The High Court has upheld a Circuit Court decision refusing to compel the Property Services Appeal Board to provide documents to the Ombudsman for an investigation into the Board’s handling of a property services licence appeal.
Mr Justice Binchy delivered judgment on 9 May 2019 on the Ombudsman’s appeal. He found that the Board’s appeals from refusals by the Property Services Regulatory Authority to grant licences could not be treated as functions relating to the establishment and maintenance of the register of licensed property service providers.
The dispute arose after John Forrest applied in 2013 to the Authority for a licence to provide property management services. The application was refused. The Board initially considered there was no appeal, but later accepted that it could hear one after Mr Forrest complained to the Ombudsman.
Mr Forrest sought information about the appeal process and requested an oral hearing. The Board did not reply or invite submissions. It upheld the Authority’s decision on 19 May 2014.
After Mr Forrest made a further complaint, the Ombudsman sought a report explaining the dismissal of the appeal and the Board’s policies and procedures for oral hearing requests. The Board refused, arguing that the matter was outside the Ombudsman’s jurisdiction. The Ombudsman then served a notice under section 7(1) of the Ombudsman Act 1980 requiring documents. When the Board did not comply, the Ombudsman applied to the Circuit Court for an order compelling compliance. The Circuit Court refused that application on 19 December 2017, and the Ombudsman appealed.
The High Court considered a statutory exception that allowed limited Ombudsman review of the Board in relation to administrative functions concerning the register and the specification of qualifications and other requirements for property services providers. The Ombudsman argued that appeals concerning licence refusals were sufficiently connected to the register to fall within that exception.
The judge said the exception appeared to contain an error because the Board itself had no functions over the register or the specification of qualifications. But he found it was not possible to resolve that problem by expanding the exception to cover licence refusal appeals. A refused licence would never be entered on the register, and the legislation treated licensing decisions and register maintenance as separate functions.
The judge therefore upheld the Circuit Court’s decision, though for a different reason. He said it was unnecessary to decide whether the Board’s appeal functions were “administrative functions”. The judgment records no order compelling the Board to provide the documents; the supplied text ends during the court’s discussion of the remaining arguments.