Commonwealth Ombudsman annual report 2005-2006

CHAPTER 8 | How the Ombudsman helped people

Introduction

Review of administrative decision making by courts and tribunals focuses on the correctness of a decision—for example, a decision to refuse a visa, to revoke a licence, or to cancel a social support benefit. The Ombudsman's office can examine the correctness of decisions, but most investigations focus on other problems that people encounter in their dealings with government agencies. This chapter illustrates the broader focus of the Ombudsman's role by looking at some of the varied ways in which we help people to relate more successfully to government.

'This chapter illustrates the broader focus of the Ombudsman's role ...'

Pinpointing the issue in dispute

There can be multiple elements in a single administrative decision. When a person is told by an agency that an adverse decision has been made, it can be important for the person to know if the decision turned on one particular issue. This will help them better understand the decision and query or challenge it in a constructive manner.

We are often able to help people penetrate the complexity of decisions and identify the core issues. Often an agency gives us a fuller explanation for its decision than it gave the complainant; that enables us to explain the decision more effectively to the complainant. This clarification can assist a person to understand or revisit a decision, as shown in the Insufficient reasons case study.

CASE STUDY | Insufficient reasons

The Trade Recognition Authority (TRA) refused Ms A's application to have her trade qualifications recognised on the basis that she had not provided some relevant employment records. Ms A requested a review and pointed out that she had provided the relevant records. Her review was not successful. Reasons were not given in the review notification letter from the TRA.

The TRA's response to our enquiries was significantly more detailed than that provided to Ms A. The TRA told us that Ms A's employment records did not include the dates on which she commenced and finished employment; and the area of work for which she was seeking trade qualification recognition was categorised differently in Australia than in her country of origin. Had Ms A been given this information when her application was initially refused, she would have been in a position to reapply and supply that information.

The TRA conceded that Ms A may have been disadvantaged in seeking a review because of the lack of detail in the original reasons and agreed to reconsider the application and any additional supporting documents. The matter was decided in Ms A's favour and her professional qualifications were recognised.

Even when a person can identify the issue that concerns them, they are often unaware of the range of services offered by an agency that may help them resolve that issue. We can help by making people aware of their options and providing advice about the best course of action, as the Various options case study.

'We can help by making people aware of their options ...'

CASE STUDY | Various options

Ms B complained to our office when she had difficulty meeting her tax debt due to personal and financial circumstances. We advised Ms B about the range of options available to her, and suggested that she consider seeking a review of the debt and suspension of the general interest charge. We also advised Ms B that the Australian Taxation Office sometimes gives full or partial relief from tax debts on the grounds of serious hardship, and told her where to obtain a debt relief application form. Finally, we suggested Ms B consider obtaining professional advice on debt and financial management.

Dealing with urgent and pressing issues

Although the Ombudsman's office does not provide emergency assistance to the public as a matter of course, it can sometimes intervene to avert executive action that cannot be undone—for example, it can elicit an undertaking from a government agency not to remove someone from Australia or to dismiss someone from the Australian Defence Force (ADF) pending an investigation. Decisions that have a significant and irreversible impact on people require flexibility in how they are implemented.

Members of the ADF can be involuntarily discharged in certain circumstances. Although members facing discharge are provided with 28 days notice of their discharge date, often they approach our office for assistance only towards the end of that period. In such circumstances, we ask the ADF to suspend discharge action while we review the records. The ADF's practice has been to agree to suspend discharge action for two weeks, during which time we review the matter and present any concerns to the ADF for reconsideration.

'Decisions that have a significant and irreversible impact on people require flexibility in how they are implemented.'

In the Delayed removal case study, the Department of Immigration and Multicultural Affairs (DIMA) considered whether a person's removal from Australia should be suspended until a review of their case was completed. After much negotiation with our office and obtaining legal advice, DIMA agreed to suspend removal in this case to ensure that the benefit of any changes recommended by the review of the case would not be negated by the fact that the person was no longer in the country.

CASE STUDY | Delayed removal

Mr C arrived in Australia with his parents when he was nine years old and assumed he was an Australian citizen. He was not, and the minister cancelled his visa on character grounds under s 501 of the Migration Act after he was convicted of criminal offences. On his release from prison, he was detained in immigration detention as he was an unlawful non-citizen. He was not removed from Australia at this time as he had outstanding litigation.

Mr C was within the scope of the Ombudsman's investigation into the cancellation of visas of long-term Australian residents, which was published in February 2006. We reviewed his case as part of our statutory role of reviewing the cases of people detained for two years or more. His litigation concluded and his removal became imminent while we were conducting the review of his case.

The Ombudsman wrote to the Secretary of DIMA, asking him to delay Mr C's removal until the completion of the report on s 501 decisions, as 'it is possible that we will make recommendations that, if accepted, would change the immigration status of some of those subject to the report ... and if removed, they would lose the benefit of any changes arising from the report'. Several meetings were held with DIMA officials to explore the legal options open in this case. In December 2005, DIMA asked the minister to consider using her detention intervention powers, while Ombudsman staff continued to monitor the situation, remaining in contact with the detainee, as removal remained a possibility.

The report on the Ombudsman's review of Mr C's long-term detention was submitted to the minister in November 2005. In December 2005, Mr C was granted a Removal Pending Bridging Visa and released from detention to live with his family. Mr C is currently included in a review being conducted by DIMA in response to the Ombudsman's report on s 501 decisions, and will not be removed until that review is finalised.

The investigation of complaints must also take account of the serious effect that decisions can have on people. This is illustrated by the following two case studies, in which the circumstances of the decisions were closely examined to ensure that they were properly made. In one case, described in the Priority hearing case study, our investigation showed that a decision to decline a priority hearing for an appellant was made by a person lacking the authority to make such a decision and without due regard to all the circumstances of the case. Our intervention resulted in the expedited consideration of the matter by the relevant tribunal. In the Family reunion case study, the decision maker was not aware of all relevant information. In this case, our intervention resulted in the reunion of a mother with her baby.

CASE STUDY | Priority hearing

Mr D complained to our office that the Migration Review Tribunal (MRT) declined to give his case a priority hearing, as he had requested. He was living in Australia and was seeking to sponsor his wife, who was pregnant and living in Cambodia. The MRT's decision not to give his case a priority hearing was likely to result in his being separated from his wife and child until some time after the birth. Tribunal policy provided that agreement to a priority hearing should be given in compelling circumstances, including those where delay might result in the separation of a child from their parent.

We found that the decision to decline priority to Mr D was made by a non-ongoing, junior officer who was not authorised to decide requests for expedited processing. Further, information concerning Mr D's probable separation from his child following the birth had not been taken into account.

The MRT promptly reconsidered the decision and apologised to Mr D. As a result of our intervention, the MRT agreed to consider Mr D's case at an earlier date.

CASE STUDY | Family reunion

Ms E visited family in Australia and overstayed her visitor's visa. While she was being voluntarily removed, she gave birth to her baby prematurely and was taken to hospital.

Ms E was issued with a bridging visa that allowed her to stay until the baby was well enough to travel. After some weeks the baby left hospital, but remained unfit for travel. Ms E was offered another visa, but chose to return home to care for her other children, leaving her baby in the care of her family in Australia. When she wanted to return to Australia to collect her baby, Ms E was denied a visa because she had overstayed her previous visa.

After being contacted by Ms E's brother, we ascertained that the embassy in question had not been made fully aware of Ms E's unique circumstances. Working closely with DIMA officers, we were able to ensure Ms E promptly received a visa to return to Australia to collect her baby.

Detoxifying the relationship

Many people have an ongoing, even lifetime, relationship with a particular agency. For example, a person will be a taxpayer throughout their life, may receive a Centrelink benefit for an extended period, or be subject to a Child Support Order for many years. Sometimes a particular incident can taint a person's relationship with an agency and colour their subsequent interaction. A person may then distrust the agency and assume that standard administrative requirements are ill-intentioned.

The Ombudsman's office can sometimes detoxify the relationship, by isolating the issue that led to the difficulty and ensuring better understanding and communication in the future. This is demonstrated in the Repeated investigations case study, where interaction between the person and the agency had deteriorated to the point that the person was suspicious of the agency's unintentional administrative error.

CASE STUDY | Repeated investigations

Centrelink had repeatedly investigated Ms F's circumstances to determine whether she was a member of a couple. In her complaint to our office, Ms F alleged that Centrelink officers had deliberately falsified her record and threatened and intimidated her. The relationship between Ms F and the agency had deteriorated to the point where she viewed even the most helpful actions by Centrelink officers, such as suggesting that she claim a more beneficial payment, as ill-intentioned.

We investigated the complaint and explained the policy behind some of Centrelink's actions. We were able to ensure that Ms F's electronic record was corrected and that she received the full payment to which she was entitled. Centrelink provided several written apologies to Ms F. Other aspects of the complaint are still being investigated.

In a similar position are cases in which a person has special needs of which an agency is unaware or for which it has not made special provision. If the agency puts in place particular rules for contacting the client, it can improve the relationship and reduce the chance of later difficulty, as in the Special contact needs case study.

CASE STUDY | Special contact needs

Ms G complained to our office about a series of instances where she considered that she had not been provided with adequate advice by an agency. During our investigation, we established that Ms G suffered from agoraphobia and that she was not comfortable seeking assistance from males.

In response to our enquiries, the agency provided Ms G with the contact details of an officer who understood her situation and with whom she would be comfortable. That officer could obtain information from other officers on Ms G's behalf and organise a home interview if required. This arrangement appears to have improved Ms G's confidence in the agency and reduced the likelihood of further complaints.

Placing an item on the legislative or policy agenda

Some complaints are substantially about the wisdom of a legislative or administrative rule that is being applied by an agency. It is difficult for a person to argue from their individual case that a general reform is required to relieve the harsh or impractical consequence of a law or policy. The Ombudsman's office is better placed to take up those issues. Sometimes we can point to other complaints that raise the same problem, or persuade an agency to see that an individual complaint raises a larger or systemic issue that should be addressed.

An example, taken up in the Requirement to reclaim case study, concerned a legislative rule that imposed an onerous burden on a particular group of concession cardholders. They had to complete a claim form to reclaim their concession card after travelling overseas, by contrast with the holders of other types of concession cards, who were automatically regranted their cards on return to Australia. There appeared to be no policy reason for this difference, and the agency agreed to seek legislative change to reduce the administrative burden on both its clients and staff.

CASE STUDY | Requirement to reclaim

Mr H held a Commonwealth Seniors Health Card (CSHC) when he advised Centrelink that he was travelling overseas for a short period. Centrelink applied the relevant provisions of the social security law to cancel Mr H's card from the date that he left Australia and required him to reclaim the card upon his return a few weeks later. Mr H complained to our office that this seemed to be unnecessary and bureaucratic.

It became clear that holders of the CSHC were disadvantaged when compared with holders of some other concession cards, which are automatically regranted upon the cardholder's return to Australia.

The Ombudsman wrote to the Secretaries of three departments—Families, Community Services and Indigenous Affairs; Employment and Workplace Relations; and Education, Science and Training—asking whether the reclaim process for CSHC holders could be simplified. We were advised that representatives from these departments met and are working together to streamline the process for CSHC holders to reclaim the card upon their return.

Another legislative change, which becomes effective in September 2006, originated in an Ombudsman investigation of a complaint received in 2001 about an anomalous provision that affected Centrelink customers receiving parenting payment at the partnered rate. They were unable to apply for an advance of that payment, by contrast with most other payment recipients, who had limited access to a $500 advance.

Since 2001, we had urged the former Department of Family and Community Services to take steps to rectify this anomaly because it was discriminatory and inequitable. A legislative change was made after the Ombudsman sent a report on the matter to the Prime Minister under s 16 of the Ombudsman Act 1976. The legislation now provides that parenting payment (partnered) recipients will have access to an advance payment from 20 September 2006. The Department of Employment and Workplace Relations is now responsible for the parenting payment (partnered).

'A legislative change was made after the Ombudsman sent a report on the matter to the Prime Minister ...'

Another legislative amendment has been foreshadowed as a result of the investigation, described in the Unlawful policy case study, into the eligibility rules for the low-income health card. The need for legislative amendment to provide a practical solution to a veteran's problem has been highlighted by the investigation described in the Recuperating with family case study. The legislation under scrutiny in that case was inflexible and did not allow officers from the Department of Veterans' Affairs (DVA) to take a practical approach to the medical needs of a client.

CASE STUDY | Unlawful policy

Our investigation of a complaint about multiple incorrect cancellations of a low-income health care card (LIC) revealed a conflict between the social security law and policy as defined by FaCSIA. Contrary to the legislation, the policy required the assessment of a person's claim for an LIC to include the amount of their partner's social security pension or benefit.

FaCSIA told us that while it had always been the policy intention to include pensions and benefits in the income test for the LIC, an error occurred when the legislation was amended and they were not included. FaCSIA nevertheless advised Centrelink to apply their policy position.

After we brought this matter to the department's attention, FaCSIA reconsidered its approach and advised Centrelink to disregard any pension or benefit received by the partner of an LIC claimant until legislative amendment had brought the law and intended policy into line.

Top

CASE STUDY | Recuperating with family

Mrs J lived in a remote location and needed hip surgery. Under s 110 of the Veterans' Entitlements Act 1986 eligible veterans are entitled to reimbursement of some of their travelling expenses, including transport, meals and accommodation, when travelling for medical treatment. The regulations prescribe that a veteran attend the 'closest practical provider,' which is determined with reference to the distance from the veteran's home, and whether the appropriate treatment can be provided in a timely manner.

The closest practical provider to Mrs J is usually found in Sydney or Brisbane. Mrs J's daughter lived in another major Australian town, where she was the head of the Physiotherapy Department at the local hospital. Mrs J preferred to have her surgery at that hospital, where her daughter could both accommodate her and manage her therapy.

Neither the legislation nor the regulations give a decision maker discretion to overlook the closest practical provider requirement, even when it made good sense for the veteran to have treatment in a more distant location. We raised this problem with the Department of Veterans' Affairs, which agreed to recommend an amendment to the relevant regulations and prepared an Act of Grace submission to the minister on behalf of the client.

In some instances a policy, rather than a legislative, amendment can achieve the necessary reform. This is illustrated by the Production delays case study, concerning an anomaly in the criteria for the grant of research funding based on the publication year of an article. The department amended the policy criteria on research funding to take account of the possibility that publication of an article can be unexpectedly delayed.

CASE STUDY | Production delays

Articles published in journals are normally eligible for inclusion in the Department of Education, Science and Training's Higher Education Research Data Collection process, which forms the basis of research funding for higher education providers.

Production delays in 2004 meant the publication of a particular journal was delayed, resulting in a higher education provider not being able to claim research funding for a journal article. This was because the providers were excluded from consideration in the year the journal article was written and also excluded from consideration in the year it was published because it was written in the earlier year.

In response to our initial enquiries, the department noted that the peak body representing providers, the Australian Vice-Chancellors' Committee, was unwilling for the scope of the annual collections of publications to be changed.

Following further consultations with the Committee, the department subsequently amended its policy to include an 'expanded year of publication definition' that specifies a different basis for assessing the publication date of publications.

Surmounting barriers

One of the more satisfying experiences in ombudsman work is when a person expresses gratitude and says that they could not have dealt effectively with an issue without the office's help. The causes vary—a person simply did not understand the decision or government program, they felt they were not getting through to the agency, or the agency told them that their case had been given a lower priority than other pressing issues.

The Systems problems and Short staffing case studies provide two examples of where the Ombudsman's office helped complainants to obtain payment of a financial benefit that had been delayed, in one case by a systems problem and in the other by a staffing problem. Other examples of complainants expressing gratitude for ombudsman assistance are provided in the 'Looking at the Agencies—Immigration' section in Chapter 7.

CASE STUDY | Systems problems

Ms L complained to our office when she was advised that approximately $12,000 in childcare benefit arrears could not be paid to her children's childcare centre for some time because of the limitations of an agency's computer systems. After we became involved in the matter, the agency overcame the systems problems and paid the arrears. The owner of the childcare centre was paid quickly, rather than having to wait until late in 2006 for payment.

CASE STUDY | Short staffing

Centrelink told Mr M that it could not process his Newstart allowance claim for some time because it was short-staffed in the lead-up to Christmas. After we started to investigate Mr M's complaint, Centrelink arranged for staff to work overtime so that the backlog of claims could be processed. Mr M stated that he did not think that this would have happened without the intervention of our office.

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      Commonwealth Ombudsman Annual Report 2005-06 | Chapter 8 | How the Ombudsman helped people

       Commonwealth Ombudsman annual report 2005-2006

      CHAPTER 8 | How the Ombudsman helped people

      Introduction

      Review of administrative decision making by courts and tribunals focuses on the correctness of a decision—for example, a decision to refuse a visa, to revoke a licence, or to cancel a social support benefit. The Ombudsman's office can examine the correctness of decisions, but most investigations focus on other problems that people encounter in their dealings with government agencies. This chapter illustrates the broader focus of the Ombudsman's role by looking at some of the varied ways in which we help people to relate more successfully to government.

      'This chapter illustrates the broader focus of the Ombudsman's role ...'

      Pinpointing the issue in dispute

      There can be multiple elements in a single administrative decision. When a person is told by an agency that an adverse decision has been made, it can be important for the person to know if the decision turned on one particular issue. This will help them better understand the decision and query or challenge it in a constructive manner.

      We are often able to help people penetrate the complexity of decisions and identify the core issues. Often an agency gives us a fuller explanation for its decision than it gave the complainant; that enables us to explain the decision more effectively to the complainant. This clarification can assist a person to understand or revisit a decision, as shown in the Insufficient reasons case study.

      CASE STUDY | Insufficient reasons

      The Trade Recognition Authority (TRA) refused Ms A's application to have her trade qualifications recognised on the basis that she had not provided some relevant employment records. Ms A requested a review and pointed out that she had provided the relevant records. Her review was not successful. Reasons were not given in the review notification letter from the TRA.

      The TRA's response to our enquiries was significantly more detailed than that provided to Ms A. The TRA told us that Ms A's employment records did not include the dates on which she commenced and finished employment; and the area of work for which she was seeking trade qualification recognition was categorised differently in Australia than in her country of origin. Had Ms A been given this information when her application was initially refused, she would have been in a position to reapply and supply that information.

      The TRA conceded that Ms A may have been disadvantaged in seeking a review because of the lack of detail in the original reasons and agreed to reconsider the application and any additional supporting documents. The matter was decided in Ms A's favour and her professional qualifications were recognised.

      Even when a person can identify the issue that concerns them, they are often unaware of the range of services offered by an agency that may help them resolve that issue. We can help by making people aware of their options and providing advice about the best course of action, as the Various options case study.

      'We can help by making people aware of their options ...'

      CASE STUDY | Various options

      Ms B complained to our office when she had difficulty meeting her tax debt due to personal and financial circumstances. We advised Ms B about the range of options available to her, and suggested that she consider seeking a review of the debt and suspension of the general interest charge. We also advised Ms B that the Australian Taxation Office sometimes gives full or partial relief from tax debts on the grounds of serious hardship, and told her where to obtain a debt relief application form. Finally, we suggested Ms B consider obtaining professional advice on debt and financial management.

      Dealing with urgent and pressing issues

      Although the Ombudsman's office does not provide emergency assistance to the public as a matter of course, it can sometimes intervene to avert executive action that cannot be undone—for example, it can elicit an undertaking from a government agency not to remove someone from Australia or to dismiss someone from the Australian Defence Force (ADF) pending an investigation. Decisions that have a significant and irreversible impact on people require flexibility in how they are implemented.

      Members of the ADF can be involuntarily discharged in certain circumstances. Although members facing discharge are provided with 28 days notice of their discharge date, often they approach our office for assistance only towards the end of that period. In such circumstances, we ask the ADF to suspend discharge action while we review the records. The ADF's practice has been to agree to suspend discharge action for two weeks, during which time we review the matter and present any concerns to the ADF for reconsideration.

      'Decisions that have a significant and irreversible impact on people require flexibility in how they are implemented.'

      In the Delayed removal case study, the Department of Immigration and Multicultural Affairs (DIMA) considered whether a person's removal from Australia should be suspended until a review of their case was completed. After much negotiation with our office and obtaining legal advice, DIMA agreed to suspend removal in this case to ensure that the benefit of any changes recommended by the review of the case would not be negated by the fact that the person was no longer in the country.

      CASE STUDY | Delayed removal

      Mr C arrived in Australia with his parents when he was nine years old and assumed he was an Australian citizen. He was not, and the minister cancelled his visa on character grounds under s 501 of the Migration Act after he was convicted of criminal offences. On his release from prison, he was detained in immigration detention as he was an unlawful non-citizen. He was not removed from Australia at this time as he had outstanding litigation.

      Mr C was within the scope of the Ombudsman's investigation into the cancellation of visas of long-term Australian residents, which was published in February 2006. We reviewed his case as part of our statutory role of reviewing the cases of people detained for two years or more. His litigation concluded and his removal became imminent while we were conducting the review of his case.

      The Ombudsman wrote to the Secretary of DIMA, asking him to delay Mr C's removal until the completion of the report on s 501 decisions, as 'it is possible that we will make recommendations that, if accepted, would change the immigration status of some of those subject to the report ... and if removed, they would lose the benefit of any changes arising from the report'. Several meetings were held with DIMA officials to explore the legal options open in this case. In December 2005, DIMA asked the minister to consider using her detention intervention powers, while Ombudsman staff continued to monitor the situation, remaining in contact with the detainee, as removal remained a possibility.

      The report on the Ombudsman's review of Mr C's long-term detention was submitted to the minister in November 2005. In December 2005, Mr C was granted a Removal Pending Bridging Visa and released from detention to live with his family. Mr C is currently included in a review being conducted by DIMA in response to the Ombudsman's report on s 501 decisions, and will not be removed until that review is finalised.

      The investigation of complaints must also take account of the serious effect that decisions can have on people. This is illustrated by the following two case studies, in which the circumstances of the decisions were closely examined to ensure that they were properly made. In one case, described in the Priority hearing case study, our investigation showed that a decision to decline a priority hearing for an appellant was made by a person lacking the authority to make such a decision and without due regard to all the circumstances of the case. Our intervention resulted in the expedited consideration of the matter by the relevant tribunal. In the Family reunion case study, the decision maker was not aware of all relevant information. In this case, our intervention resulted in the reunion of a mother with her baby.

      CASE STUDY | Priority hearing

      Mr D complained to our office that the Migration Review Tribunal (MRT) declined to give his case a priority hearing, as he had requested. He was living in Australia and was seeking to sponsor his wife, who was pregnant and living in Cambodia. The MRT's decision not to give his case a priority hearing was likely to result in his being separated from his wife and child until some time after the birth. Tribunal policy provided that agreement to a priority hearing should be given in compelling circumstances, including those where delay might result in the separation of a child from their parent.

      We found that the decision to decline priority to Mr D was made by a non-ongoing, junior officer who was not authorised to decide requests for expedited processing. Further, information concerning Mr D's probable separation from his child following the birth had not been taken into account.

      The MRT promptly reconsidered the decision and apologised to Mr D. As a result of our intervention, the MRT agreed to consider Mr D's case at an earlier date.

      CASE STUDY | Family reunion

      Ms E visited family in Australia and overstayed her visitor's visa. While she was being voluntarily removed, she gave birth to her baby prematurely and was taken to hospital.

      Ms E was issued with a bridging visa that allowed her to stay until the baby was well enough to travel. After some weeks the baby left hospital, but remained unfit for travel. Ms E was offered another visa, but chose to return home to care for her other children, leaving her baby in the care of her family in Australia. When she wanted to return to Australia to collect her baby, Ms E was denied a visa because she had overstayed her previous visa.

      After being contacted by Ms E's brother, we ascertained that the embassy in question had not been made fully aware of Ms E's unique circumstances. Working closely with DIMA officers, we were able to ensure Ms E promptly received a visa to return to Australia to collect her baby.

      Detoxifying the relationship

      Many people have an ongoing, even lifetime, relationship with a particular agency. For example, a person will be a taxpayer throughout their life, may receive a Centrelink benefit for an extended period, or be subject to a Child Support Order for many years. Sometimes a particular incident can taint a person's relationship with an agency and colour their subsequent interaction. A person may then distrust the agency and assume that standard administrative requirements are ill-intentioned.

      The Ombudsman's office can sometimes detoxify the relationship, by isolating the issue that led to the difficulty and ensuring better understanding and communication in the future. This is demonstrated in the Repeated investigations case study, where interaction between the person and the agency had deteriorated to the point that the person was suspicious of the agency's unintentional administrative error.

      CASE STUDY | Repeated investigations

      Centrelink had repeatedly investigated Ms F's circumstances to determine whether she was a member of a couple. In her complaint to our office, Ms F alleged that Centrelink officers had deliberately falsified her record and threatened and intimidated her. The relationship between Ms F and the agency had deteriorated to the point where she viewed even the most helpful actions by Centrelink officers, such as suggesting that she claim a more beneficial payment, as ill-intentioned.

      We investigated the complaint and explained the policy behind some of Centrelink's actions. We were able to ensure that Ms F's electronic record was corrected and that she received the full payment to which she was entitled. Centrelink provided several written apologies to Ms F. Other aspects of the complaint are still being investigated.

      In a similar position are cases in which a person has special needs of which an agency is unaware or for which it has not made special provision. If the agency puts in place particular rules for contacting the client, it can improve the relationship and reduce the chance of later difficulty, as in the Special contact needs case study.

      CASE STUDY | Special contact needs

      Ms G complained to our office about a series of instances where she considered that she had not been provided with adequate advice by an agency. During our investigation, we established that Ms G suffered from agoraphobia and that she was not comfortable seeking assistance from males.

      In response to our enquiries, the agency provided Ms G with the contact details of an officer who understood her situation and with whom she would be comfortable. That officer could obtain information from other officers on Ms G's behalf and organise a home interview if required. This arrangement appears to have improved Ms G's confidence in the agency and reduced the likelihood of further complaints.

      Placing an item on the legislative or policy agenda

      Some complaints are substantially about the wisdom of a legislative or administrative rule that is being applied by an agency. It is difficult for a person to argue from their individual case that a general reform is required to relieve the harsh or impractical consequence of a law or policy. The Ombudsman's office is better placed to take up those issues. Sometimes we can point to other complaints that raise the same problem, or persuade an agency to see that an individual complaint raises a larger or systemic issue that should be addressed.

      An example, taken up in the Requirement to reclaim case study, concerned a legislative rule that imposed an onerous burden on a particular group of concession cardholders. They had to complete a claim form to reclaim their concession card after travelling overseas, by contrast with the holders of other types of concession cards, who were automatically regranted their cards on return to Australia. There appeared to be no policy reason for this difference, and the agency agreed to seek legislative change to reduce the administrative burden on both its clients and staff.

      CASE STUDY | Requirement to reclaim

      Mr H held a Commonwealth Seniors Health Card (CSHC) when he advised Centrelink that he was travelling overseas for a short period. Centrelink applied the relevant provisions of the social security law to cancel Mr H's card from the date that he left Australia and required him to reclaim the card upon his return a few weeks later. Mr H complained to our office that this seemed to be unnecessary and bureaucratic.

      It became clear that holders of the CSHC were disadvantaged when compared with holders of some other concession cards, which are automatically regranted upon the cardholder's return to Australia.

      The Ombudsman wrote to the Secretaries of three departments—Families, Community Services and Indigenous Affairs; Employment and Workplace Relations; and Education, Science and Training—asking whether the reclaim process for CSHC holders could be simplified. We were advised that representatives from these departments met and are working together to streamline the process for CSHC holders to reclaim the card upon their return.

      Another legislative change, which becomes effective in September 2006, originated in an Ombudsman investigation of a complaint received in 2001 about an anomalous provision that affected Centrelink customers receiving parenting payment at the partnered rate. They were unable to apply for an advance of that payment, by contrast with most other payment recipients, who had limited access to a $500 advance.

      Since 2001, we had urged the former Department of Family and Community Services to take steps to rectify this anomaly because it was discriminatory and inequitable. A legislative change was made after the Ombudsman sent a report on the matter to the Prime Minister under s 16 of the Ombudsman Act 1976. The legislation now provides that parenting payment (partnered) recipients will have access to an advance payment from 20 September 2006. The Department of Employment and Workplace Relations is now responsible for the parenting payment (partnered).

      'A legislative change was made after the Ombudsman sent a report on the matter to the Prime Minister ...'

      Another legislative amendment has been foreshadowed as a result of the investigation, described in the Unlawful policy case study, into the eligibility rules for the low-income health card. The need for legislative amendment to provide a practical solution to a veteran's problem has been highlighted by the investigation described in the Recuperating with family case study. The legislation under scrutiny in that case was inflexible and did not allow officers from the Department of Veterans' Affairs (DVA) to take a practical approach to the medical needs of a client.

      CASE STUDY | Unlawful policy

      Our investigation of a complaint about multiple incorrect cancellations of a low-income health care card (LIC) revealed a conflict between the social security law and policy as defined by FaCSIA. Contrary to the legislation, the policy required the assessment of a person's claim for an LIC to include the amount of their partner's social security pension or benefit.

      FaCSIA told us that while it had always been the policy intention to include pensions and benefits in the income test for the LIC, an error occurred when the legislation was amended and they were not included. FaCSIA nevertheless advised Centrelink to apply their policy position.

      After we brought this matter to the department's attention, FaCSIA reconsidered its approach and advised Centrelink to disregard any pension or benefit received by the partner of an LIC claimant until legislative amendment had brought the law and intended policy into line.

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      CASE STUDY | Recuperating with family

      Mrs J lived in a remote location and needed hip surgery. Under s 110 of the Veterans' Entitlements Act 1986 eligible veterans are entitled to reimbursement of some of their travelling expenses, including transport, meals and accommodation, when travelling for medical treatment. The regulations prescribe that a veteran attend the 'closest practical provider,' which is determined with reference to the distance from the veteran's home, and whether the appropriate treatment can be provided in a timely manner.

      The closest practical provider to Mrs J is usually found in Sydney or Brisbane. Mrs J's daughter lived in another major Australian town, where she was the head of the Physiotherapy Department at the local hospital. Mrs J preferred to have her surgery at that hospital, where her daughter could both accommodate her and manage her therapy.

      Neither the legislation nor the regulations give a decision maker discretion to overlook the closest practical provider requirement, even when it made good sense for the veteran to have treatment in a more distant location. We raised this problem with the Department of Veterans' Affairs, which agreed to recommend an amendment to the relevant regulations and prepared an Act of Grace submission to the minister on behalf of the client.

      In some instances a policy, rather than a legislative, amendment can achieve the necessary reform. This is illustrated by the Production delays case study, concerning an anomaly in the criteria for the grant of research funding based on the publication year of an article. The department amended the policy criteria on research funding to take account of the possibility that publication of an article can be unexpectedly delayed.

      CASE STUDY | Production delays

      Articles published in journals are normally eligible for inclusion in the Department of Education, Science and Training's Higher Education Research Data Collection process, which forms the basis of research funding for higher education providers.

      Production delays in 2004 meant the publication of a particular journal was delayed, resulting in a higher education provider not being able to claim research funding for a journal article. This was because the providers were excluded from consideration in the year the journal article was written and also excluded from consideration in the year it was published because it was written in the earlier year.

      In response to our initial enquiries, the department noted that the peak body representing providers, the Australian Vice-Chancellors' Committee, was unwilling for the scope of the annual collections of publications to be changed.

      Following further consultations with the Committee, the department subsequently amended its policy to include an 'expanded year of publication definition' that specifies a different basis for assessing the publication date of publications.

      Surmounting barriers

      One of the more satisfying experiences in ombudsman work is when a person expresses gratitude and says that they could not have dealt effectively with an issue without the office's help. The causes vary—a person simply did not understand the decision or government program, they felt they were not getting through to the agency, or the agency told them that their case had been given a lower priority than other pressing issues.

      The Systems problems and Short staffing case studies provide two examples of where the Ombudsman's office helped complainants to obtain payment of a financial benefit that had been delayed, in one case by a systems problem and in the other by a staffing problem. Other examples of complainants expressing gratitude for ombudsman assistance are provided in the 'Looking at the Agencies—Immigration' section in Chapter 7.

      CASE STUDY | Systems problems

      Ms L complained to our office when she was advised that approximately $12,000 in childcare benefit arrears could not be paid to her children's childcare centre for some time because of the limitations of an agency's computer systems. After we became involved in the matter, the agency overcame the systems problems and paid the arrears. The owner of the childcare centre was paid quickly, rather than having to wait until late in 2006 for payment.

      CASE STUDY | Short staffing

      Centrelink told Mr M that it could not process his Newstart allowance claim for some time because it was short-staffed in the lead-up to Christmas. After we started to investigate Mr M's complaint, Centrelink arranged for staff to work overtime so that the backlog of claims could be processed. Mr M stated that he did not think that this would have happened without the intervention of our office.