Number 1—February 2008
Learning from complaints—recent Ombudsman case studies
Falling through the cracks
Providing adequate reasons for a competitive grant decision
A need for transitional arrangements
Dealing with conflict of interest in tendering
Learning from mistakes
Managing a breach of a client’s privacy
Proper complaint handling
FOI and electronic records
Conference
Reports
Ombudsman’s message
Learning from complaints—recent Ombudsman case studies
Australian Government agencies make tens of millions of decisions each year. Most decisions are free of error and are made correctly. Mistakes and errors nevertheless occur, and lead to complaints, both to agencies and to the Ombudsman.
The purpose of this new e-bulletin from the Commonwealth Ombudsman is to relay to a wider audience a sample of recent complaints and the lessons that can be drawn from them.
The case studies in this bulletin are presented in a form that spells out a lesson that may be relevant across government. For that reason the case studies do not, explicitly at least, identify the agencies under investigation.
The central message in each case study is that a problem or complaint in a single case can point to a larger issue that may need to be addressed by an agency. Many of the problems that are discussed were minor in nature, but nevertheless opened a window on a larger issue.
Nor should it be overlooked that each case study deals with a complaint against government from a member of the public. Each complaint was taken to the Ombudsman after the agency had either failed to deal with it adequately, or had not identified the larger issue that lay behind the complaint.
The shared commitment of Australian Government agencies to good administration means that it is important for all agencies to pay heed to administrative problems that arise, both in their own administration and elsewhere. Members of the public expect that that will happen.
Prof. John McMillan
Commonwealth Ombudsman
Case Studies
Falling through the cracks
Australian Government employees who are injured at work have various employee rights and entitlements. One entitlement is for a ‘rehabilitation authority’ to assess the employee’s capability to undertake a rehabilitation program. In most cases, the rehabilitation authority will be the Australian Government agency in which the person is presently or was formerly employed.
Two people complained to the Ombudsman that their former employing agency had been abolished, and they had been unable to identify which agency was now their rehabilitation authority. Discussions had occurred between a few government agencies, and legal opinions had been obtained, but no answer had been found. Part of the difficulty was in the wording of the legislation, which seemed to apply to current employees, but not to former employees.
There was reluctance by the agency administering the relevant legislation to seek a legislative amendment. The agency believed that the problem could be solved by administrative arrangement, after further discussion among agencies.
The Ombudsman prepared a report on these complaints that called for greater diligence by the agency to devise a solution for the complainants, to consult on legislative changes, and to contact other former employees who could be in the same situation (see Commonwealth Ombudsman Report No 18|2007).
Lesson:
The two complainants had fallen through the cracks of a government scheme. They were denied access to an entitlement given by statute. This had occurred through a combination of factors—there were multiple agencies involved, the responsibilities of those agencies had changed over time, the circumstances of the complainants had also changed, and the legislation did not anticipate a problem of this kind.
This predicament is not unique. Commonly, the problems that people experience with government do not neatly align with the allocation of responsibilities either within or among government agencies. It can be confusing for people to work through the maze and find an answer. The difficulty is greater still if the problem falls into an agency’s ‘too hard basket’.
Agencies should give priority to problems of this kind and work assiduously to resolve them. This will require even greater commitment if the solution requires legislative change or the cooperation of multiple agencies.
Providing adequate reasons for a competitive grant decision
A complainant twice applied unsuccessfully for a grant under a competitive grant scheme administered by an Australian Government agency. Grant funding decisions were made by a board, which was a unit of the agency, but independent of the agency officers who provided assistance and advice to applicants. The Board’s reasons for rejecting the first application identified a particular criterion that the application failed to meet, but did not explain what it was about the complainant’s particular facts and circumstances that led to this result.
Agency officers provided further assistance to the applicant, identifying three areas of possible weakness in the first application, and discussing with the applicant how those weaknesses could be addressed in the second application.
The Board subsequently rejected the second application. The Board’s reasons noted only that the application had not provided adequate evidence to overcome the previous decision not to approve grant funding, and advised the agency officers that that the application should not have been resubmitted in the form that it had because the Board’s earlier questions remained unanswered.
The Ombudsman concluded that the reasons for the Board’s first decision did not contain sufficient detail to allow the applicant to decide knowledgeably whether to submit a second application. The applicant was at a significant disadvantage in making the second application, which involved considerable time and cost for him.
Lesson:
A basic requirement of good administration is that government decision makers should provide adequate reasons for decisions. There is a legislative basis for this requirement concerning decisions to which the Administrative Decisions (Judicial Review) Act 1977 applies. The reasons for an unfavourable decision should set out not only the criteria that an applicant has been assessed as failing, but also why that assessment was made on the facts of the particular case. This can have great practical importance when a person will use those reasons to consider whether to submit and how to frame a new application.
The objection is sometimes raised that it is impractical to provide reasons for decisions on competitive grant applications. There may be a large number of applications to consider, only some will be successful, and the main reason some are unsuccessful is that they were not as competitive as those that succeeded. Those are important practical considerations, but they do not excuse the obligation, which is an aspect of good decision making, to provide adequate reasons for a decision. Grant funding agencies must therefore devise procedures that enable particulars of each decision to be recorded at the time an application is assessed. This point has been made in earlier Ombudsman reports (see Commonwealth Ombudsman Report No 2|2007).
A need for transitional arrangements
Ms A represented an organisation that was required to register its details with a government agency, to be placed on a public register. Extra information submitted by Ms A that was not required by law to be on the register had been included on it by the agency. In this case, the extra information clarified the legal status of members of the organisation.
The agency decided that it should no longer record information on the register that was not required by law. The agency also ‘tidied up’ the register by removing the extra information from existing registrations. This had the result that some registrations, including the registration relating to Ms A’s organisation, were now misleading. The agency required Ms A’s organisation to make a formal application to change the register to provide information about the legal status of members in a form acceptable to the agency.
Ms A complained that the agency could itself have corrected the register, and was placing an unfair burden on her organisation to lodge a formal application. The agency disagreed. In addition to noting that it had the legal authority to correct the entry, the agency claimed that it had acted properly in tidying up the register and requiring organisations to fulfill their legal duty to ensure that their entry on the register was not misleading.
The Ombudsman was critical of the agency. Even though the agency was acting lawfully, it was not good administration to have accepted this extra information, to remove it with the result that the register entry was misleading, and then place the onus on the individual organisation to make a formal application to change the register.
Lesson:
When choosing to alter an established practice, an agency should consider what additional or transitional measures can be implemented to reduce the impact of the change on organisations and members of the community. If the changed practice would create extra work for clients of the agency, it should consider whether steps can be taken to mitigate any burden.
Dealing with conflict of interest in tendering
An anonymous complaint to the Ombudsman alleged that there were defects in an agency’s tendering process, including a conflict of interest. The Ombudsman’s normal approach in such cases is to notify the agency of the complaint and ask how it proposes to deal with the allegations. In this case, the agency responded by conducting an internal investigation into some of the allegations, and an external inquiry by an accountancy firm into some other of the allegations.
Some of the allegations were sustained, and others were not. The agency accepted that the two inquiries pointed to improvements that could be made to the tendering process to avoid problems in future.
One allegation of particular concern was that an employee of the agency, who had worked on the tender process, had been granted leave without pay to work for an organisation that was the successful tenderer. In fact, as the inquiry revealed, there was no conflict of interest at the relevant time as the tender had been submitted prior to the officer applying to and being engaged by the organisation. The officer was employed to work in an unrelated area of the organisation’s business. A problem subsequently arose, however, as the officer was later deployed to do work directly in the tender area. The agency correctly identified that this created a conflict of interest and indicated to both the officer, and the organisation, that it was not acceptable. The tendering organisation ceased employing the officer soon after.
The Ombudsman’s office advised the agency that, with the benefit of hindsight, the decision to grant the staff member leave without pay to work for a tendering body was ill advised. There could be a perceived conflict of interest as regards the initial tender process, and (as transpired) an actual conflict of interest if the staff member later worked on other tenders submitted to the agency.
Lessons:
Other similar allegations were received by the Ombudsman’s office in the last year alleging wrongful practice in Australian Government tendering processes. While few of the allegations were sustained on further investigation, all the allegations were serious, were supported by evidence or inside knowledge, and warranted investigation. A common pattern is that the complainants had some, though incomplete, knowledge of what had occurred. By triggering an investigation, the Ombudsman’s office was able to allay the concerns of some complainants.
It is important that agencies recognise that problems do occur in tendering, notwithstanding the good record of Australian Government agencies for integrity and probity in contracting. There must be procedures in place that enable people, including employees, to complain on a confidential (and possibly anonymous) basis, so that allegations or misperceptions about tendering processes can be properly investigated.
Learning from mistakes
Ms B complained to the Ombudsman about an agency’s refusal to refund an application fee she had paid for a matter she no longer wished to pursue. The agency advised her that it had no discretion to refund the application fee.
This advice was incorrect. Legislation conferred a discretion on the agency to refund an application fee in limited circumstances that covered Ms B’s case. Despite multiple approaches to the agency, she was not advised of this option, nor that the Administrative Appeals Tribunal (AAT) could review a refusal by the agency to refund an application fee.
Nor was this discretion to refund a fee, or the right of appeal to the AAT, mentioned by the agency in its correspondence with the Ombudsman. It appeared to the Ombudsman’s office that the individual complaint from Ms B pointed to a systemic problem in the agency—that its officers were generally unaware of the legislative requirements. Their actions were also at odds with a commitment by the agency in its Client Service Charter to provide clear and accurate information to the public.
When these points were brought to the attention of senior officers of the agency, they acknowledged the problems and instituted a wider review. This led to a new training program for staff, a new suite of letters to ensure that applicants will be properly informed of their rights, and new controls over the quality of information provided to members of the public. Ms B was provided by the agency with an apology and a refund of her application fee.
Lesson:
It is fundamental to good government that agency staff know and correctly apply the legislation they are administering. It is equally important that staff honour the commitments made by the agency in its Client Service Charter.
Agencies should never assume that these conditions are being met. Breaches will inevitably occur. Some breaches will be one-off errors, but others will point to a wider or systemic problem in the agency. Complaints are an excellent way of detecting errors and mistakes in agency administrative practice, and assessing whether general reforms are needed.
Managing a breach of a client’s privacy
A client of a government agency asked for special procedures to be put in place so that other family members would not be aware of her whereabouts and she would be protected from harm. By oversight, when her new contact details were recorded by the agency, her family’s mailing address was still listed.
As a consequence, four letters to the incorrect address were automatically generated at a central mailing facility. The agency realised the error before the letters were sent, and attempted to override the mail-out by printing new letters at a local office. This was only partially successful, and at least one letter was sent to the family address. The agency could not confirm from its records whether other letters were also sent to the family address. Those other letters contained personal details, including her new name, telephone number, residential address, partner’s name and date of birth.
The Ombudsman found that there were insufficient guidelines to assist agency staff to prevent mail identified as being inappropriate from being sent. Nor was there any way of tracking what happened to locally generated letters. The Ombudsman was also critical of the agency’s internal privacy investigation, concluding that it was neither thorough nor accurate. The investigation had been finalised without any supervision by a more senior officer and without any quality assurance being conducted. Those steps should have been taken because of the sensitive nature of the case, arising from the genuine fear held by the client for the safety of herself and her partner.
These points were accepted by the agency, which reviewed its existing procedures both for tracking letters and for handling privacy investigations. The agency head personally intervened to apologise to the client for the way the agency had handled the matter and to offer to cover her relocation expenses.
Lesson:
When agencies deal with a large number of clients, it is important that the agency procedures make allowance for the unexpected and sensitive problems that can arise in individual cases. Agency staff must be trained to identify difficult cases, to isolate them for special treatment, and if necessary to escalate difficult cases to more senior or specialist officers. The personal intervention in this case of the agency head typified the senior level involvement that is sometimes required to resolve what is otherwise a routine administrative challenge.
Proper complaint handling
A member of the public complained by telephone to an agency that he had witnessed a staff member, Ms C, misbehaving in a way that could endanger both her and other members of the public. The agency officer who took the call made a written record of the complaint. Ms C was then shown a copy of the complaint, which identified the complainant. It was alleged that she then contacted the complainant and insulted him.
The written agency record of the complaint stated that the complaint lacked substance, but did not give a reason to support that conclusion. The record also included a disparaging comment about the complainant’s character. The record further showed that the agency manager responsible for investigating the complaint had contacted local police to discuss the complaint.
In a report to the agency, the Ombudsman concluded that it was inappropriate for the police to have been contacted, for the complainant’s identity to be disclosed to Ms C, and for the complaint investigation to focus on the complainant’s character rather than on the substance of the complaint. The Ombudsman was also critical of the uncoordinated and incomplete record kept by the agency of how the complaint was investigated (see Commonwealth Ombudsman Report No 17|2007).
Lessons:
It is important that agencies have clear guidelines on handling complaints from members of the public. The guidelines should recognise that complaints can vary greatly in nature—some will relate to minor and routine matters, while others will relate to potentially serious or sensitive allegations against agency officers. Complaints may have to be handled quite differently depending upon their nature.
The guidelines should address issues of the kind exposed by this investigation—protecting personal privacy during an investigation; focusing an investigation on the substance of the complaint and not the character of the complainant; and establishing a centralised system for recording how complaints were handled.
FOI and electronic records
A former staff member of an agency who had commenced ‘unfair dismissal’ proceedings against the agency made several requests to the agency under the Freedom of Information Act 1982 for copies of personal electronic documents, such as emails and personal folders. There were potentially tens of thousands of documents, located in various systems across two agencies rather than in a single information management system.
The agency devoted significant resources to handle the requests, but there were shortcomings nevertheless. There were delays of more than 110 days, exceeding the statutory time period of 30 calendar days. The applicant treated some of those delays as a ‘deemed refusal’ and appealed to the Administrative Appeals Tribunal. The delays also impaired the applicant’s preparation for the unfair dismissal hearing.
The Ombudsman concluded that the requests would have been better handled, and some of the delay and disputation avoided, if the agency had provided an electronic log of its documents to the applicant. This could have assisted discussions between the applicant and the agency to reduce the scope of the requests, to avoid delay, and to clarify which documents were exempt.
The Ombudsman identified other weaknesses in the agency’s processes. Some staff were not adequately trained in handling an FOI request of this kind. The negotiations with the other agency that held some of the records had not gone smoothly, and this difficulty should have been escalated earlier within the agency.
Lesson:
FOI requests to agencies increasingly apply to electronic records. A special problem can arise for an agency in deciding which documents, or electronically stored data, come within the scope of a request. This issue has become more significant since the FOI Act was enacted in 1982.
It is important that agencies update their FOI handling procedures, to address issues arising from electronic records. It is also important that complex FOI problems are identified early within agencies and brought to the attention of managers with appropriate skill and experience.
Diary notes
Conference
The role of the Ombudsman—yesterday, today and tomorrow
Australian and New Zealand Ombudsman Association Inaugural Conference
RACV Club Melbourne on 22 and 23 April 2008.
(ANZOA Conference 2008 Programme)
Reports
Lessons for public administration
In August 2007, the Commonwealth Ombudsman released a report that draws together ten lessons from 247 referred immigration detention cases that are relevant to all areas of government (Commonwealth Ombudsman Report No 11|2007)
Recent publicly released reports by the Commonwealth Ombudsman
Department of Immigration and Citizenship—Notification of decisions and review rights for unsuccessful visa applications (Commonwealth Ombudsman Report No 15|2007)
Application of penalties under Welfare to Work (Commonwealth Ombudsman Report No 16|2007)
Australia Post—Investigation of a complaint about a Postal Delivery Officer (Commonwealth Ombudsman Report No 17|2007)
Comcare—Identifying the rehabilitation authority of a former Australian Government employee (Commonwealth Ombudsman Report No 18|2007)
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