional applications for review, bringing the expected number of valid yearly applications to over 300.

In terms of throughput, the FoI and Environmental Information case closure rate has fallen in recent years due to the effect of staff reductions.  However, the Office has implemented initiatives in the past year to improve our case closure rate.  Nevertheless, the closure rate continues to fall marginally short of the yearly intake.  We have been successful in obtaining some additional staff for the extension, and are working hard to tackle the backlog by further streamlining our processes.

There have been some very significant decisions made by the office over the years which have contributed to better governance.

  • In 1999, the OIC directed the release of the total expenses paid to each member of the Oireachtas.  The Houses of the Oireachtas Commission now release such expense details as a matter of course.
  • In 1999, the OIC directed the release of certain records relating to the successful bidder in a civil service tender competition.  Public tendering is now conducted on the assumption that the identity of the successful tenderer, as well as its pricing structure and all criteria relevant to the ultimate cost to be borne by the public purse, will be disclosed after the event.
  • The OIC directed the release of records associated with the proceedings of a civil service interview board and its assessment of the applicant.  Following that decision, the civil service recruitment agencies changed their recruitment and selection processes and procedures.  It is now standard practice in the case of public service recruitment that candidates are informed of the selection criteria (including marking schemes and any short-listing criteria) and of their own individual marks.
  • In 2004, the OIC directed the release of nursing home inspection reports.  Such reports are now published as a matter of course.
  • In 2010, the OIC directed the release of records held by the Department of Finance concerning the remuneration of the former Chief Executive Officer of the NTMA.
  • In 2011, the OIC directed the release of the names of judges where representations had been made to the Minister for Justice and Equality by political representatives on their behalf as lawyers seeking judicial appointment.

I want now to look forward to a number of areas where I believe there is potential for improvement.  These include the extension the Ombudsman’s jurisdiction to include public services provided by private bodies and in particular, the opportunities offered by the European Directive on Alternative Dispute Resolution; the benefits of adopting a standardised approach to complaint handling across the public sector; the development of a single portal for complaints, and the benefits of affording the office Constitutional status.

In April 2013 The European Council adopted two key legislative measures regarding dispute resolution. One was a Directive on alternative dispute resolution (ADR) and the second related to online dispute resolution (ODR). The aim of both was to offer consumers fast and cost- effective means to resolve disputes with businesses.

The ADR Directive imposes a requirement on EU member states to offer effective access to ADR services for resolving contractual disputes between consumers and businesses concerning the sale of products and services.

ADR entities will have to meet certain quality criteria, i.e. be well-qualified, impartial, transparent, effective, and fair.

Over the years many services formerly in the public sector have been privatised – including, for example, energy suppliers and telecoms.  These often fall into the category of networked services. 

What’s this got to do with the Ombudsman you might ask?  Well, while all services are provided by the state, there is little issue about access to redress.  However, when services are privatised, then access to redress can be lost.  In some ways, you can argue, that it begs a question – if the railways, for example, were to be run by a private company, would they stop being a public service?

The changes in the way public services are delivered has had a variable effect on access to redress.  Some companies, such as Eircom, provide services that were once within the jurisdiction of the Ombudsman, but no longer are.  Others, such as Irish Water, remain within jurisdiction.  Under the EU ADR directive, all of the networked services, including post, electricity, gas, public transport, and telecoms will have to come within the jurisdiction of an ADR entity.  I believe they should come within the jurisdiction of the Ombudsman, to offer a one stop shop approach to redress for public services. 

The Ombudsman’s office would then cover a mixture of state, independent and private bodies, a so-called hybrid model.  However, this would not be an entirely new development as many services already under jurisdiction are provided by independent or private bodies on behalf of the State or local authorities while the new provision to draw in significantly funded bodies will introduce many more, so the template is already in place.  However, a more fully evolved hybrid model would need to see changes in the way the Office of the Ombudsman operates.

At the moment, I make recommendations and do not have binding powers.  My office is funded from the public purse, rather than by bodies in my jurisdiction.  Private Sector Ombudsmen (such as the Financial Services Ombudsman) can be established by law and organisations in their jurisdiction can be required in law to co-operate with them.  One important distinction from public services ombudsmen is that although such schemes can be created by statute, their funding is usually provided by the industry sector in which they operate, and not by the state. 

In a hybrid model, it is likely that binding powers would be needed in respect of private providers, who would be less susceptible to the democratic process and criticism by the Oireachtas.  Funding would also need to come from the industry, whether through a levy, a charge per case, or a combination of both.  The cost should not fall to the public purse.  The cost can act as an incentive to get things right in the first place – the so-called “polluter pays” principle.

Such hybrid ombudsman schemes operate successfully in Australia and elsewhere, and Ireland now has an opportunity to follow their example.  It is the job of the State to ensure that citizens have access to public services.  It is also widely accepted that citizens should have access to independent redress in the shape of ombudsmen.  Growing complexity in service provision should be counterbalanced by simplicity in accessing redress.

Often, complaints considered by my office about the services provided by public bodies have been compounded by very poor complaint handling.  People face delays, a lack of information, incomplete answers, defensive attitudes and no effective redress.  Widely varying approaches to complaint handling abound, with no obvious rationale for the differences.

Introducing a standard approach to complaint handling across the public sector, setting out clear timescales, standards for responses, a common approach to redress and above all, a focus on tackling most dissatisfaction at the time it arises, can bring real dividends. I want to work with Government and public service providers to introduce  a model complaints policy to be used across all public services in Ireland.  This has the potential to lead to greatly improved complaint handling.  It means that a single investigation can address complaints across multiple providers.  It allows for standardised complaint training for staff of all public service providers.  It gives complainants certainty about what they should expect.  A Model system would be streamlined and based on an “Investigate Once, Investigate Well” approach.  It would eliminate multiple stage processes which create work and delay resolution. 

Making it easy for people to complain is essential if we are to improve public services.  I want people to be told as soon as they complain to any public service provider about their right to complain to the Ombudsman or to appeal to the Information Commissioner if they remain dissatisfied.  I want them to be able to complain in a way which they find convenient, in a language they are comfortable with and in a medium which suits them, whether that is in a letter; filling in a form by hand or on-line; on the phone or in person.  As social media, smart phones and tablets are now common; we need to facilitate their use in contacting the office, while not neglecting the interests of those who prefer more traditional means. A standardised public sector complaint process would also make it easier for the agencies within jurisdiction with no need to re-invent the wheel and ready access to validated training modules, for example.

The complex pattern of public service delivery can also serve to confuse people who want to complain.  They are not always sure where they should go and how they should make a complaint.  If you take the case of Irish water as an example, they have contracted local authorities to undertake work on their behalf, such as fitting water meters, and they in turn use contractors.  If a contractor damages the gas supply while fitting the meter, as happened in a recent case brought to my office, who should you complain to? 

One way to address this confusion is to provide a single portal for all public sector complaints.  The website www.healthcomplaints.ie which was developed by my office in partnership with other bodies is a useful building block towards a telephone and online service which can signpost people who want to make a complaint about any public service, or capture that complaint and send it on their behalf.  My office already signposts many complainants who come to us to the appropriate agency or Ombudsman.  Extending this service would cost money, and would need to be funded, but it is an idea we plan to develop for the future.

Finally, recent events have highlighted the importance of Ombudsman institutions being accountable to the Oireachtas, and not to the administration.  One way to secure this would be for the Ombudsman to become a constitutional office, in the same way as the Comptroller and Auditor General. I know Professor O’Connell has been supportive of such an approach in the past and I hope that it will be possible to move forward on that basis in the future.  At the moment, the Ombudsman is appointed by the President on the recommendation of the Oireachtas and has access to the Public Service Oversight and Petitions Committee. 

Public confidence in oversight institutions is enhanced when they are clearly independent of the bodies in their jurisdiction.  Constitutional status would serve to reinforce the independence and offer a further reassurance to members of the public that their complaint will be dealt with properly on its merits, and that the people making disputed decisions will not themselves be able to dictate or influence the outcome.

In its thirty years the office has developed an enviable reputation for doing what Ombudsmen the world over do – speaking truth to power, and during my term of office I plan to build on its successful track record to continue to put things right for individuals while driving improvement in our public services.  Thank you for your attention.