It has not been a good week for the Department of Justice. Still embroiled in the Maurice McCabe email controversy, the Ombudsman has now heaped more woe on the beleaguered department.
It comes in the form of the findings of its almost year-long investigation into how the department administered the Magdalene redress scheme. It’s findings are scathing.
Central to the investigation was evidence uncovered by the Irish Examiner and reported in June 2015 — namely an unpublished HSE report from 2012 that found that the An Grianán training centre and the High Park Magdalene laundry in Drumcondra in Dublin were “one and the same thing”.
So how did information relating to An Grianán lead to a full formal investigation into the Magdalene redress scheme?
It all started with the determination of two former residents of An Grianán deciding to go to the High Court to fight a decision by the Department of Justice to exclude them from the scheme.
In June, the High Court ruled that the women were denied fair procedures in how that decision was reached.
They were denied access to the redress scheme by the department because they had been admitted to An Grianán and not to the laundry directly.
The view of the department — and which was publicly stated on numerous occasions by then justice minister Frances Fitzgerald — is that An Grianán was a separate entity to the High Park laundry which served a different purpose.
The Government also repeatedly defended the exclusion of the training centre from the scheme by stating it was included in the Residential Institutions Redress Board scheme (RIRB).
After the Department of Justice refused the women on appeal in June and October 2015, proceedings were lodged.
Separately, in June 2015, the Ombudsman upheld a decision by the department to refuse three women who were in An Grianán access to the scheme.
The Ombudsman’s decision came on June 2, 2015 — just two days before the Irish Examinerrevealed evidence that the HSE has found that An Grianán and the High Park Magdalene laundry were “one and the same thing” — in an unpublished report in 2012.
This HSE evidence relating to An Grianán was to become central to the High Court case and the Ombudsman’s investigation of the Magdalene redress scheme.
The three women sought a judicial review of the Ombudsman’s decision and in December 2015, as part of a settlement, the Ombudsman agreed to re-examine the cases.
By April 2016, the Ombudsman completely changed its position on the matter and had formed the view that An Grianán residents should be eligible for the Magdalene redress scheme.
Documents obtained by the Irish Examiner in June of this year then revealed an extraordinary nine-month dispute between the Ombudsman and the Department of Justice over the latter’s interpretation of An Grianán and over the redress scheme itself.
It was to culminate with the Ombudsman stating, in December of last year, that it had no choice but to launch an investigation into whether the scheme had been administered fairly.
That report, published yesterday, found that the Department of Justice wrongly refused some women access to redress.
Speaking at the report’s launch, Ombudsman Peter Tyndall said that from the start, there were “elements of injustice creeping into the way the scheme was administered” and that it “showed no evidence of good administration”.
He also said the investigation by his office was “totally exceptional” and that he was “very disappointed” at how the department had handled the issue.
“Normally my office, when we have launched reports of this kind, we’ve launched them in conjunction with the department or agency concerned.
"In the course of the investigation, we would reach an agreement with the department as to what’s gone wrong and also reach agreement with them about what they are going to do to put it right. This has been totally exceptional in my experience as Ombudsman.
“I am very disappointed by it. I think the evidence is very powerful, particularly the testimonies of the women.
"I should say that, in the course of the investigation, not only did we see evidence that the department had seen, but when we looked at some of the cases we found evidence that was available that hadn’t been considered,” he said.
The report found that the department gave “undue weight to the evidence supplied by the religious congregations “to the exclusion of other evidence” when wrongly excluding some women access to the Magdalene Laundries redress scheme.
“It is the manner in which the history of the individual applicant and the available information was interrogated and followed up on by the department that is at issue. It was ad hoc and at times incomplete, with gaps, questions, or inconsistencies left unanswered.
There was an over-reliance on the records of the congregations and it is not apparent what weight, if any, was afforded to the testimony of the women and/or their relatives.”
The report further stated: “Interviews with applicants were a last resort and were only undertaken late in the day and in a small number of cases which were not resolved one way or the other.
"In other words, an applicant could be excluded on the basis of a record showing she was not admitted to one of the 12 named institutions and she was not interviewed as part of the process.”
The Ombudsman noted “a flawed administrative process” where women had to apply for a scheme without being told what the criteria was, and where “great reliance” was placed on the congregations’ records “to the exclusion of other evidence”.
The report noted that the department would have been aware of the links between units where the women lived and the Magdalene laundries and that the evidence it uncovered showed that training centres and industrial school located in the same building, attached to or located on the grounds of the laundries were in reality “one and the same” institution.
It also noted a “serious inconsistency” in the application of the eligibility criteria in that women were admitted to the scheme who were recorded as admitted to one particular
institution closely associated to a named laundry while women who were recorded as admitted to different institution closely associated with another named laundry, were refused admission to the scheme.
The report recommends that, where there is evidence that a woman worked in one of the listed laundries but was officially recorded as having been “admitted to” a training centre or
industrial school located in the same building, attached to or located on the grounds of one of the laundries, the department “should fully reconsider their application with a view to admitting them to the scheme”.
It has been asked to commence these reviews“immediately”, provide an estimate of the numbers involved, and the anticipated timeframe for completion.
A report should be provided to the Ombudsman within three months at the latest.
The Ombudsman is particularly critical of the department in how it dealt with a group of women who do not have the capacity to make decisions on their own behalf.
Some 18 women — nine of whom had spent more than a decade in the institutions and were therefore entitled to the maximum payment of €100,000 — have been approved for
redress but have yet to be issued a payment due to a delay in fully enacting the Decision-Making (Capacity) Act.
Mr Tyndall said these women had been “effectively forgotten” and that the delay in paying the women redress they were entitled to since 2013 was
This was particularly so when Mr Justice Quirke alluded to the delay in his report while it was
also flagged in internal communications within the department.
“Despite this, the department failed to consider other options to address this issue and facilitate payments to the women concerned.
"It is therefore my view that the actions (and inactions) of the department in this regard constitute maladministration as being the result of negligence and carelessness, improperly discriminatory and otherwise contrary to fair or sound administration,” notes the report.
As a result of the delay, the Ombudsman said he had “reluctantly” accepted the department’s request that these women be made wards of court.
Perhaps the most damning conclusion of the Ombudsman was his finding that the very scheme set up to offer redress and healing to women who worked for years in laundries for no pay ended up adding to their pain.
“It [the redress scheme] was supposed to contribute to healing and reconciliation, but unfortunately for some women these failings in how the scheme was administered served to reinforce their feelings of marginalisation and deep hurt, and to undermine the restorative effect of the emotional apology delivered by Taoiseach Enda Kenny in February 2013 when the McAleese Report was published.”