CHAPTER 5 | how the ombudsman helped people

Introduction

The major role of the Ombudsman's office is to provide a response and some kind of resolution to the thousands of complaints and other approaches that we receive each year.

This chapter, first introduced in last year's annual report, illustrates that theme by drawing together examples of how the Ombudsman's office helps people resolve their complaints, often without investigation or without any adverse finding against an Australian Government agency. This facilitation of effective complaint resolution accounts for the great bulk of our work each year. In reporting on the work of the office, it is important to emphasise our range of complaint-handling methods and techniques, and the varied ways in which we provide assistance to the public.

'... effective complaint resolution accounts for the great bulk of our work each year.'

A common complaint against government and other large organisations is that individual interests are easily submerged by other considerations. This grievance has gained intensity in an age of automated decision-making and bulk processing. And yet at the end of every decision or process is a person. A chief reason for the existence of an Ombudsman office is to focus attention on the individual impact of government administration. We aim to tailor our response to the individual problem, but see broad themes emerging that are taken up in this chapter.

Some of the themes discussed below, such as our complaint referral work and liaison with members of parliament, continue on from similar themes identified in last year's report. Others discussed include our ability to work around a problem and the use of mediation and conciliation in complaint resolution.

Added value through complaint referral and advice

As we reported last year, the majority of complaints and inquiries to the Ombudsman are handled by referring complainants back to the agencies concerned. This is consistent with good dispute resolution principles, which stress that an agency should generally be given the first opportunity to consider a complaint and resolve it. Most agencies have internal complaint-handling procedures that can deal effectively with most of the complaints they receive. By handling complaints directly, agencies are better placed to learn from their mistakes, to clarify any public misunderstanding about the agency's policies and practices, and to rebuild trust with the clients of the agency. Complaint referral is also often the quickest means of addressing a person's complaint.

This year, we were able to assist 5,988 complainants by providing them with advice about how best to pursue their concerns with the relevant agency. Often, this involves explaining an agency's complaint process to the complainant and providing relevant contact details. Our website also sets out practical tips for complainants on how to resolve their complaints and disputes.

In some instances, our office is more actively involved in the complaint referral process. In our 2003–04 annual report, we reported on our standing arrangement with the Australian Taxation Office (ATO). This arrangement enables many tax complaints to be referred efficiently to the ATO's internal complaint-handling unit, eliminating the need for the complainant having to repeat the details of their complaint to the ATO. This year, we employed a similar arrangement with Centrelink in relation to complaints from people who missed out on the government's $600 one-off bonus payment for families. The arrangement enabled us to provide the details of the complaint direct to Centrelink so as to ensure that the people were appropriately paid (see 'Looking at the agencies' chapter of this report for more details).

Ombudsman involvement in the referral process can also reinforce the need for agencies to address complaints quickly and effectively, as shown in the Safety concerns case study.

CASE STUDY | safety concerns Mrs A, the wife of a member of the RAAF, complained to the Ombudsman that the cooktop in their Defence Housing Authority (DHA) property was leaking gas. She was concerned for the safety of her four young children. A week before she contacted our office, gas fitters told her that the cooktop needed to be replaced and DHA had advised her that a work order had been placed to carry out the work. We contacted DHA upon receiving the complaint. DHA responded shortly afterwards, advising that arrangements had been made to replace the cooktop the next day. DHA had called Mrs A to confirm the arrangement and to ensure she had the correct contact phone number for urgent maintenance matters for future reference. Mrs A had not been aware of the contact number or of the undertaking by DHA to respond to requests to the 1800 number within 24 hours.

The Ombudsman's office views it as an important part of its function to work with agencies in strengthening their internal complaint-handling mechanisms. This is taken up at other points in this report—notably in relation to the Australian Defence Force (ADF), concerning our participation in a joint review of the ADF's Redress of Grievance process; and in relation to immigration, in the emphasis we have given in dealings with the Department of Immigration and Multicultural and Indigenous Affairs to the importance of strengthening its complaint handling, particularly in detention facilities.

Another venture, introduced this year as a pilot for a broader office-wide study, was a project to test the effectiveness of our referral processes in relation to tax complaints. At the time of reporting, the project was ongoing. We will report our findings in our 2005–06 annual report, as well as our progress in examining the effectiveness of our complaint referral function across a broader range of agency complaints.

Working around a problem

Almost thirty years of handling complaints about Australian Government agencies has taught us to focus on finding practical solutions to the problems people experience in their dealings with government. In many investigations we are able to identify a way of working around the problem a person is experiencing, without the need to determine if there was any fault by the agency.

'... finding practical solutions to the problems people experience in their dealings with government.'

This commonly occurs where there has been a communication breakdown between the complainant and the agency. The Ombudsman's office can act as a conduit between the two parties, as the Acting as a conduit case study illustrates.

CASE STUDY | acting as a conduit Ms B raised concerns about the Health Insurance Commission's (HIC) decision to reject her Medicare card application. HIC had rejected it because they had not received certain certified documents that they requested. Ms B claimed that she sent them to HIC several times. To resolve the situation, we arranged for Ms B to send the documents to our office so that we could forward them to the HIC. Upon receiving Ms B's documents, HIC approved her application.

At other times, we can make suggestions to an agency about alternative ways of dealing with a problem. This might involve escalating a matter to a more senior officer within an agency, or encouraging a change of case officer where the relationship with a complainant has apparently broken down. Where a complaint involves multiple contact points within an agency, an effective solution can be the appointment of a case manager. The case study, Case managing a resolution, demonstrates how the appointment of a case manager can be beneficial for both the agency and the complainant.

CASE STUDY | case managing a resolution Mr C, a solicitor, complained to the Ombudsman on behalf of a family property business with a range of different tax problems. Some tragic personal circumstances had combined with a decade of inattention by the taxpayers to their tax affairs, to the point that they were facing prosecution for non-lodgment, recovery action on outstanding tax debts, ongoing audits, and a series of related objections and appeals. Mr C was struggling to manage the growing tax problems and dealing with multiple contact points within the Australian Taxation Office (ATO). We approached the ATO and suggested that it may be beneficial for both the ATO and the taxpayers if there were a more co-ordinated approach to the matters. The ATO agreed, and appointed a central contact person independent of the existing case officers to case manage the various issues. The ATO case manager was able to meet with the taxpayers to get a better understanding and clearer overview of their circumstances. From this perspective, the case manager was able to work with the taxpayers and Mr C to facilitate compliance with their tax obligations.

Working with members of parliament

Representations to the Ombudsman's office from members of parliament (MPs) on behalf of constituents who are struggling with government administration are an important part of our democratic system. Like the Ombudsman's office, MPs are keen to improve the quality of public administration. Accordingly, over the course of the year, the Ombudsman continued a commitment to giving personal and priority attention to complaints from MPs and their staff.

This more focused approach allows us to quickly and effectively deal with MPs' complaints, particularly when they raise an issue of some urgency, as the Speedy response case study shows.

CASE STUDY | speedy response A member of parliament came to us with a complaint from a constituent, Mrs D, who was concerned about the actions of the Australian Electoral Commission (AEC). Mrs D told the MP that the AEC had removed one of her sons (who was overseas) from the Australian electoral roll, taking away his ability to vote in the upcoming election. We contacted the AEC, which advised that it was willing to assist in reinstating Mrs D's son on the roll and to outline his voting options. To ensure that the matter was resolved quickly (the election was to be held shortly), Mrs D was invited to discuss the situation directly with the AEC. The AEC explained that Mrs D's son could either provide written confirmation of his 'real' place of living within Australia or complete a declaration vote certificate to enable him to cast a declaration vote while overseas.

Conciliation and mediation of complaints

It is now well accepted that good complaint handling is an effective alternative dispute resolution (ADR) mechanism. In turn, ADR processes, especially conciliation and mediation, can usefully be employed in effective complaint handling. Ombudsman staff employ these techniques in their dealings with agencies and complainants. We can also encourage both agencies and complainants to consider more formal uses of ADR as an efficient and often satisfactory means of resolving a dispute, particularly when the only alternative is litigation.

Mediation can often facilitate a mutually acceptable solution to an unresolved dispute. For example, the Mediated remedy case study shows how Ombudsman staff encouraged parties to a dispute to use an external mediator to determine a fair and reasonable amount for a compensation payment. Sometimes our office plays a more direct role in helping to negotiate fair outcomes for both complainants and agencies, as the Negotiating a fair result case study illustrates.

CASE STUDY | mediated remedy Mr E had developed a prototype for a new postage product that he wanted to sell through post office shops, with the cost of the postage included in the retail price of the product. He emailed a picture of the product to Australia Post, asking what it would cost to post the item. Australia Post provided oral advice on the cost. Mr E went ahead with developing his product, investing significant time and money, only to be told by Australia Post that the final postage cost would be more than three times what he had originally been advised. Mr E considered that the increased postage cost would make his project financially unviable. Following our intervention, Australia Post agreed to compensate Mr E, but the two parties could not agree on a figure. We referred Australia Post and Mr E to a free mediation service, which facilitated an agreement about the appropriate remedy. Australia Post is also looking at its procedures for providing advice on such matters.

CASE STUDY | negotiating a fair result Mr F was receiving income support payments and sought a small emergency payment from Centrelink in order to avoid being sent to jail for 40 days for failure to pay a long-standing debt to a hire purchase company. The company indicated that it would be willing to put a stay on legal proceedings if Mr F could pay $100 immediately and agree to repay the remainder of the debt via instalments. Centrelink refused Mr F's request on the grounds that his financial circumstances were reasonably foreseeable, and he would have known of the debt for some time. Mr F complained that although he had been made aware of the debt some years ago he had not been officially notified that the company sought repayment, until he received a summons to appear in court. By the morning of the court hearing, Mr F had raised $50 but still required a further $50 in order to avoid a possible jail sentence. Following negotiations between our office and a Centrelink social worker, it was agreed that Mr F should be given the benefit of the doubt, and that it should be accepted that he would not have known that the debt was being pursued until he received the summons. An emergency payment of $50 was approved, and Mr F was able to avoid jail.

Another area where we have seen the effective use of ADR in complaint handling relates to complaints about the Australian Federal Police (AFP). Some police complaints are about relatively minor matters or reflect a misunderstanding about police procedures. Since the mid-1980s, the AFP's Professional Standards team has conciliated such complaints. While this has been a largely successful measure, it has sometimes been at significant cost and often delay, particularly when some complainants only want their concerns brought to the attention of particular AFP members. In such cases, the complainants have not found the conciliation process particularly useful.

During 2004–05, the Ombudsman's office and the AFP agreed to trial a 'conciliation by letter' process. This process provides complainants with a written explanation from the AFP about the events that they experienced, including an apology where warranted, and a source of feedback to the members concerned. These conciliation letters also advise complainants about their right to approach the Ombudsman's office if they are concerned about the outcome of their complaint. While the 'conciliation by letter' initiative is clearly less personal than face-to-face conciliation, it appears to have increased the ability of the AFP to respond to the issues identified by some complainants. It has also provided more complainants with the remedies they have been seeking.

'... conciliation letters also advise complainants about their right to approach the Ombudsman's office ...'

Prompting agency action

A common way the Ombudsman's office can help people is through prompting an agency to take the necessary action to resolve the complaint. Where an agency's complaint-handling system is highly responsive, this may only require bringing the complaint to the agency's attention. In other cases, we can provide suggestions as to how a matter might be addressed. We may also be able to provide an agency with more information, or information in a more useful format than the complainant is able to provide, enabling their matter to be dealt with appropriately.

The three case studies—Prompting an internal investigation, Encouraging direct contact and Compelling individual circumstances—illustrate a range of ways in which we have been able to prompt an agency to respond to a complainant's concerns. In the first case study, the agency commenced an internal investigation after our initial approach. In the next, we were able to facilitate more direct contact between an agency and a complainant. In the third case study, we were able to encourage an agency to focus on the particular and compelling individual circumstances of the complainant.

CASE STUDY | prompting an internal investigation Ms A contacted our office alleging that a Royal Australian Air Force (RAAF) member had presented as evidence, in a private legal matter, a letter allegedly sent to Ms A by the Commanding Officer (CO) of the local RAAF unit. While Ms A had received a letter from the CO, the version she had received differed considerably from the one presented during the legal proceedings. Ms A was concerned that the RAAF member may have accessed documents that he was not authorised to access and used the document for a purpose other than that intended by the CO. Following our contact with the Department of Defence, the CO agreed to initiate a formal internal investigation to determine how the version of the document had been accessed and whether or not security and privacy regulations had been breached. Ms A was satisfied that our involvement had resulted in an investigation being initiated.

CASE STUDY | encouraging direct contact Mr H raised concerns about the counter service given by one Centrelink office. He claimed he had to stand in a queue for almost an hour before being served, and was concerned that Centrelink made no effort to put more staff on during a busy period. Ombudsman staff raised Mr H's concerns with the relevant Centrelink office manager, who agreed to contact Mr H directly to discuss the matter. Mr H was satisfied with the action and clarification given by Centrelink.

CASE STUDY | compelling individual circumstances Mr I ran a small business and relied on his wife to manage the financial aspects of the business. Unbeknown to Mr I, his wife was suffering from a deteriorating mental health condition and had allowed the business to get behind with its tax affairs. Mr I complained to the Ombudsman about the apparent decision of the Australian Taxation Office (ATO) to deny him release from his tax debts. Following our inquiries and the provision of additional information, we suggested that given Mr I's compelling personal circumstances there might be scope for the ATO to take a more flexible approach. While release from the debt was still not an option, the ATO agreed to remit accumulated interest on Mr I's tax debts and negotiated a suitable repayment arrangement that took into account Mr I's capacity to repay the debt.