Cases Flashcards
Basic idea of Ombudsman
Empower citizens + adequate institutions + fairness = good administration
Types of defect
May investigate any action ‘taken in the performance of administrative functions’ where it has or may adversely affect someone, and was
(i) taken without proper authority,
(ii) taken on irrelevant grounds,
(iii) the result of negligence or carelessness,
(iv) based on erroneous or incomplete information,
(v) improperly discriminatory,
(vi) based on an undesirable administrative practice,
(vii) a failure to comply with section 4A,
(viii) otherwise contrary to fair or sound administration.
Ombudsman statutory basis
Ombudsman Act 1980 + Ombudsman (Amendment) Act 2012
Ombudsman procedure
- Complaint is lodged
(a) preliminary investigation (to decide if it should be reviewed)
(i) gets rid of complaints that involves public body not in jurisdiction, social welfare claims who have not paid sufficient contributions
(ii) if Ombudsman decides not to proceed then he must write to complainant stating his reasons - Formal investigation
(a) can be discontinued at any point in time
(b) almost all cases are concluded at preliminary examination, a small number of cases make it to investigation
(c) investigations are expensive and usually only reserved for serious complaints
(d) steps:
(i) writes to head of organisation with an explanation of complaint, a statement that the Ombudsman has completed a preliminary investigation and that an investigation is going to be commenced
(ii) Head of organisation will reply giving his view of matter
(iii) Ombudsman send out two people - an investigator and a senior investigator to check documents and conduct interviews
(iv) when first draft is prepared, it is sent to the head of organisation for his or her comments
(v) report completed - Report
(a) recommendations to the government on what they should do
(b) also handed to the individual who made the complaint
(c) but handed to government to recommend changes
(i) not binding
Two tasks of Ombudsman?
- Secure redress when an individual suffers harm or loss through some act of government maladministration
- Act as a champion of good administrative practice
Five heads to examine complaints
- Must be a reviewable agency
- Action must have “adversely affected” someone
- The complainant must have an interest in the matter
- Action must have been taken in the performance of “administrative functions”
- The action must be affected by one of the defects specified
Ombudsman remedies
• majority of cases is money
• sometimes a meeting to organise an apology between the complainant and the organisation
The State (Holland) v Kennedy [1977]
Did the DC judge exceed their jurisdiction by having sufficient evidence regarding the young persons nature?
Holland was convicted of assault by the DC,
DC gave sentence of imprisonment instead of detention due to being “so unruly a character that he cannot be detained in a place of detention”,
HC granted certiorari, stating no evidence proving unruly nature
SUSI report - Ombudsman report
SUSI had double counted some of a students income which caused her to be ineligible for the ‘special rate’ aimed at students with low incomes.
Karen was awarded a grant but not at the ‘special rate’. Karen discovered that this error had occurred in two other years. Karen appealed those decisions, however her appeal was turned down as she was outside the timeframe to make an appeal, which was 30 days.
Following discussions with the Ombudsman. SUSI reviewed Karen’s previous grants. Karen was awarded the ‘special rate’ for another year, and received an additional payment of €2,890.
Driving licence - Ombudsman report
Lynda complained to the Ombudsman after the NDLS refused to record her place of birth as ‘Ireland’. Lynda was born in Northern Ireland. Her previous licence reflected she was an Irish citizen. The NDLS refused to change her licence after Lynda appealed.
The NDLS system automatically set a persons ‘place of birth’ to Northern Ireland when they were from any of the six counties in the North.
The Ombudsman asked if it was possible to adjust the settings so a person can identify as either Irish or British if they were from Northern Ireland.
The RSA agreed to change the computer system.
Arrears - Ombudsman report
John complained to the Ombudsman when the Department of Social Protection sought to recover over €32,000. They said they had overpaid him in Invalidity Pension for a period of five and a half years. John disputed that he had been overpaid.
The Department had been recovering the overpayment through reductions from John’s Invalidity Pension. The Department also withheld payments that were due to John.
The Department refused to cooperate with John, and did not allow access to his file.
When the Ombudsman contacted the Department they said they could not find John’s file.
The Ombudsman was surprised that the Department withheld arrears of his Invalidity Pension. The Ombudsman raised this issue in their ‘Fair Recovery’ report in 2019. The report said that if the Department cannot locate a file, then there is nothing to support a decision to sit hold arrears.
The Department agreed to refund the amount John had already repaid through reductions, along with the other arrears of his Invalidity Pension
Article 15.2.1 of Constitution
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”
City View Press v An Chomhairle Oiliúna [1980]
Held that the Oireachtas can delegate certain powers to subordinate bodies through primary legislation. This primary legislation must lay out “principles and policies” which must be obeyed by the subordinate body.
An Chomhairle Oiliúna had the power to impose levies without specifying how levies would be calculated and without having a cap on how much they could put.
Found to be ultra vires as they were making their own policy.
Laurentiu v Minister for Justice [1999]
Minister made provisions to exclude or deport aliens from the State. Struck down due a complete lack of principles and policies in the provision.
Cooke v Walsh [1984]
SC found that regulations made by the Minister for Health providing that health services would not be available to people injured in a crash unless they could establish they were not titled to compensation or damages was found to be ultra vires.
