Department of Communities, Housing Tasmania - May 2022
Vacation Maintenance Costs
A complaint was received from a tenant of Housing Tasmania relating to a determination made by the Housing Review Committee concerning vacation maintenance costs at the Property that were deemed to be the tenant’s responsibility.
The complaint was complicated due to the tenancy in question and the vacation maintenance costs dating back to 2011. The complainant had referred the matter back to the Housing Review Committee in 2020, specifically requesting that the vacation maintenance costs associated with the Property from 2011 be reviewed. The review undertaken by the Housing Review Committee determined that costs should stand and that the complainant remained responsible for the outstanding debt.
The complainant referred the complaint to the Ombudsman. The office of the Ombudsman undertook preliminary inquiries in relation to the concerns raised, focusing in particular on the evidence that was available to the Housing Review Committee in 2020 when it made the determination that the costs relating to the removal and replacement of carpet should stand.
As a result of these inquiries, it became evident that the complainant had been forced to vacate the Property due to reasons outside of the complainant’s control and the Property had been subject to vandalism and damage after the complainant had vacated. Prior to the vacating the Property, the inspection reports completed by Housing Tasmania did not identify any significant damage to the Property, rather the reports noted the ‘…property [is] well looked after.’ The inspection that was undertaken occurred after the incident where the tenant was forced to vacate the Property and where damage was alleged to have taken place to the Property. The inspection also occurred after the Property was identified as having been subject to break-ins and vandalism.
This office raised its concerns with Housing Tasmania about the lack of evidence available to support the determination made by the Housing Review Committee. Housing Tasmania conceded that the decision made by the Housing Review Committee was not evidence-based. Housing Tasmania made arrangements to credit the costs associated with the removal and replacement of carpet at the Property to the tenant.
Information also provided by Housing Tasmania indicated that it is in the process of undertaking a review of the Housing Review Committee. It is hoped that this review will ensure that future decisions are evidence-based.
Resolve Case Number: O2011-018
Department of Education - April 2022
Complaints Policy Omission
A complaint was received about the Department of Education’s (Department) refusal to accept a complaint about the placement of a child in a class at a primary school. The reason provided to the complainant was that this type of complaint was outside the scope of the complaints managed by the Department. The complainant also raised concerns about the process associated with allocating the complainant’s child a class placement at the school.
Enquiries and Complaints Management Policy
The Department’s Enquiries and Complaints Management Policy (the Complaints Policy) provides details about how complaints and enquiries directed to the Department will be managed. Attachment 1 of the Complaints Policy also specifically sets out a number of issues that are ‘Inside the operation of the Department, but not within scope of this particular policy’.
The initial enquiries undertaken by this office determined that issues relating to the specific class group that a child was placed in by a school was not included in the list of issues outside the scope of the Complaints Policy. Preliminary inquiries were then commenced seeking information from the Department addressing how and why it was relying on an issue being out of scope when it was not included in the Complaint’s Policy.
The response received from the Secretary of the Department acknowledged that as a result of a drafting error, the exclusion referred to above was omitted from the Complaints Policy when it was submitted for approval of the Department Executive. The Secretary also provided information, that following a period of consultation and review, that the placement of students in specific classes had been identified as an operational concern best managed by the individual school principals.
When the error was identified, the Department determined it was a drafting error and should be confirmed as an excluded complaint issue under Attachment 1 of the Complaint Policy. The drafting error was to be amended as part of a planned 12 month review of the new Complaints Policy. On an interim basis, the Department had continued to operate with the complaint category excluded as originally intended.
As a result of this complaint, and due to the Secretary becoming aware of the anomaly, arrangements have been made to amend the Complaints Policy for approval by the Department Executive as a matter of urgency.
The Department has also provided an explanation about why class placement was determined to be an excluded complaint issue. This was due to decisions of this nature having been identified as complex operational matters best made by the school principal who has specific knowledge and understanding of the specific school and school community. The principal is required to take into account factors such as (but not limited to) the location of the school, resourcing, class sizes, teaching staff capacities and backgrounds, parent relationships and student dynamics.
The Department has recognised that if complaints about class placement were reviewable by the Department it would make finalising class placements challenging and more time consuming. The Department stands by its position that this is an operational issue that is best managed by the individual principal. There is an avenue of review available to parents who wish to raise concerns about class placement, this is through the individual school.
Based on the response provided, I was satisfied that the complainant’s submissions were taken into account by the Principal when the determination was made about class allocation. As the class allocations are an operational matter, the final determination reached about which class a child is allocated to is most appropriately managed by the Principal. The administrative actions relating to the process surrounding the class allocations (the opportunities provided to parents to allocate a preference and provide reasons as to why the nominated days are preferred) are reasonable and I was not able to identify any improvements that could be undertaken or administrative oversights associated with the process.
After taking into account the response provided by the Department I determined further investigation of the complaint was unwarranted. The drafting error in the Complaint Policy was identified and action has been commenced to rectify the oversight. In addition, administrative action taken by the Principal when determining class allocations was reasonable.
Resolve Case Number: 02202-128
RBF, Office of the Superannuation Commission - February 2022
Management Of An Application For A Surviving Partner Pension
Mr D was the holder of a Contributory Scheme Life Pension with RBF. At the time of Mr D’s death he and his wife were not living together due to Mrs D residing in an aged care home. As the late Mr D’s surviving partner, Mrs D was entitled, once determined to be Mr D’s surviving partner pursuant to provisions in the Public Sector Superannuation Reform Regulations 2017 (the Regulations), to a lifetime pension at the rate of two thirds of the rate of Mr D’s pension at the time of his death. The Regulations provide a surviving partner with a right to commute the surviving partner pension into a lump sum within 3 months of the surviving partner determination being made by the Superannuation Commission.
A complaint was received by the Ombudsman about the time taken by RBF to reach the determination that Mrs D was the late Mr D’s surviving partner. A further concern was raised that, due to Mrs D dying before the determination was complete, the right to commute the surviving partner pension into a lump sum was lost.
In response to the Ombudsman’s enquiries RBF acknowledged a number of delays where RBF did not meet its customer service standards in responding to requests for information or contact by Mrs D’s family. Feedback from the Ombudsman about these delays and service issues were communicated to relevant staff by the Director of the Office of the Superannuation Commission.
RBF has acknowledged that the documents required to be lodged to satisfy RBF that Mrs D was Mr D’s surviving partner RBF were lengthy and overly complicated. As part of the response provided to this office RBF has indicated that amendments have been prepared to the Regulations that seek to streamline the process for surviving partners to claim an entitlement to a deceased partner’s pension.
Additional information provided in response from RBF indicated that the matter was further delayed by the death of Mrs D and the added complication of then having to deal with the executor of her estate.
Another delay was then experienced when requested documentation was provided to RBF by mail and the documentation was not forwarded by the Department of Treasury and Finance to RBF. This oversight was identified by RBF as being the result of human error and reassurance has been provided to this office that RBF is not aware of any other delays that resulted from an oversight of this nature. In addition, RBF is confident that the current arrangements it has in place are adequate to prevent a similar oversight occurring in the future.
It is difficult to determine whether the time taken by RBF to process the application was excessive, however it is clear that there were delays in communication from RBF that made the process more difficult for the applicant. Further investigation of this matter was determined as unnecessary due to the acknowledgements made by RBF about the delays and the proposed amendments to the Regulations. The Ombudsman remains hopeful that the proposed changes to the Regulations will provide a less complicated application process for surviving partners.
Resolve Case Number: O2110-169
Tasmania Prison Service - January 2022
Placement of women at risk of self-harm in male prison facilities
A female prisoner advised this office that she was being housed in a men’s prison. It appeared that this had occurred as she had high mental health needs and was at risk of self-harm. As a result, she required close observation which could not be facilitated in the women’s prison at that time.
The Tasmania Prison Service (TPS) confirmed that there are occasions when female prisoners who are considered at risk are moved to male prison facilities. TPS acknowledged that this is not ideal, but advised that it can become necessary in cases where intensive monitoring is required to ensure a prisoner’s safety, as TPS does not have adequate resources and facilities to do this at the women’s prison.
This office’s role is to review TPS’s administrative actions, and we cannot criticise TPS for resource and infrastructure limitations which are not necessarily within TPS’s control. Ultimately, in this instance, we concluded that TPS appears to only be housing women in men’s facilities in very specific circumstances, and in an attempt to keep them safer from self-harm. Unfortunately, the above mentioned infrastructure and resource limitations mean that this results in the very concerning outcome of women who are experiencing severe mental distress being placed, at least temporarily, in male prison facilities.
Resolve Case Number: O2107-099
Department of State Growth - November 2021
Poor recruitment and selection processes
This office became aware of issues with the Department of State Growth’s recruitment and selection processes through a complaint raised by a person who unsuccessfully applied for a position with the Department. As the complainant was not a state service employee, they did not have the option to apply for a review in accordance with section 50(1)(a) of the State Service Act 2000, and as a result this office agreed to make preliminary inquiries. The issues identified were not such that they would have impacted on the outcome of the complainant’s application, so an investigation of the complaint was not considered to be justified.
A review of documentation provided in response to this office’s inquiries demonstrated that all of the members of the selection panel in this selection process knew the successful applicant through work. While these conflicts of interest were declared, the selection report did not clearly outline the exact nature of the panel members’ relationships with the successful applicant, or how the conflicts of interest were managed.
The selection report further demonstrated that the successful applicant was appointed to a permanent position without any referee checks being conducted. The selection report indicated that referee checks were not considered necessary because the successful applicant was known to the selection panel, raising further questions about how the panel members’ conflicts of interest were managed.
State Growth advised that referee checks are not mandatory in accordance with its selection procedures, however the documentation it provided in relation to its recruitment and selection process strongly suggested that referee checks should always be conducted for the preferred applicant.
This office provided feedback to State Growth that the administrative deficiencies in this matter meant this office, as an independent third party, was unable to satisfy itself that appropriate processes had been followed. This office also indicated that, had a complaint been received from an applicant who was in close contention for the role, the whole process could be called into question.
The information provided in response to this office’s inquiries suggested that State Growth does not have a recruitment and selection policy, and State Growth advised that it is currently reviewing its approach to recruitment and selection processes. This office advised that State Growth should have a clear policy regarding each stage of the recruitment and selection process, and provided suggestions on how to address the significant issues identified through this complaint to avoid such a scenario occurring again.
State Growth has agreed to take this office’s suggestions into account in its review, and this office has requested to be notified of the outcome.
Resolve Case Number: O2107-131
TasRail - August 2021
Sounding Of Train Horn Through Residential Areas
A complaint was received about TasRail, specifically about the sounding of train horns during the night and early hours of the morning when trains are passing the complainant’s property which is located in a small rural town. The complainant had attempted to resolve his complaints with TasRail using the telephone number provided on the TasRail webpage and then via the online complaint process on the webpage. Both the telephone call on 7 May 2021 and the email on 9 June 2021 had not resulted in a response being provided to the complainant.
This office undertook preliminary inquiries pursuant to s20A of the Ombudsman Act 1978 (the Act) and a response was requested from TasRail addressing the concerns the complainant had raised about the train horn and the failure to respond to the telephone and email complaints.
TasRail has provided details about how the town in question is located on the South Line of the Tasmanian Rail Network, this in turn is recognised as part of the National Land Transport Network. Freight trains pass through the town approximately 6 times in a 24 hour period (three heading north and three heading south) between Sunday and Friday nights between the hours of 7.15pm and 5.00am. TasRail has been operating since 2009 and even prior to its creation, TasRail maintains that the train timetable operating through this town operated a similar schedule for decades.
The timetable has been established to best synchronise with shipping arrival and departure times, which is why the trains are travelling through the night and early hours of the morning.
The horn on a train is used to mitigate the risk of collision between a road user (driver or pedestrian) and a train. TasRail’s minimum operating procedures require drivers to sound the train horn twice per level crossing for a duration of one second each time (one near the approach to the crossing and once prior to entering the level crossing). The horn should be sounded on the ‘low note’ between the hours of 10pm and 6am. A train driver also has the authority to sound the horn at any time that he or she perceives there to be a potential danger.
TasRail maintains that the risks associated with collisions at crossings are very real and that the use of the horns is of vital importance to warn road users of the approaching train.
TasRail accepts that the sound of the horn blowing during the night may disturb those living close to the railway, however it maintains that the safety of the public and rail operations are the priority. TasRail is required to identify potential risks and implement strategies to address these potential dangers. Part of the strategy developed by TasRail to address the risks of level crossing collisions includes the procedure developed for drivers to sound the horn on the approach to and when entering the level crossing.
If members of the public believe that the use of the horn by TasRail drivers does not comply with the procedure outlined above, the public are able to provide details about the estimated time and location that the horn was sounded, TasRail then has the ability investigate the matter. This includes obtaining data from the train confirming how many times the driver sounded the horn, the duration of horn sound and whether the high note or low note was used.
TasRail’s Community Service Standards
TasRail has acknowledged that it received the first phone call on Friday 7 May 2021 and although it reports an attempt was made to return the call during the week commencing 10 May 2021, it also recognises that it did not reach the complainant and the message was then overlooked in its administrative system.
TasRail has also indicated that the email received dated 9 June 2021 was flagged for follow up the week of 28 June 2021, however this was set aside when it received correspondence from this office. TasRail has acknowledged that it omitted to send a receipt of email in the first instance.
As a result of this complaint and the oversights that were highlighted, TasRail is now in the process of revisiting its community complaints phone message/online procedures and system. TasRail has committed to reviewing its community complaints procedure within two months to ensure it is fit for purpose.
I was satisfied that the explanation TasRail provided in relation to the times trains traverse past the complainant’s property and the requirement to sound the horn when entering level crossing is reasonable in the circumstances. TasRail has acknowledged that the response to the complaints raised was not in accordance with best administrative practice and has undertaken to review the current community complaint process.
Resolve Case Number: O2106-137
Tasmanian Prison System - August 2021
Delays to Receipt of Privileged Mail By Inmates
The Ombudsman received a complaint from an inmate about the length of time it had taken privileged correspondence from this office to be received.
As part of a quality control process the Ombudsman maintains a register that includes details showing the date privileged correspondence from this office is sent to inmates, as well as recording the date the inmate signed an acknowledgement confirming the confidential mail has been received unopened.
A review of the Ombudsman mail register identified that there had been a number of instances since January 2021 where correspondence had not been received for over 7 days from the date of being sent. Conversely, there were also instances where inmates received mail from this office within 3 days. Due to concerns about these delays a response was sought from the Director of Prisons questioning why some mail was taking a significant period to reach the recipient.
The response received addressed the fact that some delays may be attributable to weekends and public holidays. In addition, the current system implemented at the Tasmanian Prison System (TPS) required privileged mail to be redirected to the Performance and Compliance Unit where it is tracked, before being put into the TPS internal mail to be received by the recipient’s Unit Superintendent. TPS view this process as unavoidable and necessary to manage confidential correspondence.
As part of the response it also became clear that TPS maintained a register of privileged mail receipted into the prison. The Ombudsman observed that there appeared to be an issue with TPS consistently recording data and the register lacking information that may assist with identifying whether the delays to mail are more likely to occur in particular units of the prison. As a result of these observations TPS has confirmed that it has updated its register to include the facility and unit the recipient of the mail is housed in. It has also been agreed that staff will aim to include details that may explain occasional delays, such as where an inmate has been transferred for court purposes to the North of the state.
The Ombudsman will continue to monitor the register maintained by this office to ensure that in the event delays again start to be evident data can be requested from TPS and work can commence on whether the delays can be explained from the details now included in the register.
Resolve Case Number: O2107-031