Chapter 7 | Helping people, improving government

introduction

Ombudsman work focuses on resolving individual complaints and improving public administration. This chapter outlines our work in obtaining remedies for individual complainants, and improving public administration more generally.

The first part of the chapter looks at some of the remedies provided to complainants as a result of Ombudsman investigations. The second part looks at some of the improvements in agency administration that have resulted from Ombudsman investigations, often arising from a single complaint. The chapter concludes with an illustration of cases where we have identified administrative deficiency in agency operations.

Remedies

In investigating individual complaints, an important consideration is whether there is a suitable remedy for the complainant. Remedies can include an apology, giving better reasons for a decision, expediting action and a financial remedy.

In November 2008 we released a fact sheet explaining the remedies that Australian Government agencies can provide for poor administration and the principles that should guide the choice of a remedy. Fact sheet 3—Remedies is available on our website (www.ombudsman.gov.au).

This section gives some examples of the range of remedies we obtained for individuals through our complaint investigations in 2008–09.

Explanations

Providing a clear explanation of a decision is an important remedy. It can reduce a person's concerns, even if the decision cannot be altered. Giving the reasons for a decision can also be of practical assistance. For example, it may help the person to decide whether to make a fresh application, or seek review or reconsideration of the decision.

Explanations

Medications seized

Mr O purchased some medications from overseas via the internet. They were intercepted by Customs and seized by the Australian Federal Police (AFP). Mr O complained to Customs and when he did not get a response, complained to us. Customs had misplaced his letter of complaint. Customs explained that the items were initially tested for narcotics and transferred to the AFP for further testing. The AFP then issued the seizure notice to Mr O. In addition, the medications Mr O had purchased could only be imported if he had a licence or permission to import. Customs explained that, if the AFP testing proved negative, the items could be released to him provided he obtained permission from the Therapeutic Goods Administration to import the items for personal use.

Wrong rebate?

Mr P complained that he had had four lesions removed in one period of surgery, but he thought that the Medicare rebate had only covered one removal. He complained to us when he could not get a satisfactory explanation from Medicare Australia. When we contacted Medicare Australia, they went to some lengths to identify the person Mr P had spoken to, but could not. Medicare Australia provided a detailed explanation to Mr P about the complex formula used to calculate a rebate when multiple procedures are carried out in one operation. They had applied the formula correctly in his case.

Food seized

Mr Q complained that, when he brought packages of spices and foodstuffs into Australia from Africa, the Australian Quarantine and Inspection Service (AQIS) had seized some items and allowed other similar items in. He said the seized items had been commercially prepared and packed and labelled correctly. When we investigated, AQIS provided detailed information to Mr Q and met with him to clarify their actions. AQIS explained that it had been a mistake to allow in any of the items. They had seized the items because some were not clearly commercially packaged and labelled, some were contaminated with seeds, and some items contained spices but did not clearly indicate where the spices came from (they may have originated in another country). AQIS also advised Mr Q that travellers should always check for up–to–date information because quarantine requirements can change without notice.

Actions and decisions

We receive many complaints about agency decisions. A frequent complaint is that there is delay by an agency in making a decision. Often, a suitable remedy in this situation will be to expedite action. Another frequent complaint is that an agency has made a wrong decision. We respect the right of agencies to decide the merits of a claim, but we do examine whether an agency has made a decision based on wrong or incomplete information, ignored relevant information or not applied the principles of natural justice. The appropriate remedy in these circumstances may be for the agency to reconsider or change a decision.

Actions and decisions

Visa refused

We received a complaint on behalf of Mr R, a South African man who had applied with his wife for a tourist visa to visit their son and his family who had resided in Australia for many years. Mrs R had been granted a visa, while Mr R's application was refused on medical grounds. When we investigated, we considered there were problems with the way Mr R's application had been dealt with, and raised our concerns with the Department of Immigration and Citizenship (DIAC). DIAC agreed and sought a new medical assessment. On reviewing the case further, DIAC decided that there had been a jurisdictional (legal) error. It set aside the decision and agreed to process Mr R's application based on the new medical information.

Order not stayed

Mr S had two separate child support cases. In one case he applied to court in 2004 to challenge the child support application on the basis that he was under age at the time it was claimed he had fathered the child. He was successful and the court made an order that permanently stayed the assessment by the Child Support Agency (CSA). As to the other child support case, from early 2008 the CSA collected deductions from Mr S's employer but apportioned the money towards both child support cases. The CSA paid child support to the payee for the second child support case and kept the money deducted for the first child support case because of the stay order. When we investigated the CSA agreed that it had no legal basis to collect funds in relation to the first case. It stopped this collection, paid some of the money it held against the arrears that had accrued for the second case, and reimbursed the remainder to Mr S.

Delay

Mrs U transferred from one Centrelink payment (widow pension) to another (age pension). After receiving a single part payment, she did not get any more payments. She contacted Centrelink a number of times, and was advised that her payments had mistakenly been paid into the wrong bank account. Centrelink told her she would need to wait until the bank refunded the money before it would be paid to her. When we investigated, Centrelink advised us that it had made the payments to the wrong account because of a systems error, and it had not followed up with the bank. It did so at once, and paid nearly $1,000 into Mrs U's bank account.

Financial remedies

Poor administration can cause financial loss to people. For example, a person 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. There is a range of remedies that can be used to provide financial relief or compensation to a person. One remedy is that compensation may be payable under the Compensation for Detriment caused by Defective Administration (CDDA) scheme. In other cases, a debt may be waived or reduced. Other financial remedies might include a refund of fees or charges, or payment of a particular benefit.

Financial remedies

CDDA

Mr V complained that Centrelink had rejected his request for a CDDA payment. He had been granted newstart allowance at the end of 2006. He queried his payment rate several times, but Centrelink assured him it was correct. A year later, Centrelink found it had not been paying him the correct rate. However, it refused Mr V's CDDA claim on the basis that he had not sought a review of the decision and was not in a vulnerable group of clients. We raised our concerns about the handling of Mr V's claim with Centrelink. On closer examination, Centrelink agreed to pay Mr V's claim, on the basis that it had made some clerical errors and it had not provided detailed information to Mr V that would reasonably have led him to seek a review. Centrelink also undertook a complete review of Mr V's prior payments, and found that, due to his complex circumstances not being recognised, he had been underpaid Austudy as well. Centrelink made an additional CDDA payment in light of this underpayment.

Debt waiver

Mr W was being held in immigration detention pending removal to another country. DIAC obtained travel documents to assist in his removal, and sent them to the Australian embassy in the overseas country. DIAC expected it would take four to six months to obtain Mr W's passport. After four months DIAC contacted the Australian embassy, only to find that it had not received the documents in the first instance. This meant that Mr W spent an additional four months in detention. DIAC agreed to seek a waiver of his detention debt for that period. It also put in place improved procedures to ensure that it would identify earlier if documentation had gone missing.

Apologies

An apology can be highly effective in addressing a person's complaint about poor administrative practice. 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. Complainants often see an apology as the first step in moving forward.

Apologies

No advice of debt

Mr X complained on behalf of his son, who was living overseas. Mr X's son had received an invoice from a debt collector on behalf of the Department of Defence. His son had discharged from the Army several years earlier, and had no knowledge of the debt. Defence advised us that Mr X's son had not paid any living–in contributions for a period of eight months while he was in the Army. This was due to a computer error, which was discovered more than a year after Mr X's son left the Army. Defence had correctly raised the debt, but then sent notices of the debt to the wrong address. When the debt was not paid, Defence passed the matter to a debt collection agency. Defence wrote to Mr X and his son explaining the circumstances and apologising for the manner in which they were made aware of the debt and the inconvenience and stress it caused them.

No privacy

Staff of the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) were investigating some matters related to a person. They visited the person's bank to find out some information about the type of accounts the bank operated. While they were only seeking general information, the staff inadvertently revealed the person's identity to the bank. FaHCSIA apologised to the person for the unintentional breach of privacy.

Good administration

An individual complaint can highlight a recurring problem in agency administration. Following investigation, the Ombudsman's office may recommend broader changes, such as 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 recommendations may be pursued in various ways. For example, we may raise the issues with an agency through regular liaison meetings, propose improvements in the course of the investigation of an individual complaint, or make a formal recommendation.

During 2008–09 the office published 18 formal reports. Some of these reports dealt with an individual complaint investigation, some arose from the investigation of numerous similar complaints, and others were own motion investigations dealing with systemic issues that had been noted during complaint investigations. The reports are:

Improving communication and advice to the public

People rely on government agencies for advice and information about the legislation and programs the agencies administer. They expect this advice to be accurate and practical. Any qualification or limitation on the general advice provided by an agency should be explained. If appropriate, a person should be cautioned to seek specific or independent advice relevant to their individual circumstances.

An example of an advice problem we dealt with during the year involved a complaint that checklists provided by DIAC to assist applicants for a partner visa application were inconsistent. This could lead to confusion and potentially result in inadequate documentation being submitted in support of an application. Our investigation showed that there was, indeed, an inconsistency in the information provided by DIAC in the relevant migration booklet, in checklists and on DIAC's website. DIAC acknowledged the problem and advised that it would make amendments to the checklists and information booklet.

The general advice provided by an agency may need supplementation for specific groups of people. This was highlighted by a complaint we received from a person who lived in New Zealand. He was upset that the CSA's accounts of payments it received that he had made to the New Zealand Inland Revenue Department were always behind, because of the delays in an international money transfer from a New Zealand agency to an Australian agency. He said that his former wife and his daughter believed that he was behind with his payments and that this affected his relationship with his daughter. The CSA provided him with a better explanation of his account and the payment cycle. It also undertook to prepare a suite of country–specific fact sheets to send to CSA customers with international cases to explain the issues that can arise with international enforcement of child support. These fact sheets will be prepared for the five largest 'reciprocating jurisdictions', assisting CSA customers in more than 24,000 cases and covering 59% of all international cases.

The issue of advice and improved communication with the public was a recurring theme in reports we published during 2008–09. For example:

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. Many complaints to the Ombudsman's office arise from poor agency procedures.

This point is illustrated by a complaint we received from a person who had changed employment from the Department of Defence to another department. Defence sent his personal security file to the other department by ordinary post. The file, which contained sensitive personal information, was lost. Following our investigation Defence agreed to use their contracted courier services to move all personal security files between Defence establishments and between Defence offices and outside agencies.

Many of the reports we published during the year contained recommendations aimed at improving agency administrative procedures. For example, we recommended:

Interpreting and applying legislation and guidelines correctly

The public relies on government agencies to act lawfully and make lawful decisions. An agency should always be aware of the danger that staff are not correctly interpreting legislation or agency guidelines. 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 risk of error increases generally where the legislation is more complex. For example, a person who was the payer in a child support case complained that the CSA had failed to keep proper accounts of the debt he owed. In particular, he said the CSA had failed to take into account certain amounts that he had paid to the payee and which, by law, can be offset against a proportion of the amount he has to pay to the CSA. We found that the CSA's automated accounting system was not programmed to correctly apply the offset rules in every situation. The agency staff who spoke to the person were not aware of this shortcoming, nor that the CSA had internal procedures to manually adjust the debt in such a case where the debtor falls behind with their payments and then catches up. We have asked the CSA to consider how it can improve its system to avoid similar instances.

We made recommendations about the application of legislation and guidelines in several reports published in 2008–09. For example, we considered that Centrelink was applying the criteria for the Equine Influenza Business Assistance Grant (third payment) wrongly in some cases. The grant was administered by Centrelink, based on policy guidance produced by the Department of Agriculture, Fisheries and Forestry (DAFF) in response to ministerial directions. We recommended Centrelink and DAFF review unsuccessful applications for the payment (Report No. 13/2008). As a result, more than $2 million was paid to 463 claimants who had previously been unsuccessful.

In another report, we noted that few Australian Government agencies are aware of their obligation to prepare a heritage strategy for managing places they own or control, in accordance with s 341ZA of the Environment Protection and Biodiversity Conservation Act 1999. The Ombudsman recommended that the Department of the Environment, Water, Heritage and the Arts write to all departments, alerting them to the obligation under s 341ZA resting on all agencies within their portfolio (Report No. 9/2009).

Good complaint handling

Good complaint handling is a central theme of Ombudsman work. A good complaint–handling process provides a way for problems to be dealt with quickly and effectively. It can also provide an agency with early information about systemic problem areas in agency administration. Poor complaint handling can exacerbate what may have been a simple error or oversight, potentially giving rise to other complaints from the person concerned and to a loss of public confidence in the agency.

Over the years the Ombudsman's office has put considerable effort into helping agencies improve their complaint–handling processes. We have done this in a variety of ways, including liaison and training, reviews of agency complaint–handling systems, and the publication of relevant material.

In April 2009 the Ombudsman released the Better Practice Guide to Complaint Handling. The guide defines the essential principles for effective complaint handling. It can be used by agencies when developing a complaint–handling system or when evaluating or monitoring an existing system.

Most complaints investigated by the Ombudsman's office have already been dealt with by an agency. A problem that has not been effectively resolved by the agency may point to a deficiency in the agency's complaint–handling process. Our investigation can point to areas that an agency needs to address when it deals with complaints.

For example, we dealt with a complaint about delays in investigating a complaint made to the Aged Care Complaints Investigation Scheme (part of the Department of Health and Ageing). An officer had started investigating the complaint, but after a change in staff the complaint was not progressed and the department failed to keep the complainant informed about the investigation. When we contacted the department it acknowledged the complaint had been handled poorly. The department put in place a range of new procedures to ensure there would be no recurrence. The changes included reviewing all cases that were taking longer than usual to resolve or where there had been a change in the lead investigation officer; changes to the management of case loads for staff known to be leaving the department or taking extended leave; and reviewing the processes in place where an investigation officer changes during the investigation.

Some of the investigation reports published during 2008–09 contained recommendations related to improving complaint handling. For example:

Recordkeeping

Many complaints that the office deals with each year arise because of poor recordkeeping practices in agencies. The problems are often compounded by a delay in making a decision in a person's case or in resolving their complaint about the matter. Poor recordkeeping can also undermine transparency in agency decision making and lead to allegations of deception, bias, incompetence or corruption.

Sometimes seemingly simple errors such as misplacing or losing a file, failing to keep a proper record of an important decision or conversation, or inadvertently confusing people who have similar or identical names, can lead to substantial problems for a person. Poor recordkeeping can also mean that, even if an agency's decision or action was correct, it cannot demonstrate this to an aggrieved person.

In some cases problems with poor recordkeeping are compounded by reliance on automated systems that cannot deal with the specific circumstances properly. For example, we received a complaint from a person that DIAC had not made a decision on an application for citizenship for his son, who lived overseas. When we investigated, we found DIAC had no record of a decision letter being sent. This was due to the inability of DIAC's computer system to generate a decision letter when the application was processed offshore. DIAC put local procedures in place to ensure that all citizenship decision letters are generated manually and copies retained electronically and on file.

The need for improved recordkeeping was a common theme in reports published during the year. For example:

Unreasonable or harsh impact of legislation or government policy

A complaint may reveal that a legislative anomaly exists such that the application of the legislation is having a harsh or unreasonable impact on a person, or an unintended consequence. Similarly, a complaint may show that a government or agency policy has a harsh or unreasonable impact on some individuals. Several reports published during 2008–09 addressed these issues.

The Ombudsman's report on the assessment of claims for disability support pension from people with acute or terminal illness (Report No. 2/2009) pointed to gaps in the support for people with an aggressive illness that would either require a lengthy period of treatment or recovery, or require additional investigation to identify a more conclusive prognosis. The Ombudsman recommended that consideration be given to developing a new category of Centrelink payment for people in these circumstances, and creating a list of conditions that would automatically qualify a customer for the new payment.

In the report on the ATO's re–raising of tax debts it had previously written off (Report No. 4/2009), the Ombudsman recommended that the ATO should consider the reasonableness of seeking to recover debts which had not been pursued for many years, taking into account the period of time for which taxpayers could be expected to retain relevant tax records.

Administrative deficiency

Section 15 of the Ombudsman Act 1976 lists the grounds on which the Ombudsman can formally make a report to an agency, and ultimately to the Prime Minister and Parliament. A small number of such reports are made each year to agencies; reports to the Prime Minister or Parliament are rare. 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 on improving agency complaint–handling processes and public administration generally.

Cases nevertheless arise in which administrative deficiency should be recorded and notified to agencies. 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.

During 2008–09 we recorded 533 cases where there were one or more issues of administrative deficiency. The significant increase from last year (368 cases) generally reflects revised internal procedures and training, aimed at ensuring that we record all cases of administrative deficiency that we identify. Some complaints discussed elsewhere in this report led to a finding of administrative deficiency.

The following additional examples illustrate the administrative deficiencies recorded during the year.

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      Commonwealth Ombudsman Annual Report 2008-09 | Chapter 7 Helping people, improving government

      Chapter 7 | Helping people, improving government

      introduction

      Ombudsman work focuses on resolving individual complaints and improving public administration. This chapter outlines our work in obtaining remedies for individual complainants, and improving public administration more generally.

      The first part of the chapter looks at some of the remedies provided to complainants as a result of Ombudsman investigations. The second part looks at some of the improvements in agency administration that have resulted from Ombudsman investigations, often arising from a single complaint. The chapter concludes with an illustration of cases where we have identified administrative deficiency in agency operations.

      Remedies

      In investigating individual complaints, an important consideration is whether there is a suitable remedy for the complainant. Remedies can include an apology, giving better reasons for a decision, expediting action and a financial remedy.

      In November 2008 we released a fact sheet explaining the remedies that Australian Government agencies can provide for poor administration and the principles that should guide the choice of a remedy. Fact sheet 3—Remedies is available on our website (www.ombudsman.gov.au).

      This section gives some examples of the range of remedies we obtained for individuals through our complaint investigations in 2008–09.

      Explanations

      Providing a clear explanation of a decision is an important remedy. It can reduce a person's concerns, even if the decision cannot be altered. Giving the reasons for a decision can also be of practical assistance. For example, it may help the person to decide whether to make a fresh application, or seek review or reconsideration of the decision.

      Explanations

      Medications seized

      Mr O purchased some medications from overseas via the internet. They were intercepted by Customs and seized by the Australian Federal Police (AFP). Mr O complained to Customs and when he did not get a response, complained to us. Customs had misplaced his letter of complaint. Customs explained that the items were initially tested for narcotics and transferred to the AFP for further testing. The AFP then issued the seizure notice to Mr O. In addition, the medications Mr O had purchased could only be imported if he had a licence or permission to import. Customs explained that, if the AFP testing proved negative, the items could be released to him provided he obtained permission from the Therapeutic Goods Administration to import the items for personal use.

      Wrong rebate?

      Mr P complained that he had had four lesions removed in one period of surgery, but he thought that the Medicare rebate had only covered one removal. He complained to us when he could not get a satisfactory explanation from Medicare Australia. When we contacted Medicare Australia, they went to some lengths to identify the person Mr P had spoken to, but could not. Medicare Australia provided a detailed explanation to Mr P about the complex formula used to calculate a rebate when multiple procedures are carried out in one operation. They had applied the formula correctly in his case.

      Food seized

      Mr Q complained that, when he brought packages of spices and foodstuffs into Australia from Africa, the Australian Quarantine and Inspection Service (AQIS) had seized some items and allowed other similar items in. He said the seized items had been commercially prepared and packed and labelled correctly. When we investigated, AQIS provided detailed information to Mr Q and met with him to clarify their actions. AQIS explained that it had been a mistake to allow in any of the items. They had seized the items because some were not clearly commercially packaged and labelled, some were contaminated with seeds, and some items contained spices but did not clearly indicate where the spices came from (they may have originated in another country). AQIS also advised Mr Q that travellers should always check for up–to–date information because quarantine requirements can change without notice.

      Actions and decisions

      We receive many complaints about agency decisions. A frequent complaint is that there is delay by an agency in making a decision. Often, a suitable remedy in this situation will be to expedite action. Another frequent complaint is that an agency has made a wrong decision. We respect the right of agencies to decide the merits of a claim, but we do examine whether an agency has made a decision based on wrong or incomplete information, ignored relevant information or not applied the principles of natural justice. The appropriate remedy in these circumstances may be for the agency to reconsider or change a decision.

      Actions and decisions

      Visa refused

      We received a complaint on behalf of Mr R, a South African man who had applied with his wife for a tourist visa to visit their son and his family who had resided in Australia for many years. Mrs R had been granted a visa, while Mr R's application was refused on medical grounds. When we investigated, we considered there were problems with the way Mr R's application had been dealt with, and raised our concerns with the Department of Immigration and Citizenship (DIAC). DIAC agreed and sought a new medical assessment. On reviewing the case further, DIAC decided that there had been a jurisdictional (legal) error. It set aside the decision and agreed to process Mr R's application based on the new medical information.

      Order not stayed

      Mr S had two separate child support cases. In one case he applied to court in 2004 to challenge the child support application on the basis that he was under age at the time it was claimed he had fathered the child. He was successful and the court made an order that permanently stayed the assessment by the Child Support Agency (CSA). As to the other child support case, from early 2008 the CSA collected deductions from Mr S's employer but apportioned the money towards both child support cases. The CSA paid child support to the payee for the second child support case and kept the money deducted for the first child support case because of the stay order. When we investigated the CSA agreed that it had no legal basis to collect funds in relation to the first case. It stopped this collection, paid some of the money it held against the arrears that had accrued for the second case, and reimbursed the remainder to Mr S.

      Delay

      Mrs U transferred from one Centrelink payment (widow pension) to another (age pension). After receiving a single part payment, she did not get any more payments. She contacted Centrelink a number of times, and was advised that her payments had mistakenly been paid into the wrong bank account. Centrelink told her she would need to wait until the bank refunded the money before it would be paid to her. When we investigated, Centrelink advised us that it had made the payments to the wrong account because of a systems error, and it had not followed up with the bank. It did so at once, and paid nearly $1,000 into Mrs U's bank account.

      Financial remedies

      Poor administration can cause financial loss to people. For example, a person 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. There is a range of remedies that can be used to provide financial relief or compensation to a person. One remedy is that compensation may be payable under the Compensation for Detriment caused by Defective Administration (CDDA) scheme. In other cases, a debt may be waived or reduced. Other financial remedies might include a refund of fees or charges, or payment of a particular benefit.

      Financial remedies

      CDDA

      Mr V complained that Centrelink had rejected his request for a CDDA payment. He had been granted newstart allowance at the end of 2006. He queried his payment rate several times, but Centrelink assured him it was correct. A year later, Centrelink found it had not been paying him the correct rate. However, it refused Mr V's CDDA claim on the basis that he had not sought a review of the decision and was not in a vulnerable group of clients. We raised our concerns about the handling of Mr V's claim with Centrelink. On closer examination, Centrelink agreed to pay Mr V's claim, on the basis that it had made some clerical errors and it had not provided detailed information to Mr V that would reasonably have led him to seek a review. Centrelink also undertook a complete review of Mr V's prior payments, and found that, due to his complex circumstances not being recognised, he had been underpaid Austudy as well. Centrelink made an additional CDDA payment in light of this underpayment.

      Debt waiver

      Mr W was being held in immigration detention pending removal to another country. DIAC obtained travel documents to assist in his removal, and sent them to the Australian embassy in the overseas country. DIAC expected it would take four to six months to obtain Mr W's passport. After four months DIAC contacted the Australian embassy, only to find that it had not received the documents in the first instance. This meant that Mr W spent an additional four months in detention. DIAC agreed to seek a waiver of his detention debt for that period. It also put in place improved procedures to ensure that it would identify earlier if documentation had gone missing.

      Apologies

      An apology can be highly effective in addressing a person's complaint about poor administrative practice. 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. Complainants often see an apology as the first step in moving forward.

      Apologies

      No advice of debt

      Mr X complained on behalf of his son, who was living overseas. Mr X's son had received an invoice from a debt collector on behalf of the Department of Defence. His son had discharged from the Army several years earlier, and had no knowledge of the debt. Defence advised us that Mr X's son had not paid any living–in contributions for a period of eight months while he was in the Army. This was due to a computer error, which was discovered more than a year after Mr X's son left the Army. Defence had correctly raised the debt, but then sent notices of the debt to the wrong address. When the debt was not paid, Defence passed the matter to a debt collection agency. Defence wrote to Mr X and his son explaining the circumstances and apologising for the manner in which they were made aware of the debt and the inconvenience and stress it caused them.

      No privacy

      Staff of the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) were investigating some matters related to a person. They visited the person's bank to find out some information about the type of accounts the bank operated. While they were only seeking general information, the staff inadvertently revealed the person's identity to the bank. FaHCSIA apologised to the person for the unintentional breach of privacy.

      Good administration

      An individual complaint can highlight a recurring problem in agency administration. Following investigation, the Ombudsman's office may recommend broader changes, such as 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 recommendations may be pursued in various ways. For example, we may raise the issues with an agency through regular liaison meetings, propose improvements in the course of the investigation of an individual complaint, or make a formal recommendation.

      During 2008–09 the office published 18 formal reports. Some of these reports dealt with an individual complaint investigation, some arose from the investigation of numerous similar complaints, and others were own motion investigations dealing with systemic issues that had been noted during complaint investigations. The reports are:

      • Department of Immigration and Citizenship: The Safeguards System (Report No. 7/2008)
      • Australian Federal Police: Engagement of consultant (Report No. 8/2008)
      • Centrelink: Arrangements for the withdrawal of face–to–face contact with customers (Report No. 9/2008)
      • Australian Crime Commission: Use of certain powers under Division 2, Part II of the Australian Crime Commission Act 2002 (Report No. 10/2008)
      • Australian Federal Police: Use of powers under the Intoxicated People (Care and Protection) Act 1994 (Report No. 11/2008)
      • Child Support Agency, Department of Human Services: Responding to allegations of customer fraud (Report No. 12/2008)
      • Centrelink and Department of Agriculture, Fisheries and Forestry: Claim and review processes in administering the Equine Influenza Business Assistance Grant (third payment) (Report No. 13/2008)
      • Australia Post: Use of notification cards (Report No. 14/2008)
      • Centrelink: Procurement of optional item via a request for tender (Report No. 15/2008)
      • Australia Post: Community polling practices: gauging community support for changes to postal delivery services (Report No. 1/2009)
      • Assessment of claims for disability support pension from people with acute or terminal illness: An examination of social security law and practice (Report No. 2/2009)
      • Use of interpreters: Australian Federal Police; Centrelink; Department of Education, Employment and Workplace Relations; Department of Immigration and Citizenship (Report No. 3/2009)
      • Australian Taxation Office: Re–raising written–off tax debts (Report No. 4/2009)
      • Australia Post: Complaint about service delivery and complaint handling regarding a registered post article (Report No. 5/2009)
      • Department of Immigration and Citizenship: Detention arrangements: the case of Mr W (Report No. 6/2009)
      • Australia Post: Administration of the mail redirection service (Report No. 7/2009)
      • Child Support Agency: Administration of Departure Prohibition Orders (Report No. 8/2009)
      • Delays in preparation of Heritage Strategies by Australian Government agencies: Implementation of section 341ZA of the Environment Protection and Biodiversity Conservation Act 1999 (Report No. 9/2009).

      Improving communication and advice to the public

      People rely on government agencies for advice and information about the legislation and programs the agencies administer. They expect this advice to be accurate and practical. Any qualification or limitation on the general advice provided by an agency should be explained. If appropriate, a person should be cautioned to seek specific or independent advice relevant to their individual circumstances.

      An example of an advice problem we dealt with during the year involved a complaint that checklists provided by DIAC to assist applicants for a partner visa application were inconsistent. This could lead to confusion and potentially result in inadequate documentation being submitted in support of an application. Our investigation showed that there was, indeed, an inconsistency in the information provided by DIAC in the relevant migration booklet, in checklists and on DIAC's website. DIAC acknowledged the problem and advised that it would make amendments to the checklists and information booklet.

      The general advice provided by an agency may need supplementation for specific groups of people. This was highlighted by a complaint we received from a person who lived in New Zealand. He was upset that the CSA's accounts of payments it received that he had made to the New Zealand Inland Revenue Department were always behind, because of the delays in an international money transfer from a New Zealand agency to an Australian agency. He said that his former wife and his daughter believed that he was behind with his payments and that this affected his relationship with his daughter. The CSA provided him with a better explanation of his account and the payment cycle. It also undertook to prepare a suite of country–specific fact sheets to send to CSA customers with international cases to explain the issues that can arise with international enforcement of child support. These fact sheets will be prepared for the five largest 'reciprocating jurisdictions', assisting CSA customers in more than 24,000 cases and covering 59% of all international cases.

      The issue of advice and improved communication with the public was a recurring theme in reports we published during 2008–09. For example:

      • Our report on the use of interpreters (Report No. 3/2009) looked at communication with people who may have special communication needs because of their language background. The report included eight best practice principles against which agencies can assess their policies and procedures regarding the use of interpreters.
      • The report on the Australian Taxation Office's (ATO) re–raising of tax debts it had written off (Report No. 4/2009) recommended that the ATO notify people when it decides to write off a tax debt and explain the implications of this. The ATO should also improve the information it gives taxpayers when it re–raises a debt that has been written off.
      • Following our investigation of the CSA's administration of Departure Prohibition Orders, we recommended that the CSA standard notice of an Order should include advice about the person's right to appeal, complain or seek revocation of the Order (Report No. 8/2009).
      • We recommended that DIAC improve the transparency of its Safeguards System by publishing details of the purpose and function of the system, and by developing guidelines that specify the information from Safeguards profiles that can be made available to the public in general or specific terms (Report No. 7/2008).

      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. Many complaints to the Ombudsman's office arise from poor agency procedures.

      This point is illustrated by a complaint we received from a person who had changed employment from the Department of Defence to another department. Defence sent his personal security file to the other department by ordinary post. The file, which contained sensitive personal information, was lost. Following our investigation Defence agreed to use their contracted courier services to move all personal security files between Defence establishments and between Defence offices and outside agencies.

      Many of the reports we published during the year contained recommendations aimed at improving agency administrative procedures. For example, we recommended:

      • changes to Australia Post's procedures for notifying a customer that a postal item is awaiting collection (Report No. 14/2008), in the way it polls communities to gauge community support for changes to postal delivery services (Report No. 1/2009), and in its administration of the mail redirection service (Report No. 7/2009)
      • that the CSA develop detailed procedures for staff responding to customer claims that the other parent has provided false or misleading information (Report No. 12/2008)
      • changes to the procedures for AFP officers dealing with intoxicated people (Report No. 11/2008)
      • that DIAC review its procedures to ensure that people in immigration detention who are identified as survivors of torture and trauma are considered for community detention in a timely manner, and that it introduce a requirement for involuntary removals to be reviewed after they have occurred (Report No. 6/2009).

      Interpreting and applying legislation and guidelines correctly

      The public relies on government agencies to act lawfully and make lawful decisions. An agency should always be aware of the danger that staff are not correctly interpreting legislation or agency guidelines. 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 risk of error increases generally where the legislation is more complex. For example, a person who was the payer in a child support case complained that the CSA had failed to keep proper accounts of the debt he owed. In particular, he said the CSA had failed to take into account certain amounts that he had paid to the payee and which, by law, can be offset against a proportion of the amount he has to pay to the CSA. We found that the CSA's automated accounting system was not programmed to correctly apply the offset rules in every situation. The agency staff who spoke to the person were not aware of this shortcoming, nor that the CSA had internal procedures to manually adjust the debt in such a case where the debtor falls behind with their payments and then catches up. We have asked the CSA to consider how it can improve its system to avoid similar instances.

      We made recommendations about the application of legislation and guidelines in several reports published in 2008–09. For example, we considered that Centrelink was applying the criteria for the Equine Influenza Business Assistance Grant (third payment) wrongly in some cases. The grant was administered by Centrelink, based on policy guidance produced by the Department of Agriculture, Fisheries and Forestry (DAFF) in response to ministerial directions. We recommended Centrelink and DAFF review unsuccessful applications for the payment (Report No. 13/2008). As a result, more than $2 million was paid to 463 claimants who had previously been unsuccessful.

      In another report, we noted that few Australian Government agencies are aware of their obligation to prepare a heritage strategy for managing places they own or control, in accordance with s 341ZA of the Environment Protection and Biodiversity Conservation Act 1999. The Ombudsman recommended that the Department of the Environment, Water, Heritage and the Arts write to all departments, alerting them to the obligation under s 341ZA resting on all agencies within their portfolio (Report No. 9/2009).

      Good complaint handling

      Good complaint handling is a central theme of Ombudsman work. A good complaint–handling process provides a way for problems to be dealt with quickly and effectively. It can also provide an agency with early information about systemic problem areas in agency administration. Poor complaint handling can exacerbate what may have been a simple error or oversight, potentially giving rise to other complaints from the person concerned and to a loss of public confidence in the agency.

      Over the years the Ombudsman's office has put considerable effort into helping agencies improve their complaint–handling processes. We have done this in a variety of ways, including liaison and training, reviews of agency complaint–handling systems, and the publication of relevant material.

      In April 2009 the Ombudsman released the Better Practice Guide to Complaint Handling. The guide defines the essential principles for effective complaint handling. It can be used by agencies when developing a complaint–handling system or when evaluating or monitoring an existing system.

      Most complaints investigated by the Ombudsman's office have already been dealt with by an agency. A problem that has not been effectively resolved by the agency may point to a deficiency in the agency's complaint–handling process. Our investigation can point to areas that an agency needs to address when it deals with complaints.

      For example, we dealt with a complaint about delays in investigating a complaint made to the Aged Care Complaints Investigation Scheme (part of the Department of Health and Ageing). An officer had started investigating the complaint, but after a change in staff the complaint was not progressed and the department failed to keep the complainant informed about the investigation. When we contacted the department it acknowledged the complaint had been handled poorly. The department put in place a range of new procedures to ensure there would be no recurrence. The changes included reviewing all cases that were taking longer than usual to resolve or where there had been a change in the lead investigation officer; changes to the management of case loads for staff known to be leaving the department or taking extended leave; and reviewing the processes in place where an investigation officer changes during the investigation.

      Some of the investigation reports published during 2008–09 contained recommendations related to improving complaint handling. For example:

      • in a report on Australia Post's handling of a complaint regarding a registered post article, the Ombudsman recommended some changes to Australia Post's complaint–handling processes, including the introduction of timeliness standards for the escalation of complaints and modification of the complaints management system to allow for prolonged or complex investigations (Report No. 5/2009)
      • one of the best practice principles identified for the use of interpreters is to provide an accessible complaint–handling mechanism to allow clients to complain about access to, or the use of, an interpreter, including the quality of interpreting (Report No. 3/2009).

      Recordkeeping

      Many complaints that the office deals with each year arise because of poor recordkeeping practices in agencies. The problems are often compounded by a delay in making a decision in a person's case or in resolving their complaint about the matter. Poor recordkeeping can also undermine transparency in agency decision making and lead to allegations of deception, bias, incompetence or corruption.

      Sometimes seemingly simple errors such as misplacing or losing a file, failing to keep a proper record of an important decision or conversation, or inadvertently confusing people who have similar or identical names, can lead to substantial problems for a person. Poor recordkeeping can also mean that, even if an agency's decision or action was correct, it cannot demonstrate this to an aggrieved person.

      In some cases problems with poor recordkeeping are compounded by reliance on automated systems that cannot deal with the specific circumstances properly. For example, we received a complaint from a person that DIAC had not made a decision on an application for citizenship for his son, who lived overseas. When we investigated, we found DIAC had no record of a decision letter being sent. This was due to the inability of DIAC's computer system to generate a decision letter when the application was processed offshore. DIAC put local procedures in place to ensure that all citizenship decision letters are generated manually and copies retained electronically and on file.

      The need for improved recordkeeping was a common theme in reports published during the year. For example:

      • an investigation into DIAC's use of its Safeguards System led to a recommendation that DIAC should improve the consistency of recordkeeping by recording fully the steps taken by a decision maker in response to a Safeguards match, and ensuring decision makers record more detailed information about how Safeguards information has been taken into account in deciding a visa application (Report No. 7/2008)
      • the report on the Australian Crime Commission's use of certain of the examination powers available to it made a number of recommendations to improve the Commission's recordkeeping in relation to the use of those powers (Report No. 10/2008)
      • an investigation into a Centrelink procurement decision led to recommendations to improve recordkeeping in relation to communications with contractors and between contractors and third parties (Report No. 15/2008)
      • the Ombudsman recommended that the ATO ensure the reasons for debt write–off and re–raise decisions are more clearly recorded, including the factors that led to the decision (Report No. 4/2009).

      Unreasonable or harsh impact of legislation or government policy

      A complaint may reveal that a legislative anomaly exists such that the application of the legislation is having a harsh or unreasonable impact on a person, or an unintended consequence. Similarly, a complaint may show that a government or agency policy has a harsh or unreasonable impact on some individuals. Several reports published during 2008–09 addressed these issues.

      The Ombudsman's report on the assessment of claims for disability support pension from people with acute or terminal illness (Report No. 2/2009) pointed to gaps in the support for people with an aggressive illness that would either require a lengthy period of treatment or recovery, or require additional investigation to identify a more conclusive prognosis. The Ombudsman recommended that consideration be given to developing a new category of Centrelink payment for people in these circumstances, and creating a list of conditions that would automatically qualify a customer for the new payment.

      In the report on the ATO's re–raising of tax debts it had previously written off (Report No. 4/2009), the Ombudsman recommended that the ATO should consider the reasonableness of seeking to recover debts which had not been pursued for many years, taking into account the period of time for which taxpayers could be expected to retain relevant tax records.

      Administrative deficiency

      Section 15 of the Ombudsman Act 1976 lists the grounds on which the Ombudsman can formally make a report to an agency, and ultimately to the Prime Minister and Parliament. A small number of such reports are made each year to agencies; reports to the Prime Minister or Parliament are rare. 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 on improving agency complaint–handling processes and public administration generally.

      Cases nevertheless arise in which administrative deficiency should be recorded and notified to agencies. 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.

      During 2008–09 we recorded 533 cases where there were one or more issues of administrative deficiency. The significant increase from last year (368 cases) generally reflects revised internal procedures and training, aimed at ensuring that we record all cases of administrative deficiency that we identify. Some complaints discussed elsewhere in this report led to a finding of administrative deficiency.

      The following additional examples illustrate the administrative deficiencies recorded during the year.

      • Factual error. A person applied for a benefit, and the agency officer needed to find out more about the person's circumstances over a particular time period. However, they asked about the wrong time period, during which the person's circumstances had changed, resulting in the person being denied the benefit.
      • Human error. An agency raised a debt against a person. She provided evidence to agency staff that showed she was not legally liable for the debt. However, the staff failed to record this information, with the result that the agency continued to pursue her for the debt.
      • Legal error. An agency received uncorroborated information from one parent about the care of a child. The agency wrote to the other parent asking for details of the care of the child. That parent did not respond because she had provided that information separately six days earlier. The agency cancelled her payment without having regard to the information she had provided, contrary to the legislation.
      • Inadequate advice, explanation or reasons. An agency raised a debt against a person. When she queried the debt, the agency initially told her it was probably due to a known systems problem and the debt would be referred further in the agency for review. The woman contacted the agency several times over the next six weeks but there was no progress on the review. As a result of her last contact, the agency completed the review and found that the debt had been raised correctly. After making several unsuccessful attempts to contact her that day, the agency did not attempt to contact her again. The first the woman heard of the review outcome was when a debt collection agency told her she had three days to pay the debt.
      • Unreasonable delay. After a person complained to a relevant agency that she considered her employer was breaching legislation, her employer found out and terminated her employment. The person complained to the agency that she was being victimised, but it took the agency five months to decide whether she was a whistleblower and should be afforded the statutory protections available to her.
      • Procedural deficiency. A person sent a request for a review to an agency, using a post office box listed on the agency's pamphlet. The agency had stopped using the post office box, and had put a mail redirection service in place. However, it failed to renew the redirection service, and mail sent to the old post office box was returned to sender. As a result of her request not being received, the person suffered financial detriment.
      • Flawed administrative process. An agency charged an organisation for processing a particular application. When the agency first advised the organisation of the likely cost it underestimated the amount, and then failed to advise the organisation as the costs escalated substantially. The agency was also not able to provide an itemised account of the costs incurred.
      • Unreasonable/harsh/discriminatory action or decision. A person applied for a benefit. As part of his application he gave details about traumatic events that had occurred about 10 years previously, when he was six years old. The decision maker refused the application on the papers on the basis that the credibility of the person's claims was compromised by lack of sufficient relevant information and some discrepancies. The decision maker did not seek further information. We considered this was unreasonable, given the age of the person at the time of the traumatic events, and the time that had passed since they occurred.
      • Resource deficiency in agency. An agency accepted applications for a benefit online. In some cases it needed to contact a third party, but its computer system was unable to generate the required communications. A person complained to us about the problem several years ago, and at that time the agency advised it would fix the problem. However, the agency only resolved part of the problem and it was unable to diagnose the cause of the remaining problems. The person complained to us again when the problem recurred and processing of another application was delayed.
      • Inadequate knowledge/training of staff. An agency raised a debt against a person. He asked for the debt to be withdrawn within the required timeframe. His request was dealt with by a new, inexperienced officer who was not aware of the timeframe and declined his request. The agency then raised additional charges against the person for late payment of the debt. He contacted the agency again and spoke to the same officer, who agreed to waive the additional charges, but did not record this correctly on the agency's computer system. As a result, further late payment penalties were raised against the person.
      • Deficiency arising from the interaction of Australian Government programs. An agency intermittently re–started taking deductions from a person's payments made by a second agency, after the legal requirement for the deductions had ended. The problem arose because of a systems error between the two computer systems the agencies used.
      • Unreasonable or harsh government policy. A person was initially denied a benefit related to his vehicle because it was registered in a state different to that where he was deemed to reside. In fact the person had no state of residence because he travelled constantly with his work. When the policy was developed, this situation had not been envisaged.
      • Unprofessional behaviour by an officer. A person who was living temporarily overseas sent a fax to an agency asking it to review a decision. Most of the fax did not transmit properly, as was clearly evident. Although the person had recently provided the agency with his postal, telephone and email contact details while he was overseas, the agency officer did not attempt to contact him about the fax and made a review decision, affirming the original decision, based on the information at hand.