Commissioner Proceedings

The Commissioner may conduct an investigation pursuant to a complaint not made in time if he considers there are special circumstances making it proper to do so.

A complaint may not be entertained unless the person aggrieved is resident in Northern Ireland or was so resident, or the complaint relates to action taken in relation to a person aggrieved while present in Northern Ireland or relates to occupational rights that arose in Northern Ireland. The Commissioner determines whether complaints have been duly made.

A health and social care body may refer a complaint about maladministration for which it is responsible to the Commissioner. This may only be done in writing by the person aggrieved or by a person authorized to complain within 12 months of the date of knowledge.

The purpose of investigation by the Commissioner is to ascertain if the matters alleged in the complaint warrant investigation and are in substance true. When it appears to the Commissioner desirable to effect a settlement or when it is not possible to state what action should be taken by the body concerned, the investigation shall seek to effect a fair settlement of the matter. If this is not possible, the investigation shall aim to state what action should be taken to effect a fair settlement and remove the cause of the complaint.

In determining whether to initiate, continue, or discontinue an investigation, the Commissioner acts in accordance with his discretion. When conducting an investigation, he must furnish the body concerned and any person who is alleged in the complaint to have taken or authorized the action complained of or who is otherwise involved in allegations with information about the allegations in the complaint insofar as they relate to that body or person and the substance of any evidence which the Commissioner has reason to believe may be tendered in support of those allegations.

He shall afford such bodies or persons an opportunity to comment on allegations made in the complaint and to furnish oral or other evidence.

Every investigation under the Order is to be conducted in private, and the procedure is to be considered appropriate in the circumstances.

The Commissioner may obtain information from such persons and make inquiries as he thinks fit. He shall not be obliged to hold any hearing, and no person shall be entitled as of right to be heard.

At any time during the investigation, if it appears to the Commissioner that there may be grounds for making a report or recommendation that may adversely affect any person or body, the Commissioner is to give that body or person, if desired, the opportunity to be examined by its solicitor or counsel and to be cross-examined by its solicitor or counsel or otherwise provide evidence that may affect it or them.

Where this is done, the same opportunity shall be given to the persons aggrieved.

The Commissioner, if he thinks fit, may pay sums in respect of expenses incurred or allowances by way of compensation for loss of time to the person who has made the complaint or other person who attends or furnishes information. This is to be in accordance with scales and subject to such conditions as the Department determines.

An investigation pursuant to a complaint shall not affect any action taken by the body or department or head of the department with respect to that body or any power or duty of that body or department to take further action in respect of any matters subject to the investigation.

The Commissioner may require any person, who in his opinion is able to furnish information or produce documents relevant to the investigation, to do so for the purpose of the investigation. The Commissioner is to have the same powers as a High Court in respect of the attendance and examination of witnesses, including administration of oaths, examination of witnesses abroad, and production of documents. A person is not to be compelled in an investigation to give evidence or produce documents that they could not be compelled to give or produce in civil proceedings in the High Court.

It is an offense if a person, without lawful excuse, obstructs the Commissioner or its officers or is guilty of any act in relation to the investigation which, if it were a proceeding in the High Court, would constitute contempt of court. The Commissioner may certify the offense to the High Court, which may then inquire into the matter and, after hearing any witnesses or statements, may deal with the person as if they had committed contempt of court.

Where a Commissioner conducts an investigation pursuant to a complaint, they shall send a report of the result of the investigation to the complainant, the body concerned, and any person who is alleged in the complaint to have taken or authorized the action or to be involved in the allegations. There are slightly different provisions in respect of complaints in respect of health and social care bodies and complaints referred by other bodies. Where, during an investigation pursuant to a complaint, the Commissioner reports to the person aggrieved that they have sustained injustice due to maladministration, the county court may, on application by that person, award damages to be paid by the body concerned. The damages shall be such as the county court deems fit in the circumstances to compensate the person aggrieved for any loss or damage which they may have suffered on account of expenses reasonably incurred by them in connection with the subject matter of the maladministration and the loss of the opportunity of receiving the benefit they might reasonably be expected to have had but for such maladministration.

A person is obliged to mitigate their losses on such applications. Where it appears to the court that justice could only be done to the person aggrieved by directing the body concerned to refrain from or take particular action, the court may, if it considers it reasonable, make an order containing such a direction. Disobedience of an order is equivalent to contempt of court.

If a person is dissatisfied with the county court order, they may appeal the order as if it were an [Article 60] appeal. The power applies irrespective of limits on county court jurisdiction under general statute.

Where, during an investigation, the Commissioner reports that a person aggrieved has sustained serious injustice due to maladministration and it appears that the body concerned had previously engaged in conduct of the same kind or of a similar kind to that which amounted to such maladministration and the body is likely, unless relief is granted by the High Court, to engage in future in such conduct, then the Attorney General may, at the request of the Commissioner, apply to the High Court for an order below.

If the High Court is satisfied as to the matters above, it may grant an injunction or declaration or such other relief as appears proper, including an injunction restraining the body from engaging in, or permitting others to engage in, conduct of concern. The court may take into account the matters subject to the investigation and other relevant matters.

The Commissioner is to lay a report annually before the Assembly.

There are provisions regarding the protection of confidential information acquired during the course of the investigation by the Commissioner and its staff. Certain classes of information may be disclosed by the Commissioner for Complaints to the Information Commissioner for the purposes of its functions under data protection and freedom of information legislation.