Case studies - Proper application of rules
14 Nov 2019
Improperly applied rules result in complaints to this Office when there has been a difference between the expectation and the reality in delivery of service from a public agency. Following are some case studies relating to proper application of rules in the 2018-19 annual report by the Queensland Ombudsman.
Review of Disability Parking Permit application process
Angela applied for an Australian Disability Parking Permit (ADPP) on behalf of her son Liam. In her application, Angela provided information that Liam’s primary disability or medical condition was Downs syndrome, which severely restricts his ability to walk. This was identified as a permanent condition by a doctor. The application was refused, so Angela provided further information regarding Liam’s open-heart surgery, how he gets breathless when he has to walk too far and trips over his feet.
The department informed Angela that the additional information did not indicate a functional inability to walk and the original decision to refuse the ADPP was upheld.
This Office's investigation found that even though a doctor certified that Liam‘s mobility restriction met the criteria set out in s 60 of the Traffic Regulation 1962, the department refused the application. The department did not ask Angela to provide further medical evidence that would have helped the department come to a decision regarding the application. This is an option available under the regulation.
The department reconsidered the application and granted the ADPP to Liam. As a result of the issues raised in the investigation, the department decided to review the ADPP application form and the review of decision form. The forms were updated to make the application and review requirements clearer. The department also made changes to the process for reviewing a decision to ensure that the applicant will be contacted if further information is needed.
Dealing with a sensitive family issue
Bill is the elderly father of a child that was stillborn in the 1960s. In 2018–19, Bill discovered that two years earlier an application was made to council by a funeral home on behalf of the child’s mother for the exhumation of his child’s remains. Without his knowledge or consent, a council officer had approved the application. Following exhumation, the remains were taken by the mother for re-interment in another local council area. The father wanted the remains re-interred in the original burial place.
After receiving Bill's complaint, this Office considered the requirements of the council’s local law dealing with the disturbance of human remains in cemeteries. One of the key factors under the local law is evidence of the wishes of the deceased and the relatives of the deceased. The mother provided a letter to the council officer stating that Bill was in a nursing home and suffered from dementia. She stated she intended to take the remains back to Bill.
The council officer considered the possibility of the existence of other relatives of the child. However, as the child was stillborn, there was no birth or death certificate. In the absence of certificates, the council officer was uncertain how they could obtain names and contact details of other relatives. The council officer accepted the mother’s application without any further testing of the claims made.
When this Office queried the sequence of events, council accepted that the council officer should have insisted on a statutory declaration from the applicant containing details about the father and whether he agreed to the exhumation.
Council wrote to Bill explaining the circumstances of its acceptance of the application and apologised for the impact of its decision. Council was unable to assist with Bill’s request to re-inter the remains as they were now in the mother’s possession.
Council agreed to review the local law to align it with contemporary community expectations and strengthen evidentiary requirements to ensure the wishes of any close relative of the deceased are identified and taken into account.
Giving proper consideration to exceptional circumstances
Maria was unable to attend her exams because she was recovering from injuries suffered in an accident. She neglected to apply for a deferred exam within the required timeframe and her late application was refused by the university.
Maria appealed the decision and outlined her situation. She was unfit to attend her exam as she was receiving medical treatment for significant injuries and had been hospitalised twice. She missed the deadline to submit a deferral for one subject by only two days and submitted a request for another subject within the timeframe, though not through the proper channels.
On another occasion, Maria had requested deferred examinations. On this appeal, she stated that she was unaware of the process and cut-off dates for requests. The university dismissed the appeal due to Maria having previous knowledge of the processes and not meeting the criteria for extenuating circumstances.
After receiving Maria's complaint, this Office's investigation agreed that the university must strictly adhere to its rules to provide consistency and equity to all students. However, the investigation also found that the university had placed too much weight on Maria’s previous knowledge of the deferred exam process and insufficient weight on her medical circumstances. The university acknowledged the student’s significant injuries and that it was reasonable that this impeded her ability to submit her request on time.
The university agreed to set aside the original appeal decision and upheld Maria's appeal for deferred exams. Decision-makers should give appropriate consideration and weight to situations that may amount to exceptional circumstances, where a more flexible application of rules may be required.
Inconsistent use of public park by council
Leon complained to this Office that his local council was improperly using a public park as a base for dredging activities on an adjacent waterway and that they had permitted commercial activities in the public space. His primary concern was that noise from these activities affected local residents. Records indicated that the park was state land provided to the council in trust for the purposes of ‘parks’ and ‘recreation’.
Noise complaints are ordinarily managed under environmental protection legislation. However, the more fundamental question of land use was the focus of the Office’s investigation. The investigators considered the requirements of the Land Act 1994, administered by the Department of Natural Resources and Mines, and relevant state government procedures relating to inconsistent uses of state land.
A private commercial operator was working from the site on agreement from the council. Council informed the investigators that the activities were considered to be in the public interest.
The investigation sought submissions from the council and the department. The department confirmed that the activities were inconsistent with the trust purpose of ‘parks’ and ‘recreation’.
The council agreed that it held obligations under the Land Act as trustee. A meeting was expedited between council and departmental officers to explore the department’s requirements, including the possible development of plans by council that would enable the activities to continue, with proper monitoring and controls in place