The Ombudsman (Amendment) Act 2012

Background The Office of the Ombudsman examines complaints from persons who believe they have been unfairly treated by certain public bodies. The Ombudsman's legal authority to investigate complaints, and to recommend redress where necessary, is set out primarily in the Ombudsman Act 1980 (“the Act”) which has recently been amended by the Ombudsman (Amendment) Act 2012 (the “2012 Act”), enacted on 31 October 2012. Which bodies fall within the remit of the Ombudsman? There are approximately 180 reviewable agencies (“Agencies”), which by virtue of the 2012 Act will come under the remit of the Ombudsman. These Agencies include a number of professional regulatory bodies, such as the Teaching Council, the Law Society of Ireland, the Medical Council, The Nursing and Midwifery Board of Ireland, The Veterinary Council of Ireland, the Health and Social Care Professionals Council, the Pharmaceutical Society of Ireland, the Pre-Hospital Emergency Care Council, the Dental Council and the Property Services Regulatory Authority. When will the Act commence? The 2012 Act will have force in respect of these new Agencies 6 months from enactment, i.e. from 1 May 2013. The 2012 Act specifically provides that actions prior to 1 May 2013 of the 180 “new” Agencies are not reviewable by the Ombudsman. How will the Act affect Professional Regulatory Bodies? The First Schedule of the 2012 Act is divided into two parts.

1. Part I of the First Schedule sets out the types of additional Agencies that now fall under the remit of the Ombudsman and whose actions are reviewable generally, provided the action is taken in the performance of administrative functions. These provisions would seem to capture bodies such as the Teaching Council and the Law Society of Ireland.
2. Part II of the First Schedule provides that the Ombudsman can only review the decisions of certain professional regulatory bodies insofar as they relate to an action taken in the performance of administrative functions relating to the establishment and maintenance of a professional register and/or to its role as a competent authority for the purpose of mutual recognition of qualifications. Therefore, for example, it would seem that decisions of complaint screening committees of the professional regulatory bodies referred to in Part ll are not reviewable by the Ombudsman. No such limitation applies to Agencies covered by Part I of the First Schedule.

When can the Ombudsman investigate? The Ombudsman can investigate an action where a complaint has been made to her by or on behalf of an “eligible person”. An eligible person is any person other than a reviewable agency or an exempt agency. An individual who is a member, officer, employee or agent of a reviewable agency or an exempt agency can also be an eligible person provided that the complaint made by or on behalf of that person is a complaint made in that person’s private capacity. The Ombudsman can also investigate an action on her own motion or on foot of a communication from a person who is not an eligible person where an investigation would be warranted. The Ombudsman can investigate any action taken by or on behalf of a reviewable agency in the performance of its administrative functions subject to the limitations outlined above. The Ombudsman can investigate, having carried out a preliminary examination of the matter, where it appears to her that the action has or may have adversely affected the complainant, and that the action was or may have been:

• taken without proper authority;
• taken on irrelevant grounds;
• the result of negligence or carelessness;
• based on erroneous or incomplete information;
• improperly discriminatory;
• based on an undesirable administrative practice;
• a breach of section 4A of the Act 1[1]; or
• otherwise contrary to fair or sound administration.

How does the Ombudsman carry out investigations? The Ombudman’s functions are set out in section 4 of the Act. In summary, the Ombudsman carries out her investigations in two stages, the preliminary examination stage and the investigative stage. During the preliminary examination stage, the Ombudsman carries out a preliminary examination of the complaint to establish whether a formal investigation is warranted. The Ombudsman at the conclusion of the preliminary examination stage may decide to carry out an investigation. The Ombudsman’s investigations must be conducted in private. When conducting an investigation or a preliminary examination, the Ombudsman may require any person with relevant information, to furnish that information or attend before her. If a person fails to comply with a request, the Ombudsman may apply to the Circuit Court for an order of compliance. The Ombudsman may refer a question of law arising in an investigation to the High Court for a determination. At the conclusion of the investigation the Ombudsman prepares a report. The Ombudsman is empowered to make recommendations only. Her recommendations are not binding. Where it appears to the Ombudsman that the action taken by a reviewable agency adversely affected an eligible person, she may recommend to the agency concerned that:

• the matter be further considered;
• measures or specified measures be taken to remedy, mitigate or alter the adverse effect of the action; or
• reasons for taking the action be given to the Ombudsman.

The Ombudsman may request that the agency notify her within a specified time of its response to the recommendation. The Ombudsman may make general recommendations to any reviewable agency where she considers it appropriate in order to mitigate adverse effects identified during the investigation. Where it appears to the Ombudsman that the response to a recommendation is not satisfactory, she may make a special report on the matter to the Oireachtas. Before the Ombudsman makes a “finding or criticism” against any person or agency, she must afford that person or agency an opportunity to consider the matter and make representations to her in relation to that finding or criticism. What cases are excluded from examination or investigation? The Ombudsman shall not investigate an action:

• where the matter is before the Courts;
• where the aggrieved person has a statutory right of appeal to the courts;
• where there is a right of appeal to an independent appeal body;
• relating to or affecting national security or military activity;
• relating to recruitment or terms or conditions of employment;
• where section 8 of the Ombudsman for Children Act 2002 applies;
• where it falls within a category of complaint or dispute to which the Pension Act 1990 applies.

It is worth noting that many of the statutes which underpin the professional regulatory bodies provide for a right of appeal to the High Court insofar as certain registration related decisions are concerned. In those circumstances it may well be that there may not be jurisdiction for the Ombudsman to review those decisions despite this being set out in Part II of the First Schedule of the 2012 Act. This does seem somewhat anomalous given that, per above, the jurisdiction of the Ombudsman in relation to these Agencies seems to be confined to these types of decisions. It remains to be seen how the Ombudsman will approach complaints where the complainant has a statutory right of appeal. A 12 month limitation period applies to complaints made to the Ombudsman’s Office from the date of the action or from the time the person making the complaint became aware of the action, whichever is later. However, it is important to note that notwithstanding these exclusions, the Ombudsman may still investigate an action where it appears to her that there are special circumstances for her to do so. The special circumstances provision also applies to the "12 month" rule. Publication For the past number of years, the Ombudsman has published all of her investigation reports on the Ombudsman’s website. However, most complaints to the Ombudsman do not require a written report as they are dealt with at preliminary examination stage. A very small number of complaints, for reasons such as the complexity of the issues raised or because the issues have a wider significance for public administration, are dealt with more formally and result in investigation reports. These reports include the formal findings arising from the investigation and, sometimes, the Ombudsman's recommendations for redress for the complainant as well as recommendations for improved practice. Conclusion The commencement date for the professional regulatory bodies which now come under the remit of the Ombudsman is May 2013. It will be necessary for professional regulatory bodies to prepare for the commencement of the Act by amending websites and publications, where necessary, to provide information to persons about the office of the Ombudsman and her role in respect of certain administrative actions taken by professional regulatory bodies. [1] Section 4A of the 2012 Act reates to the duty on Agencies to give reasonable assistance and guidance to an eligible person.  JP McDowell is Partner and Head of the Public and Regulatory Unit at McDowell Purcell.