Case Summaries

Department of State Growth – April 2021

COVID-19 small business grants

This office received a complaint that the Department of State Growth had rejected an application for a COVID-19 Small Business Sustainability and Recovery Grant, despite the complainant’s business apparently satisfying the eligibility criteria.

When this office made inquiries, State Growth advised that the complainant’s application had been rejected as it appeared she had sold the business, and grants could only be awarded to the owner of the business seeking the grant. It became apparent that State Growth had relied on information not contained in the complainant’s application, such as news articles, to make this decision, and had not put this information to the complainant to respond to. State Growth’s decision was upheld after a review.

State Growth acknowledged that it was not fair that it had relied on externally sourced information without giving the complainant the opportunity to address it. State Growth offered to undertake a further review of the application to rectify this issue.

Following the further review, it was found that the application was eligible, and the complainant received the grant.

This office suggested that in future State Growth should not rely on externally sourced information without giving applicants a chance to respond, as it appears that in this case the complainant would have missed out on a grant she was eligible for if she did not complain to the Ombudsman. We also provided feedback to State Growth regarding its communication with the complainant in relation to this matter.

Ref: O2101-009

Tasmania Prison Service – March 2021

Termination of Prison Employment

An inmate contacted Ombudsman Tasmania in relation to concerns about how his employment was terminated following allegations that the inmate committed an offence in the course of his employment.

The inmate complained to the Tasmanian Prison Service (TPS) about his termination and an investigation into the termination was completed by a Correctional Supervisor. Following receipt of this complaint, the Ombudsman, pursuant to s20A of the Ombudsman Act 1978, carried out preliminary inquiries in relation to the management and investigation undertaken by TPS into the inmate’s complaint. Based on the information provided by TPS it was clear that the investigation into the termination included obtaining statements from all relevant staff members as well as the history leading up to the offence. Based on the information provided it was clear that the decision to terminate the inmate’s employment was open to TPS in the circumstances.

As a result of the inquiries undertaken by the Ombudsman it was identified that TPS staff needed to include additional details when placing an inmate on report for misappropriating prison resources and also that it needed to maintain better records in relation to the investigations that it undertook when a complaint was received from an inmate. The Ombudsman provided the above suggestions to TPS and in response TPS confirmed that feedback was provided to staff to ensure that better and more accurate record keeping would be utilised in future.

Ref: O2011-127

Office of the Residential Tenancy Commissioner – February 2021

Fair administration of the COVID-19 rent relief fund

A complaint was received from an applicant for a COVID-19 rental relief payment. Their application had not been processed despite them claiming they had provided the bank statements required to demonstrate their eligibility.

There were discrepancies with the complainant’s documentation that prompted the Office of the Residential Tenancy Commissioner, which was administering the grant program, to request additional information. This was not provided but rather the complainant threatened to complain to the Ombudsman if the grant was not provided. They then complained to the Ombudsman and we concluded, after reviewing the relevant material and making inquiries, that the Office’s administrative actions had been reasonable in all respects as the applicant had not proven they were eligible, despite repeated requests for additional information, and there were legitimate questions as to the truthfulness of some of the responses provided.

Ref: O2101-102

Department of Health Pharmaceutical Services Branch – February 2021

Changes to Pharmaceutical Services Branch (PSB) form to clarify ID requirements

The complainant contacted this office to raise concerns that the Pharmaceutical Services Branch (PSB) had rejected requests for review he submitted in relation to decisions on applications to prescribe narcotic substances under section 59E of the Poisons Act 1971.

This office made preliminary inquiries with the PSB pursuant to section 20A of the Ombudsman Act 1978. The PSB advised that the complainant’s requests for review were not processed as he had not provided the required proof of identity. The PSB indicated that it had written to the complainant advising him of this.

Upon viewing the review form, it became apparent that the requirement to provide proof of identity with the application for review was not clearly stated. It was only mentioned at the bottom of the page inside a box entitled ‘consent of patient – must be completed if application is by carer’. This office suggested that it was likely that those filling out the form for themselves would consider that this section did not apply to them and disregard it, and as a result it would be appropriate to review the layout of the form and consider re-arranging it to make it clearer.

The PSB agreed to make changes to the form so that it clearly outlined the need to provide proof of identity with the form.

Ref: O2102-022

University of Tasmania – January 2021

Disciplinary process issues

I was contacted by a University of Tasmania (UTAS) student, Mr D, to seek review of the administrative process and adverse findings which had been made against him through a UTAS Ordinance 21 disciplinary process. Mr D disputed the allegations but had been found by UTAS to have breached its Behaviour Policy by committing sexual misconduct against two other students, with allegations regarding a third student found to be unsubstantiated. He was permanently excluded from using UTAS student accommodation and suspended from his study for two semesters.

My review found significant administrative concerns with the disciplinary process. A version of the Behaviour Policy which had not been implemented at the time of the alleged conduct was used and extensively referred to in the proceedings against Mr D. There was limited investigation of the complaints, despite their highly serious nature, with no attempt by the disciplinary panel to hear from the complainants during the hearing or appeal. The same UTAS staff member investigated the complaint, convened and attended the disciplinary panel hearing, wrote the draft decision and suggested a penalty, then convened and attended the appeal panel hearing and wrote the draft decision on the appeal. I also had concerns relating to the poorly expressed or inadequate reasons for decision, seeming failure to provide all evidence to Mr D and the lack of insight into these issues when the matter was reviewed by the Appeals Panel.

UTAS acknowledged the process issues with the disciplinary proceedings and apologised to Mr D. It undertook a review and stated that he was the only student to whom the wrong policy was applied in disciplinary proceedings shortly after changes were made to Ordinance 21. Administrative support and advisory services for the Disciplinary Committee and Appeals Panel will in future be provided by a separate area of UTAS which is not involved in the investigation of Behaviour Policy breach complaints. Members of the Disciplinary Committee and Appeals Panel will receive training on investigations, process and writing effective decisions to try to ensure they have appropriate skills in these areas. Complainants will in future be invited to provide oral evidence and talk through their complaint and evidence, at both the investigation and hearing stages.

I had recommended the vacation of findings against Mr D and that disciplinary action be re-run with a proper process to remedy the major problems with the initial proceedings. However, UTAS considered that the issues were not so serious as to warrant vacation or repetition of the proceedings. This was primarily due to its view that a changed outcome was highly unlikely and the practical implications of vacating the original findings given the serious nature of the allegations. It also stated it took into account the steps it had taken to remedy issues identified, including apologising to Mr D. While I remain of the view that a re-run process would have been preferable due to the significant issues with the original proceedings, I did not consider that an investigation was warranted. The outcome of an Ombudsman investigation would only be to recommend that such actions as UTAS has already committed to taking in future occur, so I considered there was little justification to undertake further Ombudsman action. I commend UTAS on taking these steps to improve its administrative practice, though I remain concerned about the major administrative issues with disciplinary processes at UTAS which were uncovered through this complaint.

Ref: O1909-052

Housing Tasmania – January 2021

Property Maintenance Oversights

A complaint was raised in August 2020 about Housing Tasmania in relation to Housing Tasmania’s failure to address issues concerning faulty window seals at the complainant’s property.

The response received from Housing Tasmania acknowledged the complainant had first complained about the windows at the property in June 2017. This complaint resulted in the window locks being replaced and other maintenance works being completed.

Housing Tasmania records show the complainant again made contact in May 2019 about the windows. Housing Tasmania completed an assessment and Housing Tasmania’s head contractor recommended the windows be replaced. Unfortunately, due to an oversight by Housing Tasmania, this work was not completed.

As a result of the complaint being raised by Ombudsman Tasmania, a new work order was raised and the windows at the property were replaced. The complaint identified improvements that could be made to Housing Tasmania’s Housing Management System (HMS) to avoid similar oversights in the future. The improvements include a requirement that Portfolio Maintenance staff enter a reason onto the HMS before tasks are closed to prevent tasks being closed prematurely. In addition, the Manager of Portfolio Maintenance is working with the Quality Assurance Offices to improve staff communication and investigation skills. Housing Tasmania apologised to the complainant that the issues raised had not been addressed adequately and for the inconvenience that this caused.

As part of this complaint, concerns were also raised that the oversight and delay by Housing Tasmania led to an increase in heating costs for the period the windows were faulty. Housing Tasmania agreed to consider reimbursement of the increased power costs, provided evidence was available to demonstrate that there had been an increase in the power consumption for the period that the windows were faulty. Unfortunately, due to the complainant transferring from Pay As You Go to an advanced meter during the time the windows were faulty this information was difficult to obtain without applying directly to Aurora Energy. With permission from the complainant, the Ombudsman was able to obtain the information from the energy provider and pass it on to Housing Tasmania for consideration.

Information provided by the energy provider did not show a significant increase in costs, nevertheless the data was forwarded to Housing Tasmania for it to consider. Housing Tasmania took the view that the data provided did not show an obvious increase in power costs for the period and that the only significant increase in power costs resulted from the switch to an advanced meter. As such, Housing Tasmania determined it would not to contribute towards the power costs for the period in question.

Based on the information provided, Ombudsman Tasmania was satisfied that Housing Tasmania acknowledged that it had not acted in accordance with policy and best practice in relation to the complaint about the faulty windows. Housing Tasmania apologised to the complainant and has now taken action as a result of this complaint to improve procedure and communication within the agency that will hopefully avoid similar oversights in future.

Although this complaint did not result in the complainant receiving financial compensation for power costs, it did result in additional information being supplied to the complainant that suggested it may be appropriate to review the power plan the complainant had.

Ref: O2008-068

Department of Communities Tasmania – January 2021

Quarantine fees

A complainant received an invoice for quarantining at a hotel despite it being free at the time she entered quarantine. We made inquiries with the Department of Communities Tasmania and established that an administrative error had been made. The exit date from quarantine, rather than the entry date, was used to calculate whether quarantine charges were applicable. As a result of our inquiries the Department requested that the State Controller withdraw the incorrectly issued invoice. The Department also indicated it would conduct an audit to ensure nobody else was incorrectly charged.

Ref: O2012-005

Tasmania Prison Service – January 2021

Inter-Prison Mail

A complaint was received from an inmate in relation to difficulties being experienced communicating with the complainant’s spouse, who was also an inmate at a Tasmanian Prison facility.

Information was requested from the Tasmania Prison Service concerning the relevant Director’s Standing Order, in particular the section that addressed inter-prison mail being approved where ‘…both prisoners have reached the appropriate contract level’ In particular, information was requested about what contract level was deemed an appropriate contract level to allow for inter-prison mail to be exchanged.

The response provided set out that inmates were required to attain a contract level 3 to be able to apply for approval to exchange mail with an inmate housed in another facility.

As a result of this complaint arrangements have been made to ensure that Standard Operating Procedures for all facilities are updated so each accurately reflects the entitlements and requirements for inter-prison mail.

Ref: O2011-112

Local Council – January 2021

Planning and Building Permits Oversight

A complaint was received about a local council in relation to its management of the construction of a parking bay by a private citizen in a public street. The complainant raised concerns that the parking bay was constructed on a public reserve, without any permit or consultation with the residents and owners of the neighbouring properties and restricted the accessibility of complainant’s property. A further concern raised was the failure of the council to respond to written complaints the complainant had made.

In response to the Ombudsman’s inquiries the council identified that part of the street where the parking bay had been constructed is not a highway. The council took the view that it was not responsible for the maintenance of the private section of the street and that repairs should be done as a collaborative approach from all the owners of properties adjoining the street.

Additional information confirmed that the council received an enquiry from an owner of land the street seeking to undertake work, being laying gravel and bitumen and making car parking spaces. The council responded with advice that it took no issues with what was proposed. Unfortunately, the works completed were in excess of what had been proposed.

The council has now taken the position that, whilst the construction exceeded that which was explained by the adjoining owner, the parking bays are structurally sound. Some minor safety improvements to the works have been completed at the direction of the council for the purpose of public safety. The council intends to take ownership of the parking bays and structure and the relevant permits will be obtained as part of that process.

The council accepted that the correct process was not followed to construct the parking bays and it has addressed this by taking ownership of the parking bays and making them available to members of the public. The council also retains the power to remove the structures in the future if required.

In response to the customer service issues raised by the complainant, council staff have been counselled as to the importance of identifying a complainant for the purpose of investigating or responding to a complaint. The council has issued an apology to the complainant acknowledging it had not adhered to the correct process and that the council’s Customer Service Charter had not been followed. The council has also provided the Ombudsman with additional material showing that the Charter has since been updated and a Complaints Handling Procedure has also been developed.

Ref: O2007-136