CHAPTER 9 | Lessons and insights for government

Lessons and insights for government menu: Lessons for public administration | Investigation reports | e-bulletins | Administrative deficiency | Broader themes

The Ombudsman’s office is uniquely placed to notice common problem areas in government administration. Each year we hear from thousands of people with complaints about government, which leads us to speak to most departments and large agencies.

A major focus of our work in recent years has been to draw out, for the benefit of government generally, insights and lessons that emerge from those thousands of complaints and investigations. Each complaint is unique, but frequently they highlight issues of administrative style, choice and attitude that convey a broader lesson.

This chapter presents highlights from that dimension of Ombudsman work during the year.

‘… complaint[s] … frequently highlight issues of administrative style, choice and attitude that convey a broader lesson.’

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Lessons for public administration

In 2005 and 2006, following the cases of Ms Cornelia Rau and Ms Vivian Alvarez, the Australian Government asked the Ombudsman’s office to investigate 247 cases where people had been held in immigration detention and later released when it was found they were not unlawful. The office published eight reports as a result of those investigations.

In August 2007 the Ombudsman’s office published a further report Lessons for public administration: Ombudsman investigation of referred immigration cases (Report No 11/2007). This report drew together ten lessons from the referred immigration reports that are relevant to all areas of government in guarding against administrative errors that can be harmful to members of the public. As the report noted:

‘At the end of every administrative process is a person who can be affected, beneficially or adversely. It is therefore important in all areas of government administration that the exercise of significant powers is underpinned by high quality internal systems, rigorous decision making, clear policy guidance, effective training, active oversight and quality assurance, and efficient internal and external information exchange.’

The report was released jointly by the Ombudsman and Mr Andrew Metcalfe, the Secretary of the Department of Immigration and Citizenship, at a seminar held by the Institute of Public Administration Australia. Speaking at the release, Mr Metcalfe said:

‘The events we are speaking about today were a watershed for my organisation and for the public sector as a whole, and we should take every opportunity to promote the lessons learned to a wider audience.’

The ten lessons are:

• maintain accurate, comprehensive and accessible records
• place adequate controls on the exercise of coercive powers
• actively manage unresolved and difficult cases
• heed the limitations of information technology systems
• guard against erroneous assumptions
• control administrative drift
• remove unnecessary obstacles to prudent information exchange with other agencies and bodies
• promote effective communication within your own agency
• manage complexity in decision making
• check for warning signs of bigger problems.

Since the publication of the report, the Ombudsman, Deputy Ombudsmen, Senior Assistant Ombudsmen and other senior staff have given presentations on the report to a wide range of Australian Government agencies and other organisations. The presentations also form part of the regular orientation seminars for members of the Senior Executive Service, organised by the Australian Public Service Commission.

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Investigation reports

The Ombudsman Act 1976 provides that the Ombudsman can initiate an own motion investigation into government administration. A number of such investigations are conducted each year, usually into problem areas in agency administration that have been identified in the course of complaint investigation. The practice of the office is to publish a report on the findings of an own motion investigation. Fourteen reports arising from own motion and other investigations were published in 2007–08.

The reports provide an important opportunity to step back from the detail of individual complaints and to draw attention to general issues that warrant attention within an agency. While focused on specific government programs or legislation, the reports often deal with issues that arise in other areas of government. This section provides some examples from these reports that are of broader relevance to government.

Implementation of job capacity assessments for the purposes of Welfare to Work initiatives: examination of administration of current work capacity assessment mechanisms (Report No 5/2008). The Welfare to Work program requires an applicant for income support who has a disability, illness or other barrier to work to undergo a job capacity assessment. This report drew attention to the importance of ensuring that those appointed to undertake a specialist assessment of this kind have appropriate qualifications for the task. An example given in the report was that two different assessors, one an intern psychologist and the other a social worker, had reached different conclusions on the same basic information about a person’s job capacity.

Another issue raised was the need for caution and proper documentation of the reasons for a decision, when an officer without specialist qualifications is required to make a decision on the basis of specialist reports. The report gave an example where a job capacity assessor did not provide an explanation for disregarding a doctor’s opinion on a person’s medical condition in favour of their own opinion.

The report recommended that the summary section of a job capacity assessment report should include an appropriate level of detail to justify an assessor’s recommendation. It also recommended that, where the assessor has formed a view contrary to the medical evidence provided, the specific aspects of the disputed medical assessment should be stated and reasons for disregarding the medical report should be provided.

Department of Immigration and Citizenship: administration of detention debt waiver and write-off (Report No 2/2008). This report was prompted by complaints to the Ombudsman that highlighted confusion among many people as to the distinction between waiver and write-off of a debt owed to the Australian Government. A debt that is waived is not recoverable at a later time, whereas a debt that is written off can be pursued later if the person’s financial circumstances improve.

The recommendations made in the report to reduce the risk of confusion and disadvantage are as relevant in other areas of government where debts are incurred. Among the recommendations were that a person should be told clearly and in plain language why a debt was imposed, the options available for paying off a debt or applying to have it waived or written off, and the distinction between waiver and write-off.

Damage caused to inbound international postal items (Report No 4/2008). This report pointed to the need for collaboration between agencies that have inter-related responsibilities in dealing with claims for property damage that arise from their activities. The nub of the issue examined in the report was that three agencies were involved in dealing with inbound international mail—processing the mail, customs clearance and quarantine inspection. If a mail item was damaged, people were often unclear about which agency to approach. A complaint made to one agency could be referred to another, with no agency ultimately accepting responsibility for dealing with the matter.

A theme of the report was that agencies that collaborate in service delivery or regulation must also collaborate in handling complaints about their actions. One important measure recommended in the report was for agencies to establish a single point of contact for complainants. Improvements in recording damaged items, and informing people how to claim compensation for lost or damaged items, could also reduce difficulties for members of the public.

Other reports dealt with issues of the following kind:

• Comcare: identifying the rehabilitation authority of a former Australian Government employee (Report No 18/2007): showed how machinery of government changes and legislative uncertainty can lead to people falling through the cracks of the new program arrangements, and the measures that should be taken by agencies to respond to the problem
• Australia Post: investigation of a complaint about a postal delivery officer (Report No 17/2007): illustrated the importance of good complaint handling when a member of the public has lodged a complaint, and the need to maintain confidentiality in dealing with the complaint
• Department of Industry, Tourism and Resources: failure to provide adequate reasons for a decision refusing an R&D Start Grant application (Report No 13/2007): showed the importance of correctly advising an unsuccessful applicant for a grant of the reasons for the decision, especially if the applicant is entitled to submit a fresh application that is designed to overcome weaknesses in the first application
• Centrelink: payment of independent rate of Youth Allowance to a young person (Report No 1/2008): highlighted the need for special arrangements and sensitivity in dealing with an application for a government benefit from a person under 18 who was experiencing family difficulty.

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E-bulletins

As noted in Chapter 5, during 2007–08 the office launched a series of Ombudsman e-bulletins, available from our website and through an email subscription. Their purpose is to provide to a wider audience, particularly staff in agencies, a sample of recent complaints and the lessons that can be drawn from them. Each case study shows that a single problem or complaint can point to a larger issue that may need to be addressed by an agency. The lesson can also be relevant to other agencies.

For example, cases in the first e-bulletin dealt with:

• conflict of interest in tendering
• managing a breach of a client’s privacy
• ensuring that staff know and correctly apply the legislation they are administering—and using complaints as a way to detect errors and mistakes
• having procedures for handling requests under the Freedom of Information Act 1982 take proper account of the existence of electronic records.

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Administrative deficiency

Section 15 of the Ombudsman Act lists the grounds on which the Ombudsman can formally make a report to an agency, and ultimately to the Prime Minister and Parliament. Only a few such reports are made each year to agencies, and more rarely to the Prime Minister or Parliament. Most complaints to the Ombudsman can be resolved informally, and without the need to reach a firm view on whether an agency’s conduct was defective. This reflects the emphasis of our work on achieving remedies for complainants, and improving agency complaint-handling processes and public administration generally.

Instances nevertheless arise in which administrative deficiency should be recorded and notified to an agency. This helps draw attention to problems in agency decision making and processes, and feeds into the systemic work of the Ombudsman’s office. The purpose of a finding of administrative deficiency is not to reprimand the agency concerned, and the individual findings are not separately published in the same way that reports under s 15 are usually published.

Under our current work practices, a finding of administrative deficiency can only be recorded with the approval of a Senior Assistant Ombudsman, Deputy Ombudsman or the Ombudsman. We notify the agency of our intention to record administrative deficiency, with an explanation of the reasons. If an agency disagrees with a proposed recording of administrative deficiency, the matter will be considered further by the relevant Senior Assistant Ombudsman or, if necessary, a Deputy Ombudsman or the Ombudsman.

This process helps ensure that concerns about agency administration are considered at appropriate levels in the agency, and that remedial action is taken.

During 2007–08 we recorded 368 cases where there were one or more issues of administrative deficiency, including some complaints discussed elsewhere in this report. The following additional examples illustrate the administrative deficiencies recorded during the year.

• Factual error. A person’s application for a benefit was wrongly refused on the basis of an incorrect assessment as to whether they met a particular eligibility criterion. This was caused by a wrong assessment of the date of the person’s enrolment in a particular course.
• Human error. A tribunal remitted an application to an agency. The liaison area in the agency did not identify that further action was required on the case, leading to long delays in deciding the application.
• Legal error. A person requested a review of an agency decision. The agency wrongly decided that his request was invalid and out of time. The agency decision was not in accordance with the legislation.
• Inadequate advice, explanation or reasons. A person rang an agency seeking information about how to make a complaint against a third party. The agency staff did not ask sufficient questions to determine his circumstances and sent him the wrong information, leading to substantial problems for the person when he made his complaint.
• Unreasonable delay. A person applied for a benefit. The officer handling her application went on urgent unplanned leave for some months. The case was not allocated to another officer and the agency did not respond to contacts from the person, resulting in long delays in deciding the application.
• Procedural deficiency. A person was denied a benefit on the basis of an assessment of their medical condition. The initial medical assessment was inconclusive, but was amended by an agency staff member following a call to a doctor who did not have the person’s medical records. The proper procedure would have been for the staff member to arrange a fresh medical assessment.
• Flawed administrative process. An agency’s information technology system was unable to reconcile different payments when a person’s eligibility for various payments changed throughout the year, and the agency had to manually reconcile the payments. The agency was aware of the system’s shortcoming, but had not made enough effort to identify people affected by this problem and to manage the issue better.
• Unreasonable or harsh agency action. An agency sent formal notices to a person’s employer seeking details of his earnings on three occasions, without seeking the information from the person in the first instance. After apologising to the person, the agency then sent a fourth notice to the employer, although the agency appeared to have all the information it needed and was aware that the relationship between the person and his employer was poor.
• Resource deficiency in agency. A person’s request for review of an agency’s decision was not finalised until well beyond the statutory time period because the agency had received a large number of requests and had a staff shortage. This delay led to the person accruing a debt and to the relationship between the person and the agency deteriorating badly.
• Inadequate knowledge/training of staff. Problems in a procurement process probably occurred because the agency staff in charge of the process were subject area specialists, not procurement experts. For example, they allowed the successful tenderer to deviate from the requirements outlined in the request for quotation, without giving other potential tenderers the capacity to bid on the same basis. Hence there was no assurance that the agency obtained value for money.
• Breach of duty/misconduct by an officer. Agency officers did not follow appropriate guidelines and procedures for managing a real or perceived conflict of interest in awarding a contract.

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Broader themes

The remainder of this chapter describes some other themes that have been taken up during the year in Ombudsman complaint handling and own motion investigations.

Good complaint handling

Good complaint handling is a constant theme of Ombudsman work. Inevitably problems arise in any administrative program. A good complaint-handling process provides a way for problems to be dealt with quickly and effectively, reducing further distress and disadvantage for government clients. On the other hand, poor complaint handling can exacerbate what may have been a simple error or oversight. This may give rise to other complaints from the person concerned and to a loss of public confidence in the agency.

‘Good complaint handling is a constant theme of Ombudsman work.’

Good complaint handling can provide an agency with intelligence about systemic problem areas in agency administration. For example, an individual complaint may show that legislation is not being applied properly, that staff need better training, that there are deficiencies in an agency’s quality assurance processes, or that resources are inadequate for the task at hand.

Most complaints investigated by the Ombudsman’s office have already been dealt with by an agency. Consequently,
if the Ombudsman investigation leads to a different outcome for the complainant, it can be important to look at why external intervention was necessary to resolve the problem, and if necessary take this up with the agency. This may point to a weakness in the agency’s complaint-handling system.

Over the years the Ombudsman’s office has published a number of reports looking at complaint handling in various agencies. For example, in 2006–07 three own motion investigations focused on aspects of complaint handling by agencies involved in airport operations (Report No 3/2007), by the Australian Defence Force (Report No 4/2007), and by the Migration Agents Registration Authority (Report No 5/2007).

Reports published during the year on individual complaints highlighted weaknesses in agency complaint-handling or reconsideration processes. For example:

• Report No 13/2007 was critical of how the then Department of Industry, Tourism and Resources dealt with a claim for compensation from a person whose application for a research and development grant had been unsuccessful
• Report No 17/2007 described problems in the way Australia Post dealt with a person’s complaint about a street mail delivery contractor
• Report No 1/2008 described a delay in Centrelink’s review of a decision.

Problems in agency complaint handling were also exposed in some complaint investigations undertaken during the year.

• A person complained to an agency after its officers visited his residence to try to serve papers on him that were unconnected with the agency’s official business. One of the officers showed his agency identification. The agency investigated the person’s complaint but did not give him a meaningful explanation of the agency action following his complaint.
• A person’s complaint to an agency about delay was referred by its complaint-handling unit to the wrong area, because of a recording mistake. Furthermore, the agency did not follow up on his subsequent contacts, failed to escalate the matter at the appropriate time, and then closed his complaint without providing him with any advice.

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Recordkeeping

Many complaints arise from poor recordkeeping practices. Common problems include that a record has been lost, a file error is not detected or corrected, an important record is not made or retained, unreliable or ambiguous information in a record is later treated as fact, or an incomplete record is assumed to be complete and accurate. The problem of poor recordkeeping is often compounded by delay either in making a decision in a person’s case, or in resolving their complaint about the matter.

Poor recordkeeping also undermines transparency in agency decision making, and can lead to allegations of deception, bias, incompetence, or corruption.

Reports published by the Ombudsman during the year commented on recordkeeping practices. For example, the report on Implementation of job capacity assessments for the purposes of Welfare to Work initiatives (Report No 5/2008) made the following recommendations:

• assessment summaries made as part of a job capacity assessment should contain an appropriate level of detail to justify an assessor’s recommendation, and if an assessor forms a view contrary to specialist medical evidence, the specific areas of disagreement should be stated and reasons given for disregarding the medical report
• job capacity assessors should be required to record and retain proper file notes of all contacts made as part of an assessment process, such as interviews, and discussions with treating doctors, other specialists and Centrelink.

Two other published investigation reports contained comments on recordkeeping:

• Report No 13/2007 noted that the Industry Research and Development Board did not record in any detail the reasons for twice refusing a grant
• Report No 3/2008, which dealt with allegations that Defence had ignored forewarnings of the fire on HMAS Westralia, noted that there was no record of the reasons for a decision not to investigate anonymous allegations made in 2000 or of action taken at the time.

Recordkeeping problems were often noted in individual complaint investigations. An example was a lengthy delay in deciding a person’s claim for a benefit, after the agency first lost his file for over three months and then, when he lodged a fresh claim, failed to find his medical reports.

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Natural justice

‘Natural justice’ or ‘procedural fairness’ is a fundamental requirement of sound administrative practice. Above all, it provides an opportunity for a person to be heard before a decision is made that adversely affects them. This can be important if there are gaps, errors or discrepancies in the information on which an agency proposes to base a decision. The usual remedy in administrative law where there is a breach of natural justice is for a court to nullify a decision and require an agency to reconsider.

The Ombudsman cannot nullify an agency decision, but to the extent practicable we recommend that an agency reconsider or change a decision if there was a breach of natural justice.

There will always be a risk that natural justice is not fully observed by agencies unless the issue is specifically addressed in agency guidelines and procedures. This is a recurring theme in investigation reports published by the Ombudsman. For example, the report on Marriage-like relationships: policy guidelines for assessment under social security law (Report No 14/2007) recommended that the policy guidelines be changed to specifically address procedural fairness. For example, they could require that before a decision is made that a social support claimant is a member of a couple, the person should be advised in writing of the proposed decision and the reasons for it, and be given an opportunity to respond.

The report Application of penalties under Welfare to Work (Report No 16/2007) expressed concern that Centrelink’s failure to notify customers of its intention to withhold payment deprived those customers of the opportunity to query Centrelink’s action, or to arrange their finances in anticipation of future payments not being made.

Failure to observe natural justice was a strong theme in a report published by the Ombudsman in 2006—Department of Immigration and Multicultural Affairs: Administration of s 501 of the Migration Act 1958 as it applies to long-term residents (Report No 1/2006). The report drew attention to decisions in which there had been a breach of procedural fairness in making a decision to cancel the visa of a person.

As noted in the Immigration section of Chapter 7—Looking at the agencies, in response to one of the recommendations in that report, the Department of Immigration and Citizenship undertook a review of 91 cases where people who were long-term permanent residents had had their visa cancelled under s 501 (‘character grounds’). The review was completed in 2007–08 and identified that, in all but one case, the highest level of procedural fairness had not been met.

Problems with according people natural justice were identified in some complaints investigated during the year. For example, the Department of Foreign Affairs and Trade (DFAT) cancelled a person’s passport at the request of her adult guardian, but did not advise her or tell her of her review rights. When she tried to travel overseas, her passport was seized and she was prevented from travelling. When we investigated, DFAT was already considering some of the issues. DFAT subsequently agreed to apologise and to invite her to apply for compensation for costs she had incurred. The department also agreed to change its procedures to afford natural justice prior to cancelling passports wherever this was possible, taking into account issues such as security and flight risk.

In another example, an agency was required by law to give a person an opportunity to comment upon a proposed change in assessment of his eligibility for a government benefit. A meeting was scheduled and the agency then changed the date. He was not advised in time, and when he later contacted the agency they gave him wrong information about the purpose of the meeting. The agency decision maker then made the decision on the basis that he had decided not to attend the meeting. Following our investigation, the agency introduced guidelines to ensure procedural fairness would be provided and to ensure staff understood the importance of providing customers with an opportunity to be heard.

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Good communication

As discussed in Chapter 8, good communication is essential to good public administration. Problems noted in the earlier discussion occurred in the general advice given by agencies to the public, and in the reasons for decisions. Good communication involves being timely and clear, explaining options and implications, and keeping people informed. It involves communicating in the most effective manner, and by the most appropriate channel, for the audience.

Reports published by the Ombudsman often focus on issues of communication. For example, communication was at the heart of a report that gave examples of deficiencies in letters advising people that their application for a visa was unsuccessful—Department of Immigration and Citizenship: notification of decisions and review rights for unsuccessful visa applications (Report No 15/2007). Unless a decision is clearly explained and notified, a person’s capacity to usefully seek review of an adverse decision or to lodge a fresh application will be diminished. It is important also that advice to a person about their immigration status in Australia should be clear and comprehensive.

‘Reports published by the Ombudsman often focus on issues of communication.’

The need for clear communication was a theme in the report into DIAC’s administration of detention debt waiver and write-off (Report No 2/2008). Amongst the recommendations in that report were that:

• people should be given complete and accurate information about their immigration detention debt, including repayment options, a contact person, and what they can do if they are experiencing difficulty paying their debt
• a letter notifying a person that a debt is to be written off should fully explain the decision and that it does not extinguish the debt for all time, and give the options open to the person to seek waiver of the debt.

Poor communication by agencies was criticised in many individual investigations during the year, as illustrated by the following two instances.

• An agency failed to provide an adequate explanation to a person about why she was not receiving the full payment to which she considered she was entitled. The agency could have provided more relevant information without breaching the secrecy provisions in the relevant legislation.
• An agency officer mistakenly sent a letter to a person advising him he had been assessed as meeting the first stage of processing for a particular benefit. This was incorrect, but the agency officer failed to advise the person of this mistake, and rather asked the person not to keep asking about progress with his application.

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Joint service delivery

Recent Ombudsman annual reports have highlighted problems that can arise where different organisations in the public, private and not-for-profit sectors, and at different levels of government, are involved in developing and implementing a government policy. This problem is raised again in this report in Chapter 7. Disputes about service delivery can be very difficult to resolve, especially if it is unclear to whom or where a complaint about a particular issue should be sent. It is perplexing and frustrating for complainants to be shuffled from one organisation to another.

This issue was addressed in a few investigation reports published during the year. For example, the report Damage caused to inbound international postal items (Report No 4/2008), noted earlier in this chapter, recommended that three agencies take joint responsibility for deciding which agency is most appropriate to handle a claim about damage to a postal item. A claimant should not be expected to communicate with multiple agencies in an attempt to find someone willing to consider their claim.

A strong message sent by the Ombudsman’s office is that an agency must retain some responsibility for the resolution of complaints even though it has contracted out the delivery of a function. This issue arose in one complaint during the year where an agency was unable to provide the Ombudsman’s office with straightforward statistical information about the service outcomes for clients of a contracted organisation. This became an issue because the agency had made statements about the outcomes in earlier rejecting the particular complaint.

A general point arising in that and other cases is that an agency should ensure that issues related to contract or relationship management with the service provider do not obscure its responsibility to deal effectively with complaints from the public about the service delivery. Each complaint should be dealt with on its merits.

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Legality

The public should be able to trust that government agencies will always act lawfully and make lawful decisions. People rely on agency staff to do so when applying legislation that gives a right to benefits and services, that regulates movement in and out of the country, and that imposes obligations to pay taxes and debts.

Legal compliance was an issue addressed in some reports during the year. For example, the report Application of penalties under Welfare to Work (Report No 16/2007) raised a concern that a Centrelink practice of withholding payment pending a decision on whether a person had complied with a requirement imposed on them was not supported by the social security law. Another report, Centrelink: payment of independent rate of Youth Allowance to a young person (Report No 1/2008), expressed concern that the suspension of a young person’s payments appeared to have been without legal basis and the records did not have an explanation of why this was done.

There were other examples where legislation or legal orders may not have been complied with.

• Agency staff continued to make enquiries about a person’s eligibility for payment, despite a court order requiring the payment to be made.
• When a person’s payment was wrongly credited to someone else, an agency officer tried to remedy the problem by remaking the payment to the correct person from consolidated revenue. While well-intentioned, such a payment was without legal basis.
• An agency incorrectly suspended a person’s payments. The problem was compounded because agency staff did not recognise she was at risk of domestic violence and she was not able to speak to relevant staff despite ringing the contact point every day for over two weeks.

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Timely decision making

Delay in making a decision or taking action is a frequent cause of complaint to the Ombudsman. People expect government agencies to act in a timely manner. They expect an enquiry to the agency to be answered promptly, an application lodged with the agency to be decided efficiently, or a dispute with the agency to be resolved fairly but quickly. Timeliness standards may be specified in legislation or in service charters.

A number of own motion investigation reports released during the year discussed problems of timeliness. For example:

• Report No 14/2007 recommended that the policy guidelines for assessing marriage-like relationships under social security law emphasise the need to conduct ‘member of a couple’ investigations as quickly as reasonably possible and that investigations should not be kept open in anticipation of new information becoming available if existing information does not substantiate a finding that a marriage-like relationship exists
• Report No 16/2007 concluded that delays in Centrelink decision making on participation and serious failures were not acceptable, and in many cases compounded the difficulties faced by customers subject to a non-payment period
• Report No 2/2008 on DIAC’s administration of detention debt waiver and write-off recommended that DIAC introduce timeliness standards to prevent unnecessary delay, and to ensure people were advised at regular and appropriate intervals of progress in their case.

Timeliness was also an issue in many individual cases we investigated during the year. For example:

• An agency was required by law to pursue money owed to a person. The agency failed to act for periods of over seven years. When it did recover the money, it then failed to pay the person for another twelve months.
• Agency staff failed to take reasonable action to verify claims made by a person over a period of fifteen months that he was not liable for a debt. While the person was able to seek formal review, the agency would have been readily able to verify the information.

Future work

In 2008–09 we plan to publish further information on the broad themes that arise in public administration. This will include a new better practice guide to complaint handling, and a better practice guide to good public administration. We will also continue to pursue these themes through our program of own motion investigations, and publication of investigation reports and cases that are of broader relevance.