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Chapter 7

Helping people, improving government

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.

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