Commonwealth Ombudsman annual report 2007-2008 

CHAPTER 8 | Helping people, improving government

Helping people, improving government menu: Remedies | Systemic issues

Ombudsman work has a dual focus on resolving individual complaints and improving public administration. The two are often connected. An individual complaint will frequently highlight a recurring problem in agency administration. In these cases, the focus of the Ombudsman’s office is on providing a remedy to the individual complainant and on prompting the agency to prevent similar problems from recurring.

That theme is taken up in this chapter. The first part of the chapter looks at some of the remedies provided to complainants as a result of Ombudsman investigations. Among the remedies that are discussed are providing a more helpful explanation of adverse agency action, variation or reconsideration of a decision, financial compensation, and apologies. A unifying theme in the discussion is the importance of selecting an appropriate remedy to resolve a person’s grievance.

The second part of the chapter looks at some of the improvements in agency administration that have resulted from Ombudsman investigations in the reporting year, often arising from a single complaint. The improvements include providing better general information to the public, treating people equitably, and improving administrative procedures, especially when exceptional circumstances require a change from standard practices.

Many of the complaints discussed in this chapter related to minor lapses in agency administration or service delivery. Each complaint was nevertheless a genuine grievance, and in many instances concerned a matter of significant financial or lifestyle consequence for the complainant. This makes it all the more important for agencies to treat complaints seriously, and to recognise that they provide a valuable source of intelligence on the soundness of agency operations.

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Remedies

The Australian community has the right to expect high standards of administration by Australian Government agencies. They expect agencies to act legally, fairly, in a timely manner and with integrity; to show respect for the individual and deal with them professionally; and to be accountable, ethical and transparent in their dealings with the public.

Millions of transactions occur each day between the community and agencies, and inevitably some things go wrong. When that happens, it is essential that the problem is resolved quickly and fairly, so that individuals do not suffer further.

In investigating complaints, a key factor we keep in mind is whether there is a suitable remedy for the complainant. We consider what the complainant is seeking and what is reasonable in the circumstances, whether the agency has offered a remedy, and whether a better remedy might be available through another mechanism such as a merits review tribunal.

The guiding principle in choosing a remedy is to put a person in the position they would have been had no administrative problem occurred. If that is not possible other appropriate action should be taken to remedy the disadvantage suffered by that person. For example, the agency might agree to consider a fresh application for a particular benefit or concession and waive some or all of the application fee. In addition, as a matter of general courtesy and good public administration, an agency should apologise and provide an explanation to a person when an error has occurred.

Improving communication

Legislation and government programs are generally very complex, and the decisions made by government agencies are often not easily understood by members of the public. If someone cannot understand a decision that adversely affects them, they are more likely to doubt the correctness or fairness of the decision. Their inability to understand the decision can itself become a source of grievance.

Providing a clear explanation of a decision is itself an important remedy. This can assuage a person’s grievance, even if the decision cannot be altered. The reasons for a decision can also provide practical assistance to a person. It can, for example, enable them to decide whether to make a fresh application, or seek review or reconsideration of the decision after providing additional information or explanation.

The importance of clearly explaining a decision in a way that the person can understand is illustrated in the case study Pension reduction.

Pension reduction CASE STUDY

Mrs A complained about a reduction in her pension from the Department of Veterans’ Affairs (DVA), following the death of her husband. As a former prisoner of war, he had received a ‘victims of persecution’ payment from the Dutch government. This had not affected their DVA pensions. After Mr A passed away, DVA changed the way it assessed the payments from the Dutch government and reduced Mrs A’s pension as a result. We concluded that DVA’s decision to change the way it assessed the payments was reasonably open to it in the circumstances. However, the sudden and unexplained change in policy by DVA had understandably caused surprise and distress to Mrs A. DVA agreed to apologise to Mrs A and provide a full explanation of the change in policy.

This same issue is illustrated by other complaints where an agency agreed to provide a better explanation of a decision.

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Actions and decisions

Changing or reconsidering a decision

Some complaints reveal that an agency has made a decision based on incomplete information, or has given undue weight to some information and ignored other relevant information. In other cases the principles of natural justice may not have been applied properly, or the decision may not have been made lawfully—for example, the legislation was not complied with, or the decision-maker lacked the legal authority to make the decision.

The appropriate remedy in those instances may be for the agency to reconsider or change a decision. Reconsideration may involve taking into account additional information which should have been considered the first time, giving the person a natural justice opportunity, or having a fresh decision maker look at the issue. The case study Permanent relationship illustrates one such complaint.

Permanent relationship CASE STUDY

A migration agent complained that the Department of Immigration and Citizenship (DIAC) had granted Mr B a temporary spouse visa, rather than a permanent spouse visa, despite the fact Mr and Mrs B had been married for 46 years. Mrs B had lived in Australia since the late 1990s, assisting in caring for her grandchildren in difficult family circumstances. Mr B visited often but did not seek to come to Australia permanently until he retired in 2006. Our investigation suggested the decision maker had put significant weight on one factor and not taken into account a substantial amount of other evidence about the nature of their relationship. In addition, the decision maker had taken a Centrelink decision that Mrs B was ‘separated’ out of context, and not provided Mr B with an opportunity to clarify matters. DIAC agreed to have another decision maker reconsider the decision. It was decided Mr B met the criterion of being in a long-term spouse relationship, which is a requirement for the grant of a permanent spouse visa.

Some other examples where agencies agreed to reconsider or change a decision follow.

In some cases there may be a right to have the decision reviewed on the merits by an administrative tribunal. However, our general approach is that the alternative of merits review should not be taken as a way to deal with poor administration and poor decision making. If a poor decision can be dealt with at the agency level, it should be, rather than requiring a person to go through a review process with the potential for extra costs, uncertainty and additional distress.

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Expediting action

Many complaints to the Ombudsman arise from delay by an agency in making a decision or taking action. In some cases there will be a good reason for the delay, such as the circumstances being particularly complex, but in many other cases delay is avoidable. One of the most frequent remedies we achieve is for agencies to expedite action. The case study Unwanted group certificate illustrates a case where an agency did not resolve a matter until our office intervened.

Unwanted group certificate CASE STUDY

Ms C complained that an agency had issued her a group certificate in error, and she had been unable to have the situation rectified despite trying for three months. When we investigated the matter, the agency acknowledged it had not dealt with Ms C’s concerns properly. The agency wrote to the Australian Taxation Office asking for the group certificate to be withdrawn, and commenced a review of its relevant procedures.

The following examples illustrate how simple agency errors can lead to delays which can cause considerable inconvenience to members of the public, and which can be remedied easily.

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Financial remedies

Poor administration can cause financial loss to people. For example, they may not obtain a benefit to which they were entitled, their benefit may be reduced below their real entitlement, they may have a debt raised against them unreasonably, or they may suffer other financial losses.

Compensation

The scheme for Compensation for Detriment caused by Defective Administration (the CDDA Scheme) provides an important financial remedy. The CDDA Scheme allows portfolio ministers and authorised officials to compensate individuals or other bodies who have experienced losses caused by agency maladministration.

The CDDA Scheme is designed to cover losses where there is no legal liability to compensate the person. The case study Ignored illustrates one example where a large CDDA payment was made.

IGNORED CASE STUDY

The former proprietors of a business complained that a regulatory agency had ruined their business through inappropriate and poor supervision of the regulatory staff of the agency. We did not investigate the regulatory practices, but identified that the proprietors had made numerous complaints over an extended period of time which were not addressed seriously. This failure resulted in extra costs and identifiable missed opportunities for the business. The regulator accepted this assessment and offered compensation of $1 million.

Some other complaints we investigated which resulted in CDDA payments, or increased CDDA payments, illustrate the diverse range of circumstances in which such payments are justified.

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Dealing with a debt

Debts and associated penalties can be raised against people for many reasons. When a debt, or part of a debt, is raised unreasonably, there are a number of ways it may be dealt with. The agency may be able to change the decision legally. In other cases, the Minister for Finance and his or her delegates may waive a debt where it has arisen wrongly and there is a moral, rather than legal, obligation to cancel the debt. Specific legislation may also provide for the waiver of debts. The case study No assurance shows how an agency changed its decision on a debt.

NO ASSURANCE CASE STUDY

Mrs D had provided an assurance of support (AOS) for Ms E when Ms E migrated to Australia. Several months after her arrival, Ms E claimed newstart allowance (NSA), which Centrelink granted. Nearly two years later, Centrelink raised a debt against Mrs D because of the AOS and undertook recovery for several years. However, Centrelink had not checked about the possible existence of an AOS at the time of granting NSA to Ms E, and had not contacted Mrs D before commencing payment. The decision to recover was affirmed in internal review and at the Social Security Appeals Tribunal. When we started investigating Mrs D’s complaint, and before the matter was heard by the Administrative Appeals Tribunal, Centrelink reviewed the case and decided it had made a legal error. It changed its decision on Mrs D’s debt and repaid her the money it had already recovered.

The following examples illustrate some of the diverse ways in which debts may arise, and how they may be dealt with.

Other financial remedies

Simple errors by agency staff can have significant adverse financial consequences for people. The same can happen when a person misunderstands government requirements, or there are unforeseen changes in their personal circumstances. The intervention of the Ombudsman’s office can often result in a financial remedy for the person, as the following examples show.

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Apologies

An apology can be highly effective in addressing a person’s grievance about poor administrative practice. Complainants often see an apology from an agency as a prerequisite to moving forward. An apology that is appropriately framed and properly communicated by an agency will often be accepted by a person as a satisfactory resolution of their grievance. The case study Incorrect information shows how powerful an apology and explanation can be.

INCORRECT INFORMATION CASE STUDY

Mr F complained that, amongst other things, he had been advised in a letter from a Minister that his father’s death had not been determined as being related to his father’s service in World War II. Mr F had always believed his father’s death was a result of war service, as this information was given to him as a child, and he had received a war orphan pension to cover matters such as medical expenses and school fees. Mr F’s subsequent efforts to clarify the matter, including through freedom of information (FOI), had not resolved the issue. After we contacted DVA, they undertook an extensive analysis of their records. They identified that Mr F had been given incorrect information and their view was that his father’s death was war-caused. The Secretary of the Department wrote to Mr F with an apology for the error, a detailed explanation as to how it may have occurred, and an offer for sympathetic consideration of any further FOI application Mr F might have, without the payment of fees.

The diverse circumstances in which an apology can be appropriate are illustrated by the following examples.

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Systemic issues

An investigation of a complaint can reveal a systemic problem that could affect other clients of the agency. Among the recommendations that are often made by the Ombudsman’s office are for better training of agency staff, a change to agency procedures or policies, a revision of agency publications or advice to the public, or a review of government policy or legislation that is having harsh or unintended consequences. These types of recommendations for reform are taken up in the following summary of issues dealt with by the Ombudsman’s office in 2007–08.

Improving advice to the public

People rely on government agencies for advice and information on a great range of issues related to the legislation and programs administered by agencies. The first requirement is that the advice should be accurate. It can be equally important that agencies note any limitations applying to the general advice they are providing, or caution people to seek specific or independent advice relevant to their individual circumstances.

The Ombudsman’s office dealt with a number of complaints during the year where incomplete or imprudent advice was provided, or the advice was not as timely as it might have been. It is important to draw these problems to the attention of the agency so that a similar problem can be avoided in future. The case study Over 65 shows one example where an agency improved the timeliness of advice to people.

OVER 65 CASE STUDY

Mr G complained because Comcare stopped paying compensation when he turned 65. We did not investigate this matter because the decision had been affirmed by the Administrative Appeals Tribunal as being in line with the legislation. However, we noted that Comcare provided information in general publications about benefits ceasing when a person turns 65, and that its practice was to write directly to each affected client sometime between three months and six weeks prior to the client’s 65th birthday. We suggested Comcare might consider writing directly to affected clients further in advance. Comcare agreed and revised their processes to alert people on their 64th birthday, and again prior to turning 65. This will help make sure people are aware of the impending change and have a longer period of time to make any necessary arrangements.

There were other examples where agencies agreed to improve their advice to the public arising from complaints that we investigated.

Having good procedures

Agencies must have sound procedures in place to administer complex legislation and government programs in a manner that is efficient, effective, fair, transparent and accountable, and that delivers the appropriate services to members of the public. The procedures need to deal with the exceptional as well as the normal cases, as the case study Late payments illustrates.

LATE PAYMENTS CASE STUDY

Ms H complained that her compensation payments from DVA were often late, and she was given a different explanation each time. In the course of our investigation, DVA advised us that the problem had arisen after Ms H had been moved from an automatic payment regime to a manual payment regime because her earnings fluctuated and a review was being undertaken. Her payments had been late twice because of human error or the absence of her case officer, and other members in the team had been unaware of the need for manual payment. DVA advised us that it had changed procedures in the area involved so that manual payments are managed as a team, and if a staff member is away another staff member can deal with the payment.

Having good procedures to deal with exceptional cases was a common theme in other complaints we investigated.

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Interpreting and applying legislation and guidelines correctly

An agency should always be alert to the danger that legislation or its own guidelines are not being interpreted correctly. To deal with this risk, agencies need to have adequate internal quality controls, look for inconsistencies in the application of legislation or guidelines, and focus on problem cases. The case study Not the owner shows an example where ministerial guidelines were not being interpreted correctly.

NOT THE OWNER CASE STUDY

Mr J complained that Centrelink had overturned a decision to grant his claim for liquid petroleum gas (LPG) conversion. Centrelink makes decisions on applicant eligibility and administers the grant payments on behalf of the Department of Innovation, Industry, Science and Research (DIISR). Centrelink makes decisions based on ministerial guidelines and advice from DIISR. Mr J had been the registered owner of the car at the time of the LPG conversion, but not later when he made the claim. Our investigation revealed that DIISR was interpreting the ministerial guidelines incorrectly and he did not need to be the registered owner at the time of claim. DIISR subsequently revised the customer guidelines for the scheme, and Mr J’s application was reconsidered and found to be eligible.

Treating people equitably

Complainants sometimes allege that an agency has not treated them equitably compared to other people. The following two case studies, Different calculations and State differences, illustrate the different and complex ways in which problems of equitable treatment can arise.

Different calculations CASE STUDY

Ms K was receiving a partial disability support pension because she also received workers compensation payments from an overseas country. She complained to us that Centrelink did not calculate the Australian dollar equivalent of her overseas payments in the same way as it treated foreign currency amounts received by other Centrelink recipients, and as a result she suffered financial loss. In the course of our investigation, Centrelink advised that it did treat overseas compensation payments differently depending on whether the person was receiving a social security payment at the time of their compensable event. If the person had been receiving a social security payment, the rates were automatically recalculated each month and customers could seek a review if there was a 5% difference between the rate Centrelink calculated and what they received. If not, as in Ms K’s case, Centrelink staff manually updated the rates twice a year. Centrelink agreed that the different approaches could adversely affect some customers and changed its procedures so that monthly re-valuing would occur in all cases.

STATE DIFFERENCES CASE STUDY

Mr L, who lived in Western Australia (WA), complained that his claim for LPG conversion had been refused, because he did not have the current registration papers for the vehicle in question. Mr L had purchased the vehicle second-hand. In WA, registration papers are sent only when the vehicle is next due for registration, not when ownership changes. While people can pay for a new registration certificate, this entails extra costs compared to people in most other states. As a result of our enquiries, AusIndustry consulted with the relevant WA department, and agreed that a screen dump obtained from the WA Licensing Centre would suffice as proof of registration. This information is now published on AusIndustry’s website. AusIndustry identified that a similar situation occurs in Victoria, and has made similar arrangements. Mr L’s application was subsequently reviewed and found to be eligible.

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      Chapter 8 | Helping people, improving government

      Commonwealth Ombudsman annual report 2007-2008 

      CHAPTER 8 | Helping people, improving government

      Helping people, improving government menu: Remedies | Systemic issues

      Ombudsman work has a dual focus on resolving individual complaints and improving public administration. The two are often connected. An individual complaint will frequently highlight a recurring problem in agency administration. In these cases, the focus of the Ombudsman’s office is on providing a remedy to the individual complainant and on prompting the agency to prevent similar problems from recurring.

      That theme is taken up in this chapter. The first part of the chapter looks at some of the remedies provided to complainants as a result of Ombudsman investigations. Among the remedies that are discussed are providing a more helpful explanation of adverse agency action, variation or reconsideration of a decision, financial compensation, and apologies. A unifying theme in the discussion is the importance of selecting an appropriate remedy to resolve a person’s grievance.

      The second part of the chapter looks at some of the improvements in agency administration that have resulted from Ombudsman investigations in the reporting year, often arising from a single complaint. The improvements include providing better general information to the public, treating people equitably, and improving administrative procedures, especially when exceptional circumstances require a change from standard practices.

      Many of the complaints discussed in this chapter related to minor lapses in agency administration or service delivery. Each complaint was nevertheless a genuine grievance, and in many instances concerned a matter of significant financial or lifestyle consequence for the complainant. This makes it all the more important for agencies to treat complaints seriously, and to recognise that they provide a valuable source of intelligence on the soundness of agency operations.

      Return to the topTop

      Remedies

      The Australian community has the right to expect high standards of administration by Australian Government agencies. They expect agencies to act legally, fairly, in a timely manner and with integrity; to show respect for the individual and deal with them professionally; and to be accountable, ethical and transparent in their dealings with the public.

      Millions of transactions occur each day between the community and agencies, and inevitably some things go wrong. When that happens, it is essential that the problem is resolved quickly and fairly, so that individuals do not suffer further.

      In investigating complaints, a key factor we keep in mind is whether there is a suitable remedy for the complainant. We consider what the complainant is seeking and what is reasonable in the circumstances, whether the agency has offered a remedy, and whether a better remedy might be available through another mechanism such as a merits review tribunal.

      The guiding principle in choosing a remedy is to put a person in the position they would have been had no administrative problem occurred. If that is not possible other appropriate action should be taken to remedy the disadvantage suffered by that person. For example, the agency might agree to consider a fresh application for a particular benefit or concession and waive some or all of the application fee. In addition, as a matter of general courtesy and good public administration, an agency should apologise and provide an explanation to a person when an error has occurred.

      Improving communication

      Legislation and government programs are generally very complex, and the decisions made by government agencies are often not easily understood by members of the public. If someone cannot understand a decision that adversely affects them, they are more likely to doubt the correctness or fairness of the decision. Their inability to understand the decision can itself become a source of grievance.

      Providing a clear explanation of a decision is itself an important remedy. This can assuage a person’s grievance, even if the decision cannot be altered. The reasons for a decision can also provide practical assistance to a person. It can, for example, enable them to decide whether to make a fresh application, or seek review or reconsideration of the decision after providing additional information or explanation.

      The importance of clearly explaining a decision in a way that the person can understand is illustrated in the case study Pension reduction.

      Pension reduction CASE STUDY

      Mrs A complained about a reduction in her pension from the Department of Veterans’ Affairs (DVA), following the death of her husband. As a former prisoner of war, he had received a ‘victims of persecution’ payment from the Dutch government. This had not affected their DVA pensions. After Mr A passed away, DVA changed the way it assessed the payments from the Dutch government and reduced Mrs A’s pension as a result. We concluded that DVA’s decision to change the way it assessed the payments was reasonably open to it in the circumstances. However, the sudden and unexplained change in policy by DVA had understandably caused surprise and distress to Mrs A. DVA agreed to apologise to Mrs A and provide a full explanation of the change in policy.

      This same issue is illustrated by other complaints where an agency agreed to provide a better explanation of a decision.

      • The complainant was concerned that an agency had withheld some refunds he was due. The matter involved complex legislation relating to foreign pensions, and stretched over a number of years. The agency explained the circumstances and gave the person advice about how to seek refunds for the earlier years.
      • A person complained after an agency rejected his claim for a living away from home allowance. The agency provided a detailed explanation for the decision, including all the relevant policy guidelines. The complainant was satisfied with this explanation.

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      Actions and decisions

      Changing or reconsidering a decision

      Some complaints reveal that an agency has made a decision based on incomplete information, or has given undue weight to some information and ignored other relevant information. In other cases the principles of natural justice may not have been applied properly, or the decision may not have been made lawfully—for example, the legislation was not complied with, or the decision-maker lacked the legal authority to make the decision.

      The appropriate remedy in those instances may be for the agency to reconsider or change a decision. Reconsideration may involve taking into account additional information which should have been considered the first time, giving the person a natural justice opportunity, or having a fresh decision maker look at the issue. The case study Permanent relationship illustrates one such complaint.

      Permanent relationship CASE STUDY

      A migration agent complained that the Department of Immigration and Citizenship (DIAC) had granted Mr B a temporary spouse visa, rather than a permanent spouse visa, despite the fact Mr and Mrs B had been married for 46 years. Mrs B had lived in Australia since the late 1990s, assisting in caring for her grandchildren in difficult family circumstances. Mr B visited often but did not seek to come to Australia permanently until he retired in 2006. Our investigation suggested the decision maker had put significant weight on one factor and not taken into account a substantial amount of other evidence about the nature of their relationship. In addition, the decision maker had taken a Centrelink decision that Mrs B was ‘separated’ out of context, and not provided Mr B with an opportunity to clarify matters. DIAC agreed to have another decision maker reconsider the decision. It was decided Mr B met the criterion of being in a long-term spouse relationship, which is a requirement for the grant of a permanent spouse visa.

      Some other examples where agencies agreed to reconsider or change a decision follow.

      • A person sought compensation for the late delivery of an item. When we investigated, the agency found they had handled his request badly. Although he would not normally have been entitled to compensation, the agency paid it in recognition of their poor handling of his complaint.
      • We received a complaint from a woman that payments to her and her partner were to be suspended at a time of extreme personal crisis. When we contacted the agency, they restored the payments and, given the special personal circumstances, took extra measures beyond their normal procedures to ensure the problem did not recur.

      In some cases there may be a right to have the decision reviewed on the merits by an administrative tribunal. However, our general approach is that the alternative of merits review should not be taken as a way to deal with poor administration and poor decision making. If a poor decision can be dealt with at the agency level, it should be, rather than requiring a person to go through a review process with the potential for extra costs, uncertainty and additional distress.

      Return to the topTop

      Expediting action

      Many complaints to the Ombudsman arise from delay by an agency in making a decision or taking action. In some cases there will be a good reason for the delay, such as the circumstances being particularly complex, but in many other cases delay is avoidable. One of the most frequent remedies we achieve is for agencies to expedite action. The case study Unwanted group certificate illustrates a case where an agency did not resolve a matter until our office intervened.

      Unwanted group certificate CASE STUDY

      Ms C complained that an agency had issued her a group certificate in error, and she had been unable to have the situation rectified despite trying for three months. When we investigated the matter, the agency acknowledged it had not dealt with Ms C’s concerns properly. The agency wrote to the Australian Taxation Office asking for the group certificate to be withdrawn, and commenced a review of its relevant procedures.

      The following examples illustrate how simple agency errors can lead to delays which can cause considerable inconvenience to members of the public, and which can be remedied easily.

      • A person complained that his request to have his application for merits review by a tribunal afforded high priority had not been agreed. When we contacted the tribunal, they found a registry officer had made a mistake and his case should have been given high priority from the outset. The agency promptly arranged for a hearing of his case.
      • A complainant had worked for an agency for over twenty years. Ten years later he sought confirmation of the details of his employment from the agency, so that he could ascertain his entitlements in his current workplace. Nine months passed without a satisfactory response. The agency, which had lost his original request and not followed up properly on his later contacts, provided him with a comprehensive response shortly after we contacted them.

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      Financial remedies

      Poor administration can cause financial loss to people. For example, they may not obtain a benefit to which they were entitled, their benefit may be reduced below their real entitlement, they may have a debt raised against them unreasonably, or they may suffer other financial losses.

      Compensation

      The scheme for Compensation for Detriment caused by Defective Administration (the CDDA Scheme) provides an important financial remedy. The CDDA Scheme allows portfolio ministers and authorised officials to compensate individuals or other bodies who have experienced losses caused by agency maladministration.

      The CDDA Scheme is designed to cover losses where there is no legal liability to compensate the person. The case study Ignored illustrates one example where a large CDDA payment was made.

      IGNORED CASE STUDY

      The former proprietors of a business complained that a regulatory agency had ruined their business through inappropriate and poor supervision of the regulatory staff of the agency. We did not investigate the regulatory practices, but identified that the proprietors had made numerous complaints over an extended period of time which were not addressed seriously. This failure resulted in extra costs and identifiable missed opportunities for the business. The regulator accepted this assessment and offered compensation of $1 million.

      Some other complaints we investigated which resulted in CDDA payments, or increased CDDA payments, illustrate the diverse range of circumstances in which such payments are justified.

      • A person claimed CDDA because she did not receive a benefit for which she considered herself eligible. Our investigation suggested there was sufficient evidence to show she had advised the agency of all the relevant circumstances, and they should have told her of the existence of the benefit. The agency accepted our view and paid most of her claim.
      • We received a complaint that an agency had given a person incorrect advice about the time remaining for completing a course. Acting on that advice, he paid further tuition fees, only later to find that he could not undertake the course because of the time limit. The agency rejected his CDDA claim on the basis that there was no definitive evidence it had given incorrect advice. Our analysis suggested that, on the balance of probabilities, he most likely had been given incorrect advice, and the agency paid his claim.
      • An agency failed to process a person’s claim for a benefit. There were multiple errors over extended periods of time, such as incorrectly recording income details, not acting on information provided, and requiring the person to provide very detailed historical records to support their claims, with long delays in resolving the problems. Once the matter was escalated with the agency, it responded promptly, paid the benefit and paid CDDA of nearly $10,000.

      Return to the topTop

      Dealing with a debt

      Debts and associated penalties can be raised against people for many reasons. When a debt, or part of a debt, is raised unreasonably, there are a number of ways it may be dealt with. The agency may be able to change the decision legally. In other cases, the Minister for Finance and his or her delegates may waive a debt where it has arisen wrongly and there is a moral, rather than legal, obligation to cancel the debt. Specific legislation may also provide for the waiver of debts. The case study No assurance shows how an agency changed its decision on a debt.

      NO ASSURANCE CASE STUDY

      Mrs D had provided an assurance of support (AOS) for Ms E when Ms E migrated to Australia. Several months after her arrival, Ms E claimed newstart allowance (NSA), which Centrelink granted. Nearly two years later, Centrelink raised a debt against Mrs D because of the AOS and undertook recovery for several years. However, Centrelink had not checked about the possible existence of an AOS at the time of granting NSA to Ms E, and had not contacted Mrs D before commencing payment. The decision to recover was affirmed in internal review and at the Social Security Appeals Tribunal. When we started investigating Mrs D’s complaint, and before the matter was heard by the Administrative Appeals Tribunal, Centrelink reviewed the case and decided it had made a legal error. It changed its decision on Mrs D’s debt and repaid her the money it had already recovered.

      The following examples illustrate some of the diverse ways in which debts may arise, and how they may be dealt with.

      • An agency raised a large debt against a person because it considered she had received payments for which she was not eligible. Our investigation found that the agency’s decision might have been different had extra information been available to it. We advised the complainant, who provided the relevant information to the agency, and the debt was cancelled.
      • A person complained that an agency raised a debt against her for overpayments she had never received. The agency had made the payment twice, after initially making the payment into the wrong bank account. The agency raised a debt against her, based on a suspicion that she had misled the agency and in fact had access to both bank accounts. Our investigation revealed that the agency was in error, and had confused her with another person. The agency withdrew the debt.

      Other financial remedies

      Simple errors by agency staff can have significant adverse financial consequences for people. The same can happen when a person misunderstands government requirements, or there are unforeseen changes in their personal circumstances. The intervention of the Ombudsman’s office can often result in a financial remedy for the person, as the following examples show.

      • After an agency stopped paying a person’s pension when he was overseas, the person made a number of unsuccessful attempts to resolve the situation. While he largely caused the problem, when we contacted the agency they identified that they could have done more to resolve it. They reinstated his pension.
      • A person complained that an agency had wrongly valued his shares for some years, resulting in pension underpayments. When he brought it to the agency’s attention, they corrected the payments but would not pay arrears. Our investigation showed that the agency had incorrectly recorded the details of some of his shares, and the agency paid him the arrears.
      • An agency rejected a person’s insurance claim for damage to an item purchased overseas. Our investigation revealed the agency could not demonstrate that the damage had not occurred while it had control of the item. The agency undertook to pay the cost of repairs and associated costs.
      • An agency failed to take account of the terms of an order for payment by a court when assessing the financial relationship between two parties. As a result of our enquiries, the agency obtained a legal opinion which confirmed their decision, but they were able to identify an alternative way to deal satisfactorily with the payment.

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      Apologies

      An apology can be highly effective in addressing a person’s grievance about poor administrative practice. Complainants often see an apology from an agency as a prerequisite to moving forward. An apology that is appropriately framed and properly communicated by an agency will often be accepted by a person as a satisfactory resolution of their grievance. The case study Incorrect information shows how powerful an apology and explanation can be.

      INCORRECT INFORMATION CASE STUDY

      Mr F complained that, amongst other things, he had been advised in a letter from a Minister that his father’s death had not been determined as being related to his father’s service in World War II. Mr F had always believed his father’s death was a result of war service, as this information was given to him as a child, and he had received a war orphan pension to cover matters such as medical expenses and school fees. Mr F’s subsequent efforts to clarify the matter, including through freedom of information (FOI), had not resolved the issue. After we contacted DVA, they undertook an extensive analysis of their records. They identified that Mr F had been given incorrect information and their view was that his father’s death was war-caused. The Secretary of the Department wrote to Mr F with an apology for the error, a detailed explanation as to how it may have occurred, and an offer for sympathetic consideration of any further FOI application Mr F might have, without the payment of fees.

      The diverse circumstances in which an apology can be appropriate are illustrated by the following examples.

      • An agency apologised for providing incorrect instructions on how a person should go about amending details on a database to assist in their application for a migration visa.
      • A person complained about continuing delays in getting medical treatment approved and reimbursement of medical expenses. After we contacted the agency, it apologised for the delays and poor handling of his case and put in place more appropriate procedures for the person’s circumstances.
      • A person complained about lengthy delays in receiving the correct amount of regular payments to which she was entitled. Our investigation revealed she had complained as soon as she started receiving the incorrect amounts, but the officer she dealt with went on extended leave and no one else dealt with her complaint. The agency apologised to her.
      • An agency apologised to a person for delay and inconvenience in handling his insurance claim for damage caused to his private vehicle by a government vehicle.
      • An agency apologised for incorrectly sending a letter threatening legal action, arising from their failure to check address details and to follow established procedures to contact the person before sending the letter.

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      Systemic issues

      An investigation of a complaint can reveal a systemic problem that could affect other clients of the agency. Among the recommendations that are often made by the Ombudsman’s office are for better training of agency staff, a change to agency procedures or policies, a revision of agency publications or advice to the public, or a review of government policy or legislation that is having harsh or unintended consequences. These types of recommendations for reform are taken up in the following summary of issues dealt with by the Ombudsman’s office in 2007–08.

      Improving advice to the public

      People rely on government agencies for advice and information on a great range of issues related to the legislation and programs administered by agencies. The first requirement is that the advice should be accurate. It can be equally important that agencies note any limitations applying to the general advice they are providing, or caution people to seek specific or independent advice relevant to their individual circumstances.

      The Ombudsman’s office dealt with a number of complaints during the year where incomplete or imprudent advice was provided, or the advice was not as timely as it might have been. It is important to draw these problems to the attention of the agency so that a similar problem can be avoided in future. The case study Over 65 shows one example where an agency improved the timeliness of advice to people.

      OVER 65 CASE STUDY

      Mr G complained because Comcare stopped paying compensation when he turned 65. We did not investigate this matter because the decision had been affirmed by the Administrative Appeals Tribunal as being in line with the legislation. However, we noted that Comcare provided information in general publications about benefits ceasing when a person turns 65, and that its practice was to write directly to each affected client sometime between three months and six weeks prior to the client’s 65th birthday. We suggested Comcare might consider writing directly to affected clients further in advance. Comcare agreed and revised their processes to alert people on their 64th birthday, and again prior to turning 65. This will help make sure people are aware of the impending change and have a longer period of time to make any necessary arrangements.

      There were other examples where agencies agreed to improve their advice to the public arising from complaints that we investigated.

      • An agency agreed to provide more detailed information about the limitations on priority processing times for particular types of applications dealt with by the agency.
      • An agency agreed to publish on its website its criteria for discretionary waiver of fees payable to the agency.

      Having good procedures

      Agencies must have sound procedures in place to administer complex legislation and government programs in a manner that is efficient, effective, fair, transparent and accountable, and that delivers the appropriate services to members of the public. The procedures need to deal with the exceptional as well as the normal cases, as the case study Late payments illustrates.

      LATE PAYMENTS CASE STUDY

      Ms H complained that her compensation payments from DVA were often late, and she was given a different explanation each time. In the course of our investigation, DVA advised us that the problem had arisen after Ms H had been moved from an automatic payment regime to a manual payment regime because her earnings fluctuated and a review was being undertaken. Her payments had been late twice because of human error or the absence of her case officer, and other members in the team had been unaware of the need for manual payment. DVA advised us that it had changed procedures in the area involved so that manual payments are managed as a team, and if a staff member is away another staff member can deal with the payment.

      Having good procedures to deal with exceptional cases was a common theme in other complaints we investigated.

      • A person who was in detention had missed a Magistrates Court hearing due to a request for transport being misplaced. The manager of the detention facility put in place new arrangements to supplement the manual procedures for transport bookings, to prevent a recurrence.
      • An agency was unable to process a person’s claim for a benefit through its automatic claim system because of the person’s unusual circumstances. The agency eventually undertook a manual calculation, paid the benefit and introduced improvements to their manual claims processing and systems.
      • A person complained about the confusing and conflicting advice she had been given about her husband’s whereabouts, medical condition and repatriation to Australia, following his illness while on service overseas. The agency agreed that the matter had not been handled well and took steps to remedy the systemic problems.

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      Interpreting and applying legislation and guidelines correctly

      An agency should always be alert to the danger that legislation or its own guidelines are not being interpreted correctly. To deal with this risk, agencies need to have adequate internal quality controls, look for inconsistencies in the application of legislation or guidelines, and focus on problem cases. The case study Not the owner shows an example where ministerial guidelines were not being interpreted correctly.

      NOT THE OWNER CASE STUDY

      Mr J complained that Centrelink had overturned a decision to grant his claim for liquid petroleum gas (LPG) conversion. Centrelink makes decisions on applicant eligibility and administers the grant payments on behalf of the Department of Innovation, Industry, Science and Research (DIISR). Centrelink makes decisions based on ministerial guidelines and advice from DIISR. Mr J had been the registered owner of the car at the time of the LPG conversion, but not later when he made the claim. Our investigation revealed that DIISR was interpreting the ministerial guidelines incorrectly and he did not need to be the registered owner at the time of claim. DIISR subsequently revised the customer guidelines for the scheme, and Mr J’s application was reconsidered and found to be eligible.

      Treating people equitably

      Complainants sometimes allege that an agency has not treated them equitably compared to other people. The following two case studies, Different calculations and State differences, illustrate the different and complex ways in which problems of equitable treatment can arise.

      Different calculations CASE STUDY

      Ms K was receiving a partial disability support pension because she also received workers compensation payments from an overseas country. She complained to us that Centrelink did not calculate the Australian dollar equivalent of her overseas payments in the same way as it treated foreign currency amounts received by other Centrelink recipients, and as a result she suffered financial loss. In the course of our investigation, Centrelink advised that it did treat overseas compensation payments differently depending on whether the person was receiving a social security payment at the time of their compensable event. If the person had been receiving a social security payment, the rates were automatically recalculated each month and customers could seek a review if there was a 5% difference between the rate Centrelink calculated and what they received. If not, as in Ms K’s case, Centrelink staff manually updated the rates twice a year. Centrelink agreed that the different approaches could adversely affect some customers and changed its procedures so that monthly re-valuing would occur in all cases.

      STATE DIFFERENCES CASE STUDY

      Mr L, who lived in Western Australia (WA), complained that his claim for LPG conversion had been refused, because he did not have the current registration papers for the vehicle in question. Mr L had purchased the vehicle second-hand. In WA, registration papers are sent only when the vehicle is next due for registration, not when ownership changes. While people can pay for a new registration certificate, this entails extra costs compared to people in most other states. As a result of our enquiries, AusIndustry consulted with the relevant WA department, and agreed that a screen dump obtained from the WA Licensing Centre would suffice as proof of registration. This information is now published on AusIndustry’s website. AusIndustry identified that a similar situation occurs in Victoria, and has made similar arrangements. Mr L’s application was subsequently reviewed and found to be eligible.