Administrative deficiency... Commonwealth Ombudsman

This is were the Commonwealth Ombudsman fuck everyone over and fail to comply with legislation.
Colin Neave  has already proven himself to be a complete fuck head like Alison Lakins and Alan Asher as Banking Ombudsman.


Section 15 of the Ombudsman Act 1976
(Ombudsman Act) lists the grounds on which the
Ombudsman can formally make a report to an
agency, and ultimately to the Prime Minister and
Parliament. Only a small number of reports are
made each year to agencies, and more rarely to
the Prime Minister or Parliament.
Most complaints to the Ombudsman can be
resolved informally, and without the need
to reach a firm view on whether an agency’s
conduct was defective. This reflects the
emphasis of our work on achieving remedies for
complainants, and improving agency complainthandling processes and public administration
generally.
Instances nevertheless arise in which
administrative deficiency should be recorded
and notified to an agency. This helps draw
attention to problems in agency decision
making and processes, and feeds into the
systemic work of the Ombudsman’s office.
The purpose of a finding of administrative
deficiency is not to reprimand the agency
concerned. The individual findings are not
separately published in the same way that
reports under s 15 are usually published. Rather,
the individual findings are aggregated as part
of the statistics that are published each year in
the Ombudsman’s annual report. This provides
agencies and the public with a statistical profile
of the complaints received each year by the
Ombudsman’s office and the office’s view of
how those complaints were resolved. They also
provide the Ombudsman’s office with a guide
to possible systemic issues that warrant further
consideration.
The term ‘administrative deficiency’ is not
defined—or even specifically referred to—in
the Ombudsman Act. It is a phrase used by the
Ombudsman’s office when referring to agency
action that is assessed as being ‘deficient’ for a
reason specified explicitly or implicitly in s 15 of
the Act. Other Ombudsman offices use similar
reporting terms, such as ‘agency defect’, ‘adverse
finding’, ‘complaint sustained’
or ‘maladministration’.
Categories of administrative deficiency
The Ombudsman’s office applies 15 categories
of administrative deficiency that fall into two
groups: administrative deficiency in an individual
case, and administrative deficiency in the agency
or system of government.
There is overlap between those categories, and
some agency errors can fall into more than one
category. An error is recorded only once in the
most appropriate category, unless an investigation
exposes multiple weaknesses in an agency’s
administration.
Not every minor administrative error is recorded
as administrative deficiency. The prime focus
of the Ombudsman’s office is upon whether an
error was inexcusable, caused disadvantage to a
member of the public, or reveals a weakness in
agency administration that should be addressed.
Administrative deficiency in an
individual case
Unreasonable delay
An agency took too long without good cause to
make a decision or take an action
Examples: unreasonable delay in processing a
person’s application, responding to an enquiry or
implementing a decision; failing to comply with
FOI statutory time limits in handling a person’s
FOI request; failing to meet time frames published
in the agency’s service charter in responding to a
person’s request.
Inadequate advice, explanation or reasons
A reasonable person could not easily understand
the advice, explanation or reasons given by an Fact Sheet 2 — page 2 Administrative deficiency
agency, either directly to the person or in an
agency publication
Examples: giving a person incomplete, incorrect,
misleading or confusing oral or written advice;
refusing to provide a written explanation for a
decision; providing a statement of reasons that
contains an error or contradiction or does not deal
with a critical issue in the decision.
Procedural deficiency
The procedure adopted by an agency in an
individual case was flawed
Examples: not recording oral advice given to a
person on an important issue; not answering
a person’s request for information or advice;
inefficient handling of a person’s application
or enquiry; not consulting appropriately with a
person before making a decision; failing to keep
a person advised of progress on a matter; failing
to advise a person of an agency requirement;
failing to implement a decision, or to implement a
decision correctly; failing to deal adequately with a
person’s complaint; inadequate internal review of
a disputed decision.
Human or factual error
The integrity of an agency process was impaired
by an avoidable error or mistake by an officer
Examples: entering incorrect information on a
person’s file; misreading or misunderstanding
the facts or data in making a decision; basing
a decision on faulty information; inadequate
assessment of evidence submitted by a person;
losing or misfiling a person’s application or
documents; giving the wrong application form
to a person; sending personal information to the
wrong address.
Legal error
An agency made a probable legal error that could
lead to its decision or action being set aside as
unlawful by a court on a ground listed in s 5 of
the Administrative Decisions (Judicial Review) Act
1977, or on some other basis
Examples: misconstruing or misapplying
legislation; making a decision without a proper
delegation; not giving a person prior notice
of adverse action against them (ie, breaching
natural justice); basing a decision on an irrelevant
consideration, or failing to consider a relevant
matter as required by legislation; breaching
the terms of a contract; conflict of interest in a
tendering process.
Unprofessional behaviour by an officer
The standards of professional behaviour expected of
officials in dealing with the public were not observed
Examples; rudeness, discourtesy or unhelpful
or disrespectful behaviour in dealing with a
member of the public; failing to honour a promise
or commitment given to a person; imprudent
disclosure of confidential or private information to
an unauthorised recipient.
Breach of duty/misconduct by an officer
Evidence of misconduct or unprofessional
behaviour by an officer is serious enough to
warrant referral by the Ombudsman to an agency
head under s 8(10) of the Ombudsman Act
Examples: dishonesty; harassment; serious conflict
of interest; improper use of official information or
agency property; other activity in breach of the
APS Code of Conduct (see Public Service Act 1999
s 13).
Unreasonable, harsh or discriminatory action
or decision
The decision or action of an agency seriously
flouted the principles of good administration
Examples: the agency decision or action was
irrational, capricious, excessive, inequitable,
contrary to reason or good sense, or in breach
of the sex, race or disability standards in antidiscrimination legislation; a decision maker
disregarded the severe impact that a discretionary
decision could have on a person; a person was
treated inconsistently and less favourably than
others, without explanation or justification; a
change in agency rules was applied retrospectively
to deny a person a benefit.
Administrative deficiency in the
agency or system of government
Legislation: unreasonable or harsh impact or
unintended consequence
A complaint has highlighted a legislative anomaly
that the Ombudsman should draw to the
government’s attention
Examples: complex legislation has an unexpected
or unexplained operation that disadvantages
a person or class of persons; legislation has a
disadvantageous impact on one class of persons
as against another, without apparent justification;
legislation imposes a condition or requirement for
accessing a benefit or concession that is harsh or the agency; repeated data entry or retrieval errors
by staff indicate skill weaknesses; the manuals
or guidelines provided to staff are inadequate or
poorly drafted.
Australian Government programs: deficiency
arising from their interaction
The programs administered either within an
agency or by two or more Australian Government
agencies are not as integrated or coordinated as
they could be
Examples: unreasonable delay occurs in making
decisions that require input from multiple
agencies; the complaint handling procedures
of multiple agencies that jointly administer a
program are poorly integrated; blockages occur
between agencies in exchanging information that
is required for decisions to be made; different
information is required by two or more agencies
to substantiate a similar issue; an agency provides
incorrect advice about the rules or requirements
of another agency.
Commonwealth/State responsibilities:
cross-jurisdictional difficulties
The programs administered by Australian
Government and State agencies are not as
integrated or coordinated as they could be, and an
Australian Government agency is partly at fault
Examples; an Australian Government agency
relied uncritically on a questionable medical or
other assessment by a State officer; an Australian
Government agency delegated responsibility
for undertaking an activity to a State agency,
without adequate care and oversight; there was
inadequate preparation for undertaking a joint
Commonwealth-State regulatory task; Australian
Government and State agencies have not
concluded a memorandum of understanding for
discharging a joint function.
Recording administrative deficiency
The practice followed in the Commonwealth
Ombudsman’s office is that a finding of
administrative deficiency can only be recorded
after investigation and with the approval
of a Senior Assistant Ombudsman, Deputy
Ombudsman or the Ombudsman.
The intention to record administrative deficiency
is always notified to an agency, sometimes by
letter, but also by email when there is a less formal
style of investigation. An explanation is given
difficult to meet; an apparent error or oversight
in legislation disadvantages a person or class of
people.
Government or agency policy: unreasonable
or harsh impact
A complaint has highlighted a defect in
government or agency policy or an executive
scheme
Examples: a grant scheme administered by
an agency is poorly drafted and unreasonably
disadvantages some people; the rules of
entitlement in an executive scheme, or the
administrative requirements for lodging
an application, are discriminatory, unfair,
unnecessarily onerous or difficult to meet; an
arbitrary cut-off date is imposed for lodging
applications; the agency rules on selecting
people for audits can operate unreasonably.
Flawed agency processes or systems
A complaint has highlighted an inherent or
systemic weakness in agency processes or systems
Examples: there is a programming error in the
agency’s automated system; the agency website
is dysfunctional; a public access counter is not
open during business hours; the agency contact
number is incorrect or not answered; misleading
or inconsistent guidance is given in agency
publications or on the agency website; agency
template letters are incorrect; there is no agency
system for complaint handling.
Resource deficiency in agency
A complaint has highlighted a resource deficiency
in an agency that impairs the agency’s ability to
discharge its statutory functions or meet its policy
commitments to the public
Examples: an agency cannot process
applications, respond to enquiries or
finalise internal reviews within a reasonable
timeframe; there is an unacceptable
backlog in the agency in investigating and
resolving complaints to the agency.
Inadequate knowledge/training of agency staff
An administrative deficiency in a particular case
occurred more through a systemic weakness in
staff skills than through the lack of competence of
the individual decision maker or contact officer
Examples: staff are not properly trained to
understand or apply legislation administered by
Fact Sheet 2 — page 3 Administrative deficiencyThe Ombudsman has taken reasonable action to ensure that the information contained in this publication is accurate and adequately
comprehensive for the purpose for which it was created. The Ombudsman is not responsible for any damage or loss claimed to arise
from any error or omission in this information.
Phone: 1300 362 072  (local call fee only—
 higher rate from mobile phones)
Fax:  02 6249 7829
Email:   ombudsman@ombudsman.gov.au
Web:     www.ombudsman.gov.au
Postal: GPO Box 442, Canberra ACT 2601
• Hobart
• Melbourne
• Perth
• Sydney
The Ombudsman has offices in:
• Adelaide
• Alice Springs
• Brisbane
• Canberra
• Darwin
Fact Sheet 2 — page 4 Administrative deficiency
Recording administrative deficiency focuses
on the past conduct of an agency—not on
the agency’s response to the investigation.
Even though an agency has readily admitted
that an error occurred and has acted
promptly to correct the error, it may still be
appropriate to identify the deficiency in the
agency’s processes, as highlighted by the
complaint to the Ombudsman’s office.
As a general rule the Ombudsman’s office only
makes a single recording of administrative
deficiency in respect of any one complaint. If
an error can be recorded under more than one
heading—for example, unreasonable delay may
stem from a resource deficiency in an agency—the
most suitable heading will be chosen. Occasions
nevertheless arise in which there are multiple
separate errors in an agency’s processes, and it is
appropriate to record more than one finding—for
example, a lost document, and misinterpretation
of legislation.
Government service providers
The Ombudsman’s jurisdiction extends to
the actions of government service providers.
The actions of a service provider can lead
to administrative deficiency being recorded
against an agency. This involves additional
considerations, such as whether the agency was
aware of the problem and took steps to resolve
it, or reasonably should have been aware of the
potential for the problem to arise.
as to why it is intended to record a finding of
administrative deficiency. The amount of detail
in the explanation will vary depending on the
seriousness, significance and contentiousness of
the case.
If an agency disagrees with a proposed
recording of administrative deficiency, the
matter is considered further by the relevant
Senior Assistant Ombudsman or, if necessary, a
Deputy Ombudsman or the Ombudsman. The
decision to record administrative deficiency rests
with the Ombudsman’s office, and ultimately
the Ombudsman, and does not require the
concurrence of an agency. The Ombudsman is not
inclined to engage in a protracted or adversarial
process to reach consensus on whether such a
finding is appropriate.
The categories of administrative deficiency cover
a broad spectrum. Some are of a more serious
nature—for example, breach of duty/misconduct
by an officer; legislation that is unreasonable or
has a harsh impact or unintended consequence. A
process that is suitably rigorous is followed before
a finding of that kind is made.
Some other categories cover less serious errors
or oversights in agency administration that
warrant being recorded either as a guide to
administrative improvement or to acknowledge
the problem that led to a person complaining to
the Ombudsman.
The Ombudsman has taken reasonable action to ensure that the information contained in this publication is accurate and adequately
comprehensive for the purpose for which it was created. The Ombudsman is not responsible for any damage or loss claimed to arise
from any error or omission in this information.
Phone: 1300 362 072  (local call fee only—
 higher rate from mobile phones)
Fax:  02 6249 7829
Email:   ombudsman@ombudsman.gov.au
Web:     www.ombudsman.gov.au
Postal: GPO Box 442, Canberra ACT 2601
More information?
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