Ombudsman Act , 1980

1. Definitions.

1.—(1)In this Act, save where the context otherwise requires—

“action” includes decision, failure to act and omission and cognate words shall be construed accordingly;

“civil servant” has the meaning assigned to it by the Civil Service Regulation Act, 1956;

F1["eligible person" means—

(a) a person other than a reviewable agency or an exempt agency, and

(b) a person (being an individual who constitutes, or is a member, officer, employee or agent of, a reviewable agency or an exempt agency) in that person’s private capacity;

"entity" means a person, body of persons, organisation or group, including, in particular, an organ of government, or an element of an organ of government, at national or local level;

"exempt agency" means—

(a) an entity specified in theSecond Schedule,

(b) an element of a reviewable agency that is excluded from review by—

(i)Part IIof theFirst Schedule, or

(ii) an order undersection 1Aor4(10);]

“functions” includes powers and duties and a reference to the performance of a function includes, with respect to powers, a reference to the exercise of a power;

“local authority” means a local authority for the purposes of the F2[Local Government Act 2001];

F2["Minister" means the Minister for Public Expenditure and Reform;

"reviewable agency" means—

(a) an entity (whether established before or after the enactment of the Ombudsman (Amendment) Act 2012) within the meaning ofPart Iof theFirst Schedule, except to the extent that any element of that entity is expressed byPart IIof that Schedule or an order undersection 4(10)to be excluded from review, and

(b) an entity declared by an order undersection 1Ato be a reviewable agency, except to the extent that any element of that entity is expressed by that order to be excluded.]

(2)Save where the context otherwise requires, references in this Act to any Department of State include references to the Minister of the Government having charge of that Department of State and to officers of that Minister of the Government and, if and so long as any of the functions of that Minister of the Government stand delegated to a Minister of State at a Department of State, include references to that Minister of State at a Department of State.

(3)Save where the context otherwise requires, references in this Act to F2[an entity (other than a Department of State) that is a reviewable agency or an exempt agency] include—

(a)as respects the business and functions of F2[the entity], references to the Department of State in which any of them are comprised and to the Minister of the Government having charge of that Department of State, and

(b)as respects functions in relation to F2[the entity] performed by a Department of State, references to that Department of State and to the Minister of the Government having charge of it,

and to officers of those Ministers of the Government and members, officers and staff of F2[the entity] and, if and so long as any of the functions of any of those Ministers of the Government stand delegated to a Minister of State at a Department of State, to that Minister of State at a Department of State.

1A. F3[ Reviewable agency.

1A.—(1) Subject tosubsections (2)and(3), the Minister may, after consultation with the Ombudsman, the Ombudsman for Children and such committee of the Houses of the Oireachtas as he or she considers appropriate, and with the consent of such other Minister (if any) as appears to the Minister to be responsible for the entity in question, and having regard to the need to ensure appropriate accountability and oversight of entities referred to in this subsection, may by order declare to be a reviewable agency—

(a) an entity, being—

(i) a company established under the Companies Acts in pursuance of powers conferred by or under another enactment, or

(ii) any other entity, whether financed wholly or partly, or directly or indirectly, by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government,

(b) any other entity on which functions in relation to the general public or a class of the general public stand conferred by any enactment (but only in respect of those functions),

(c) a subsidiary (within the meaning of the Companies Acts) of a company to whichparagraph (a)(i)relates, or

(d) an entity (other than a subsidiary to whichparagraph (c)relates) that is directly or indirectly controlled by an entity to whichparagraph (a)(ii)or(b)relates.

(2) An order made undersubsection (1)may exclude certain elements of that entity from review.

(3) Where an order is proposed to be made undersubsection (1)and such order excludes certain elements of an entity from review, the proposed order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.]

2. Appointment and term of office of the Ombudsman.

2.—(1)There is hereby established the office of Ombudsman and the holder of the office shall be known as the Ombudsman.

(2)The appointment of a person to be the Ombudsman shall be made by the President upon resolution passed by Dáil Éireann and by Seanad Éireann recommending the appointment of the person.

F4[(2A) Such appointment may be preceded by consideration by a committee of the Houses of the Oireachtas as may be designated by the Minister of a person proposed by the Government for such appointment.]

(3)A person appointed to be the Ombudsman—

(a)may at his own request be relieved of office by the President,

(b)may be removed from office by the President but shall not be removed from office except for stated misbehaviour F5[(including stated misbehavior in his or her capacity as the holder of the office of Protected Disclosures Commissioner established by section 10A of theProtected Disclosures Act 2014)], incapacity or bankruptcy and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal,

F6[(c) shall in any case vacate the office on attaining the age of 70 years or, where a higher age is prescribed by order under section 3A(2) of thePublic Service Superannuation (Miscellaneous Provisions) Act 2004for the purposes of that Act, that age but, where the person is a new entrant (within the meaning of that Act) appointed on or after 1 April 2004, the requirement to vacate office on grounds of age shall not apply.]

(4)Subject to the provisions of this section, a person appointed to be the Ombudsman shall hold office for a term of 6 years and may be re-appointed to the office for a second or subsequent term.

(5)(a)Where a person who holds the office of Ombudsman is nominated either as a candidate for election to either House of the Oireachtas, the F4[European Parliament] or a local authority or as a member of Seanad Éireann or is appointed as a member of the F4[European Parliament] or a local authority, he shall thereupon cease to hold the office of Ombudsman.

(b)A person who is for the time being entitled—

(i)under the Standing Orders of either House of the Oireachtas to sit therein,

(ii)under the rules of procedure of the F4[European Parliament] to sit therein, or

(iii)under the standing orders of a local authority to sit as a member thereof,

shall, while so entitled, be disqualified for holding the office of Ombudsman.

(6) A person who holds the office of Ombudsman shall not hold any other office or employment in respect of which emoluments are payable or be a member of the Reserve Defence Force.

(7) F7[…]

3. Salary and pension.

3.—F8[(1) There shall be paid to the holder of the office of Ombudsman such remuneration and allowances for expenses as the Minister may determine.]

(2)(a)The Minister shall make and carry out, in accordance with its terms, a scheme or schemes for the granting of pensions, gratuities or other allowances on retirement or death to or in respect of persons who have held the office of Ombudsman.

(b)The Minister may at any time make and carry out, in accordance with its terms, a scheme or schemes amending or revoking a scheme under this section.

(c)A scheme under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and if either such House, within the next twenty-one days on which that House has sat after the scheme is laid before it, passes a resolution annulling the scheme, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

4. Functions of the Ombudsman.

4.—(1)The Ombudsman shall be independent in the performance of his functions.

F9[(2) Subject to this Act, the Ombudsman may investigate any action taken by or on behalf of a reviewable agency in the performance of administrative functions where, having carried out a preliminary examination of the matter, it appears to the Ombudsman—

(a) that the action has or may have adversely affected an eligible person, and

(b) that the action was or may have been—

(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 withsection 4A, or

(viii) otherwise contrary to fair or sound administration.

(3) The Ombudsman shall not investigate an action unless—

(a) a complaint in relation to the action has been made to the Ombudsman by or on behalf of an eligible person, or

(b) it appears to the Ombudsman (on his or her own motion or on foot of a communication from a person who is not, in respect of the complaint, an eligible person or a person referred to in subsection (4A)), having regard to all the circumstances, that an investigation under this section into the action would be warranted.

(4) The Ombudsman shall not investigate an action taken by or on behalf of an exempt agency, or an action taken by or on behalf of a reviewable agency excluded from review under this Act.]

F10[(4A) The Ombudsman shall not investigate a complaint by or on behalf of an individual into any action of or on behalf of another person where—

(a) that action—

(i) affects such individual by virtue of being a member, officer, employee or agent of an entity or entities, and

(ii) relates to the performance by such individual, whether alone or with others, of his or her functions as a member, officer, employee or agent of such entity or entities,

and

(b) any such entity is financed wholly or partly, whether directly or indirectly, by means of moneys provided by, or loans made or guaranteed by, a Minister of the Government,

but the restriction by virtue of this subsection on the investigation of that action shall only be to the extent that it relates to the performance of such functions.]

(5) The Ombudsman may—

(a) having carried out a preliminary examination of the matter, decide not to carry out an investigation under this Act into an action in respect of which a complaint is made, or

(b) discontinue an investigation under this Act into such an action,

if he becomes of opinion that—

(i) the complaint is trivial or vexatious,

(ii) the person making the complaint has an insufficient interest in the matter, F11[…]

F9[(iii) the person making the complaint has not taken reasonable steps to seek redress in respect of the subject matter of the complaint or, having done so, has not been refused redress, or]

(iv) F10[satisfactory measures to remedy, mitigate or alter the adverse effect of the action on the person making the complaint have been, or are proposed to be, taken by the reviewable agency concerned.]

(6)It shall not be necessary for the Ombudsman to investigate an action under this Act if he is of opinion that the subject matter concerned has been, is being or will be sufficiently investigated in another investigation by the Ombudsman under this Act.

(7)An examination or investigation by the Ombudsman shall not affect the validity of the action investigated or any power or duty of the person who took the action to take further action with respect to any matters the subject of the examination or investigation.

(8)In determining whether to initiate, continue or discontinue an investigation under this Act, the Ombudsman shall, subject to the provisions of this Act, act in accordance with his own discretion.

(9) F11[…]

F10[(9A) Without prejudice tosection 6(7), the Minister may designate a committee of the Houses of the Oireachtas to receive periodic reports from the Ombudsman and make recommendations to the Ombudsman regarding the exercise of his or her functions under this Act.]

F10[(10) (a) The Minister, after consultation with the Ombudsman, the Ombudsman for Children and such committee of the Houses of the Oireachtas as he or she considers appropriate, and with the consent of such other Minister (if any) as appears to the Minister to have responsibility for that entity, and having regard to the public interest and the need to ensure a balance between—

(i) appropriate accountability and oversight of entities subject to this Act, and

(ii) the ability of those entities to conduct adequately their affairs,

may by order declare an entity—

(I) to be an exempt agency (including an entity that immediately before the making of the order was a reviewable agency),

(II) specified in the Second Schedule to be a reviewable entity, or

(III) specified in Part II of the First Schedule to be a reviewable agency on the basis of different elements of that agency’s functions to those specified in that Part.

(b) An order made under paragraph (a) may specify the inclusion or exclusion of elements of an entity.

(c) Where an order is proposed to be made under paragraph (a), a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.

(d) The Minister shall consult such committee of the Houses of the Oireachtas as he or she considers appropriate prior to taking any action under paragraph (c).]

F10[(11) Where a dispute arises between an entity and the Ombudsman as to whether an entity is a reviewable agency, the question shall be submitted to the Minister whose determination shall be binding.]

4A. F12[ Duty on reviewable agencies to give assistance and guidance, etc.

4A.—(1) This section applies when an action taken by or on behalf of a reviewable agency ("the agency") in the performance of administrative functions affects—

(a) a right, privilege or other benefit to which an eligible person is or may be entitled, or

(b) an obligation, liability, penalty or other detriment to which an eligible person is or may be subject.

(2) The agency shall, consistent with the resources available to the agency—

(a) give reasonable assistance and guidance to that person in any dealings of the person with the agency in relation to the action taken by the agency, having particular regard to the needs of the person as a result of any disability,

(b) ensure that the business of the person with the agency in relation to that action is dealt with properly, fairly, impartially and in a timely manner, and

(c) provide information to the person on any rights of appeal or review in respect of that action and on the procedures for, and any time limits applying to, the exercise of those rights.]

5. Exclusions.

5.—F13[(1) Subject to subsection (2), the Ombudsman shall not investigate any action taken by or on behalf of a person—

(a) if the action is one in relation to which—

(i) the person affected by the action has initiated in any court civil legal proceedings and the proceedings have not been dismissed for failure to disclose a cause of action or a complaint justiciable by that court whether the proceedings have been otherwise concluded or have not been concluded,

(ii) the person affected by the action has a right, conferred by or under an enactment, of appeal, reference or review to or before a court in the State (not being an appeal, reference or review in relation to a decision of a court), or

(iii) the person affected by the action has a right of appeal, reference or review to or before a person, other than a reviewable agency, who is independent in the performance of his or her functions in relation to the appeal, reference or review,

(b) if the action relates to or affects national security or military activity or (in the opinion of the Ombudsman) arrangements regarding participation in organisations of states or governments,

(c) subject tosubsection (2A), if the action relates to or affects—

(i) recruitment or appointment to any office or employment, or

(ii) the terms and conditions (including the terms and conditions upon and subject to which pensions, gratuities or other superannuation benefits are payable), being—

(I) the terms and conditions upon and subject to which a person holds any office or is employed in any capacity, or

(II) the terms and conditions of a contract for services,

(d) if—

(i) in a case where a complaint is made to the Ombudsman in relation to the action, the complaint is not made before the expiration of 12 months from the time of the action or the time when the person making the complaint became aware of the action, whichever is the later, or

(ii) in any other case, a period of 12 months has elapsed since the time of the action,

(e) if the action was taken before the date on which the reviewable agency concerned first became subject to review under this Act, or was taken on a date on which the reviewable agency concerned was otherwise not subject to review under this Act,

(f) if the action is one to whichsection 8 of the Ombudsman for Children Act 2002applies,

(g) if the action—

(i) falls within a category of complaint or dispute to which paragraph (a), (b) or (c) of subsection (2) ofsection 131 of the Pensions Act 1990applies, and

(ii) is not excluded from the jurisdiction of the Pensions Ombudsman by virtue of regulations under paragraph (b) or (c) of subsection (7) of that section.

(2) Notwithstanding subsection (1), the Ombudsman—

(a) may investigate insurability and entitlement to benefit under theSocial Welfare Consolidation Act 2005, and

(b) if it appears to the Ombudsman that special circumstances make it proper to do so, may investigate an action to which paragraph (a) or (d) of that subsection applies.]