Number 2—July 2008
Failing to provide an opportunity to be heard
Applying incorrect test
Effective complaint mechanism
Dealing with debt
Cooperation between agencies
Good recordkeeping
Freedom of information administration
Information for agencies—dealing with the Ombudsman's office
Recent publicly released reports
This second e-bulletin presents general lessons that emerge from recent Ombudsman complaints and reports. The examples illustrate that administrative problems arise in all areas of government, and in the best-designed programs.
The scale and complexity of government programs is one element that throws up unexpected problems. Diversity and instability in people’s individual circumstances is another element. Yet another, illustrated in this e-bulletin, is that a failure to deal with a problem when it first arises can allow the problem to grow and become more serious.
A common message from the examples in this e-bulletin is that administrative problems that seem small in scale can cause great anguish or disadvantage to members of the public. Another message is that a problem that has happened once can easily happen again. The complaints that people have against government require individual attention but are rarely unique.
There are lessons for all of government in the individual problems that other agencies encounter.
Prof. John McMillan
Commonwealth Ombudsman
Mr A complained that a decision was made to change his assessment without him being given the opportunity provided by statute for a meeting. A meeting had been scheduled, but the agency wrote to Mr A advising him that the meeting was postponed. The letter arrived three days after the new meeting time. He immediately contacted the agency and was advised that the purpose of the meeting was merely to enable the decision maker to clarify the evidence. The decision maker was not informed that Mr A had contacted the agency after receiving the letter. The decision maker proceeded to make a decision to change his assessment on the basis that Mr A had elected not to attend a meeting.
Lesson:
Procedural fairness is a fundamental tenet of administrative law. A person has a right to be heard before an adverse decision affecting their interests is made. In this case, the officer who took Mr A's call did not appreciate the significance and purpose of the appointment he had missed. More should have been done to ensure that Mr A was aware of the new date, given that the earlier meeting had been postponed by the agency. The decision maker should have been told of the late arrival of the notification letter, so that a new appointment could be arranged before a decision was made.
The agency acknowledged the failure in this case, and also introduced guidelines to ensure procedural fairness will be provided to customers and to ensure staff understand the importance of providing customers with an opportunity to be heard.
A complainant stated that an agency had incorrectly raised a debt against him, following his wife receiving a compensation payment. She had received an out-of-court settlement for an injury she had sustained at work. The settlement comprised workers compensation and common law damages. This was noted in court documents that she provided to the agency.
The greater portion of the out-of-court settlement was for common law damages. The agency instead made a decision, applying an internal policy, to treat 50% of the total sum as reimbursement of lost income. This resulted in a substantial debt being raised against the couple.
Investigation of this complaint revealed that decision makers at each level in the agency did not appear to understand the nature of the court documentation provided by the complainant’s wife. It was not until she provided independent legal advice to the agency that it obtained its own legal advice and reconsidered the matter. This resulted in a recalculation that reduced the debt payable by the complainant.
The agency accepted there was a need to introduce a new advanced training module for staff on entitlement calculations. The agency also undertook to apologise to the couple and to explain how the errors had occurred.
Lesson:
Agencies should be mindful of policies that can be difficult or complex to apply. Staff must be adequately trained and supported to make difficult decisions, and to seek appropriate external advice when difficult cases arise.
A complaint from the former proprietors of a business alleged that it had been sent into ruin as a result of inappropriate and poor supervision by a government regulator. The nature of the business was such that the law required close regulation, control and monitoring to ensure consumer safety and to ensure confidence in the quality of Australian products.
The complaint was complex as the regulation was specialist in nature and had extended over several years prior to the complaint being lodged with the Ombudsman’s office. We were not in a position to review the appropriateness of the regulation, the quality of regulatory staff or the factors that caused the business to fail.
What we were able to identify was that over many years the proprietors had made numerous complaints, both orally and in writing, that had not been seriously addressed by the regulator. The failure to respond to complaints in an effective manner had resulted in identifiable extra costs and missed revenue opportunities for the business. The agency accepted this assessment and offered compensation to the business of $1 million.
A particular problem highlighted by the investigation was that the agency did not have a formal, documented and advertised complaints mechanism in place.
Lesson:
Dealing effectively with complaints is central to effective regulation and service delivery. A failure to do so can cloud any objective assessment of whether the regulation or service delivery is effective and appropriate. Dealing with complaints when they first arise is essential to prevent them festering and poisoning relationships between government and those whom it regulates or governs. A problem that is not resolved can have costly consequences many years later.
An accessible and professional complaints mechanism is a necessary requirement in any area of industry regulation that can have a significant impact on the operations, costs, revenue and ultimate viability of businesses.
There are numerous ways a person can incur a debt to a government agency. For example, a person may incur a debt if an agency charges a fee for a service it provides; if the person was overpaid a benefit; or for a period that a person was placed in immigration detention.
A person can ask that a debt be waived, by applying either to the agency that levied the debt or to the Department of Finance and Deregulation (Finance). Another option available to an agency is to write off a debt that a person is currently unable to repay.
Write-off is only a temporary measure and does not extinguish the debt. A debt that is written off can be pursued by the agency if a person’s financial circumstances improve. By contrast, a debt that is waived is not recoverable at a later time.
Numerous complaints to the Ombudsman’s office, across different areas of government, have highlighted confusion among people as to the distinction between waiver and write-off. Many people assume that a debt that is written off is permanently erased. Nor are people always aware or understand that waiver decisions are generally made by Finance: people often mistakenly believe that the agency that levied a debt can also waive it. (Only Finance can waive a debt, unless an agency has a specific statutory power to do so.) These and other problems were addressed in a recent Ombudsman report on detention debt waiver and write-off (see Commonwealth Ombudsman Report No 02|2008).
Lesson:
A debt levied by a government agency can be a substantial and worrying burden for a member of the public. A person should be told clearly and in plain language why a debt was imposed, and the options available for paying off the debt or applying to have it waived or written off should the person face financial difficulty. The distinction between waiver and write off should also be clearly explained.
If a person applies for waiver or write off, they should be kept informed of progress on their application, of any decision that is made, and the agency or officer making that decision. Applications for special treatment should be prioritised by agencies to ensure they are dealt with in a timely manner that takes account of people’s special circumstances.
A person who applies for waiver of a debt is entitled to have that application assessed by Finance, even if the agency decides to write off the debt. Agencies should review their current procedures to ensure that this practice is followed.
A recent Ombudsman report on damage to inbound international postal items contains broader lessons for agencies that handle inquiries and claims about property damage (see Commonwealth Ombudsman Report No 04|2008).
The nub of the issue was that three agencies had overlapping responsibilities for dealing with inbound international mail—processing the mail, customs clearance and quarantine inspection. If a mail item was damaged, people were often unclear about which agency to approach. A complaint made to one agency could be referred to another, with no agency ultimately accepting responsibility for dealing with the matter.
The Ombudsman report found that improvements could be made in three areas:
- identifying and recording damage to an item at the time it was caused or noticed
- taking appropriate action when damage occurred, to secure the damaged item and prevent further deterioration
- informing people about how they could claim compensation for loss or damage to an item.
The agencies agreed that their processes could be revised and coordinated to provide better outcomes for members of the public. In particular, they agreed that members of the public should be entitled to a single point of contact for complaints and that agencies should work together to apportion responsibility without requiring members of the public to go from one agency to the other in an attempt to find someone who would accept responsibility for paying compensation.
Lesson:
In all areas of government, agencies work closely together to discharge overlapping functions. The actions of one agency can often cause detriment, inconvenience, loss or damage to a member of the public. This will frequently give rise to a query or claim from the person adversely affected. Quite possibly, the person will not have close knowledge of the inter-agency arrangement or how to pursue a claim.
Agencies that collaborate in service delivery or regulation must also collaborate in handling complaints about their actions. The separate identity of the agencies should not become a barrier—or worse, an excuse—that prevents members of the public from raising a query or pursuing a legitimate claim.
A recent Ombudsman report examined allegations that the Department of Defence had been forewarned of a safety risk that caused the 1998 fire on the HMAS Westralia (see Commonwealth Ombudsman Report No 03|2008). The report underscored the importance of good recordkeeping.
This investigation was prompted by allegations that Defence had been forewarned in 1997 and 1998 that faulty fuel lines on the HMAS Westralia posed a safety hazard. At the heart of the allegations was an unsigned minute from February 1998 of a meeting held that month between Defence investigators and a private firm. The Ombudsman report doubted the authenticity of that document, and concluded that on balance the evidence pointed to it coming into existence at a later time and by an unofficial channel. Overall, the Ombudsman report found that the balance of evidence supported the conclusions of an earlier Defence internal investigation, which concluded that Defence had not been warned specifically of the safety risk.
Allegations about the HMAS Westralia fire had also been made to the Minister for Veterans’ Affairs in 2000, and referred to Defence. Defence decided not to investigate the anonymous allegations, as they lacked credibility. The Ombudsman considered that decision to be reasonable, but found that Defence had not documented clear reasons for not investigating, nor was there a clear audit trail of what action was taken at the time.
Lesson:
Good recordkeeping plays both an immediate and a continuing role in good administrative practice. It is not always clear at the time a record is created how important it may be in the future. In this investigation, everyday records such as running sheets and file notes became important to clarify the provenance and authenticity of other, more contentious, documents.
Good recordkeeping is ultimately a time saving rather than a time wasting activity. It is inevitable that some of the administrative decisions and actions of an agency will later be questioned—though which ones is never clear at the time. Appraisal of a decision, or investigation of a complaint, will be much harder and more contentious if the contemporaneous records are incomplete. Inadequate recordkeeping will expose an agency to allegations that can be damaging to its credibility and integrity.
Each year the Ombudsman receives up to 300 complaints about freedom of information (FOI) handling by Australian Government agencies. Delay in FOI processing is commonly the single largest complaint topic.
An investigation was recently completed by the office into FOI delays occurring in the Department of Immigration and Citizenship (DIAC), which in recent years has been the largest recipient of FOI requests among Australian Government agencies (see Commonwealth Ombudsman Report No 06|2008).
The Ombudsman report identified numerous causes of the FOI delays in DIAC. These included an increase in the number of FOI requests received by DIAC, the complexity of many requests, the number of locations at which records were held, the diffusion of data across electronic and hard copy files, poor communication with FOI applicants, and the centralisation of FOI processing. A major problem highlighted by the investigation was that requests for information which could be dealt with outside the FOI Act were being dealt with as FOI requests.
Actions taken recently by DIAC to address the problems highlighted in this investigation have led to a substantial decrease, both in the number of FOI requests and in delay in handling those requests. The number of FOI requests recorded by DIAC had dropped from nearly 15,000 in 2006–07 to about 9,000 in 2007–08. The number of requests on hand that exceeded the 30 day time period in the FOI Act dropped from 2,686 on 30 November 2007 to 439 on 19 June 2008.
Lesson:
The Ombudsman report concluded with a message to all Australian Government agencies. The FOI Act can impose complex demands on agencies. The causes of FOI delay and the measures that are required to tackle delay can be diverse. As the DIAC experience shows, difficulties in administering the FOI Act can be substantially reduced when there is a concerted and high level response from the agency.
FOI must be treated as a core business activity that receives appropriate resourcing and managerial attention. There must be a cultural recognition within government that access to information is both an important statutory right of members of the public, and an essential requirement for administrative transparency and open government.
Information on dealing with the Ombudsman’s office has been developed to assist agencies and individuals dealing with Ombudsman enquiries and investigations. The information is available on our website and provides an overview of the Ombudsman’s role, powers and responsibilities, and how the office deals with complaints and approaches. See Dealing with the Commonwealth Ombudsman’s office—Information for agencies
A series of fact sheets is being developed—the first two are available on our website:
We encourage you to link to the information on dealing with the Ombudsman’s office from your intranet site. The information is for general information only. If you have a query about the handling of a specific complaint, you should contact our office.
- Taxation Ombudsman Activities Report 2007—overview of complaints resolved and particular problem areas such as debt collection activities, non-payment of superannuation guarantee, provision of adequate information, the imposition of penalties, and lodgement and processing difficulties. The report reflects on the history of the Ombudsman’s work in handling taxation complaints and observes the changes in the taxation environment and progress of administrative law reform over a thirty-year period (Taxation Ombudsman Activities Report 2007)
- Damage caused to inbound international postal items, April 2008 (Commonwealth Ombudsman Report No 04|2008)
- Department of Defence—Allegations concerning the HMAS Westralia fire, April 2008 (Commonwealth Ombudsman Report No 03|2008)
- Department of Immigration and Citizenship—Administration of detention debt waiver and write-off, April 2008 (Commonwealth Ombudsman Report No 02|2008)
- Centrelink—Payment of independent rate of youth allowance to a young person, February 2008 (Commonwealth Ombudsman Report No 01|2008)
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