Here is some information taken from the Ombudsman’s News Letters.
In some of the information you will find the processes used by the VWA
the Ombudsman’s recommendations of how these policies are to be enforced.
Knowledge is Power!
BULLETIN
December 2005
Transport Accident Commission - WorkCover & WorkSafe
Message from the Ombudsman
“In October my jurisdiction increased and I established a new unit to
specialise in TAC and WorkCover matters. Jo Carden joined Ombudsman
Victoria to head the new unit. She has established a strong network
encouraging effective complaints management and I look forward to
further improvement across the industry.”
G E Brouwer, Ombudsman.
Message from Workcover Victims:
I have personally dealt with Jo Carden. She did nothing to help this Workcover
victim nor did she enforce breaches of the accident compensation act by the
employer and the VWA. So much for the strong network and effective
management!
The purpose of the new team is to:
· Concentrate expertise within Ombudsman Victoria;
· Create strong networks for complaints resolution;
· Educate the public and industry about Ombudsman Victoria;
· Educate the public and industry about the legislative change that
· has extended jurisdiction; and
· Ensure industry improvement in complaints management in the
· Longer-term.
The new unit:
Manager; Jo Carden.
Outreach coordinator; Alexa Powell.
Investigation officers; Kirrily Graydon and Russell Bennett.
2nd Edition:
Welcome to the second edition of Ombudsman Victoria’s Bulletin
providing a quarterly update to the Transport Accident Commission
(TAC) and the Victorian WorkCover Authority (VWA) industries.
Please forward this bulletin on to others who may benefit from this
information.
Complaints update
On 1 October 2005 Ombudsman Victoria (OV) established the Transport
Accident and WorkCover Unit. Since then OV has received 171
complaints relating to the TAC/VWA industries which represents an
increase in complaints compared to previous years. As a result of OV
establishing networks in the industry, 98 of these complaints were
resolved quickly. The remaining 73 complaints were complex or
sensitive and so required further investigation.
Some enquiries have been referred to the TAC, VWA or the agents for a
direct response to the complainant where they have not had an
opportunity to respond to the allegations. This allows resolution
without a third party being involved, and for the TAC, VWA and the
agents to exercise their complaints management processes. It also
allows OV to direct its resources to investigations which have not been
resolved by the TAC, VWA or the agents.
The more common complaints have been:
· failure to respond to requests
· failure to pay for treatment
· failure to communicate a decision
· failure to communicate the evidence considered and reasons for a
· decision
· delays in making a decision
· conduct
· access to information
· complaints about the Medical Panel and ACCS.
Complaints also escalated if a claims decision was reviewed by a senior
officer or a review team but the review outcome letter did not list the
evidence considered in the review nor the reasons for overturning or
maintaining the decision. Providing this information allows for a
transparent review process. Finally, complaints also escalated when an
error had not been acknowledged or an apology received.
3rd Edition:
Welcome to the fourth edition of the Ombudsman Victoria (OV) Bulletin.
This edition focuses on access to information processes and complaints. In
addition, it provides information which may help you respond to challenging
behaviours and includes some useful references.
Message from the Ombudsman
OV together with the Victoria WorkCover Authority (VWA) recently
reviewed the VWA’s access to information processes. Individual complaints
were being resolved, but enquiries by my investigation officers identified the
need for further review of the processes. I recognised that this was a good
opportunity for an informal joint review and the VWA agreed. As a result of
this review the VWA will introduce changes over the next few months to
processes, information and standard letters to assist the applicants and the
people responding to the requests. The VWA will keep you informed as
these changes are implemented. In the interim, this bulletin provides
scenarios from complaint enquiries and recommendations.
G E Brouwer, Ombudsman.
Scenario Recommendation
Q. Documents and files previously considered to be lost are subsequently
after a further search.
A: Ensure you complete a thorough and complete search on the first request.*
Q. Requests made under the FOI Act are processed under ACA.
A. Ensure that the request is processed according to the application.
Q. Claims managers make decisions to exempt documents because of legal
professional privilege.
A. Ensure that Senior Legal Counsel makes this decision as is required under
the VWA’s Claims Manual.
Q. The relevant standard letters are not used and the one-off letters provide
incomplete information.
A. Use standard letters where they exist to ensure responses are consistent
complete.
Q. The term ‘The following documents you requested are not in our possession’
does not tell the reader if a document is lost or never existed.
A. Ensure that the reader is clearly advised if a document is lost or never existed.
This helps them decide their next step, if any.
Q. Exempt documents are not listed in the letter to the applicant.
A. Ensure that a list of the exempt documents is provided in the letter to the
applicant.
Q. Some solicitors write concurrent letters, one under ACA and one under the
FOI Act.
A. Clarify with the solicitor which application she or he would like to progress.
Q. Surveillance film is not routinely released when all file information is requested.
A. Surveillance reports and film should be released or a decision to exempt this
information is to be communicated.
Q. Applicants make multiple requests to access surveillance film.
A. A response should be made to the first request.
Q. Surveillance film requested is lost.
A. Consider obtaining a copy of the film from the private investigation firm.
Dealing with upset, angry, confused, or challenging people can be an extremely
difficult task, even for experienced complaint handlers. References to useful
websites are provided below to assist agency staff.
There may be a variety of reasons why a person is difficult to deal with.
Whatever the reason, an agency should not necessarily assume that a ‘difficult’
person does not have a valid complaint. Wherever possible, agencies should
apply the same standards of communication to anyone asking a question or
expressing a concern calmly. In some cases, all that is required is for someone
to take the time to talk to the person, listen to their concerns and tell them
what is happening. Therefore, it is important to listen without interruption to
what the person is saying even if they are being difficult, aggressive, or
incoherent at times. Once the person has had a chance to express their point
of view, staff may need to ask questions to clarify what has been said to them.
Remember, your tone of voice is extremely important. Try not to make
the person feel that they are being cross-examined, rather make it clear to
them that questions are being asked out of a desire to assist.
Further information on dealing with challenging behaviours is on the following
websites:
New South Wales Ombudsman, www.nswombudsman.nsw.gov.au, Public Sector
Agencies Fact Sheet No 22: Very difficult complainants
Victorian Health Services Review Council, www.health.vic.gov.au/hsc, Guide
to Complaint Handling in Health Care Services, 2005
Victorian Health Information, www.health.vic.gov.au/archive, Lecture Notes
on Persistent and Abnormal Claiming and Complaining, Dr Paul E Mullen,
Victorian Institute of Forensic Mental Health, 2003
Things to consider when handling challenging behaviours
do not make empty promises—it is better to be realistic and honest about
any limitations or expected time delays
avoid premature opinio
do not focus solely on placating an angry or upset person—treat their
complaint seriously and try and focus on the issue at hand rather than
just their emotions or behaviour
· communicate clearly—check if you are being understood
· use empathy to diffuse anger—listen without interruption
· use direct language—tell them what you can and cannot do
· use neutral tone and pitch
· be confident in your ability to help
· remain flexible—do not be too rigid in your approach
· know your limits—be willing to get help from someone else or pass
the problem on to someone with more knowledge, time or authority
· try to remain calm and think clearly
· strike a balance between logic and emotion
· always be conscious of your own emotional and physical safety.
Legislative change
Crimes (Documents Destruction) Act 2006 and
Evidence (Document Unavailability) Act 2006
In July 2006 the Victorian Government introduced the above amendments
the Crimes Act and Evidence Act respectively. The Crimes (Documents
Destruction) Act 2006 deals with the destruction of documents that are
or are reasonably likely to be used in litigation.
The Evidence (Document Unavailability) Act 2006 deals with the effect that
the destruction of documents has on the outcome of civil proceedings.
These amendments were drafted in response to the case of McCabe v British
American Tobacco Australia Services Limited [2002] VSC 73. Mrs McCabe
sued British American Tobacco (BAT) for damages after contracting lung
cancer. At the Supreme Court hearing his honour Justice Eames struck out
BAT’s defence and awarded Mrs McCabe damages of $700,000 on the
grounds that BAT had deliberately destroyed so many relevant documents
that a fair trial for Mrs McCabe was not possible. BAT appealed to the
Victorian Court of Appeal. The court upheld the appeal and overturned
the judgment of Justice Eames on the basis that it was not illegal to destroy
such documents prior to the litigation having commenced.
The Crimes (Documents Destruction) Act 2006 makes it a criminal offence
from 1 September 2006 to destroy documents that are, or are reasonably
to be, required as evidence in existing or potential legal proceedings. Both
companies and individuals can be prosecuted and significant penalties apply.
If found guilty individuals can be imprisoned for a maximum of 5 years and
companies fined up to $300,000.
The Evidence (Document Unavailability) Act 2006 provides the courts and
the Victorian Civil Administrative Tribunal (VCAT) with the discretion to
‘reverse’ the effects on a proceeding where a document(s) has become
unavailable because it has been:
· destroyed
· disposed of
· lost
· concealed, or
· Rendered illegible, undecipherable or incapable of identification.
The discretion allows the court or VCAT to make any ruling or order it
considers necessary to ensure fairness to all parties. This can include that
an adverse inference be drawn from the unavailability of the document or
that all or part of a defence or statement of claim be struck out.
These amendments came into being on 1 September 2006. They apply
to both the public and private sector. OV would expect that all agencies
review their policies and procedures to ensure they comply with these
legislative changes.1
Complaints data and themes 2005-06
On 1 October 2005 the Ombudsman established the Transport Accident
and WorkCover Unit in response to amendments to the Accident Compensation
Act 1985 and the Transport Accident Act 1986.
This provided for:
· a specialised focus for enquiries and investigations within OV
· strong networks for complaints resolution to be created; and
· a focus on industry improvement in complaints management.
Number of complaints finalised
The number of complaints finalised in 2005-06 increased by 128% compared
to 2004-05.
Complaints by category 2005/06
Thirty seven per cent of complaints received were in regard to the decision-
making process for medical and like benefits. When making a decision officers
need to consider TAC’s and VWA’s guidelines for good decision-making.
In particular they should focus on the following questions:
Have I considered all the relevant evidence?
Have I referred to the appropriate legislative provisions, policies and
procedures?
Have I documented my thinking and ‘reasons’?
Have I included the following in my decision letter?
· a list of the evidence considered
· the decision
· the reasons for the decision and the balance of evidence.
Keeping people up-to-date and providing a transparent decision-making
process may prevent the escalation of complaints. Interim letters or phone
calls to a claimant provide transparency if a decision is to be delayed.
Freedom of Information, which made up seven percent of complaints, has
been addressed in previous editions of this bulletin. This is an opportunity
to remind you of two points: how surveillance tapes are stored, retrieved
and tracked; and what you consider when you receive a request for the
whole file. Consideration needs to be given to surveillance reports and tapes
and if not released then a decision needs to be made and communicated.
If you would like more information about the complaint types and the
observations made by this office, please contact the Transport Accident
and WorkCover Unit.
Future editions and contact details
We welcome enquiries about this publication. The purpose is to provide
you with information that can assist you in your roles and the relationship
you have with OV.
Recommendations for future editions can be forwarded to
joanna.carden@ombudsman.vic.gov.au
Russell Bennett, Acting Director, Ombudsman Victoria
Level 9, South Tower
459 Collins Street, Melbourne
Ph 9613 6261
Message from the Ombudsman
In the last quarter I tabled three reports in Parliament. I encourage you to
read the report titled Conflict of interest in the public sector March 2008.
I also suggest that you to bring this report to the attention of your training
officers and senior staff as conflict of interest is an issue which, if not
responded to appropriately, erodes confidence in the public sector.’
G E Brouwer, Ombudsman.
New Fact Sheet 15: Powers of the Ombudsman
The Ombudsman is often asked about his role, jurisdiction and powers.
To assist the public sector, complainants and the general public to understand
the various topics relevant to the Ombudsman, communication products are
available at www.ombudsman.vic.gov.au. Fact sheets are a key component
of our communication strategy and have been referred to in previous editions
of this bulletin. Only a small number of cases are brought to the public’s
attention by tabling investigation reports and Annual Reports in Parliament.
The remaining enquiries and investigations are conducted in private.
Fact Sheet 15 describes the Ombudsman’s breadth of jurisdiction, source of
complaints and scope of powers.
The key points in Fact Sheet 15 are:
◊the Ombudsman can investigate private organisations contracted to
perform functions for government agencies
◊the powers used when conducting a formal investigation
◊it is a criminal offence to obstruct an Ombudsman investigation
◊under the Whistleblowers Protection Act 2001 the Ombudsman can
investigate elected councillors and members of Parliament as well as
public servants.
Commission -WorkCover -WorkSafe
March 2008
Edition 10
Conflict of interest
On 13 March 2008, the Ombudsman tabled a report in Parliament titled
Conflict of interest in the public sector. The full report examines the topic,
presents practical information and case studies. All public sector agencies
should study the full report, however, as way of introduction, the following
is the Ombudsman’s Executive Summary: ‘Conflict of interest’ is an expression
that is widely used today; however, its full significance is much less widely
understood. The essence of the issue is not complex. A ‘conflict of interest’
simply describes situations which we all encounter in the course of our
everyday lives, when we are obliged to make an ethical choice between
one obligation and another. Ought I to do this? Or should I do that?
The English language abounds in commonplace expressions that reflect the
essential notion of conflict of interest. We hear of ‘divided loyalties’; we recall
the Biblical injunction that ‘no man may serve two masters’; it may be said of
a man that he ‘wants his bread buttered on both sides’; there is an ancient
maxim that ‘no man shall be a judge in his own cause’. In this way folk
wisdom has recorded its recognition of an enduring problem.
It has been the same throughout the ages. Despite being disgraced, dismissed
and imprisoned, Francis Bacon, lawyer, scientist, philosopher and Lord
Chancellor of England under King James I, stoutly maintained that
conflicting private interests (bribes, actually) had not bent the decisions
that he handed down from his Bench.
Samuel Pepys, famous diarist in the reign of Charles II, was Secretary to
the Admiralty, and by all accounts a good one; yet he shamelessly filled
his own pockets through the pursuit of conflicting private interests.
So the story has continued. In our own day, we have watched a Secretary-
General of the United Nations and a President of the World Bank enmeshed
in issues of conflict of interest.
Conflict of interest is a critical matter for government. The legitimacy of the
state relies on public confidence in public officials to act fairly and impartially
and in the best interests of the community. However, despite its fundamental
nature, conflict of interest is in my experience not clearly understood across
the public sector. Furthermore, efforts to tackle it have generally been
reactive and limited in their effectiveness. This is reflected in the volume
of complaints to my office and the issues brought to my attention over
recent years.
Conflict of interest is recognised as part of a broader problem of public
sector ethics, which includes, at the extreme, corrupt activity. This problem
is now acknowledged to be an important factor in the weakening of citizens’
trust in public institutions worldwide and in democratic systems more broadly.
Such issues have certainly become more important in today’s environment
where there are growing numbers of often complex interconnections and
collaborations between the public sector and the business and not-for-profit
sectors, including such developments as outsourcing, contracting-out,public/private partnerships, self-regulation and sponsorships. The interchange of personnel
between the public and private sectors has also contributed to a degree of
breakdown in traditional public sector employment cultures and attendant
obligations and loyalties.
Given these developments here and overseas, I decided to conduct a broad
based review of the issue of conflict of interest in the Victorian public sector.
report is the result of that enquiry conducted in 2006–07, under my own
motion enquiry powers.
My enquiry found that there are a number of misunderstandings about
conflict of interest among public sector employees in Victoria and that these
misunderstandings often extend to management levels. This situation
contributes in turn to inadequate management of conflicts of interest and
an unsatisfactory level of accountability in many areas.
On the evidence before me, I find that there is a compelling case for the
issue to receive serious, fresh attention. Failure to act, I believe, will lead
to a progressive undermining of public confidence in the impartiality,
fairness, transparency and integrity of Victoria’s public administration.
It is a fact that conflicts of interest will continue to arise and Victorian public
sector employees need to know how to identify and deal with them properly.
To this end, one of my key recommendations is that the Code of Conduct for
Victorian Public Sector Employees be strengthened and extended to give
more detailed information and guidance on conflict of interest. I consider that
a substantial education program is also required to support this initiative.
I also recommend that there be a sector-wide management approach to the
of conflict of interest for all public sector entities. It should focus specifically
on managing the risks associated with the private activity of public officers;
on minimising the opportunities for public officers to pursue private interest;
and on developing ethical cultures that have a commitment to serve the public
interest at their core and recognise The report explores conflicts of interest
from a variety of private interests and activities and highlighting the times
when scrutiny is justified. It identifies the following areas which warrant specific
attention and careful management:
1. Outside/secondary employment and private business interests
2. Employment and business activities after leaving public sector
employment
3. Employment and private business interests of family members,
friends, and associates
4. Membership of community groups and organisations
5. Inappropriate/personal relationships.
The Ombudsman expects all public sector employees and those employed
by private organisations contracted to perform functions for government
, to act in a way which is consistent with the public sector Code of Conduct.
Annual training calendars should include modules about the public sector’s
Code of Conduct and be provided to all levels of staff and senior officers should
be promoting this behavior.
FURTHER READING
An article published in the October 2007 edition of the St James Ethics
Centre’s Living Ethics issue 69: Conflict of interest—Victorian Ombudsman’s
concerns. Mr John Taylor, Deputy Ombudsman.
Useful resources available at www.ombudsman.vic.gov.au
Unreasonable complainant conduct: interim practice manual
Complaint handling guide for the Victorian public sector
Fact sheets
Recent Parliamentary reports
Conflict of interest in the public sector March 2008
Conflict of interest in local government March 2008
Complaints can be directed to:
Mail Level 9, 459 Collins Street, Melbourne
Phone 9613 6222 or 1800 806 314
Email ombudvic@ombudsman.vic.gov.au.
Message from the Ombudsman
‘At the end of the reporting year I reflect on the enquiries and investigations
conducted by my officers and consider the progress made in regard to the
implementation of my recommendations. The remedies implemented by
public sector agencies as a result of complaint enquiries provide the
opportunity to improve the administration of the Victorian public sector.
Handling individual complaints is only one part of my responsibility.
They, however, provide me with the opportunity to drive systemic change
and influence the culture that underpins the administration of the public
sector. This edition provides information on the diverse activities of my
office. I also provide a case study as a reminder to everyone about the
personal and sensitive information held by your organisations and the care
which must be taken in handling this information
G E Brouwer OMBUDSMAN
Beyond one complaint
Section 13 (1) of the Ombudsman Act 1973 states:
The principal function of the Ombudsman shall be to enquire into or
investigate any administrative action taken in any Government Department
or Public Statutory Body to which this Act applies or by any member of staff of a
municipal council.
The Ombudsman’s jurisdiction includes private agencies performing
a function on behalf of Government. In carrying out this function, the
Ombudsman promotes excellence in public administration and seeks
to ensure the highest possible standards of public sector service
delivery to all Victorians.
Transport Accident Commission - WorkCover - WorkSafe
June 2008
Edition 11
The Ombudsman provides a means by which individuals can obtain redress for maladministration. In providing this service he focuses on obtaining
achievable practical outcomes in a timely manner for individual complaints.
The Ombudsman has recently said:I am able to draw on the knowledge gained
from dealing with individual complaints to identify systemic weaknesses
that underpin poor administrative practices. Formal reviews and investigations
conducted by my office can then inform authorities and their responsible
Ministers about underlying causes of these problems and indicate the steps
that should be taken to improve an authority’s performance. The Ombudsman’s
Complaint handling guide for the Victorian public sector clarifies importance of
linking complaint handling and business improvement.
The guide states:
Sufficient resources need to be allocated to allow an analysis of aggregated
complaint data and identification of recurring or system wide problems. The
findings should then be used to address the action or service of the agency
that has been the source of the complaints. This may be through corrective
and preventative actions and innovative improvements. The agency should
take actions to eliminate the cause of existing and potential problems leading
complaints in order to prevent further complaints.
Complaint numbers alone are not effective indicators of proper administration
as access to and promotion of complaint handling processes and compliance
with complaint handling practices may mislead the interpretation of complaint
data.
Only providing a response to an individual complaint, misses the strategic
opportunity to understand and learn. Remedying the one complaint may fail
to question a policy, a practice, compliance or the culture in which the decisions
or actions were taken. Consequently, it misses the opportunity for a broader
and deeper change.
To ensure the public receives the standard of service that should be expected
from government, providing remedies for individual complaints is only the
first step. Considering each complaint in the light of strengthening systems is
the next step. The Ombudsman said:
Ultimately, I strive for my office to contribute to the development of a culture
of public service that reflects the values of democracy – openness, transparency,
probity and the pursuit of the public interest at all times. The importance is to
effect cultural change in government administration.
Half yearly visits to agencies
Investigation officers conduct informal visits to the entities which make up the
TAC and WorkSafe industries. The officers are interested in the opportunity to
meet new staff and share information about changes in our organisations. The
discussions are about complaint handling in general and common complaint
themes. Some of the more difficult complaint enquiries are discussed such as
those where there have been delayed or incomplete responses, comprehensive
matters or where challenges presented.
Feedback has included expressions of appreciation as these visits have provided
an opportunity to clarify the role of the Ombudsman in the broader context of
Government. This understanding assists the complaint handling officers to meet
the Ombudsman’s expectations during enquiries and investigations particularly
in regard to complaint handling, systemic and cultural change.
An opportunity to reflect
On 20 April 2008 The Sunday Age published an article regarding an alleged
release of medical files to the wrong person by an authorised agent of
WorkSafe. Entities in the TAC and WorkSafe industries hold private and
sensitive information and absolute care needs to be taken to ensure that its
collection, storage, use and disclosure are consistent with the Health Records
Act 2001, the Information Privacy Act 2000 and with their policies governing
these actions. Sophisticated measures can be put in place to minimise the risk
in the future but taking care and conducting simple checks can be most effective.
For example, if you are signing a letter and enclosing information, you are
responsible for checking the documents included and sealing the envelope.
There have been many examples in other jurisdictions of sensitive documents
being left in public places. Documents and files should only leave the security
of the workplace if there is no other choice. Be aware of the examples in the
media, even if they are not related to your organisation or industry. Take them
as an opportunity to reflect on the practices and controls in your workplace and
proactively address any shortfalls.
If there are people in your organisations whom you believe will benefit from these
informal visits or more formal presentations please contact the Director of
Investigations Jo Carden on (03) 9613 6222.
Request for access to information
This office receives complaints about access to information under the Accident
Compensation Act 1985 (ACA) or the Freedom of Information Act 1982 (FoI).
One common complaint is when a WorkCover agent reports to an applicant that
the document they requested ‘does not exist’ or the ‘file cannot be located’. The
Ombudsman can make enquiries of the agent about the search process for the
information requested to ensure that a thorough and diligent search has been
conducted. The following is a case study to demonstrate how a simple request
for a file resulted in a complaint to the Ombudsman.
Found on the second search
A solicitor representing an injured worker made a request to a WorkCover
Agent for ‘all documents’ to be released. The Agent advised in writing that it
was unable to locate the file or the documents. In the Agent’s response it
identified the steps it took to locate the file. This was a limited in‐house
search. No file or documents were found and no information was released.
The solicitor made a complaint to the Ombudsman. This office made
enquiries of the Agent about how it conducted its search. The Agent then
conducted a more extensive search and located the file. The complete file was
released and the request for the information was fulfilled.
The enquiries concluded that the original search process for the file was
limited to an immediate area and did not include other locations such as
other office locations, off site storage and files in transit.
The Agent agreed to review its database to include the location of files or
documents that are in transit.
There are ways this Agent may have avoided a complaint to the Ombudsman.
The following checklist was provided in the OV Bulletin Edition 1 in 2005,
however it is worth repeating as it is well over two years since Edition 1 was
distributed and the Ombudsman continues to receive complaints of this type.
There are also additional prompt questions.
The checklist may assist you when an access to information request is received
and the initial search does not identify the requested file or document. Prior to
writing the decision letter, please consider the following. They are questions this
office may ask if the Ombudsman receives a complaint.
CHECKLIST
Electronic documents and files
Consider the databases searched and by what method.
Consider the network drives and folders searched and by what method.
What methods and systems were used to search?
What other databases could hold information relevant to the FOI request?
Copy documents and files
Consider the searches undertaken to locate physical documents relevant to the
request including: what archive/storage files were searched, other files and by
what method? What system tracks file movement and does it cover all locations
and transit files?
Who and how
Review the relevant areas and officers to undertake searches.
Consider a call for files through email or memos as well as a physical search.
Track the last claims activities and physically check the file location
Emails
Look at how backups are conducted of your computer network and how often.
Consider the software used to conduct the backup, the methods available to
search the backup, and who conducts the backup.
Lost documents
To assist an applicant, consider reconstruction of lost records using other
system data. Has a remedy been provided to meet the applicant’s needs?
Recent Parliamentary reports
Investigation into contraband entering a prison and related issues June 2008
Conflict of interest in the public sector March 2008
Conflict of interest in local government March 2008
Investigation into VicRoads driver licensing arrangements December 2007
Message from the Ombudsman
‘The Ombudsman released his annual report on 10 September 2008. The
complaint data confirms that in 2007‐08 the office received a record
number of complaints. In addition to an overall increase in complaint
numbers about public sector agencies, the matters which relate to the
TAC and WorkSafe industries are more serious and complex then
previous years. These have included matters considered under the
Freedom of Information Act, the Whistleblower Act as well as formally
investigated under the Ombudsman Act.
In this edition there is an overview of the complaint themes which were
highlighted in the annual report in order for you to reflect on your own
agencies’ practices and to proactively address improvements. There are
also case studies regarding decision‐making and record keeping which I
also encourage you to consider.’ John R Taylor Acting Ombudsman
Annual Report 2007-08
On the 10 September 2008 the Ombudsman tabled his annual report in
Parliament. In this report he calls for fairness, integrity, accountability
and transparency in the public sector and he says ‘The legitimacy of the
state relies on public confidence in public officials to act responsibly and
effectively in the best interests of the community’.
The Ombudsman notes that there is at times a disconcerting gap
between the ethical standards required of public officials and their
workplace behaviours.
The issues of conflict of interest, failure to meet statutory requirements,
poor customer service, and lack of cooperation between public agencies
remain a principal focus for the Ombudsman. However, two new areas
of focus for 2007–08 were reported on ‐ poor administration of public/
private contractual relationships and public sector compliance with the
Human Rights Charter.
Transport Accident Commission - WorkCover - WorkSafe
September 2008
Edition 12
While TAC and WorkSafe complaint numbers were consistent with previous
years the Ombudsman note ‘I am concerned that the seriousness and
complexity of the complaints received by my office has increased for both
TAC and WorkSafe.’ The complaint themes the Ombudsman has highlighted
were in relation to the Accident Compensation Conciliation Service (ACCS)
Ministerial Guidelines, the Model Litigant Guidelines, decision making and
internal complaint handling services.
TAC and WorkSafe complaints 2007-08
The Ombudsman has made it clear that in 2008–09 he intends to report to
Parliament where it appears to him that agencies have not taken appropriate
within a reasonable period of time to implement his recommendations. He said
‘This is particularly important where bureaucratic lethargy may be undermining
effective follow–up and progress’.
The annual report can be found at <www.ombudsman.vic.gov.au>.
2007-08 complaint themes
◊ Conflict of interest
◊ Failure to meet statutory requirements
◊ Poor customer service
◊ Lack of cooperation between public agencies
◊ Poor administration of public/private contractual relationships
◊ Public sector compliance with the Human Rights Charter.
Received
TAC related complaints 117 110
WorkSafe related complaints 273 260
Total 390 370
Opportunity to reflect
The Ombudsman is an independent statutory officer of the Victorian Parliament.
When an investigation is finalised the Ombudsman can present his report to
Parliament in order to make it a public report. A small number of major
investigations are tabled, however further cases are included in the
Ombudsman’s annual reports and in other reports which inform Parliament.
These demonstrate the diversity of public sector activity and complaint type.
There remain a large number of enquiries and investigations which are
conducted in private. These have provided opportunities to assist
complainants to understand and navigate the public sector and they also
provide opportunities for remedies and administrative improvement for
the respondent.
The Ombudsman tabled seven major public reports in Parliament in 2007-08.
Although these are not in regard to the TAC and WorkSafe industries,
Ombudsman recommendations can have a broader application. By considering
these reports and the lessons learnt and then reviewing your own agencies’
practices, provides you a proactive opportunity to drive improvement.
2007-08 public reports
◊ Investigation into contraband entering a prison and related issues
◊ Conflict of interest in local government
◊ Conflict of interest in the public sector
◊ Investigation into Vic-Roads driver licensing arrangements
◊ Investigation into the disclosure of electronic communications addressed
to the Member for Evelyn and related matters
◊ Investigation into the use of excessive force at the Melbourne Custody
Centre
◊ Investigation into the Office of Housing’s tender process for the
Cleaning and Gardening Maintenance Contract ‐CNG 2007
Request for access to information
Complaints regarding access to information are common across the public
sector. The Freedom of Information Act 1982 (FOI) and section 107 of the
Accident Compensation Act 1985 (ACA) provide a means for claimants to
access information however at times this process is obstructed. Some of these
obstructions have been described in previous editions of this bulletin.
The following case study is provided in order to prompt you to consider where
information is stored in your own agencies.
As far as is reasonable, information should be centralised to reduce the risk of
lost or misplaced documents and ensure responses to request for information
completed in full.
Special projects and separate files
The Ombudsman received a complaint from an injured person who had sought
a copy of a medical report and requested that it be considered as part of an
appeal process. The person managing the claims appeal stated he had neither
read nor had a copy of the report.
On enquiries being made by this office, it was identified that the report was
requested by a specialist team that was reviewing the injured person’s
entitlement to medical and like expenses. The respondent advised that the
specialist team was conducting these reviews separate to the normal claims
management activities. The specialist team had created a separate file and the
offices managing other claims activities were not aware of the team’s activities,
the separate file or existence of any report.
This matter raises concerns about the respondent’s record keeping and
internal communication processes. It also raised concerns about a possible
failure to provide a complete response to such request in the future, if the
existence of parallel claims activities, separate files and documents are not
well known and communicated. Once this was identified the report was
included as part of an appeal process and the respondent apologised to the
injured person for any inconvenience that may have been caused.
Be mindful of timing
Below is a simple case study to reinforce the importance of timing in regard to
Decision making and communication.
Last minute perception
The Ombudsman received a complaint from a doctor regarding her patient.
Her complaint was that the respondent informed her late on a Friday
afternoon that her patient was to receive by hand delivery a claim rejection
notice. This was on the last day after which the statutory time limitation
applied. The doctor expressed concern about her patient’s psychological
health, particularly his risk of self harm and lack of access to medical and
psychological support on a Friday night.
Following enquiries by this office the respondent reviewed the decision making
and timing and noted in this case the liability question was complex
and difficult. It recognised that making a decision on the last day is not a
desirable circumstance, especially when dealing with a person in the
claimant’s circumstances. The respondent was aware of the claimant’s health
risks. The respondent apologised for ‘resultant risk and for the consequential
concerns experienced by any other person’.
The respondent also clarified that the decision was explained to the claimant
and he was provided with information about access to medical advice and
assistance if required. Notwithstanding these actions, this complaint provided
an opportunity for the respondent to remind all staff making decisions to plan
ahead in regard to how and when decisions are communicated and to be
mindful of the possible perception poor timing can create.
Irrespective of the known or perceived mental health of claimants, keeping
them up to date when it appears that the decision making process is to be
delayed due to complexities can allay concerns and provide transparency in
decision making. This case reminds decision makers of the need to consider
possible perceptions and risk.
Complaints can be directed to:
Mail Level 9, 459 Collins Street, Melbourne
Phone 9613 6222 or 1800 806 314
Email ombudvic@ombudsman.vic.gov.au
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