Ombudsman (Amendment) Act 2012

PART 1 Preliminary and General

1. Short title and commencement.

1.— (1) This Act may be cited as the Ombudsman (Amendment) Act 2012.

(2) The Ombudsman Acts 1980 to 1984 and this Act may be cited together as Ombudsman Acts 1980 to 2012.

(3) This Act shall come into operation on enactment save in respect of entities that were not reviewable agencies under the Principal Act immediately prior to the enactment of this Act. With respect to such entities, this Act shall come into operation 6 months from the date of such enactment or such earlier date (if any) as the Minister may by order specify.

2. Definition.

2.— In this Act “Principal Act” means the Ombudsman Act 1980.

3. Amendment of section 1 (definitions) of Principal Act.

3.— Section 1 of the Principal Act is amended—

(a) in subsection (1)—

(i) by inserting the following definitions after the definition of “civil servant”:

“ ‘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 the Second Schedule,

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

(i) Part II of the First Schedule, or

(ii) an order under section 1A or 4(10);”.

(ii) in the definition of “local authority”, by deleting “Local Government Act, 1941” and substituting “Local Government Act 2001”, and

(iii) by substituting the following definitions for the definition of “the Minister”:

“ ‘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 of Part I of the First Schedule, except to the extent that any element of that entity is expressed by Part II of that Schedule or an order under section 4(10) to be excluded from review, and

(b) an entity declared by an order under section 1A to be a reviewable agency, except to the extent that any element of that entity is expressed by that order to be excluded.”,

(b) in subsection (3)—

(i) by substituting “an entity (other than a Department of State) that is a reviewable agency or an exempt agency” for “a person (other than a Department of State) specified in the Schedules to this Act”, and

(ii) by substituting “the entity” for “the person” in each place where it occurs.

4. Reviewable agency.

4.— The Principal Act is amended by inserting the following section after section 1:

“1A.— (1) Subject to subsections (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 which paragraph (a)(i) relates, or

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

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

(3) Where an order is proposed to be made under subsection (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.”.

5. Amendment of section 2 (appointment and term of office of the Ombudsman) of Principal Act.

5.— Section 2 of the Principal Act is amended—

(a) by inserting after subsection (2) the following:

“(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.”,

and

(b) in paragraphs (a) and (b) of subsection (5), by substituting “European Parliament” for “European Assembly” in each place where it occurs.

6. Amendment of section 4 (functions of the Ombudsman) of Principal Act.

6.— Section 4 of the Principal Act is amended—

(a) by substituting the following subsections for subsections (2), (3) and (4):

“(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 with section 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.

(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.”,

(b) in subsection (5) by deleting “or” at the end of paragraph (ii) and substituting the following paragraphs for paragraph (iii):

“(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) 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.”,

and

(c) by substituting for subsections (9) and (10) the following:

“(9A) Without prejudice to section 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.

(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).

(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.”.

7. Duty on reviewable agencies to give assistance and guidance, etc.

7.— The Principal Act is amended by inserting the following section after section 4:

“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.”.

8. Amendment of section 5 (exclusions) of Principal Act.

8.— Section 5 of the Principal Act is amended—

(a) by substituting the following subsections for subsections (1) and (2):

“(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 to subsection (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 which section 8 of the Ombudsman for Children Act 2002 applies,

(g) if the action—

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

(2A) Subsection (1)(c) does not affect the power of the Ombudsman to investigate an action, taken within a reviewable agency having responsibility for the administration of laws relating to employment, that relates to a complaint made under such a law.”,

and

(b) in subsection (3)(b) by substituting “a reviewable agency (other than a Department of State)” for “a person (other than a Department of State) mentioned in Part I of the First Schedule to this Act”.

9. Amendment of section 6 (reports, etc., by the Ombudsman) of Principal Act.

9.— Section 6 of the Principal Act is amended by substituting the following subsections for subsections (2), (3) and (4):

“(2) In any case where the Ombudsman conducts an investigation under this Act, the Ombudsman shall send a statement in writing of the results of the investigation to—

(a) the reviewable agency concerned,

(b) the Department of State in which are comprised the business and functions of, or which performs functions in relation to, a reviewable agency (other than a Department of State) to whom a statement is sent under paragraph (a),

(c) any other person who has or, in a case where a complaint in relation to the action the subject of the investigation has been made to the Ombudsman, is alleged in the complaint to have taken or authorised the action, and

(d) any other person to whom the Ombudsman considers it appropriate to send the statement.

(3) Where, following an investigation under this Act into an action, it appears to the Ombudsman that the action adversely affected an eligible person and was of a kind referred to in section 4(2)(b), the Ombudsman—

(a) may recommend to the reviewable agency concerned—

(i) that the matter in relation to which the action was taken be further considered,

(ii) that measures or specified measures be taken to remedy, mitigate or alter the adverse affect of the action, or

(iii) that the reasons for taking the action be given to the Ombudsman,

and

(b) may also request that reviewable agency to notify the Ombudsman within a specified time of the agency’s response to the recommendation.

(3A) Where the Ombudsman makes a recommendation to a reviewable agency under subsection (3)(a)(ii) in relation to an action of a particular kind, the Ombudsman—

(a) may make a recommendation in general terms to such reviewable agencies as the Ombudsman considers appropriate with regard to remedying, mitigating or altering the adverse effect on eligible persons of actions of that kind by any such reviewable agency, and

(b) may also request any such reviewable agency to notify him or her within a specified time of the response of that reviewable agency to the recommendation.

(4) Where the Ombudsman carries out an investigation under this Act into an action the subject of a complaint referred to in section 4(3)(a), the Ombudsman shall notify the person who made the complaint of—

(a) the result of the investigation,

(b) the recommendation (if any) made under subsection (3)(a) in relation to the matter, and

(c) the response (if any) made to that recommendation by the reviewable agency concerned.”.

10. Amendment of section 7 (powers of Ombudsman in respect of examinations and investigations) of Principal Act.

10.— Section 7 of the Principal Act is amended in subsection (1)—

(a) by inserting the following paragraph after paragraph (a):

“(aa) A requirement under paragraph (a) shall be made by notice in writing given to the person to whom it is directed and shall specify the period within which and the place at which any information, document or thing is to be furnished to the Ombudsman or the place at which a person is to attend before the Ombudsman.”,

and

(b) by inserting the following paragraphs after paragraph (b):