frsrdg · H204JO1 · 2014-11-11 00:00:00 — criticised for denying the inmates daily outdoor exercise during the time they were placed in isolation. An enquiry initiated by the Parliamentary Ombudsman into the treatment of an inmate placed in isolation (6211-2013) After attempting to escape from the prison in , an inmate was placed in isolation by virtue of item 3 in the first paragraph of Section 7 of Chapter 6 of the Prisons Act. In order for an inmate to be placed in isolation on the grounds of this provision there must be a risk that the inmate will escape or be In addition there must also be reasonable grounds for assuming that the inmate is particularly likely to continue to commit serious crimes. the period of isolation the Prison and made a total of nine review decisions to the effect that the inmate was to remain in isolation. of these decisions, nor in the original one on placement in isolation, did the Prison and assess whether it could be assumed that the in- mate was particularly likely to continue to commit serious crimes. words there was no exhaustive consideration of the requirements laid down in the provision cited. This failure has meant that the inmate’s chances of consid- ering the possibility of any appeal were considerably reduced. liamentary Ombudsman expressed grave criticism of the shortcomings of the Prison and in its treatment of the case. The placement in isolation continued for three months and for most of this time the inmate was housed in what is called a “bare cell” equipped only with During placement in the bare cell the inmate was also subject to contin- uous supervision (“supervision every second”). On the basis of the notes made in connection with this supervision it can be determined that no measures to interrupt the isolation were adopted to any extent and that the inmate was more or less in total isolation for a period of two months. of the Prison and for not having attempted to relocate the inmate earlier in order to remedy the situation. Criticism of the Enforcement Authority for the formulation of a message to a defendant in a case about a payment order (6076-2012) After a decision had been issued in a case dealing with a payment order but within the respite period, the defendant submitted a document whose contents T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N B I L A G A 1 0 2 014 /1 5:JO1 The Enforcement Authority chose not to interpret the document as an application for respite but wrote to the defendant to ask how it was to be interpreted. The Enforcement Authority is criticised for not having written to inform the defendant clearly that the document had not been viewed as an ap- plication for respite and for not pointing out the consequences of failure to sub- mit a clarification. Criticism of one of the Enforcement Authority’s officers for a telephone call made while making an inventory of assets (1744-2013) In the process of making an inventory of assets an enforcement officer tele- phoned to speak to the debtor. She ended up talking to the debtor’s 12-year-old daughter and is criticised for not finding out who she was talking to before asking her questions. Criticism of the Enforcement Authority for the way it dealt with and applied the possibility of correction of an error as laid down in Section 20 of Chapter 2 of the Debt Enforcement Code (1910-2013) Section 20 of Chapter 2 of the Debt Enforcement Code stipulates that the En- forcement Authority may correct a decision which because of an oversight is manifestly mistaken. has corrected an error in a de- cision on distribution even though it was not manifestly clear that the decision was erroneous and is criticised for doing so. is also criticised for the way in which it dealt with the issue of correction. Criticism of the Chief Judge and a lay judge at the Administrative Court in for their management of a case of conflict of interest (772-2013) A lay judge was a member of a board of social welfare. For this reason there was a conflict of interest in a case in which the board of social welfare had applied for an order pursuant to the Care of (Special Provisions) Act (1990:52). The adjudication expresses criticism of the lay judge for failing to inform the presiding judge that only a few weeks before the hearing in the administrative court she participated in the social welfare board’s executive committee’s decision about the same parties as those involved in the court hear- ing. The chief judge is criticised for having allowed the lay judge to take part in the hearing of the case despite the conflict of interest. Criticism of four judges at the Administrative Court in for the wording of the grounds for judgment in a case involving compulsory mental care (748-2014) The Administrative Court Procedure Act lays down that the decision of a court shall contain the grounds on which the judgment has been reached. The Parlia- mentary Ombudsman has reviewed five decisions pursuant to the Act on Com- pulsory Mental Care made by the Administrative Court in . The re- sult of this review is that none of the five decisions meet the requirements of 2 014 /1 5:JO1 B I L A G A 10 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N the Administrative Court Procedure Act with regard to grounds. therefore expressed of the judges responsible for these decisions. Central government agencies etc. An enquiry initiated by the Parliamentary Ombudsman about shortcomings in the files of the Public Employment Service concerning employment cases During an inspection of the ’s office in the Parliamentary Ombudsman was able to determine shortcomings in the files on a large number of the cases reviewed. It also became clear that the office had difficulties in providing all the documentation requested by the Parliamentary Ombudsman. Similar shortcomings have repeatedly been observed in the course of the Parliamentary Ombudsmen’s enquiries into complaints that have been received. The adjudication states that shortcomings in the records as well as in file and document management are in breach of the regulations and prin- ciples for administrative procedure and also jeopardise the constitutional right of access to public documents. The executive management of the Public Em- ployment Service must be held responsible for the failure of the current regu- lations to make any impact on the agency’s operations. These shortcomings have been extensive. For this reason the Parliamentary Ombudsman takes a grave view of what has transpired. Criticism of the Swedish Municipal Workers’ Union’s unemployment benefit scheme for rejection of an application for unemployment benefit because the employer’s certificate was not issued on a specific form (961-2013) The complainant had submitted an application for unemployment benefit to which a signed employer’s certificate from his former employer was attached. The certificate was issued in the form laid down by the Unemployment Benefit Inspectorate and which is machine-readable. The form stipulates that certain information is to be provided on a separate form. The certificate was attached to the application and was signed. The information requested was not, however, included on the form but the employer referred to an appendix in which it was supplied. The unemployment benefit scheme rejected the application on the grounds that incomplete material on which to base its decision had been submitted. In its decision it stated that the information provided on the separate appendix was missing. The Parliamentary Ombudsman does not consider that the provisions in Section 47 of the Act on Unemployment Benefit support the rejection of an application for unemployment benefit on the grounds that an employer’s cer- tificate has not been issued on a specific form. Criticism is expressed of the Swedish Municipal Workers’ unemployment benefit scheme for its decision to reject the complainant’s application. T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N B I L A G A 1 0 2 014 /1 5:JO1 A complaint about the for a delay of two years in relocation to a municipality after a permit had been issued (2697-2013) is obliged, when necessary, to assign certain newly arrived immigrants’ accommodation in a municipality. On the other hand the has no possibility of requiring a munici- pality to receive a specific individual or family. In this particular case it took about two years from when a woman and her daughter (born in 2002) were granted permits until they were as- signed a municipality to live in by the . One of the reasons for this delay lay in the daughter’s special needs. The Public Employ- ment Service presented the family to 17 different municipalities before one of them finally offered the family somewhere to live. Up until that time the family was living in one of ’s residential facilities, which was not adapted to the daughter’s special needs. If the Public Employment Ser- vice had dealt with this relocation case more efficiently and the exchange of information between the public authorities concerned had functioned more ef- fectively, the time taken to deal with it could probably have been reduced. The main reason for the length of time it took is not, however, the result of the actions of the but that so many municipalities con- sidered that they were unable to offer the family anywhere to live. This case illustrates the consequences of a solution based on voluntary agreements. A copy of the adjudication is therefore being submitted to the ployment for its awareness. Criticism of the Authority for shortcomings in connection with questioning pursuant to the Competition Act (6358-2012) The complaint included an objection to the way in which the Swedish Compe- tition Agency had chosen to document a tape recorded interrogation conducted in connection with an enquiry pursuant to the Competition Act (2008:579). Section 2 of Chapter 5 of the Competition Act stipulates that the Swedish Com- petition Agency shall keep a record of an interrogation. As this provision in- cludes no specification of what form the record is to take, the adjudication states that it would seem natural to seek support in the regulations for closely related activities, for instance the Ordinance on Interrogations. At the same time it is pointed out that when considering the Agency’s obligation to maintain records it must be borne in mind that its activities do not constitute a criminal investigation in the strict sense of the term. The adjudication goes on to state that a procedure in which an interrogation is recorded in summary form may be acceptable from the point of view of legal correctness, if the summary provides an objective and complete picture (re- flects in its entirety) of what has come to light in connection with the interro- gation. In addition, before the interrogation begins the official in charge must make it clear to those present that the record is to take this form. The Agency is criticised for having a routine that means that the offi- cial conducting the interrogation decides after it has been completed what form the record will take. 2 014 /1 5:JO1 B I L A G A 10 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N The principal regulation states that the record of an interrogation is to be made and approved before it ends. If an interrogation is particularly compre- hensive or deals with complicated circumstances, the Agency may take longer to produce the record. In these circumstances the rec- ord has to be completed and approved as soon as possible after the interrogation The adjudication states that this means in normal cases that the record has to be produced and approved on the following day. could be acceptable in exceptional cases. Criticism is expressed of the Agency for considering that the case concerned was an exceptional one so that the production of the record could be delayed, even though it is clear that the interrogation was nei- ther particularly complicated nor comprehensive. Finally it is stated that in cases for which exceptions can be made it is not acceptable for there to be a delay of three weeks – as in this case – before the individual interrogated is enabled to check the record that has been drawn up. criticism of in the handling of access to public documents etc. (3869-2013) In 2013 an association requested access to public documents from the Na- Only after almost four weeks did the board decide to provide some of the documents requested. The association appealed against the Board’s decision in . It was not until January 2014 that the Board forwarded the appeal to the Administrative Court of Appeal. dle of February the court rejected the association’s appeal on the grounds that the property lawyer at who had reviewed the re- quest for provision of the documents lacked the authority to do so and no appeal could therefore be made against the decision. The shortcomings in the way this request was handled meant, among other things, that in February 2014 – i.e. almost nine months after its receipt had been recorded at – the association had still not had its request appraised correctly. In addition, inadequate grounds were given for the board’s decision. criticism is expressed of for its management of the case. Taxation and inland revenue and civic registration criticism of the way a tax official dealt with an individual. Also criticism of the for management of public documents criticism is expressed of a tax official at the taxation authorities for the contents of a letter that do not comply with the objectivity required by Section 9 of Article 1 of the Instrument of Government. The adjudication also criticises the taxation authorities for inadequate registration of public documents and wrongly returning documents to those submitting them. T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N B I L A G A 1 0 2 014 /1 5:JO1 A municipal board conducted an unannounced home visit in order to “investigate suspected benefit fraud”. The question of whether this was in conflict with Article 6 of Convention, etc. (6798-2012) After an anonymous tip-off that a woman receiving financial support was living with a partner, two officials made an unannounced visit to her home. In its response to the Parliamentary Ombudsman the board stated that this visit was made in order to “investigate suspected benefit fraud”. One of the provisions of Section 6 of the Benefit Fraud Act is that the or a prosecutor must be notified if suspicion of an offence against the act arises. The travaux préliminaires to the act say that notification should take place when there is a “well-founded reason for assuming that a crime has been committed”. There are no provisions or statements in the travaux préliminaires that deal with the issue of whether a board may or should undertake its own investigative measures – and in that case which – before it submits such notification. A de- cision by a board to arrange a visit to a home to investigate whether there is reason to suspect that a crime has been committed would involve, among other things, overriding the provisions in the Procedural Code on searches of prem- ises and how they should be conducted. In other respects as well, the regula- tions in place to provide guarantees of fair trial in criminal cases would be dis- regarded. For this reason, in the Parliamentary Ombudsman’s opinion, a social welfare board must not arrange home visits intended to investigate whether an individual can be suspected of a crime. Given this background, the board should not have arranged the visit. The case gives rise to questions about the relationship between the regula- tions on benefit fraud and the specific regulations in the Social Services Act about recovery, what investigative measures a social welfare board may adopt according to these regulations and how such measures relate to Article 6 of Convention on the right to fair trial. According to the Parliamentary Ombudsman there are reasons for considering these issues in a broader context. A copy of the Parliamentary Ombudsman’s adjudication is therefore being for- warded to the Affairs and the for their awareness. The question of obligation to make a record of who had notified a member of a social welfare board about concerns about the treatment of children, etc. An individual, X, rang a member of a social welfare board to express concerns about the children in a local family. There can be uncertainty that X con- tacted the member in his capacity as a representative of the board. In such cases the information provided by an individual should be treated as notification pur- suant to Section 1c of Chapter 14 of the Act. It was therefore the responsibility of the member to ensure that a record was made of the infor- mation provided by X. 2 014 /1 5:JO1 B I L A G A 10 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N No details about X’s identity were noted in this case. As it has been impos- sible to ascertain whether X gave his name during the telephone call to the member of the board or later, no criticism is expressed of the board for the fact that the children’s custodian was unable to find out who had made the com- criticism of a municipal board for shortcomings in the treatment of a case concerning income support referred back to the board by a court of law for reappraisal (3548-2012) applications for financial support. After an appeal by an individual the admini- strative court set aside the decision and referred it back to the board for reap- The judgment meant that the appeal had to some extent been accepted. The individual submitted an appeal to the Administrative Court of Appeal re- questing reversal of the judgment’s rejection of some elements of the first ap- As only the individual appealed to the court of appeal, the outcome of the hearing could not be to his disadvantage. The board should have made sure that a new decision was reached as soon as it was informed of the administrative court’s judgment. This new decision was not, however, made until one year and a half had elapsed. criticism is expressed of the board for the short- comings in its treatment of the case. In a case concerning the appointment of a contact person for a child who was not yet 15 both custodians must be heard before a board reaches a decision Section 6b of Chapter 3 of the Act stipulates that a social wel- fare board may appoint a contact person to assist an individual in personal mat- If the individual who is to be given a contact person has not reached the age of 15, the provision lays down that both custodians shall consent to this Since 1 2012, however, it has been possible to appoint a contact person even though one of the custodians does not consent. In the adjudication the Parliamentary Ombudsman states that the opinions of both custodians on the question of appointing a contact person must be sought before a board makes its decision. It is not enough merely to inform one custodian that a measure decided on is to be implemented. pressed of the social welfare board in the municipality of for not asking for the opinion of one of the custodians (the mother) before the board decided to appoint a contact person for her 14-year-old son. T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N B I L A G A 1 0 2 014 /1 5:JO1 Care of (Special Provisions) Act Was it possible to reach a new decision on an immediate care order pursuant to Section 6 of the Care of (Special Provisions) Act after a previous decision had lapsed because of failure to submit it to an administrative court in due time? A specific question about the importance of the provision in Section 1 of the same act on what is best for a child (534- 2013) The chairperson of the social welfare board in the municipality of Hallstaham- mar decided on an immediate care order for a child pursuant to Section 6 of the Care of (Special Provisions) Act. Because of failure to submit the decision to the administrative court in due time, the order lapsed. Nobody in this case can be blamed for what occurred. When the board was made aware that the immediate care order had lapsed, its chairperson made a new decision by virtue of Section 6 of the act. This case raises the issue of whether the chair- person could make such a decision even though no new circumstances had arisen. Section 7 of the Care of (Special Provisions) Act lays down that an immediate care order ceases to apply if the order has not been submitted to the administrative court in the prescribed period. It has been considered that in such a situation no new decision to issue an immediate care order may be made unless new circumstances have arisen. This view may however conflict with the principle of what is best for the child that is to be decisive in making the decision according to the act. How to resolve a conflict between what is best for the child and the provi- sions intended to ensure fair legal treatment in any individual case is compli- cated. As the Care of (Special Provisions) Act is currently the subject of an enquiry, a copy of the adjudication is referred to the committee undertaking it. In connection with a discussion between the social services and the administrative court about when a decision to issue an immediate care order pursuant to Section 6 of the Care of (Special Provisions) Act had been submitted, the social services faxed the submission to the court. The date in this submission had been altered. The Parliamentary Ombudsman considers that the submission constituted an original document and therefore no alteration was permitted (4613-2012) After the Administrative Court in had drawn the attention of the Parliamentary Ombudsman to the way in which the social welfare board in had dealt with four cases concerning immediate care orders pursuant to the Care of (Special Provisions) Act, the Parliamentary Om- budsman decided to enquire into the board’s management of these cases. The decisions, which concerned four brothers and , had been made by the chairperson of the social welfare board on 2 2012 and should, pur- suant to the act, have been submitted to the administrative court no later than 9 2012. They were not, however, received by the court until 13 , when they had been faxed to the court as a faxed submission dated (submission A). During discussions between the administrative court and the 2 014 /1 5:JO1 B I L A G A 10 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N social welfare board to clarify when the submissions had been made the social welfare board sent another faxed submission to the court dated (submission B). The unmistakeable similarities between the faxed submissions, which had been completed in handwriting, prompted the Parliamentary Ombudsman to initiate a preliminary investigation on the grounds of suspicion of forgery of a This investigation showed clearly that the submissions were identi- cal but that the date on submission B had been altered from 13 to 03 On the other hand it was not possible to determine who had made this As the Parliamentary Ombudsman came to the conclusion that the offence could not be proved, the investigation was closed. – In the adjudication the Parliamentary Ombudsman states that, irrespective of the reason for the alteration of the submission, it is obviously of utmost importance for a public official not to change a document. The fact that this had happened in this case was particularly grave. As none of the four decisions of 2 had been submitted to the admini- strative court in due time the care orders lapsed. Four new immediate care or- ders were decided on 13 and sent to the administrative court on the The court set aside these decisions, however, as no new circum- stances to justify them had arisen. The consequences of the management of these cases by the social welfare