Commonwealth Ombudsman - Annual Report 2009-2010 - Chapter 6

Chapter 6

On this page

1. Remedies
2. Good administration
3. Administrative deficiency
4. Feature: Regional engagement with the Pacific

Helping people, improving government

A large part of our work is resolving individual complaints and, through this process, improving public administration in a more general sense. This chapter outlines our work in obtaining remedies for individuals, and improving public administration in areas such as communication, procedures and better complaint handling.

The chapter concludes with examples of cases where we have identified administrative deficiency in agency operations.

Remedies

When investigating an individual complaint, it is important to seek out a remedy for the complainant. Remedies might include an apology, giving better reasons for a decision, expediting action or finding a financial solution.

For information on possible remedies that are available to Australian Government agencies refer to Fact Sheet 3—Remedies, on our website (http://www.ombudsman.gov.au).

This section gives several examples of remedies we obtained for individuals through our complaint investigations in 2009–10.

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.

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 is 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.

Financial remedies

Poor administration can cause financial loss to people. For example, a person may not receive 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.

Apologies

An apology can be highly effective in addressing a person’s complaint. 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.

Good administration

An individual complaint can highlight a recurring problem in agency administration. Following and 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 public advice, or a review of government policy or legislation that is having harsh or unintended consequences.

These recommendations may be pursued in various ways. We may raise the issues with an agency through regular liaison, propose improvements in the course of an investigation or make a recommendation in a formal report.

During 2009–10 the office published 19 formal reports. Some of these 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. Reports released during 2009–10 were:

• Department of Immigration and Citizenship: Invalid visa applications (Report 10|2009)
• Putting things right: Compensating for defective administration (Report 11|2009)
• Executive schemes (12|2009)
• Department of Agriculture, Fisheries and Forestry: Compliance and investigation activities of the Australian Quarantine Inspection Service (Report 13|2009)
• Australian Federal Police and Child Support Agency (Department of Human Services): Caught between two agencies: the case of Mrs X (Report 14|2009)
• Australian Crime Commission: Review of collection, storage and dissemination of information (Report 15|2009)
• Administration of the Economic Security Strategy Payment (Report 16|2009)
• Australian Federal Police: Investigation of a complaint against a senior officer (Report 17|2009)
• Northern Territory Emergency Response: Department of Families, Housing, Community Services and Indigenous Affairs: asbestos surveys—communication issues (Report 18|2009)
• Department of Agriculture, Fisheries and Forestry: Administration of various grant schemes (Report 19|2009)
• Department of Finance and Deregulation: Processing of a freedom of information application (Report 20|2009)
• Australia Post: Determining levels of compensation for loss or damage of postal items (Report 01|2010)
• Australian Taxation Office: Use of ‘access without notice’ powers (Report 02|2010)
• Australia Post: ‘Safe drop’ program—a review of the first year (Report 03|2010)
• Comcare and Department of Finance and Administration: Discretionary payment of compensation (Report 04|2010)
• Department of Innovation, Industry, Science and Research: Administration of the liquefied petroleum gas vehicle scheme (Report 05|2010)
• Indigenous Business Australia: Investigation of a complaint about business loan management (Report 06|2010)
• Centrelink and Commonwealth Director of Public Prosecution: Review of circumstances leading to a fraud conviction (Report 07|2010)
• Australia Post and Department of Foreign Affairs and Trade: Passports lost in the mail (Report 08|2010)

Improving communication and advice to the public

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

Having good procedures

Government agencies must have sound procedures in place to administer complex legislation and programs in a manner that is efficient, effective, fair, transparent and accountable. Many complaints to the Ombudsman’s office arise from poor agency procedures.

Many of the reports we published during the year contained recommendations aimed at improving agency procedures. The following two examples illustrate this.

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 of staff 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.

In our report on the Administration of Departure Prohibition Orders (DPOs) we found that the Child Support Agency (CSA) was not providing staff with the guidance they needed to understand the complexity of the legislation. We recommended that the CSA review its procedural instructions to provide a more comprehensive explanation to staff about the tests in the legislation. The CSA agreed with our view and completely revised its procedures.

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 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 publishing relevant material.

The Ombudsman publication Better Practice Guide to Complaint Handling 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.

Many of the investigation reports published during 2009–10 contained recommendations relating to how complaints can be handled better.

For example, in our report Australian Federal Police and the Child Support Agency–Caught between two agencies: the case of Mrs X, we reviewed their joint administration of the Departure Prohibition Program.

We found that navigating between two government agencies to fix a problem can be extremely difficult for customers, and that agenci es that work together to deliver programs must also work together to resolve problems arising from those programs.

Record keeping

Many complaints deal with poor record keeping by agencies. A delayed decision will often compound a problem. Poor record keeping can also undermine transparency in agency decision making and lead to allegations of deception, bias, incompetence or corruption.

Sometimes 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.

The need for improved record keeping was a common theme in reports published during the year. For example, we conducted an investigation where the complainant believed he was entitled to a reduction in arrears for child support payment, based on the income information he supplied to the CSA in 2008. The CSA told the complainant that it had no record of him providing any such information. Upon investigation, the CSA located a letter it had received from the complainant. The CSA accepted that the letter should have been treated as a ‘client supplied income notification’. This reduced the complainant’s arrears by almost $4,000.

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 the Parliament. A small number of such reports are made each year to agencies, but reports to the Prime Minister or the 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.

Nevertheless cases do arise in which administrative deficiency should be recorded. This helps to 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. The emphasis is on finding solutions and improving administration.

During 2009–10 we recorded 340 cases where there was administrative deficiency (a drop from 533 cases in the previous year). The following three examples are illustrative of the types of administrative deficiencies identified through the work of the Ombudsman.

Human error

An agency miscalculated the period of study that a visa applicant had completed because it did not record the contact made to clarify the studies undertaken on the applicant’s record. The error resulted in the visa being refused and a delay of almost two months before the situation was remedied. This was recorded as an administrative deficiency.

Resource deficiency

An agency had to relocate one of its processing centres because of an unforeseen crisis and the caseload was transferred to another centre. The other centre was under resourced and unable to cope with the additional workload. This resulted in long delays in processing the transferred cases because correspondence was misplaced or lost, and received no responses to and outstanding actions were not followed up. The people whose cases were transferred were also frustrated because they were unable to contact their case officer to make enquiries and niether were they given updates on the progress of their applications. This was recorded as an administrative deficiency.

Garnisheeing entire bank account

We investigated a complaint about the garnisheeing of an individual’s entire bank account, which amounted to about $60,000. The agency had relied on a reference manual to calculate the amount. We recorded an administrative deficiency because the action taken was not consistent with the agency’s policy that garnishee action should take into account ‘the likely implications of issuing a notice on a debtor’s ability to provide for a family or to maintain the viability of the business’. We were critical of the agency in not using its statutory powers to inquire about the balance of the person’s bank account, which would have lead to a better-informed decision. The agency acknowledged and endorsed our administrative deficiency proposal and agreed to our recommendations. It took action to make sure that staff were aware of the issue and to review its work practices. The agency also undertook to consider changes to legislation that would allow financial institutions to leave a specified amount of funds in garnisheed accounts as a safety net.