CHAPTER 6 | problem areas in government decision making

Introduction

The problems that people encounter in dealing with government are sometimes unique, but at other times there are common themes. This chapter takes up a few problem areas that were identified in the course of complaint handling and investigation in 2004–05. There are other perennial problems taken up in last year's report that have not been highlighted this year. Two that arise frequently in Ombudsman reports are record keeping, and the accuracy or quality of agency advice, especially oral advice.

Falling through the cracks

Government is a complex structure, of many agencies, laws and programs. The federal division of responsibilities between the Australian and State governments adds to this complexity. Some of the complaints and inquiries that are brought to the Ombudsman's office arise from this structural feature of government. For example, roughly 40% of complaints and inquiries to the Ombudsman are 'out of jurisdiction', reflecting the fact that people are unsure about where to turn to resolve a problem.

Another difficulty facing many people is that the issue confronting them crosses the boundaries of different programs or the responsibilities of different agencies. For example, three entities—universities, the Australian Government Department of Education, Science and Training (DEST), and the Australian Taxation Office (ATO)—administer the Higher Education Contribution Scheme (HECS). Most universities fall within the jurisdiction of State Ombudsmen, although students with HECS problems also have a right of appeal through DEST to the Commonwealth Administrative Appeals Tribunal, or to the ATO. This can be confusing for students. During 2004–05, we assisted students where the matter fell clearly within our jurisdiction and we provided information about their options where the matter fell outside our jurisdiction.

'Another difficulty facing many people is that the issue confronting them crosses the boundaries of different programs or the responsibilities of different agencies.'

In a complex system of laws and rules, there is a further risk that a person who is acknowledged to be in need of government assistance will fall through the cracks of the different assistance programs that are available. An illustrative complaint that we resolved this year concerned an elderly veteran, living in an aged care facility, who was in need of a new motorised scooter. The issue in contention was whether the responsibility was borne by the Department of Health and Ageing, which administered the Quality of Care Principles for aged care facilities, or the Department of Veterans' Affairs (DVA), which provided assistance to veterans. After considerable correspondence and meetings, the issue was resolved with DVA agreeing to buy a new scooter for the veteran (which he is happily now using). The issue of principle was not necessarily resolved by the outcome in this case, and we wrote to both departments suggesting that they meet to develop a practical solution to the inconsistencies in their respective policy approaches.

Another and related source of complaints to the office is people who fall 'off the cliff'; that is, outside the rules for eligibility for a government benefit. Eligibility for Medicare benefits is a case in point. People resident in Australia who are obliged to pay the Medicare levy under Australian taxation law are not necessarily entitled to a Medicare card or eligible to claim benefits.

'... complaints from people who fall outside the rules for eligibility for a government benefit.'

To surmount that exclusion a person may have to satisfy the Health Insurance Commission that they live in Australia (and are not here just temporarily) and that they are an 'eligible person' under the Health Insurance Act 1973. Among the eligibility requirements are that the person can provide a passport, birth certificate or visa, and residency documents such as a rates notice, photographic drivers licence, financial institution card, or rental contract. Complaints are made to the Ombudsman alleging that the eligibility requirements are administered in an unreasonable manner. One such complaint was from a person who had retired from the Navy in 1985, had been travelling the world since, and had been paying the Medicare levy and completing tax returns. After being refused a Medicare card, he complained that either he should be able to get a Medicare card or not have to pay the Medicare levy.

The scheme administered by the Australian Prudential Regulation Authority (APRA) for early release of superannuation benefits has also given rise to complaints about eligibility requirements. APRA can approve an early release of benefits to enable a person to make a payment on a loan to prevent foreclosure of a mortgage on their principal place of residence. This power can only be exercised where the mortgagee gives APRA a written statement that payment is overdue and the mortgagee will foreclose on the mortgage if the person fails to pay the amount owed.

Some complaints to our office were from people who had used their house as security for a loan, but not by way of a mortgage. APRA had no power in that situation to approve an early release of superannuation benefits, though the realisation of the security by the lender would have the same practical effect as the foreclosure of a mortgage. This ties in with an issue raised in our 2003–04 annual report (pages 86–87) as to whether a safety net discretion to deal with the unexpected or exceptional case should be a feature of complex statutory schemes.

Automated decision making

Australian Government agencies are turning increasingly to computerisation and expert systems in the administration of programs. The systems perform various functions and stages in decision making and service delivery. The integrity of these systems is vital where government administration is characterised by mass decision making, particularly in areas of financial entitlement, adjustment and benefit provision, such as welfare veteran support benefits, child support and taxation.

Automated administrative processes have greatly improved the efficiency of much government administration. However, automated processes can sometimes fail, causing problems and confusion. The risk that this poses to administrative law principles was the subject of a recent report by the Administrative Review Council, Automated Assistance in Administrative Decision Making (Report No. 46, 2004).

The issue has also been taken up in earlier annual reports of the Ombudsman. For example, our 2002–03 annual report (page 27) noted a 21% increase in complaints, consistent with problems and increased workload flowing from the Child Support Agency introduction of a new computer system in the previous year. Subsequently, our 2003–04 annual report (page 42) noted a 20% reduction in complaints against the agency, due primarily to bedding down of the new computer system.

'The integrity of these systems is vital where government administration is characterised by mass decision making.'

Complaints received in 2004–05 illustrate the range of issues arising from automated decision making and administration. One problem area is the difficulty faced by agencies in cancelling or negating a system-generated letter prior to it being sent to a client or customer. Complaints were received about problems encountered in an agency's mail merge program when conducting a mass mail-out to several thousand people; some people received letters they should not have received. Our inquiries revealed that the agency was aware of its error, had alerted the Privacy Commissioner to the possible breaches of privacy, and had already begun to provide the individuals concerned with appropriate remedies.

Another complaint was from a person who had received three notices generated on the same day, including one notice suggesting that the complainant need take no action until a further notice was issued. The complainant was understandably annoyed when a subsequent interest charge was levied. The agency accepted that it was fair and reasonable to cancel the interest because of the likelihood of confusion about the need to pay by the due date. The agency also agreed to review its current procedures and systems to ensure that, where possible, notices are issued in a logical sequence to avoid confusion.

A similar problem arose for a person who received three letters from an agency in a five-day period, all informing him of different decisions based on changes to his income. Two of the letters contained incorrect information, and the third contained correct information. The person incorrectly interpreted these letters to suggest that the agency had made three separate changes, based on different income information. Our inquiries revealed that this was not the case and, in part, the multiple letters occurred because the system sent out the letters despite a staff member having cancelled the letters.

We also received a number of complaints from people who, for behavioural reasons, were banned from contacting an agency by any method except in writing. The complainants were still receiving computer-generated correspondence inviting them to telephone to discuss the contents of the letter. The letters had been generated in bulk computer runs. The agency's computer system is not able to automatically send an alternative letter to this group of people inviting them to contact in writing, instead of by telephone. The agency informed the Ombudsman that it is considering enhancements to its computer system to better manage individual contact arrangements.

The limits of government responsibility

The grievances that stem from people's contact with government are sometimes unavoidable or difficult to redress by direct action. It can nevertheless be important for government agencies to be responsive in dealing with people who feel aggrieved, and to acknowledge the source of the grievance.

This point is highlighted by complaints received in the law enforcement jurisdiction from people who have been subject to coercive law enforcement action, ranging from the execution of a search warrant, questioning and arrest, to the instigation of a prosecution. The distress often felt by people in this situation can be greatly magnified when they are later exonerated, or prosecution action is not taken.

'It can be important for government agencies to be responsive in dealing with people who feel aggrieved ...'

One illustrative complaint during the year was from a member of parliament on behalf of a constituent who had been the subject of a police search of her work computer because of suspected child pornography. The police took no further action, but she felt that the police search had itself been damaging to her peace of mind, relationship with her employer, and reputation among her colleagues. Our investigation did not find any ground on which we could be critical of the police, who had followed a proper procedure in obtaining a warrant to conduct a search.

The price of living in a regulated society is that citizens may be subject to intrusive law enforcement activity. There is a public expectation that law enforcement agencies will react to the intelligence they receive. This carries a risk that people will be incorrectly implicated in alleged offences and will only be exonerated after investigation or trial.

That said, the Ombudsman's office has generally urged government agencies to temper that unpleasant reality by executive action that addresses the grievances that arise from law enforcement and regulatory action. The Australian Federal Police's workplace resolution system noted elsewhere in this report is an effective model in this respect. Being prepared to apologise can also lessen hurt and distress, even though error by the agency has not been proved.

The limits of government responsibility and responsiveness are also tested by complaints that stem from the failure of private entities to meet their obligations to government, with consequent injury to others. An example is complaints about the superannuation guarantee. Where an employer fails to pay superannuation contributions in respect of employees, the ATO can pursue the employer for the unpaid superannuation. However, the ATO is limited to using the recovery mechanisms established by law. If an employer goes into insolvency, there is often little scope for the ATO to recover the monies owed to the employees.

The government has established the General Employee Entitlements and Redundancy Scheme to assist such employees to recover some work-related entitlements. Even then, some employees will still not receive their full entitlements. In such cases, it is difficult for our office to go beyond investigating with a view to reassuring complainants that government has done all it reasonably can to assist in the recovery of their lost entitlements.

Our tax work reveals other similar examples. Tax agents play an increasingly important role in our taxation system, with almost 75% of individual tax returns prepared by agents. Although there is some scope for administrative discretion, the ultimate responsibility for the return rests with the taxpayer. Where an agent makes a mistake in a return, or fails to lodge a return, the taxpayer will generally carry the burden for those errors. One line of investigation we can pursue is to ensure that the ATO has considered all the facts and been prepared to exercise any available discretion to assist the taxpayer. Beyond that, we will generally advise the taxpayer of their right to take up the matter with either the relevant Tax Agents' Board or professional body, such as the Institute of Chartered Accountants in Australia.

Action taken by government contractors that affects members of the public is another area where we have cause to examine the limits of government responsibility. This has been a particular theme this year in complaints about actions occurring in immigration detention facilities managed by a private service provider under a contracted arrangement with the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). The department retains an overall duty of care for detainees, and the Immigration Detention Standards provide the framework for how detainees are to be managed and treated. The department may nevertheless decline responsibility for actions taken by independent contractors, such as medical practitioners.

In one disputed instance during the year, we were critical of DIMIA for declining responsibility for inadequate medical treatment provided to a detainee, who suffered permanent incapacity as a result. The Ombudsman's letter to the department expressed dissatisfaction with the outcome: 'It is disappointing that this situation has reached a point where the only practical course of action now open to Mr N and his family is the costly pursuit of the actions of medical professionals employed by [the detention service provider] for the Department. I note the Department's refusal to offer an apology to the family. I accept that the Department's stance on this matter is not one which further debate will change but would have hoped that the Department might indicate some regret to the family on a 'without prejudice' basis for the events that occurred while in the Department's care.'