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Amendment of section 4 (functions of the Ombudsman) of Principal Act.
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6.— Section 4 of the Principal Act is amended—
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(a) by substituting the following subsections for subsections (2), (3) and (4):
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“(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—
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(a) that the action has or may have adversely affected an eligible person, and
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(b) that the action was or may have been—
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(i) taken without proper authority,
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(ii) taken on irrelevant grounds,
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(iii) the result of negligence or carelessness,
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(iv) based on erroneous or incomplete information,
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(v) improperly discriminatory,
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(vi) based on an undesirable administrative practice,
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(vii) a failure to comply with section 4A, or
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(viii) otherwise contrary to fair or sound administration.
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(3) The Ombudsman shall not investigate an action unless—
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(a) a complaint in relation to the action has been made to the Ombudsman by or on behalf of an eligible person, or
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(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.
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(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.
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(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—
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(a) that action—
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(i) affects such individual by virtue of being a member, officer, employee or agent of an entity or entities, and
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(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,
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and
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(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,
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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.”,
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(b) in subsection (5) by deleting “or” at the end of paragraph (ii) and substituting the following paragraphs for paragraph (iii):
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“(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
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(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.”,
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and
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(c) by substituting for subsections (9) and (10) the following:
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“(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.
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(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—
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(i) appropriate accountability and oversight of entities subject to this Act, and
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(ii) the ability of those entities to conduct adequately their affairs,
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may by order declare an entity—
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(I) to be an exempt agency (including an entity that immediately before the making of the order was a reviewable agency),
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(II) specified in the Second Schedule to be a reviewable entity, or
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(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.
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(b) An order made under paragraph (a) may specify the inclusion or exclusion of elements of an entity.
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(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.
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(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).
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(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.”.
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