Since the Office of the Ombudsman was first established in 1984, it has had
one statutory function : that is to investigate complaints about the provision
and quality of services provided by certain specified public bodies.
Originally, the only public bodies covered were Government Departments
and the postal and telecommunications providers. In 1985, this remit was
extended to include Local Authorities and the Health Boards - now the
Health Service Executive (HSE).
Since 2007, with the commencement of Part 9 of the Health Act 2004, the
Ombudsman may also now investigate complaints against many more health
service providers, which were not previously subject to such investigation.
These included the major Dublin public voluntary hospitals and the
hundreds of agencies which deliver health and personal social services on
behalf of the HSE. Most of these agencies provide services to people with
disabilities.
Since the Ombudsman's Office began investigating complaints in 1984, its
statutory functions, which are provided for in the Ombudsman Act 1980,
have remained unchanged. Under this Act, the Ombudsman may investigate
a complaint about any action taken in the performance of administrative
functions, by or on behalf of one of the bodies covered, where a person has
been adversely affected by that action, and where it appears to the
Ombudsman that the action was, or may have involved ‘maladministration’.
An 'action' includes decisions, action or inaction, and delays.
Generally, the Ombudsman may not investigate a complaint unless the
person has first made a reasonable effort to resolve the matter directly with
the public body concerned. Where a body has an established complaints or
appeals procedure, such as the Social Welfare Appeals Office or the HSE's
complaints procedure, 'Your Service Your Say', the Ombudsman would
require a person to have used this before contacting her Office.
There are some things which, by law, the Ombudsman may not look at.
These include:
- the courts, prisons, An Garda Síochána
the law relating to aliens and naturalisation
clinical judgement of persons acting on behalf of the HSE in the
diagnosis and treatment of patients
the defence forces, and
where the person has already begun court civil legal
proceedings
The Disability Act 2005 gave the Ombudsman a new role. This is to
investigate complaints about alleged non-compliance by Public Bodies, and
others, with statutory requirements in Part 3 of that Act, or with the
provisions of the six Sectoral Plans.
Part 3 of the Disability Act covers accessibility of public buildings, services,
information and heritage sites. The Disability Act places an onus on the
heads of public bodies to ensure accessibility in these areas – where
“practicable and appropriate". One of the important features of the Act is the
requirement that all public bodies appoint at least one 'Access Officer' whose
role is essentially to assist people with disabilities to access the services of
the body.
The Disability Act also provides for the right of individuals to complain
directly to a public body where he or she believes that the body has failed to
comply with any of these 'accessibility' requirements. In this regard, the Act
also required each public body to prepare and publish procedures in relation
to the making and investigation of complaints.
There is a framework complaints procedure in the Act itself and this appears
to have been very well conceived. In this regard, it would appear that this
had been designed to help public bodies achieve compliance with the
requirements of the Act - rather than simply giving people a right to
complain.
On this point, as I mentioned earlier, there is an onus on the heads of
public bodies to ensure compliance. If a person makes a complaint to
a public body, it must be investigated by an Inquiry Officer who must
make a determination as to whether or not the body was in compliance
with the relevant provision of the Act. If that determination is that the
body was not in compliance, then he or she must make
recommendations as to how compliance can be achieved. The Inquiry
Officer's report must be sent to the complainant, and to the head of the
public body. If the head then acts on the recommendations of the
Inquiry Officer, the body can then achieve the compliance that the
head is required to ensure.
Once a person has gone through a public body's own complaints procedure,
and is dissatisfied with the determination of the Inquiry Officer (or of a
Complaints Officer in relation to a complaint about a sectoral plan), they
may then make a complaint to the Ombudsman. Such complaints are
investigated under the Ombudsman Act 1980, which has been appropriately
modified by Section 40 of the Disability Act for this purpose.
When investigating complaints, whether they are about ‘maladministration’
or compliance with the Disability Act, the Ombudsman has very extensive
powers. Firstly, the Ombudsman in independent in the performance of her
functions, and she determines her own procedures. For the purposes of an
investigation, the Ombudsman can request any information, document or
thing, and she can require anyone to attend before her. Where, following an
investigation, the Ombudsman is satisfied that a complaint is upheld, she
will recommend appropriate redress. If any such recommendation is not
accepted by a public body, the Ombudsman may make a special report to the
Oireachtas on the matter.
It may appear to some that the Ombudsman's role in relation to disability
issues started only with the commencement of the Disability Act 2005.
However, this is not the case. Since the Office of the Ombudsman was first
established, it has dealt with literally thousands of cases about issues
affecting people with disabilities. These complaints were investigated on the
basis that there may have been 'maladministration' in relation to action by
the public bodies involved, and in many cases, the positive outcomes that
were achieved benefitted, not only the person who had made the complaint
to the Ombudsman, but at times larger groups of people seeking the same
benefits or services.
Some examples of some of the 'higher profile' disability-related cases
investigated over the years include :
'Provision of School Transport for a Child with Disabilities' [1998]
'Nursing Home Subventions' [2001]
'Tax Relief for Cars Adapted or Constructed for use by Passengers
with Disabilities' [2001]
'Care and Treatment of a Patient at St Mary's Care Centre, Mullingar'
[2008]
'Refusal of Applications for Domiciliary Care Allowance' [2008]
'Who Cares - The Right to Nursing Home Care in Ireland' [2010]
Reports of these and other investigations conducted by the Ombudsman,
many of which have been laid before and debated by the Houses of the
Oireachtas, are available the Office's website : www.ombudsman.ie.
Given that the Ombudsman's sole statutory function is to examine
complaints, can she also make a contribution in the area of monitoring in
relation to the rights of people with disabilities? On this question, the
Ombudsman would say 'Yes' - and again she would also say that this is a
role her Office has been fulfilling since its establishment over 26 years ago.
One way in which this has been achieved has been through her
investigations, and the publication of the reports of these - many of which
have been debated in the national parliament. Another way of highlighting
issues is through her Annual Report to the Oireachtas. In addition to the
statutory requirement to report annually on 'the performance of her
functions', the Ombudsman also uses her report to give specific details of
individual complaints handled during the year, as well as to draw attention to
broader issues of concern that had arisen.
A relevant example of the latter was her 2008 Annual Report (published in
June 2009) in which she commented on the apparent failure by a majority of
public bodies to comply with the requirements of the Disability Act 2005 to
appoint Access Officers and also to publish procedures in relation to
complaints about non-compliance with Part 3 of that Act. Her concerns were
raised because of the extremely low numbers of complaints she had received
in the three years since the Disability Act came into force. She had examined
the websites of over 100 of the (650 or so) bodies covered by the Act and
found that only 19% published information about the contact details for, and
services provided by, Access Officers and less than 5% had published the
complaints procedures required by the Act. In her Annual Report the
Ombudsman commented that:
"These failures, I feel, must seriously hinder very vulnerable people in
their efforts to avail of services to which they are legally entitled.
Ultimately, these failures undermine the statutory right of people with
disabilities to complain where public bodies fail in their duty to them.
This is wholly unacceptable. ".
Arising directly from the attention that had been drawn to this issue in her
Annual Report, the Institute of Public Administration (IPA) organised a
training seminar for Access Officers, and the Ombudsman was invited to
address this. One of the points the Ombudsman made to the Access Officers
was that she is certain that where a public body does publish information
about the services of an Access Officer, and the procedures for dealing with
complaints about Part 3 of the Act, people will avail of them. She was able
to say this with such certainty because, in the case of her own Office, this
information is published and people with disabilities do contact it to arrange
assistance from the Access Officer to access our services. The Office has
also received complaints from clients about our own failures to comply with
Part 3 of the Act. Without going into any detail about these, the
complainants were 100% correct and the investigations of their complaints
did lead to changes to our procedures.
In conclusion, I would like to say that regardless of whether, or not, the
Ombudsman has any 'formal' oversight role in relation to the Convention on
the Rights of People with Disabilities, she will continue to investigate all
complaints that come within her remit. She will also continue to highlight
any issues of concern that come to her attention through her work. In this
way, the Ombudsman will continue to play a valuable role in bringing these
concerns to the attention of the legislators and administrators, regulators and
monitors, the media, service users and providers and the wider general
public.
Thank You