Casebook 2022: Helping agencies to improve decision-making

Our investigative role

The Queensland Ombudsman investigates complaints about Queensland Government agencies, local councils, public universities and TAFE.

Our investigative service is free and confidential. We are independent – not an advocate for either complainant or agency. The Ombudsman’s work helps agencies to improve decision-making.

How the complaints system works

Lack of communication caused distress and inconvenience

John was an older person admitted to hospital with reduced capacity. His son Len asked the hospital for information about his father’s medical condition. The hospital said it could not communicate with him as there was no Enduring Power of Attorney and Len wasn’t listed as next of kin for John. On previous admissions, the hospital had communicated with Len about his father without that documentation.

Len complained to the hospital about its refusal to communicate with him about his father. The hospital investigated the complaint, but did not inform him of the outcome. He complained to this Office that the hospital would not communicate with him.

In making his complaint to this Office, Len wanted to ensure that communication with the hospital regarding his father would be available during any future hospital admissions.

The result

This Office looked at whether the hospital’s decision not to communicate with Len about his father was reasonable, and if the hospital had appropriately responded to his complaint.

The hospital acknowledged that it missed informing Len of the outcome of its investigation, and apologised for the inconvenience and distress caused to him. It listed Len as an admission contact in the hospital records so he could be contacted during his father’s future hospital admissions.

Clear reasons for decisions help people to understand 

Felix applied to Legal Aid Queensland (LAQ) for help with representation in legal proceedings. Although he originally received an initial grant of aid for proceedings in the Magistrates Court, it was later terminated. Felix received three decisions: an original decision, internal review decision and external review decision through an external review officer, who was a lawyer appointed by the LAQ Board.

The original decision informed Felix he had not met the conditions of his grant of aid, which led to its termination. Felix’s matter had progressed and he provided further information to LAQ, essentially seeking a grant of legal aid for the next stage of the proceedings. The two review decisions considered the merits of Felix’s application for a grant of aid for that next stage of proceedings. The review decisions did not address the decision to terminate the initial grant of legal aid.

Confused by the different decisions and reasons provided by LAQ, Felix complained to this Office.

The result

This Office considered LAQ’s decisions and its guidelines and found there were different reasons given for refusing aid. LAQ acknowledged that Felix could have been confused by the correspondence in the matter as additional information was provided and impacted on decisions as they were made.

Our investigation found that LAQ’s reasons could be improved to assist Felix’s understanding of the decision. LAQ committed to raising our concerns, including the communication of decisions in upcoming training for review officers, as well as writing to Felix again to give him a better explanation for the review decisions

Council agreed to change procedures after incorrect details added to headstone

Linda started organising funeral details for her terminally ill sister, Janine, while her sister was still alive. She dealt directly with the regional council that managed the local cemetery. When submitting the paperwork, she provided an unsigned headstone form without the date of death, expecting council to use details as they became available. The form did not include a field to add a date of birth. When Janine died, the death certificate was provided to the council.

When Linda saw the plaque she was upset. It did not include birth and death dates; and it listed an incorrect age for Janine. Linda expected the council would cross-check all information it had on hand, or notify her of any problems with the headstone form that she submitted. She complained to the council, requesting that the council contribute money to replace the headstone plaque with correct details.

The council informed Linda that all procedures had been followed correctly, and that a new plaque would be at her own expense. Dissatisfied with the council’s decision, Linda complained to this Office.

The result

This Office’s investigation found that the council considers the headstone form to be complete when it is handed to council, and there was no cross-checking of the information held by council. It is clear that the council did have the death certificate, which included Janine’s birth and death dates. These details were properly included in the coffin plaque but not on the headstone.

The investigation concluded that it was reasonable of council to decline to contribute to a replacement headstone plaque. However, the complaint provided an opportunity for council to review its funeral procedures. Council changed the headstone process to allow further details to be provided on the form, and added a proof check step before ordering. These changes should improve council’s service delivery to people involved in a stressful process.

The council also accepted this Office’s suggestion to review its Complaints Management Policy and benchmark it against councils of a similar size.

Clear communication of reasons and transparency in decision-making and recordkeeping

Following Morris’s surgery, there were complications that meant he required further surgery which was not available in the regional town where he lived.

Morris contacted a number of surgeons in Brisbane but found no one was willing to operate. He found an interstate specialist who was willing to provide the surgery. This resulted in a number of trips interstate for treatment and further surgery over eight months. Both his doctor and solicitor wrote to the Hospital and Health Service (HHS), part of Queensland Health, stating that he required Patient Travel Subsidy Scheme (PTSS) help for his interstate travel and accommodation costs.

Morris telephoned the PTSS office on a number of occasions during the months of treatment and was verbally advised that his application would be accepted.

When he applied in writing, the HHS refused his application for PTSS help. He appealed this decision and HHS refused his appeal. Morris complained to this Office.

The result

This Office’s investigation found a number of issues with the HHS’s decision and appeal responses.

The application refusal did not:

• clearly explain how the decision was reached, and included an irrelevant section of the PTSS Guideline as justification
• contain information about appeal rights
• include the name and position of the person who made the decision.

The application decision was initially recorded as approved in internal HHS documents. As Morris received a letter advising that his application was refused, it was clear the original decision was changed but there was no record of what happened to change that decision.

The HHS acknowledged that it had not managed all aspects of decision-making appropriately and agreed to reimburse Morris for his PTSS application. The HHS agreed to consider the highlighted areas for improvement.

Clear communication and applying discretion particularly important during COVID-19

Onkar was an international student at a Queensland university. He was being monitored by the university because he hadn’t achieved satisfactory academic progress in previous terms.

Onkar reported that the surge of COVID-19 in his home country caused him much stress and anxiety. Close family members were severely ill and he became increasingly worried about them. Onkar was involved in an accident and tore a ligament in his writing hand.

He submitted a medical certificate on ‘exam day’ for one of the course units, as he was unable to exert pressure on his hand, which hampered his ability to undertake the exam. His applications to defer the exam and two assignments were approved.

He completed the deferred course work, but did not pass all of the units he was enrolled in.

His unsatisfactory work in that term meant he progressed to Stage 3 of the university’s monitoring academic progress policy. The university notified Onkar of its intent to cancel his enrolment. Onkar needed to supply documents to support his appeal within a month. In that time, he was only able to supply a medical certificate for a short time relating to his hand injury and he did not provide any information on how he would improve his chances at being successful with his studies in the future as required under the policy.

His appeal was denied. He complained to this Office.

The result

Onkar provided further information to this Office that was not available to the university at the time of making its decision. These documents related to his family’s situation and an ‘action plan’ on how he intended to successfully complete his course.

In the investigation, this Office noted a discrepancy between the delegated decision-maker in the university’s policy and the staff member who signed the outcome notice that was sent to Onkar. The outcome notification did not refer to any relevant provisions of the policy, in particular it did not contain any information to indicate that the assessment and decision concerning Onkar’s appeal application was made by the academic panel, as required under the policy.

In light of the new documents, the university agreed to review its decision on the cancellation of Onkar’s enrolment. It also agreed to review the relevant sections of its policy and outcome advice to students to ensure both documents are consistent about the decision-making process for Stage 3.

Using mediation to help solve problems

Providing an internal review observes natural justice for complainant

Council agreed to review dog attack procedures after inadequate investigation

Improvements to Queensland Corrective Services hearing processes

Procedural fairness missing in university’s original decision

Department includes human rights in decision-making

Ben, a high school student, expressed an opinion about a presentation in class. The teacher judged the language and terms used by Ben as inappropriate. A detention was imposed in accordance with the school’s student code of conduct.

Ben’s mother Margaret complained to the school about the detention. She was dissatisfied with the school’s initial response and requested an internal review.

Margaret remained dissatisfied after the internal review and complained to this Office.

The result

This Office’s investigation found that, under the school’s student code of conduct, teachers may impose a detention for inappropriate language. In Margaret’s complaint to this Office, she referred to Ben having exercised his right to free speech and questioned why the department had not responded to her when she queried that in her initial complaint. During enquiries by this Office with the department, it was clear that s 21 of the Human Rights Act 2019 (HR Act), freedom of expression, was not considered as a distinct part of the internal review and was, therefore, not specifically referenced in the decision letter.

The department agreed to include human rights considerations in complaints and internal reviews, in accordance with its obligations under s 58(1)(b) of the HR Act, regardless of whether a complainant specifically raises a breach of the HR Act in their complaint.

Agency officers must understand how to apply policies

It is the usual practice of this Office that a complainant first exhaust an agency’s complaints management system (CMS) before we will investigate the complaint. This includes using any internal review option available.

As the public exhibition space had not dealt with the concerns raised as complaints under its policy and procedure, this Office referred these matters back to the agency to manage individually as complaints under its policy and procedure. This included conducting an internal review.

This Office’s investigation found that officers at the agency responsible for the public exhibition space were uncertain of the policy and procedure and what should be categorised as a complaint or feedback, even though it was described in the policy and procedure. Issues were also identified regarding who were the decision-makers in each phase of the complaints management system.

This highlights that issues can arise when an agency’s complaints management process is not understood or is not followed correctly. 

Council reviewed processes relating to waterway contamination

The result

This Office’s investigation looked at whether the council reasonably considered complaints of non-compliance with the DA, and investigated complaints of environmental harm.

The investigation found that the council had considered Lynne’s complaints about stormwater releases from the development site. However, the council had focused on maintenance and improvement of the sediment control measures, but not sufficiently on contamination of the local waterway. Council’s action where stormwater contamination issues were identified on development sites was incomplete. Council could have used the Environmental Protection Act 1994 (EP Act) to investigate Lynne’s claims about the waterway. This Office consulted some other councils, and forwarded examples to this council of documented practices used in dealing with stormwater complaints and incidents.

The council agreed to review its internal policies and processes in response to this Office’s request. This should enable the council to respond effectively in the future to these types of complaints, and guide officers in discharging council’s jurisdiction under the EP Act where harm to the environment such as local waterways is identified.

Council to improve decision-making process when appointing contractors

The result

This Office investigated the matter and considered, firstly, whether council’s engagement of the business complied with the Regulation, and secondly, whether council’s written responses to Elaine’s complaint were adequate.

Investigators found that council had not complied with the Regulation in deciding to engage the business and did not assess the proposal in terms of the sound contracting principles in the Local Government Act 2009. Council had not advised Elaine of her right to an external review to this Office.

This Office concluded that council had not given Elaine a clear, accurate response to her complaint, particularly the question of council’s assessment of the trial of her system. Council agreed to rectify this and provided Elaine with a comprehensive explanation about its trial of her system and why it was not the preferred approach. Council also indicated it had reviewed its procurement processes, policies and procedures to ensure they are clear and consistent with the Regulation.

Obtaining expert advice from relevant entities can strengthen processes and avoid complaints

Maryanne worked for a public sector agency and applied for a Voluntary Medical Retirement (VMR) package after she sustained a permanent disability from a workplace incident. She believed the package would include a tax-free portion of the final termination payment, as the disability she sustained meant she was permanently unfit for any work in the future. She became concerned when she did not receive this tax-free portion, which she said equated to $13,000, and lodged a complaint with her employer.

Maryanne corresponded with her employer and the relevant payroll entity during the consideration of her complaint. The payroll entity’s final decision advised Maryanne that she did not qualify for the tax-free portion because her retirement had been processed as a VMR rather than an invalid or ill-health retirement package. She contacted this Office because she disagreed with the payroll entity’s decision and felt it was inconsistent with advice from the Australian Taxation Office (ATO).

The result

Given the significant financial impact the payroll entity’s decision had on Maryanne, and the questions raised by her complaint, this Office decided to investigate the matter. Investigators reviewed a range of information including public sector legislation, taxation legislation and public sector directives. The investigation concluded that the payroll entity had failed to apply the relevant directives and taxation legislation to Maryanne’s situation, and had not properly considered whether she qualified for the tax-free portion.

The payroll entity agreed to review Maryanne’s termination package, obtain clarifying information from the ATO and other relevant agencies, and determine whether Maryanne qualified for the tax-free portion under the taxation legislation. On the basis of information received from the ATO, the payroll entity wrote to Maryanne and advised her that she may qualify for the tax-free portion. The payroll entity suggested that she lodge an objection with the ATO about the tax treatment of her VMR. In addition, the payroll entity reviewed its process for handling VMRs and included information about the need to liaise with other agencies, such as the ATO.

Council reviewed fee structure to ensure fairness

Felicity was aware council had the power to seize an animal under an Animal Management local law and impound it. She also understood an owner could reclaim the impounded animal after paying a cost-recovery fee. However, Felicity disputed the council’s use of a sliding scale for the fees to reclaim an impounded animal. The fee was increased if the animal had been impounded more than once. The fees for the first, second and third impoundment of an animal were $95, $150 and $170.

Felicity was concerned that council’s use of a sliding scale structure was unlawful. She complained to this Office after receiving responses from council that she considered to be inadequate. She advised this Office that the overarching legislation required that the cost-recovery fee must not be greater than the cost of council’s actions to seize and impound the animal. In Felicity’s opinion, the initial impoundment of an animal would be more costly. She maintained that any future impoundment of the same animal would be less time consuming and therefore not as costly.

After investigating the complaint and giving particular consideration to the lawfulness of council’s use of a sliding scale fee structure, this Office wrote to council and held discussions with its staff about the rationale for the fee structure and the need to identify the costs of the impoundment program and use them as the basis for establishing fees.

This Office suggested council obtain advice about cost-recovery principles and any proposed use of a sliding scale. Depending on the advice provided, it was also suggested that council calculate and adopt an appropriate fee scale for the following year.

The result

Council decided to introduce a flat rate fee of $120 per impoundment. Council also told this Office its officers would review fees over the next 6 to 12 months. In addition, council agreed to provide Felicity with this information.

This Office was satisfied with the steps council had taken to ensure the proper application of its legislation which, in turn, would give animal owners a more transparent fee structure.