Special Report by the Ombudsman LOST AT SEA SCHEME December 2009 LOST AT SEA SCHEME | Special Report by the Ombudsman Contents THIS REPORT 3 Part One SPECIAL Report TO each HOuSE Of THE Oireachtas - 6 THE REASOnS wHy. Appendices (A) Response of the Department of Agriculture, fisheries and food (the Department) to the Investigation Report -11 february 2009 10 (B) Response of the Ombudsman to the Department’s letter of 11 february 2009 - 13 March 2009 13 (C) Response of the Department to the Ombudsman’s letter of 13 March 2009 - 23 April 2009 15 (D) Response of the Ombudsman to the Department’s letter of 23 April 2009 - 5 June 2009 17 (E) Further Letter to the Ombudsman from the Department - 30 July 2009 20 Part Two InvESTIgation Report (nOvEMBER 2008) Introduction 25 1. The Complaint 25 2. Background 26 3. Preliminary Examination 27 4. Investigation Interviews 38 5. The Department’s files and Key Records 39 6. Evidence gathered During Interviews 47 7. Analysis of the Main Issues 58 1 LOST AT SEA SCHEME | Special Report by the Ombudsman 8. The Byrne family and the Lost at Sea Scheme 74 9. Findings 76 10. Recommendations 82 Appendices Appendix 1: The Lost at Sea Scheme 85 Appendix 2: Response of the Department of Communications, 87 Marine and natural Resources to the Statement of Complaint -31 July 2006 Appendix 3: Undated and unsigned file Memo 89 Appendix 4: Submission of the Department of Agriculture, 90 Fisheries and food in response to the Draft Investigation Report -3 July 2008 Appendix 5: Submissions of the former Minister for the Marine and 96 Natural Resources, frank fahey TD, in response to the Draft Investigation Report -14 May 2008 and 19 June 2008 2 LOST AT SEA SCHEME | Special Report by the Ombudsman This Report This Report describes one family’s (the Byrnes’) unsuccess- ful attempt for assistance under the Lost at Sea Scheme. This once-off, time-bound, non-statutory scheme was es- tablished in 2001 to assist those boat owners with a family tradition of sea-fishing by providing replacement capacity in respect of fishing boats that had sunk in the period 1980 to 1989. A number of fishermen had lobbied for a scheme following the introduc- tion in 1990 of a new regulatory system for the Irish Sea fishing fleet which effectively limited the overall fleet capacity. This meant that “replacement capacity”, i.e., tonnage and kilowatts was now required for sea fishing boat owners who wished to continue to fish, fish in a new or larger boat or to commence to fish. It also meant that to get new capacity a boat owner had to “take out” old capacity. The new regime caused difficulties for some former boat owners who believed the new system to be unfair and who claimed they were unable, because of their particular circumstances, to purchase replace- ment capacity. The Lost at Sea Scheme was designed to address the needs of those boat owners who had lost their boats at sea in the period 1980 to 1989 and who effectively, but for their misfortune, would have had a boat on which replace- ment capacity would have been assessed under the new regulatory system at the time of its introduction. Successful applicants under the Scheme would be granted capacity in their own right which would have enabled them to carry on a tradition of fishing. The amount of capacity granted to a success- ful applicant related to the size of the original vessel which had been lost at sea and to the proportion of the applicant’s ownership of the vessel. The Scheme did not provide financial support to successful applicants for the ac- quisition of a replacement fishing vessel itself and the replacement capacity, i.e., gross tonnage and engine power granted under the Scheme had to be used by the replacement fishing vessel. It could not be sold on or otherwise traded or realised as a financial asset in the tonnage market. In all, the Ombudsman received six complaints from persons claiming that they were unfairly denied benefit under the Scheme. five were not upheld, the sixth, which came from the Byrne family, was upheld. 3 LOST AT SEA SCHEME | Special Report by the Ombudsman francis Byrne was the owner and skipper of a fishing boat, the Mfv Skif- jord which tragically sank off north west Donegal in October 1981. francis Byrne lost his life along with his 16 year old son Jimmy and three other crew members. francis Byrne’s widow was left with a young family of five boys and three girls. following rejection of their application by the then Department of Commu- nications, Marine and natural Resources, Mr Danny Byrne, acting on behalf of his mother, complained to the Ombudsman. The Report describes the Ombudsman’s investigation. It traces the develop- ment and implementation of the Lost at Sea Scheme and describes in some detail the role of the then Minister and his officials in that process. The Report concludes that the design of the Scheme and the manner in which it was advertised were contrary to fair and sound administration and that these shortcomings were factors in the Byrne family not qualifying for assistance under the Scheme. By way of remedy, the Ombudsman recommended that financial compensa- tion be paid to the Byrne family but the Department of Agriculture, fisher- ies and food, which has taken on responsibility for these matters, refused to accept the recommendation. while the Department is free in law to reject the Ombudsman’s recommen- dations, this is only the second time in the twenty-five year history of the Of- fice that this has happened. The first occasion was in 2002 in a case involving the Revenue Commissioners, which, with the assistance of the Oireachtas, was ultimately resolved to the Ombudsman’s satisfaction. when the Ombudsman considers that a public body’s response to a recom- mendation is unsatisfactory, her only recourse is to make a special report to the Oireachtas as she is empowered to do under the Ombudsman Act, 1980. Part One of this Report describes the reasons why the Ombudsman has de- cided to make a special report in this case. Part Two contains her Report of her investigation of the complaint made by Mr Danny Byrne. 4 Part One SPecial REPORT to each House of the Oireachtas - the reasons why. LOST AT SEA SCHEME | Special Report by the Ombudsman Special Report to each House of the Oireachtas - the reasons why. I hereby submit a special report to each House of the Oireachtas under Sec- tion 6(5) and 6(7) of the Ombudsman Act, 1980. This is only the second special report presented to Dáil and Seanad Éireann following a rejection by a public body of a recommendation by the Ombuds- man. The Oireachtas appointed me to hold public bodies to account and to ensure fair play in their dealings with the public. following my investigation in this case, I regret to say that the Department of Agriculture, fisheries and food has failed to meet the standards required by fair or sound administra- tion in their dealings with the family covered by this report. This investigation arose from a complaint made to my Office by Mr Danny Byrne on behalf of his family. Danny Byrne’s father, francis, was the owner and skipper of a fishing boat, theMFV Skifjord, which tragically sank in a storm off north west Donegal in October 1981. francis Byrne lost his life along with his 16 year old son Jimmy and three other crew members. francis Byrne’s widow was left with a young family of five boys and three girls. In June 2001, a special scheme called the Lost at Sea Scheme was launched by the then Department of Communications, Marine and natural Resources, the purpose of which was to grant replacement capacity to qualifying ap- plicants in respect fishing boats lost at sea in the period 1980 to 1989. The granting of such capacity enabled the successful applicant to return to fishing in his/her own right. The Byrne family’s application was rejected by the Department and, following my investigation, I found that the design of the Scheme and the manner in which it was advertised were contrary to fair and sound administration. I concluded that these shortcomings were factors in the Byrne family not qualifying for assistance under the Scheme and I recommended that they be granted a remedy for the adverse effect they had suffered as a result of these shortcomings. In my investigation report (see Part Two), which I issued in november 2008 to the Department of Agriculture, fisheries and food (which had taken over responsibility for the functional area from the Department of Communica- tions, Marine and natural Resources) and which I copied to the then Min- ister for the Marine and natural Resources, frank fahey TD, I recognised that it would be inappropriate to attempt to apply the terms of the Scheme by way of a remedy because the Scheme itself had long since expired and because of subsequent developments in relation to Ireland’s sea-fishing 6 LOST AT SEA SCHEME | Special Report by the Ombudsman capacity. Accordingly, I recommended that financial compensation should be paid to the Byrne family. I asked the Department to calculate the appro- priate figure based on the approach set out in the 2008 Decommissioning Scheme for fishing Boats and to submit it to my Office. On 11 february 2009 the Department submitted a calculation to my Office in the sum of €245,570 (see Appendix A).