THE NEW ZEALAND OMBUDSMAN – UNDERFUNDED AND COMPROMISED: THE AUDITOR GENERAL SEES NO NEED FOR ACTION


THE NEW ZEALAND OMBUDSMAN – UNDERFUNDED AND COMPROMISED: THE AUDITOR GENERAL SEES NO NEED FOR ACTION

 

Published: 05 September 2016

 

CONTENTS:

1. INTRODUCTION
2. A REQUEST TO THE AUDITOR GENERAL – SEEKING AN INQUIRY INTO AND SPECIAL AUDIT OF THE OMBUDSMAN’S OFFICE
3. THE AUDITOR GENERAL’S FIRST RESPONSE FROM 30 OCTOBER 2014
4. A SECOND REWORDED, MORE SPECIFIED REQUEST FOR AN INQUIRY AND SPECIAL AUDIT INTO ACTIVITIES AT THE OMBUDSMAN’S OFFICE
5. THE AUDITOR GENERAL’S SECOND RESPONSE FROM 17 DEC. 2014
6. A THIRD, BETTER TARGETED REQUEST FOR AN INQUIRY AND SPECIAL AUDIT INTO THE OMBUDSMAN’S OFFICE
7. THE AUDITOR GENERAL’S THIRD RESPONSE FROM 09 APRIL 2015
8. THE RESPONSE BY THE REQUESTER AND COMPLAINANT TO THE AUDITOR GENERAL’S DISAPPOINTING DECISION
9. A PRIVACY ACT REQUEST TO THE AUDITOR GENERAL
10. THE AUDITOR GENERAL’S ACTING LEGAL ASSISTANT’S RESPONSE FROM 20 MAY 2015
11. CONCLUSION

 

1. INTRODUCTION

We have on ‘nzsocialjusticeblog2013’ previously presented a very comprehensive post that covered and revealed, how poorly the former Chief Ombudsman, Dame Beverley Wakem, handled and then decided on two earlier complaints against the Health and Disability Commissioner (HDC). The complaints presented to the Ombudsman’s Office had raised serious issues with the HDC’s assessments and decisions in relation to two complaints made to his Office. Questions were raised primarily re the Deputy HDC and her handling of complaints. There were indications that the HDC failed to meet natural justice standards, and also appeared to have a strong tendency to simply dismiss very valid complaints as not needing an investigation. Evidence was presented in documented and well worded form. Fairness, reasonableness and objectivity of the HDC’s actions were being questioned. The Ombudsman processed both complaints under one reference number (3xxxxx), only after a long delay, and the investigating officer who was handling the matters rather poorly, she appeared to be under extreme work-load pressure, and unable to properly, thoroughly and carefully examine and assess all the information that was of relevance.

The particular earlier post on this blog can be found by clicking this link:
https://nzsocialjusticeblog2013.wordpress.com/2016/07/24/the-new-zealand-ombudsman-fairness-for-all-an-empty-slogan-for-some/
The title was:
‘THE NEW ZEALAND OMBUDSMAN: “FAIRNESS FOR ALL” – AN EMPTY SLOGAN FOR SOME’

The complainant behind those complaints, who was over this period driven close to despair, decided to take the matter further. He had the impression that the Office of Ombudsmen was not particularly keen on acting as a “watchdog” also for the other Officers of Parliament, such as the HDC, although the Ombudsmen Act 1975 does give the Chief Ombudsman and her/his Deputy the powers to conduct investigations into decisions and other actions by those other Offices (see s 13(1) and Part 2 of Schedule 1). While the functions and scope of authority of the Ombudsmen are though limited by other provisions in the same Act, and while the Ombudsman has discretion to decide to take no action (see s 17), it was the view of the complainant that the Ombudsman’s investigating officer had failed to consider very important and relevant facts, proved by documents he had presented. It was completely incomprehensible to him, how the Chief Ombudsman, clearly acting upon advice by her investigator, could have come to the conclusions and decision she had made. It was even more difficult to understand how she would upon a request for a review of her decision then protect her staff by even refusing to look at the presented complaints and evidence again, thus failing to do her duty as an employer under section 11(2) and (3) of the Ombudsmen Act, to examine the conduct of her investigator. At times the complainant got the impression, that behind the scenes the Ombudsman was actually intentionally covering not only her own staff, but also the HDC and their staff, from any challenges directed at them.

To cut the story short, the complainant could only come to the conclusion that the Chief Ombudsman, and in particular her staff, failed in properly and effectively fulfilling their function, due to significant increases over the years in the over-burdening work load that the staff were unable to cope with. The complainant considered that this unacceptable situation, brought about by the government not setting enough finances aside to pay for the proper, effective operation of the Ombudsmen’s Office, led to poor quality outcomes in the assessments of complaints and decisions formed on them.

Thus he prepared a formal request to the Office of the Controller and Auditor General (OAG), which was headed by Lyn Provost, to ask for an inquiry into, and a special performance audit of, the Office of the Ombudsmen. It was his intention to bring to the attention of the Auditor General the problems he experienced with the handling of his own two complaints, and the information he had found and read about the under-funding and resulting difficulties at the Ombudsmen Office. There had been repeated media reports and also comments by the Chief Ombudsman herself, in the Annual Reports released by that Office, which made it more than clear, that their Office was unable to cope with an ever increasing work-load, while insufficient funding was limiting its staff’s ability to cope with this.

The complainant realised, that there was no chance to legally challenge the Ombudsman’s decisions on his filed complaints, except by perhaps seeking a judicial review through the High Court. But such a proceeding was beyond his financial and other means. The OAG could at least take a look at how the Ombudsmen and their staff operated, and whether all legal requirements and expected standards were being complied with. He wrote a request letter dated 28 August 2014, which he would send to the OAG in late August that year, and in the following we present the request and relevant details in this post.

 

2. A REQUEST TO THE AUDITOR GENERAL – SEEKING AN INQUIRY INTO AND SPECIAL AUDIT OF THE OMBUDSMAN’S OFFICE

So in the afternoon of 31 August 2014 the complainant presented his formal request, dated 28 August 2014, by way of sending 8 emails, with his attached letter and also a number of relevant evidence documents, to the Office of the Auditor General. Emails 4 to 8 had attached to them the earlier emails he had sent to the Office of Ombudsmen on 16 June 2014 – in relation to his earlier complaints filed there. The receipt of all of the correspondence and attachments was later confirmed by email at 11.22h on 01 September 2014, by Jxxx Hxxxxx, Inquiries Co-ordinator.

At 18.43h on 02 September 2014 the complainant then also sent to the Office of the Auditor General an email that had attached to it PDF files with the two original complaints that had been filed with the Ombudsmen against the HDC (C11HDCxxxxx and C12HDCxxxxx). As he received no confirmation for the receipt of that email, he requested this by email on 05 September 2014. At 09.18h on Monday, 08 September Jxxx Hxxxxx from the OAG responded by email, again confirming receipt of that further correspondence. The complainant did refrain from sending the comprehensive and numerous evidence documents that he had sent to the HDC and in part also to the Office of Ombudsmen, in relation to his earlier complaints, as he wanted to avoid inundating the OAG with information. He knew that the evidence was available from the HDC and Ombudsmen’s Offices, and that an inquiry and audit at the Ombudsman’s Office would give the OAG staff access to all relevant information anyway. In a brief email from 14.36h on 08 September 2014 the complainant thanked for the response and indicated that he would understand that the assessment and response to his requests would take some time.

 

Here is the authentic text of the whole request letter dated 28 August 2014, which the complainant sent to the OAG:

Re: Request for an inquiry into, and a special performance audit of, the effectiveness, efficiencies and legal compliance of administrative, operational and managerial activities at the Office of Ombudsmen (under sections 18 and 16 of the Public Audit Act 2001)

Dear Lyn Provost, dear staff at the Office of the Auditor-General

[1] Please accept my request to your Office to conduct a special, independent and thorough, inquiry into the effectiveness and efficiencies, as well as into the compliance with statutory obligations and the applicable quality standards – of all operational, administrative and managerial activities at the Office of Ombudsmen. I ask you and your Office to fully investigate and audit all relevant aspects of the expected performance of staff and management, the applied procedures and processes at their Office, and also their full compliance with not only accepted standards, but also with the legal provisions of the Ombudsmen Act 1975, same as other relevant law. My request includes a detailed examination of how staff members at that Office cope with performance, output target and service quality expectations set by the Chief Ombudsman, and what exact procedures they are instructed to follow. I make this request due to the following very serious concerns about the Office of Ombudsmen and their staff:

● unacceptably long complaints-assessment, processing and resolution times
● long delays in the Office’s responses, even after repeated contacts seeking updates
● serious mistakes and omissions made by investigating officer(s) during assessments of complaints, affecting quality and standards of service the Office is meant to provide
● an investigating officer’s apparent misrepresentation of complaint related details to the Chief Ombudsman; i.e. concealing own mistakes and/or negligence
● poorly formed decisions made by the Chief Ombudsman to not investigate complaints, while failing to acknowledge or accept presented clear, compelling evidence
● stream-lining, reorganisation and restructuring leading to too many complaints being dismissed or treated as needing no (further) investigation
● questions about the appropriate allocation of financial and human resources in areas of need within the Office, which have only been increased insufficiently
● apparent non-compliance with provisions of the Ombudsmen Act 1975 and other law

[2] I consider that the above mentioned, requested measures need to urgently be taken, and that they are in the public interest. The present situation at the Office of Ombudsmen is extremely unsatisfactory, as complainants are being denied justice. The stated concerns are aggravated by the fact that the Office of Ombudsmen appears to have been seriously under-funded for a number of years since well before 2012, while the Office’s workload has increased substantially and disproportionately to available resources over the years. This has become evident from the annual reports the Office of Ombudsmen has released, as well as from many media reports. Public trust in the performance and quality of service by the Office of Ombudsmen are at risk of being seriously damaged due to the above stated issues (see [1]).

Own disturbing experiences with Office of Ombudsmen’s complaints handling

[3] Following two separate complaints to the Office of Ombudsmen (filed under their reference number xxxxxx), which related to two disputed decisions by the Health and Disability Commissioner (HDC), and which I filed with the Office on 13 November and 16 December 2013, I recently received two responses from Chief Ombudsman Beverley Wakem, that raise major, serious concerns about the quality, effectiveness, efficiency and appropriateness of internally followed operational procedures and processes. Crucial relevant evidence appears to not have been considered during an assessment of my complaints, and again also not upon a review I sought. Already a couple of years ago I had received at least one earlier decision from the Chief Ombudsman in another matter, which showed, that staff at the Office do at times make mistakes and may fail to consider relevant information, which appears to be due to rushed decisions being made, while working under extremely high work load pressures. My concerns were substantially heightened by another letter I received from the Office on behalf of Ombudsman Ron Paterson in yet another, separate complaint matter (ref. 3xxxxx), which was dated xx May 2014. In that letter Mr Xxxxx Sxxxxxx (Manager – Investigations and Resolution) wrote: “Limited investigative resources to date have meant that this Office has been unable to progress your complaint as quickly as we would like”. It relates to an Official Information Act 1982 (OIA) request based complaint that has been before the Ombudsman for over a year now. That letter and substantial other information confirm my sincere, justified concerns that were also reported on by various media outlets since already 2012, in which Chief Ombudsman Beverley Waken herself stated repeatedly, that her Office was unable to cope with an increased work-load, while working with very limited funding.

Background

[4] Upon sending the Ombudsman two separate complaints about the unacceptable handling of two earlier complaints by the Health and Disability Commissioner (HDC) on 13 November 2013 and on 16 December 2013, I did for four to five months receive no proper response at all from the Office of Ombudsmen. The two rather complex complaints (one being about 2 XXXX counsellors, and another about Work and Income ‘designated doctor’ Dxxxx Xxxxxxx) had been handled by the HDC under their reference numbers C11HDCxxxxx and C12HDCxxxxx. A further email request for an update on my complaints, sent in on 23 February 2014 was also not responded to. Only after repeated phone calls to the Office of Ombudsmen on 22 and 28 April, and again on 26 May 2014, did I finally get assurances that my complaints had been received, and that they were now being progressed. Delayed by yet over another month after my first phone contacts in April, I eventually received a report and decision that had been formed and prepared by their investigating officer Xxxxx Gxxxxxx, but which was signed by Chief Ombudsman Beverley Wakem, and dated 28 May 2014.

[5] The decision from 28 May 2014, prepared by Miss Gxxxxxx, was to not investigate either of my two complaints. Some of her considerations in her assessment of my complaint were actually based on clear misunderstandings, and she even ignored very relevant evidence, that I had presented with my complaints. It appeared that Miss Gxxxxxx incorrectly thought I simply wanted to “appeal” the HDC’s decisions, and expected her to review and overturn these decisions, by making determinations about my treatment by the XXXX counsellors and Dr Xxxxxxx. In any case she firmly and fully relied on comments made by Deputy Health and Disability Commissioner Theo Baker and those by certain other staff members at the HDC Office. The Deputy HDC had herself fully relied on statements made by the Chief Executive of Waitemata DHB, and in the other HDC complaint matter also on Dr Dxxxx Xxxxxxx, which were though at least in part completely incorrect, irrelevant, flawed and unacceptable. It appears that Miss Gxxxxxx conducted her assessment of my complaints to the Ombudsmen Office only on paper, without considering all relevant evidence that had been provided by me.

[6] I was prompted to respond to the decision prepared by Miss Gxxxxx, and signed by Miss Wakem, by way of further written submissions, in which I expressed my objections to the way my complaints had been handled. By way of 3 emails, sent on 16 June 2014, I presented and explained my serious concerns. Also did I provide further detailed evidence, which proves that staff at the HDC Office had actually given untrue information to me and in the process also to Miss Gxxxxx. They had claimed that an original complaint I had made on 08 August 2011 (under HDC ref. C11HDCxxxx) couldn’t be processed, as my emails allegedly “froze” their computer system. Authentic emails and other evidence presented to the Office of Ombudsmen on 16 June proved that staff at the Office of the Health and Disability Commissioner had lied about the emails that I initially sent to them. I did also point out once again, that certain considerations by the HDC in the handling of my complaints were not at all relevant, and that other relevant information had not been considered by them. As Miss Gxxxx and Miss Wakem had earlier considered that the Deputy HDC had made the appropriate decision, I pointed out and explained to her, that she was wrong with her considerations. I must refer you to the contents in my letter to the Ombudsman from 16 June 2014, to read and assess all details.

[7] Despite of my stated objections and concerns, and despite of the further evidence provided by me, Chief Ombudsman Beverley Wakem again fully relied on Miss Gxxxxxx’s account of her earlier handling of my complaints, which she stated in a letter with her final decision, that was dated 10 July 2014. She strongly defended Miss Gxxxxxx’s supposedly appropriate considerations of the earlier evidence I supplied, and also her reasoning behind her decision. Miss Wakem simply reiterated earlier statements, that she saw no reasons to investigate my complaints. She also referred me back to the letter sent earlier, without giving any consideration to further new, very crucial and revealing information that I supplied on 16 June. That information proved that emails carrying my original complaint from 08 August 2011 had actually all been received, and had internally been passed on to another staff member for assessment at the HDC Office. I furthermore had made clear, that all emails sent to the HDC Office in that complaint matter were of ordinary, common types and sizes, and had standard size PDF attachments, which were easy to open by any normal system. Similar types and sized emails could strangely be opened by the HDC when receiving my second complaint.

[8] Given the very uncompromising position by Chief Ombudsman Beverley Wakem, where she stated in her last letter, that her Office would not enter into further communications regarding my complaints to the HDC, I am left in a situation where I have no way to raise any further concerns and considerations re the handling of my complaint by the Office of Ombudsmen. I have been given the signal that any further attempt by me, to seek to resolve the totally unsatisfactory situation with their Office, is unwelcome. The only remaining option would be to apply for a judicial review at the High Court. But I neither have the financial resources, nor the mental and physical strength, to pursue with such a proceeding. Indeed it seems unreasonable to me, to be forced to take legal steps. This has left me with an extremely unsatisfactory outcome, where I have been denied justice, which is causing me great distress.

[9] While I am aware that the Ombudsman can under section 17 (1) (b) of the Ombudsmen Act 1975 refuse to investigate a complaint, it is clear to me that in the case of my complaints the Ombudsman did not have regard to all the circumstances of the matter. Relevant evidence, and the impact of any decision, must be considered as important to have regards to, as part of all the circumstances. Apart from that, it is also my impression that the staff members at the Office of Ombudsmen are now expected to work under extremely high work-loads, performance, time and target pressures, which are unreasonable, and which are the result of constant reviews, cost saving measures, streamlining and restructuring. This has led to assessments and investigations not being done up to expected standards, to mistakes being made, to cases being left unattended for unacceptably long periods, to short-cuts apparently being used, and to cases being re-prioritised. It seems that staff members even have to resort to prematurely dismissing complaints as not being serious enough, to deserve being investigated. It also appears that the Chief Ombudsman has in this case not been honestly and correctly informed by her staff about crucial details of my complaints, and it must be presumed that this has happened, and continues to happen, to many other complainants.

[10] Given the very poor outcome of the handling of my complaints, the refusal by the Chief Ombudsman to review the decision made on 28 May, and having read various official and media reports about serious problems at the Office, I am very concerned about the situation at the Office of Ombudsmen. It is my impression that the financial and other resources available to the Office are not appropriately placed in the particular areas, where they are needed, in order to ensure that service quality and standards, same as necessary compliance with legal provisions in their service delivery aren’t compromised. While the Office of Ombudsmen appears to put many resources into various high priority areas, projects and cases it deals with, there are insufficient resources put into other areas that are also important. This has resulted in deterioration in the standard and quality of certain less prioritised services that the Office’s workforce is supposed to deliver under the Ombudsmen Act 1975 and other statutes. Unlike the Office of the Privacy Commissioner, the Office of Ombudsmen does not appear to seek regular, conclusive feedback from all complainants it deals with. The Privacy Commissioner does nowadays request complainants to at least respond to an online client satisfaction and feed-back survey. The Ombudsman has never asked me or many other complainants I am aware of, to provide comprehensive feedback or a survey on their services. In their ‘Statement of Intent 2014-2018’ (see page 13) the Ombudsmen state that they only conduct bi-annual surveys of stakeholders, and that is only for investigated complaints. According to that report, this survey was apparently only started in the year 2008/09 and repeated in 2011/12. This hardly provides enough data to establish the overall satisfaction of persons dealing with the Office of Ombudsmen, as complainants, enquirers or otherwise.

[11] Although Parliament has this year approved an increase of funding for the Office of Ombudsmen, it appears evident, that this funding is insufficient to meet the growing needs of the Office, to perform all its functions and deliver the various important services expected. Work load increases have continued to be disproportionately high, when compared to the limited resources available. Staff numbers (including the two Ombudsmen themselves) have remained virtually unchanged for many years. I am unconvinced that the moderate increase in funding of the Office has resolved the many internal issues and challenges, and brought the needed improvements that are necessary to enable the Office to operate effectively to fulfil its functions. In any case a review of the whole operational, administrative and managerial procedures and processes, and the quality of decision making at the Office of Ombudsmen is overdue. This must be preceded by a special, thorough, independent, external inquiry and a more comprehensive performance audit than usual. The regular yearly audits conducted so far focus on balance sheet type financial information, and on standard output data based on a narrow scope of performance indicators. There is little or no information made available about how various staff members working at the Office are coping with an ever increasing workload. There are though worrying signs in a table in the Annual Report of the Ombudsman for 2011/12, showing a significant increase in staff sick and family leave, which seems to indicate negative effects through excessive stress on workers’ health. As already mentioned, there is also very insufficient data on client or complainant satisfaction with the Office’s service. This all justifies a special inquiry and audit to be conducted by the Office of the Auditor General.

The Office of Ombudsmen and its statutory functions

[12] The Office of Ombudsmen does under the Ombudsmen Act 1975 and a number of other statutes fulfil the following functions, which are also listed on page 5, under ‘Nature and Scope of Functions’ in the ‘Statement of Intent 2014-2018’ (SOI):
● investigate state sector administration and decision making – under the Ombudsmen Act 1975 (OA);
● investigate and review decisions made on requests to access official information – under the Official Information Act 1982 (OIA) and the Local Government Official Information and Meetings Act 1987 (LGOIMA);
● deal with requests for advice and guidance about alleged serious wrongdoing – under the Protected Disclosures Act 2000;
● monitor and inspect places of detention for cruel and inhumane treatment – under the Crimes of Torture Act 1989;
● provide comment to the Ministry of Transport on applications for authorised access to personal information on the motor vehicle register – under section 249 of the Land Transport Act 1998.

[13] In the ‘Statement of Intent’ it also says:
In carrying out our functions, we provide Parliament and the New Zealand public with an independent and impartial check on the quality, fairness and integrity of state sector administrative conduct. By contributing to wider administrative improvement in the state sector, we can help to reduce overall downstream costs caused by poor decision making and ineffective administrative processes.” The SOI states two international responsibilities the Office has. It carries out its function to monitor and inspect places of detention under the Crimes of Torture Act 1989 as a “National Preventive Mechanism”. That Act fulfils New Zealand’s responsibilities under the “United Nations Optional Protocol to the Convention Against Torture”. The Office also performs an “Independent Monitoring Mechanism” while protecting and monitoring the implementation of the ‘United Nations Convention on the Rights of Persons with Disabilities’ (commonly known as the ‘Disabilities Convention’). The Office carries out this role by investigating administrative conduct within the state sector.

[14] Under ‘Other functions’ the SOI furthermore states:
“To complement and support our main functions under legislation, we are increasingly taking steps to:
● provide advice and guidance to state sector agencies in order to improve state sector capability in areas relevant to our role; and
● improve public awareness and accessibility of our services.”

[15] The Office is legally constrained to perform its functions and can only conduct investigations, reviews and inspections, and offer advice, guidance and recommendations. The Ombudsmen can only make comments on matters that come to their attention and present reports.
On page 7 of the Statement of Intent it says: “Given the constraints on our role, most of our interventions to improve state sector administrative conduct are carried out through persuasion and reporting, rather than compulsion. To do this effectively, we need to be relevant, fair and accessible. We need to provide well-reasoned and independent opinions, and our interventions need to be proportionate, taking into account the impact on the agency and the costs and benefits of any proposed remedies.” This is further qualified by comments under the heading ‘Strategic Direction’ in the SOI (see page 8), where the Ombudsmen concede: “Our strategic direction is:
guided by the legislative functions assigned to us by Parliament; and
informed by the current environment and the Government’s strategic direction.”

The Ombudsmen’s core functions under the Ombudsmen Act 1975

[16] According to section 10 under the Ombudsmen Act 1975 (the Act) the Ombudsman has taken an Oath as an Officer of Parliament, that he will faithfully and impartially perform the duties of his office, and that he will not, except in accordance with section 21, divulge any information received by him under this Act.”

[17] Under section 13 of the Act the functions of both Ombudsmen are stated as:
(1) Subject to section 14, it shall be a function of the Ombudsmen to investigate any decision or recommendation made, or any act done or omitted, whether before or after the passing of this Act, relating to a matter of administration and affecting any person or body of persons in his or its personal capacity, in or by any of the departments or organisations named or specified in Parts 1 and 2 of Schedule 1, or by any committee (other than a committee of the whole) or subcommittee of any organisation named or specified in Part 3 of Schedule 1, or by any officer, employee, or member of any such department or organisation in his capacity as such officer, employee, or member.
(3) Each Ombudsman may make any such investigation either on a complaint made to an Ombudsman by any person or of his own motion; and where a complaint is made he may investigate any decision, recommendation, act, or omission to which the foregoing provisions of this section relate, notwithstanding that the complaint may not appear to relate to that decision, recommendation, act, or omission.”

[18] Section 17 of the Act allows the Ombudsman to refuse to investigate a complaint:
(1) An Ombudsman may—
(a) refuse to investigate a complaint that is within his jurisdiction or to investigate any such complaint further if it appears to him that under the law or existing administrative practice there is an adequate remedy or right of appeal, other than the right to petition the House of Representatives, to which it would have been reasonable for the complainant to resort; or

(b) refuse to investigate any such complaint further if in the course of the investigation of the complaint it appears to him that, having regard to all the circumstances of the case, any further investigation is unnecessary.
(2) Without limiting the generality of the powers conferred on Ombudsmen by this Act, it is hereby declared that an Ombudsman may in his discretion decide not to investigate, or, as the case may require, not to investigate further, any complaint if it relates to any decision, recommendation, act, or omission of which the complainant has had knowledge for more than 12 months before the complaint is received by the Ombudsman, or if in his opinion—
(a) the subject matter of the complaint is trivial; or
(b) the complaint is frivolous or vexatious or is not made in good faith; or
(c) the complainant has not a sufficient personal interest in the subject matter of the complaint.

(3) In any case where an Ombudsman decides not to investigate or make further investigation of a complaint he shall inform the complainant of that decision, and shall state his reasons therefor.”

The Ombudsman’s failures in appropriately processing my complaints

[19] In the handling of my complaint the Office of Ombudsmen staff and the Ombudsman failed to:

● Apply due professional care in performing their duties – when assessing and deciding upon my complaints, and thus acted carelessly or negligently due to work pressures;
● apply natural justice, by not fairly considering all relevant evidence, and by failing to reasonably take the necessary steps to properly assess and investigate my complaint;
● correctly adhere to and follow the provisions of the Ombudsmen Act 1975 (i.e. sections 10, 13 (1) and (3) and section 17 (1) (b));
● provide me justice, by unfairly deciding that my complaints did not require to be formally investigated, and by refusing to review their decision from 28 May 2014;
● treat two distinct complaints equally, by apparently giving complaint C12HDCxxxxx to the HDC even less attention to detail, than in the case of complaint C11HDCxxxxx;
● hold staff to account for mistakes and/or misrepresentations made in the assessment.

[20] As this request and complaint to your Office of the Auditor-General cannot be based on the rights or wrongs of judicially formed and made decisions made by the Ombudsman, I will refrain from delivering arguments and evidence to prove in detail the failures by the Office of Ombudsmen in that regard in this letter. Please examine and consider my letter and further evidence that I sent to the Office of Ombudsmen by emails on 16 June 2014, in order to establish the veracity and facts in that matter. You will also need to consider the initially sent emails and attached evidence to the Office of Omdusmen, to properly assess and consider all details in regards to those failures. I trust that the Office of Ombudsmen will make the file with all relevant correspondence and presented evidence available for your inquiry and audit. I would be happy to send you the complete original complaint information, if the Office does not have on record all relevant submissions (including correspondence and evidence documents).

[21] As for the Ombudsmen Office’s failings to apply due professional care in processing, assessing and investigating my complaints, my letter from 16 June to their Office does also partly cover this. It appears that Miss Xxxxx Gxxxxxx did not progress the complaints I made about the HDC for months, until I finally phoned her Office in late April 2004, having received no proper reply. The letter from the Ombudsman from 28 May (prepared by her) also indicates that she did not consider all the issues I raised in relation to my complaints to the HDC. She clearly failed to examine and assess all relevant evidence presented to her as an investigator. That led to her drawing the wrong conclusions, like claiming emails I sent to the HDC Office “froze” their system. In that matter she erred and relied on staff at the HDC Office having misrepresented the truth (i.e. lied). Presented emails should have convinced her of the opposite. Also did Miss Gxxxxxx follow the poor example of the HDC Office staff by not giving consideration to relevant evidence, and instead relied on summarised reports and statements by the respondents to my complaints to the HDC Office. She simply accepted the HDC’s statements and reasoning, without further examining facts. She ignored conflicts of interest by the respondents’ employer in the first complaint, and she relied on considerations in the second complaint, which were totally irrelevant, namely that my complaint about Dr Xxxxxxx was more appropriately dealt with by a Ministry of Social Development (MSD) appointed Medical Appeals Board, which though has no jurisdiction over issues I raised with the HDC. I refrain from elaborating on other valid arguments and aspects, as my letter from 16 June 2014 covers them in more detail. Unless there was intent by Miss Gxxxxxx to not bother following natural justice, in the least she failed to provide due professional care, or was negligent.

[22] In the case that Miss Gxxxxx intentionally ignored relevant evidence, and rather relied on irrelevant information, and where she did not consider what was important and necessary to consider, she certainly breached principles of natural justice. I will certainly not allege that Miss Beverley Wakem as Chief Ombudsman did intentionally ignore relevant evidence in the matter, like the crucial email evidence for emails sent to the HDC on 08 August 2011, but I must conclude that Miss Gxxxx did intentionally or unintentionally misinform Miss Wakem on some crucial information in relation to my complaints. This appears to have been the case with my letter from 16 June this year, which I suspect was again first read by Miss Gxxxxx, as there is no indication that it was processed and assessed by another investigator, nor by Miss Wakem. The text in the letter by Miss Wakem from 10 July 2014 implies that she did not even look at the new evidence I provided, and simply relied on Miss Gxxxx’s earlier assessment and decision. I must therefore assume that Miss Gxxxxx may have withheld the new evidence from Miss Wakem, in order to protect herself and her former, flawed decision in the complaint matters. This is a very serious matter and cannot be accepted conduct by any staff member working at the Office of Ombudsmen. Therefore I must conclude that this results in a breach of sections 10, 13 (1) and (3), and also section 17 (1) (b) of the Ombudsmen Act 1975. In all certainty, the decision made by the Ombudsman does in the end deny me justice, as I have been given no option to further resolve the matters at issue in relation to the complaints to the HDC Office and now the Office of Ombudsmen. The letter dated 10 July 2014 and signed by Beverley Wakem makes this clear. The decision prepared by Miss Gxxxxx and signed by Miss Wakem from 28 May does also reveal how Miss Gxxxxx treated my second HDC complaint with less attention, as I make clear in my letter from 16 June. By defending Miss Gxxxxxx for her handling of my complaints, there is no indication that internal measures were taken by the Ombudsman to correct any failures by Office staff, due to errors, neglect or misconduct.

[23] Besides of the above summarised information, it will be more than evident from the further information I provide in this letter, that the ongoing reviews, reorganisation, restructuring and stream-lining of work procedures and processes at the Office of Ombudsmen must clearly have had negative effects, which have impacted on the quality of services being delivered by the staff of that Office. While the work-load at the Office has continued to increase substantially over recent years, the insufficient additional financial resources, and largely unchanged, available human and other resources, must logically result in a situation where complaints, enquiries and other work done by the Office’s staff could not be dealt with by applying the same level of scrutiny, care and attention as was being done in years earlier. Internal efficiency and performance improvements will have reached their limits, and by simply measuring increases in output numbers, nothing in regular audits will give sufficient and clear information on the actual quality of services delivered by the Office. Also will there be no conclusive information about how the staff are coping with increasing work-loads and targets.

Ombudsman Annual Reports reveal growing imbalance between workloads and available resources

Ombudsman Annual Report 2010/11

[24] The Ombudsman’s Annual Report for the year 2010/11 did actually register a moderate decrease in complaints and enquiries, compared to the year earlier, as it received 8,706 then. It was able to reduce a back-log while completing 9,077 complaints and enquiries. 6,163 complaints under the Ombudsmen Act (OA) and 992 Official Information Act (OIA) complaints (the highest since 2000/01) had been received. Furthermore 256 LGOIMA complaints had been received. 617 OA cases were resolved informally, and 302 OIA and LGOIMA cases were resolved informally. The Office formally investigated 570 OA cases and formally investigated 713 OIA and LGOIMA cases. The Office had close to 1,000 OA complaint cases outstanding to deal with from the year before. This was besides of much of the other work the Office did. Since 2010 the Office of Ombudsmen has also taken on new work loads by taking over responsibilities like the maintenance, monitoring and dealing with complaints in regards to the implementation of the ‘UN Convention on the Right of Persons with Disabilities’.

[25] In the Introduction of the Annual Report 2010/11 Beverley Wakem mentioned a “spike in the number of complaints received over the past two years”. She also mentions a consolidation of efforts by her Office to improve work practices, in order to improve services. She furthermore states: “The substantive cases on hand, and the work on some of the longstanding and apparently intractable matters continues to stretch our investigators.” She continues: “We have engaged a small number of highly experienced former and retired staff to assist with the very complex cases, but that is not financially sustainable over the medium term given current constraints on our budget. Like other agencies we also face high and increasing charges for what one might call the basic housekeeping costs. Unlike other agencies we are reliant on temporary funding to meet these costs and have been for several years. Our budget has no capacity to absorb these without the temporary funding.” On page 12 under ‘Operational developments’ the Chief Ombudsman states: “This year’s numbers have provided some respite, with a total of 8,706 complaints and enquiries received. However, in the absence of any significant resource increase, it has been necessary to try and identify operational improvements in order to seek to manage the greater workload.”

[26] On page 59 of the same Annual Report 2010/11 it says under ‘Organisational Health and Capability’: “The Office of the Ombudsmen has always operated within an environment of fiscal restraint.” It also says: “The Vote, always minimalist, is now so restricted that potential temporary savings arising from staff vacancies must be relied upon to pay some staff and fund core operating expenses such as electricity.” Furthermore the report states: “We appreciate the support of the Officers of Parliament Committee in securing some temporary financial assistance through to 30 June 2014 but we continue to be concerned that the assistance is of a temporary nature and is less than required.” On page 60 of the same report and under the sub-heading ‘Financial and asset management’, it says: “Vote Ombudsmen is presently reliant on temporary funding and ad hoc one-off savings to fund core expenses such as rent, power, communications and some staff positions. Even in the current economic climate that is not a proper way to fund the Office and risks jeopardising its independence. The current arrangement undermines the ability of the Office to apply resources to best advantage and restricts its ability to achieve the desired outcome for the Vote.

Ombudsman Annual Report 2011/12

[27] The Ombudsman’s report 2011/12 states (see page 5) that during the year it covers the Office received 10,636 complaints and other contacts, an increase of 22% on the year before. 8,950 of those were complaints and other contacts under the OA, and 1,236 were complaints under the OIA (25% up on year before), and 268 were complaints under the LGOIMA. The Office completed 8,784 OA complaints and other contacts, an increase of 19 per cent from the previous year. The Office formally investigated 452 OA cases, and formed final opinions in 221 OA cases. The Office investigated 797 cases, and formed final opinions in 362 cases, in relation to OIA and LGOIMA complaints. The Office of Ombudsmen finished the year with 1,746 complaints and other contacts on hand, up from 1,359 the previous year. This was work it did besides of its other areas of responsibility. The Office struggled to meet some timeliness targets, given the volume of work on hand, and only 55 percent of complainants were satisfied with the Office’s service.

[28] In the Introduction to the 2011/12 report Beverley Wakem and Dr David McGee state: “In many ways, 2011/12 was a watershed year for us. We received and completed the highest ever number of complaints and other contacts concerning state sector agencies. In particular, we managed a significant increase in official information complaints and complaints relating to the Earthquake Commission.“ “We also finalised a major review of our purpose and strategic direction, establishing a strong outcomes framework to direct and focus our work towards the outcomes and impacts we are seeking to achieve. The results of this work can be seen in our 2012/15 Statement of Intent.” Furthermore the Ombudsmen wrote: “In 2011/12, we completed our second survey of the complainants and agencies that we interact with, enabling us for the first time to compare feedback over time on the service we provide.”

[29] On page 9 of the report it says: “We also continued work on a major consolidation of our human resources policies and procedures, and progressive implementation of a revised performance review and professional development system for staff.” Also do the Ombudsmen state: “We have improved our data collection this year. We treat matters as formal “complaints” once they have been put in writing. However, we also deal with a large number of oral complaints and enquiries from members of the public, mainly over the telephone or by prison visit, prior to a complaint being made to us in writing. While we term these matters “other contacts”, our staff spend a significant amount of time providing advice and assistance, and resolving these matters.” On Page 10 the report says: However, we are still significantly under resourced. Whilst we have managed to increase our throughput to deal with the increasing number of complaints and other contacts we are receiving, we are struggling to meet some of our timeliness targets and there has been an impact in terms of the work we have on hand at any one time.” The current work pressure we are facing has led to a declining satisfaction with our service in survey results.

[30] Under the heading ‘Organisational health and ability’ the 2011/12 report states at the top of page 70: “In our annual report last year we commented that the Office was underfunded on an ongoing basis by approximately 12 per cent or $1 million per year. The publishing of our 2010/11 annual report in September 2011 was too late in the budget setting cycle for Parliament to address our funding concerns for the 2011/12 year. In the event we completed the year with a surplus of $100,476, of which $100,000 was a partial insurance recovery post the February 2011 Canterbury earthquake.” “Subsequently, Parliament has approved a budget increase of $300,000 for 2012/13 and the ongoing provision of $370,000 that had previously been provided on a temporary basis. Together these sums go some distance towards alleviating our immediate concern about being able to pay the bills, but while appreciated, the sum is not sufficient to enable recruitment of the additional staff required to address our burgeoning workload or secure the ongoing longer term financial sustainability of Vote Ombudsmen.”

[31] On page 74 of the Annual Report 2011/12 a table shows the numbers of total sick and family leave days that staff at the Office of Ombudsmen have taken over the years 2007 to 2012, and it reveals a very worrying trend. There has been a steady increase from year to year from 204 in 2007 to 471 in 2012. It increased from an average of 3.93 days per employee to 6.73 in 2011/12. The chapter below mentions “increased absence through illness and potentially work related stress”. There is no such table in the report for the following year 2012/13. On page 77 of the 2011/12 report I read with great concern: “The Ombudsman must be seen by Parliament, the public and agencies to provide relevant, timely and appropriate responses to complaints, and to conduct effective inspections and investigations of significant and systemic issues. There is a potential risk that we may be seen as too remote from every day realities, leading to inappropriate or irrelevant responses and guidance.

Ombudsman Annual Report 2012/13

[32] The Annual Report of the Ombudsman for 2012/13 states the following: “The Office received a total of 13,684 complaints and other work for that year, which represents a large increase of 29 % on the year before. Of these the Office completed 13,358 complaints and other work, an increase of 30% 2011/12 numbers. It finished the year with 2,072 complaints and other work on hand, up from 1,746 the previous year. The Office struggled again to meet some timeliness targets, given the volume of work on hand. Of that total 11,008 OA complaints and other contacts were received, and 2,374 OIA complaints (up 92 % on 2011/12), as well as 271 LGOIMA complaints. It registered a significant increase in delay complaints. 2,878 OA complaints were completed that year, an increase of 21% from the previous year, and 2,158 OIA and LGOIMA cases were completed, an increase of 67% from 2011/12. The Office formally investigated 379 OA cases, and formed final opinions in 174 cases. It investigated 637 OIA and LGOIMA cases, and formed final opinions in 337 cases. This is again besides of other important work the Office of Ombudsmen performed that year.

[33] In their Introduction to the 2012/13 Annual Report Dame Beverley Wakem and newly appointed Ombudsman Prof. Ron Paterson stated (page 10): “This year, we celebrated the 50th anniversary of the Ombudsman in New Zealand. We also observed the 30th anniversary of the Official Information Act 1982, and the 25th anniversary of the Local Government Official Information and Meetings Act 1987. Our anniversary year has been a period of growth and consolidation.” Under the heading ‘Growing workload’ they also wrote: “Our services are clearly in demand. For the second year in a row, we received and completed the highest ever number of complaints and other contacts concerning state sector agencies. In particular, we managed significant increases in both official information complaints (92%), and complaints and other contacts relating to the Earthquake Commission (89%).” “We continued the structural and procedural changes needed to direct and focus our work towards our new strategic direction, which was established in the previous reporting year. These changes enabled us to apply a systematic approach to addressing the large increase in our incoming work, while still catering for the individual circumstances of each case.”

[34] On page 11 of the same report they continue with the comments: “In particular, we have completed the establishment of new workflow structures intended to allow us to more easily move staff resource to an area of identified need. We have set up formal early assistance and early resolution processes within dedicated teams, which have enabled us to deal with the large influx of new complaints more effectively and efficiently.” Furthermore they state: “However, the large increase in work has affected the timeliness of our interventions. Our performance this year has not met our expectations for the timeframes within which some types of work should be completed.” “Parliament has taken steps to begin to address the growing pressures on our Office. During the reporting year, we were able to secure an increase in overall funding for the 2013/14 year onwards, which will enable us to appoint additional investigating staff to progress the growing number of complaints on hand at any one time.” With scepticism I then read the Ombudsmen’s rather ironic comments on page 12: “Following the review of our strategic direction, we also continued work to reposition the Ombudsman as a “modern, independent New Zealand authority, that is agile, proactive and approachable”. This is regrettably not the experience I have recently had with the Office.

[35] On the “outcomes” of Ombudsmen Act (OA) 2,745 complaints (after deducting 8,263 “other contacts” from total cases) the following data is made available (see pages 24 to 28):
985 cases (36% of total completed) required only an explanation, advice or assistance to complainants to address their concerns. In 612 of those cases (22%) the Office simply advised complainants to take their concern to the relevant state sector agency. In 165 cases (6%) the Office declined complaints as there were supposedly other remedies available. 373 complaints were considered to not be within the jurisdiction of the Office. 216 complaints (8 % of cases) were “resolved” by the Office, 127 before an investigation and 89 during an investigation. In 379 cases (14%) formal investigations were commenced, and “final opinions” were formed in 174 cases. On page 28 the Ombudsmen reveal: “In only 44 cases (25% of all those formally investigated), did we identify administrative deficiency by the state sector agency that was the subject of complaint. We made formal recommendations in 4 cases. All recommendations were accepted.”

[36] On page 39 of the 2012/13 report the Ombudsmen state that they received 2,374 OIA complaints, 92 per cent up from the year before, and the highest number ever. The 271 LGOIMA complaints were more in line with historic figures. 1,012 OIA complaints were from one complainant, concerning delays in responses from school Boards of Trustees. But even without that increase, the remaining 1,361 complaints were up 26 % on 2011/12. The Office finished the year with 1,129 OIA complaints and 162 LGOIMA complaints on hand. On page 42 the Ombudsmen inform on the “outcomes”: “Traditionally, we have formally investigated most official information complaints. However, this year 926 complaints were resolved without formal investigation.” “We commenced formal investigations in 30% of all completed official information cases (637 out of 2,158). We managed to resolve 152 of these without needing to form a final opinion. We formed final opinions in 337 official information cases. In 167 of these cases29 we identified an administrative deficiency by the agency concerned in its official information decision making.” On pages 55 to 57 the Ombudsmen describe their Offices work in relation to their new responsibilities and work under the UN Convention on the Rights of Persons with Disabilities.

[37] Under the heading “Organisational health and capability” the report states on page 66 (‘Overview’): “Our work in 2012/13 was informed by a further refinement of our Statement of Intent for 2012/15, following the major review of our overall strategic direction and performance measures which we undertook for the 2011/12 reporting year. We continued the structural and procedural changes needed to direct and focus our work towards our new strategic direction. These changes enabled us to apply a systematic approach to addressing the large increase in our incoming work, while still catering for the individual circumstances of each case. In particular, we have completed the establishment of new workflow structures that allow us to more easily move staff resource to an area of identified need. We have set up formal early assistance and early resolution processes within dedicated teams, which have enabled us to deal with the large influx of new complaints more effectively and efficiently.
We have also reviewed the strategic services provided by our staff who guide and support our investigators and inspectors in their work, to ensure we have an overall structure in our Office that is efficient and allows us to effectively implement our new strategic direction.”

[38] Further down on page 66 the Ombudsmen state somewhat familiar information: “A number of factors contributed to our receiving this year the highest ever number of complaints and other contacts since the role of the Ombudsman was established. These factors include the current social and economic climate, the disruptions caused by the Canterbury earthquakes, and the increased levels of recourse by members of the public to the official information legislation. We believe the level of work now being received will not diminish significantly even when the economy has strengthened and there is less demand for public sector services. The increase in work is broadly based across many agencies and deals with many diverse issues. While we have achieved a 30% increase in our overall work completed this year, we are still not keeping pace with demand and the timeliness of our interventions is suffering. In addition, we consider our Office has been underfunded on an ongoing basis.”

[39] Under ‘Managing performance and capability development’ the report states on page 68: “This year we continued implementation of our continuous practice improvement initiative, which improves how we assess, allocate and process our work. Together with the use of more meaningful Office performance measures, this is proving very helpful in managing our work flow. We are already seeing the benefit of new and more useful information being available, which helps us to better understand our business and manage the pressures we face. An annual review of staff performance is undertaken for each financial year, and we have begun to trial a new performance review and professional development planning process. Further improvements to managing staff performance are anticipated during the 2013/14 year. These will include a particular focus on completing the development of key performance indicators at individual and team levels that reflect our overall Office performance measures.” While this may sound aspirational and “positive”, NO survey data is given in a ‘Performance Measures’ table on page 77 of the report, on complainants’ and state sector agencies’ satisfaction with the performance of the Office of Ombudsmen. Surveys are apparently conducted bi-annually, but I have not noticed that such are very detailed and comprehensive, or include all complainants. The tables show that most “proactive measures data” for the completion (%) rates for complaints are missing their budget standard targets, some significantly (see pages 76 to 77). Also does the Annual Report 2012/13 show no table with total staff sick and family leave, which was included in the earlier report(s). Page 68 only shows a table with “staff numbers and demographics”.

[40] The more recent ‘Statement of Intent 2014-2018’ by the Ombudsman already appears to contain data from a new stakeholder survey on page 13, where a table is showing the anticipated “success” in providing outputs A and B for 2013/14 and the ACTUAL rate for this. The target for 2013/14 was set at 55%, but the actual figure achieved is only 49% of complainants being satisfied with the overall quality of their service delivery. This indicates that the service quality of the Office has actually worsened even more since an earlier survey two years before that. The high actual satisfaction rate for the state sector agencies with the communication with the Office of Ombudsmen at 94 percent must be rather worrying, as this means, fewer complainants appear to be successful with complaints, which leaves the agencies “off the hook”, so to say. This is confirmed by the higher than expected satisfaction rate for state agencies for the Office’s decisions (2% above target).

Other reports describing the problems at the Office of Ombudsmen

‘New Zealand National Integrity System Assessment 2013, Chapter 5: Ombudsman’

[41] The document ‘New Zealand National Integrity System Assessment 2013, Chapter 5: Ombudsman (pillar 7)’ also reveals how the Office of Ombudsmen is unable to keep up with growing numbers of complaints and other responsibilities. On page 214 in that document it says: “The Chief Ombudsman is of the view that since about 2009, the Ombudsmen have been seriously under-resourced and a substantial backlog of complaints is awaiting investigation. In addition, they have not been in a position to compete in the market for staff, and staff salaries are about 14 per cent below market rate. Staff turnover is low, but increased from 6 per cent in 2010 to 14 per cent in 2011.” It also states: “From 2008/09 to 2011/12, the number of complaints on hand at any one time increased from about 1,000 to about 1,700, a 59 per cent increase. In contrast, the Ombudsmen’s annual appropriation from Parliament increased only 6.3 per cent, from NZ$8.33 million to NZ$8.86 million over the same period. At 31 December 2012, 465 requests for assistance had not been allocated to a case officer. 727 In 2011/2, only 53 per cent of complainants considered the ombudsman process to be timely and overall satisfaction with their standard of service has dropped, from 66 per cent in 2008/09 to 55 per cent in 2011/12. 728”

[42] On page 215 of that document it also says: Senior lawyers say that although the Ombudsmen’s investigations are thorough and fair, they are no longer referring clients to the Ombudsmen if there is an alternative. 729 The process takes too long and irreparable damage may be done to their clients’ interests before the investigation can be completed.” It furthermore says: “The Ombudsmen sometimes have insufficient resources to perform new functions allocated to them, or at least to perform them to an acceptably high standard.731” While that report prepared by two lawyers does generally present a positive image of the performance, independence and integrity of the Ombudsmen, major concerns remain about future performance quality and standards, especially since case loads are bound to increase, while the Office’s resources remain below of what is needed to deliver services.

[43] Of legal interest, in regards to the Ombudsman’s independence, integrity and authority, the following may be worth noting, while not serving to alleviate my stated concerns: “In general, the courts support the independence of the Ombudsmen. In one of the few cases where an Ombudsman’s decision has been before a court, the judge said, “Parliament delegated to the Chief Ombudsman tasks, which at times are complex and even agonising, with no expectation that the Courts would sit on his shoulder about those judgments which are essentially balancing exercises involving competing interests. The Courts will only intervene when the Chief Ombudsman is plainly and demonstrably wrong, and not because he preferred one side against another.745 (see page 217 of that document).

‘SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13’

[44] The document SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13’, which can be downloaded from the website of the New Zealand Parliament, reveals that the Office of Ombudsmen expects continued growth in the number of complaints, and other work they do. In question 65 the Ombudsman was asked about how many OIA requests it received. The answer to that question was that the Office is not subject to OIA requests about itself, but figures were given re OIA related complaints it handled over recent years (up to 30 June 2013), and what it projected for the following year 2013/14. For 2013/14 it is estimated that OIA complaints will be about 1326 for the year ending 30 June 2014, which is only a reduction on the year earlier due to the 2012/13 year having had an unusual increase of 92% on the year earlier, which was by one complainant having presented a very large number of new complaints. But based on 2008/09 the estimated number would represent an increase of 161%, while these kinds of complaints, same as OA complaints have generally increased steadily over the years. In any case, also other reports indicate that it must be expected that the workload of the Office will inevitably continue to increase, based on historic trends.

Office of the Ombudsman – Statement of Intent 2014-2018

[45] The ‘Statement of Intent 2014-2018’ (SOI) published by the Office of Ombudsmen does not appear to provide for an increase in complaints to assess, process and resolve, as for instance a table on ‘Operating Intentions’ on page 12 shows. Despite of the substantial historic increases in complaints and other contacts for 2011/12 and 2012/13 (8,784 and 11,161 correspondingly), the “Budget Standard” and “Estimated Actual” figures for 2013/14 show lower figures, being together 9,500 and 7,900 correspondingly (see “demand driven measures”). For unclear reasons for the following 4 years the “Budget Standard” figures total only 8,000 for both categories (being 2,500 for complaints – and 5,500 for other contacts completed). This is very concerning, as the Office may either be contemplating a new piling up of not progressed, unresolved complaints, or the Ombudsmen are intending to apply a more stringent criteria for accepting complaints to be dealt with and investigated, which could mean dismissing more complaints as being outside of the Ombudsmen’s jurisdiction, or by passing complainants on to other authorities, or by not accepting complaints at all, for whatever other reasons. Given past, steady increases on the demand side, the figures stated make no sense, as they also contradict other previous statistics and projections by the Ombudsmen.

[46] As already mentioned further above (see also at the bottom under ‘Annual Report 2012/13’ and the ‘New Zealand National Integrity System Assessment 2013’), the Office of Ombudsmen is expecting a lower satisfaction rate for the quality of services provided to complainants, as the table on page 13 of the Statement of Intent shows! The targeted 55 % satisfaction rate for 2013/14, which was the same as for the year before, is contrasted by the actual figure of only 49 %! Targets for the two following years have also been set low at only 55 %, which indicates that the Office does not anticipate or expect better quality in service delivery outcomes. State sector agencies’ satisfaction rates are though set within conventional ranges, higher than the complainants’ ones. It is of significance that the surveys the Office conducts only every two years (since only about 2 years ago) are only prepared and done “in house”, and may therefore lack sufficient independent scrutiny.

[47] The ‘Operating Intentions’ data and table on page 16 of the ‘Statement of Intent’ does also not show much real projected improvement in the processing of OIA request related complaints. “Budget Standard” targets remain steady for the coming years, but for 2013/14 the “Estimated Actual” number of complaints completed sits at now 1,600, twice the “Budget Standard” for that year. The other data and information in the SOI does basically tell me that the Office will continue to struggle, and make little real progress in improving service delivery, despite of the aspirational statements and ambitious goals for improved performance and service delivery.

[48] Re human resources planning, the Statement of Intent says under ‘People’ (see page 31):
“We aim to recruit and retain quality staff who adhere to high standards of professional conduct. We also aim to enhance the capability of our staff so that everyone can aspire to higher levels of performance. Measures to attract, develop and retain staff include:
• providing fair and consistent terms and conditions of employment;
• providing learning and professional development opportunities to enhance capability and performance; and
• providing opportunities for participation in health and wellness programmes that support the general wellbeing of staff.

[49] The specific projects we are undertaking in this area include:
• progressive implementation of a revised performance review and professional development planning system, including the introduction of key performance indicators for staff linked to our outputs and output performance measures;
• progressive implementation of our training and development strategy, which provides for targeted core training and professional development for all staff;
• completing the roll out of consolidated human resource policies and procedures; and
• continuing regular internal surveys to gauge staff satisfaction and identify areas for improvement.”

[50] The Statement of Intent 2014-2018 may sound as if the Office of Ombudsmen has room to improve efficiencies through further internal reviews and system changes, to achieve higher performance and output targets. There is talk of more personal development, training and measurement of staff performance indicators, and of recruiting and retaining quality staff. But like with any organisation, it is clear that there will be human and other resource limits that will constrain what can be achieved by frontline investigating and other staff, unless further financial resources are made available to meet ever increasing demands in the form of growing numbers of complaints, enquiries and other requests to the Office. It appears that the Office’s staff continue to be employed under individual employment contracts, which will most likely discourage any staff member raising any grievances about working conditions, which would be easier to do if the staff were collectively represented and had a collective agreement.

Media reports showing very large increases in complaints and funding issues

[51] Since at least 2012 there have been many news media reports about a crisis at the Office of Ombudsmen. For instance did the ‘New Zealand Herald’ report on 15 February 2012 that the Office of the Ombudsman is in “crisis”, with a bulging backlog of cases due to lack of investigators and existing staff underpaid and in some cases being worked to death, Ombudsman Beverley Wakem says.” It was stated that the office had about 300 cases it was unable to work on, because of a lack of available investigators. Figures given indicated that the case load per investigator had about doubled. The article also revealed: “Ms Wakem said she had asked for the office’s baseline budget to be increased from its current level of $ 8.6 million by about $1 million, which would allow it to meet its operating costs and employ two more investigators.”

[52]Scoop’ reported on 27 September 2012 “Ombudsman’s Office Workload Doubles”, and “The Office ended the 2011/2012 year with 10,636 complaints and other contacts received, up 22% on the previous year. Cases on hand at any time have grown from an average of 800 to over 1700.” Mention was made of the Office working “vigorously” and on “streamlining” its processes to cope with the workload. “However, Dame Beverley says there is an increasing demand for the Ombudsmen’s help”. “There is significant pressure on staff and regretfully we are missing targets for timeliness in responding to some people asking for help.”

[53] On 13 September 2013 the ‘Auckland District Law Society’ (ADLS) reported on their website under the title “Chief Ombudsman discusses challenge and change”, how Beverley Wakem saw the challenges her Office faces. Matthew Lark wrote: “The annual reports and statements of intent produced by the Office of the Ombudsman over Dame Beverley’s time make heavy reading. A marked increase in Ombudsmen Act and Official Information Act complaints is a worrying trend for an office which has long been under-resourced.” “We’ve gone from something like seven and a half thousand complaints a year when I first started, to nearly 14 thousand complaints this year, “ Dame Beverley remarks. “If you take out the earthquake and prisons, the underlying trajectory is still rising.” “We’re trying to triage a great many more of the minor complaints early without the necessity to formally notify them with the agency being complained about,” she says. “What this means is about 900 of those are being dealt with on this basis any month. What it leaves you with are the more complex cases.”

[54] In the same article the author writes that the Vote Ombudsmen is receiving a boost in 2013-14, and that Dame Beverly expected to recruit six new investigators in the coming year. The article continues:”Dame Beverley wants to see new investigators helping with some additional functions which her office has taken on during her term. These include investigating complaints about the government’s adherence to the UN Convention on the Rights of Persons with Disabilities.” “Her overall aim is to get her complaints backlog down”. “The case load which individual investigators have been carrying in this office has been inhumane by any international standard, that media article further revealed.

[55] On 15 October 2013Scoop’ reported (upon a press release from the Office of Ombudsmen): “Highest ever number of complaints for Ombudsman”. “In its annual report to Parliament for the year ending 30 June 2013, the Office says it received and completed the highest ever number of complaints and other contacts about state sector agencies.” “Chief Ombudsman Dame Beverley Wakem says the Office completed more than 13,000 pieces of work and provided advice and assistance in over four thousand cases. Just over 1, 000 complaints were investigated.” “Dame Beverley says despite the rise in volume, the Office has worked effectively. Changes have been made in the way the Office works to address the workload and it achieved a 30 percent increase in overall work completed despite a 29 percent increase in work coming in.” That article stated in more detail, the Office received 13,684 complaints and other contacts. It continued with: “The Office says that official information complaints increased overall by 92 % this year. There was a significant increase in delay complaints, continuing a worrying trend from the previous year.”

[56] On 15 May 2014 the ‘New Zealand Herald’ reported under the headline “Budget 2014: Funding crucial as busy watchdogs feel the strain”, that the Office of Ombudsmen received “a small increase in funding in the last Budget which helped it keep up with a record number of complaints about state sector agencies, including a near doubling in Official Information Act and Earthquake Commission complaints”. It also quoted Dame Beverley as saying: “However the large increase in work has affected the timeliness of our interventions”.

[57] The Herald reporter Adam Bennett continues in that article with: “The Ombudsman and Auditor-General make their case for more funding to the officers of Parliament committee and if it is persuaded the Government usually implements it. The committee released its recommendations for funding of organisations in March.” “The Office of the Ombudsman’s baseline budget goes from $9.9 million to 10.3 million in 2014-15, rising to $10.46 million thereafter.” “With last year’s increase the office’s budget will have expanded in two years to a figure approaching that sought by Dame Beverley two years ago.”

[58] Summary of performance challenges and issues at the Office of Ombudsmen

1. Staff at the Ombudsmen’s Office appear to be unable to maintain the needed standard of professional care and diligence, due to ever increasing case work-loads and performance target expectations (see paragraphs [3] to [11], [19] to [23], [26], [29], [38], [41], [42], etc.);
2. staff are put into situations where adherence to statutory obligations, mandatory standards and to natural justice can be compromised (see [19] to [23], [26], [29], [41], [42], [54] etc.);
3. complaint case loads on hand increased from 2008/09 to 2011/12 by 59 percent, while Parliament’s appropriation increased by only 6.3 percent (see [41], [55] etc.);
4. staff turnover figures increased from 6 percent in 2010 to 14 percent in 2011 (see [41]);
5. sick and family leave days taken by staff increased from 204 hours per annum for 2007 to 471 in 2012, while staff numbers have largely remained unchanged (see [31] etc.);
6. complainants’ overall satisfaction with the Office’s standard of service has dropped from 66 percent in 2008/09 to 55 percent in 2011/12, and now apparently only 49 per cent for 2013/14 (see [27], [29], [40], [41] and [46]);
7. surveys of complainant’s and stakeholders’ satisfaction have only been conducted bi-annually and on selected investigated cases, and are therefore not sufficiently comprehensive, representative and conclusive (see [28], [39], [40], [41], etc.);
8. existing audit data is primarily gathered for balance sheet purposes and includes only certain key performance indicators, which does say too little about staff competence, satisfaction and quality of services delivered (see audit data provided in annual reports).

Requested actions to be taken by the Office of the Auditor General

[59] I fully understand that the Office of the Auditor-General will only conduct certain inquiries and performance audits at its own discretion. But as it appears from the above information, that there are potentially hundreds of complainants and enquirers affected by poor outcomes due to the mentioned problems that exist at the Office of Ombudsmen, I consider that in this case a special, independent, thorough inquiry and audit of that Office is more than warranted. A special inquiry and audit is sought under sections 18 (1) and 16 (1) (a), (b) and (d) of the Public Audit Act 2001. It needs to take a closer look at the Office of Ombudsmen than the regular annual audits by Audit New Zealand do. These have largely been gathering and presenting balance sheet type financial data, and only limited other performance data.

[60] A special inquiry and audit should have a stronger focus on the effects an ever growing case- and work-load has had, and on the impact that the implemented internal reviews, stream-lining, reorganising and restructuring have had, on staff working at the Office. A closer look deserves to be taken at the usefulness and appropriateness of the so-called ‘Continuous Practice Improvement Strategy’, apparently guided or supported by a “policy and professional practice advisory group”, and how this has assisted – or otherwise affected – each staff member in their particular work area. Staff should be asked to provide anonymous responses on views in relation to: Work-load allocation, on performance targets, on standards to comply with, and on personal experiences with clients’ complaint assessments and investigations, and whether the feedback they personally get from outside stakeholders are positive or negative in regards to their performance at the Office. An inquiry and audit should try to establish whether staff members feel they are under the existing work pressures and conditions able to provide fair, just and objectively delivered services and decisions. It must be established, whether and to what degree staff members may suffer excessive stress and other ill health, due to too high work loads and increased responsibilities, while expected to achieve ever higher performance and output results, without compromising quality of service delivery. Data should be sought on health issues staff have suffered, and whether staff members do perceive these to be the result of work based pressures and expectations.

[61] The inquiry and audit should endeavour to establish, whether in the particular complaint cases I presented to the Office of Ombudsmen, the investigating officer Xxxxx Gxxxxx did follow all mandatory work processes and procedures, met the applied quality standards, and adhered to her legal obligations under the Ombudsmen Act 1975, and also according to other applicable statutes and law, while executing her duties. It should try to establish whether she intentionally or unintentionally misled the Chief Ombudsman upon her assessment of my submissions (including provided evidence), and whether she acted in negligence and/or failed to apply due professional care. I ask your Office of the Auditor-General to investigate whether any advice or disciplinary action was served on Miss Gxxxxx upon my request for a review on 16 June 2014. In this same regard, I also request an examination, whether my complaint from 16 June this year was handled appropriately by the Ombudsman, in line with provisions referred to on page 219 of the ‘New Zealand National Integrity System Assessment 2013; Chapter 5: Ombudsman (pillar 7)’ (see chapter 7.2.3 ‘Accountability (law)’). The following reference is made there: “The Office of the Ombudsman has a formal, documented process for ensuring complaints about the Ombudsmen and their staff are taken seriously and handled appropriately.760 “

[62] An inquiry and audit should establish levels of staff satisfaction or dissatisfaction with present working conditions, whether they feel satisfied with working under individual employment contracts, or would prefer alternative employment agreements, possibly in the form of a collective agreement. Quality control measures should be examined, such as checks and balances used to avoid mistakes, or the oversight of relevant evidence information. An inquiry should establish, whether unacceptable “short-cuts” are used to progress and process cases, and whether re-prioritising is used, to discharge complaints deemed as “less important”. Feedback should be sought on suggested improvements to applied processes, procedures, work and resources allocation, quality assurance, same as general working conditions.

[63] An inquiry and audit should also not shy away from the question, whether recommendations should be made, that the high salaries for the two Ombudsmen should perhaps be capped or cut, to free up future funding, to invest into the operational activities of the Office of Ombudsmen. According to data I read, the salaries of the two Ombudsmen are between $ 280,000 and about $ 350,000 per annum. 17 staff also appear to earn over $ 100,000 per annum, as a table in response to question 55 in the document ‘SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13’ shows. Furthermore 28 staff appear to earn between $ 80,000 and $ 100,000 per annum. These salaries are though determined by the independent Remuneration Authority, and it may not be possible to expect any changes in their decisions on remuneration for staff and Ombudsmen employed. Nevertheless an independent view on these aspects may also be warranted.

[64] I may last not least suggest also that the Office of the Auditor-General considers making a recommendation that the Office of Ombudsmen should conduct ongoing, comprehensive feedback surveys on all complainants and enquirers it deals with, inviting them to do them anonymously via their website, by sending them the link information to a survey by way of email or postal letters, same as the Office of the Privacy Commissioner is presently doing. Only that way will the Office be able to gather reliable information on the satisfaction or dissatisfaction of any stakeholders it deals with. Such a recommendation should be considered irrespective of any decision made in this request matter.

Closing comments and concerns

[65] I am aware that a decision about this request may take some time. As stated, this is a matter of concern not only to me, given my personal experiences with the Office of Ombudsmen and their performance, but a matter of concern to the general public. The wider public does have daily interactions with state sector and similar agencies, which are open also to the scrutiny by the Ombudsmen and their staff. It is the fact that with a “leaner” public service there has been ever growing pressure on staff working in state sector offices, which can lead to more mistakes and wrong decisions being made. That is to my understanding also part of the reason for increasing numbers of enquiries and complaints to the Office of Ombudsmen. It is in the public interest that this requested inquiry and audit will be conducted sooner rather than later, as otherwise too many members of the public will face similar disappointing experiences as I and others have recently. An inquiry and audit, followed by a report and recommendation by the Office of the Auditor General may give us a clearer picture of the situation at the Ombudsmen’s Office, and perhaps raise necessary awareness and send necessary signals to review the operations at the Office of the Ombudsmen, so improvements may be made.

Your respected decision and response in this matter – in due – course will be highly appreciated.

Yours thankfully and sincerely

 

Xxxxxxx Xxxxxx

 

References

1. ‘2010/2011 Report of the Ombudsmen for the year ended 30 June 2011’;
2. ‘2011/2012 Report of the Ombudsman for the year ended 30 June 2012’;
3. ‘2012/2013 Report of the Ombudsman for the year ended 30 June 2013;
4. ‘SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13‘ (Office of Ombudsmen, previously downloaded from Parliament’s Website);
5. ‘New Zealand National Integrity System Assessment 2013; Chapter 5: Ombudsman (pillar 7)’;
6. ‘The New Zealand Herald’, “Bulging backlog creating a ‘crisis in Office of the Ombudsman”, Adam Bennett, 15 Feb. 2012;
7. ‘Scoop’, “Ombudsman’s Office Workload Doubles”, press release article, 27 Sept. 2012;
8. ‘ADLS’ (‘Auckland District Law Society’ website), “Chief Ombudsman discusses challenge and change”, by Matthew Lark, 13 Sept. 2013;
9. ‘Scoop’, “Highest ever number of complaints for Ombudsman”, press release, 15 Oct. 2013;
10. ‘The New Zealand Herald’, “Budget 2014: Funding crucial as busy watchdogs feel the strain”, by Adam Bennett, 15 May 2014;

Attachments to email 1 carrying this request letter:

a). ‘OAG, CAG, request f. special inquiry + audit into Ombudsmen Office, unsigned ltr, 28.08.2014.pdf’ (letter seeking a special inquiry and audit into performance and other related matters at the Office of Ombudsmen, by X. Xxxxxx, dated 28 Aug. 2014);
b). ‘Ombudsmen Office, complaint 3xxxxx, MSD, O.I.A. requests, incl. new, response ltr fr. 27.05.14.pdf’ (letter from Ombudsman Ron Paterson, dated 27 May 2014, mentioning limited resources and performance limitations the Office of Ombudsmen faces)
c). ‘NZ Parliament, Suppl. Std. Fin. Rev. Qs 2012-13, Ombudsman, d-load, high-lit, 14.08.14.pdf’,
‘SUPPLEMENTARY STANDARD FINANCIAL REVIEW QUESTIONS – 2012/13’ (PDF file, Office of Ombudsmen, previously downloaded from Parliament’s Website);
d). ‘Ombudsman, Integrity-Plus-2013-Pillar-7-Ombudsman, transparency.org, Dec. 13, 14.08.14.pdf’ (containing ‘New Zealand National Integrity System Assessment 2013, Chapter 5: Ombudsman (pillar 7)’.
e). ‘Ombudsman, Office of, Statement of Intent, soi14-18, d-load, 14.08.14.pdf’, Office of the Ombudsman, Statement of Intent 2014 – 2018.

Attachment to email 2 carrying this request letter:

f). ‘OAG, CAG, request f. special inquiry + audit into Ombudsmen Office, ltr, p. 1-9, 28.08.2014.pdf’ (scan copy of signed original letter in this matter, see also a). and g).).

Attachment to email 3 carrying this request letter:

g). ‘OAG, CAG, request f. special inquiry + audit into Ombudsmen Office, ltr, p. 10-17, 28.08.2014.pdf (scan copy of signed original letter in this matter, see also a). and f).).

Emails that will also be on-forwarded following above initial emails (with attached evidence) – to be sent with emails 4, 5, 6, 7 and 8 in this matter:

1). Email number 1, 16 June 2014, 05.02 h (with 1 PDF file attached);
2). Email number 2, 16 June 2014, 05.36 h (with 8 PDF files w. relevant evidence attached);
3). Email number 3, 16 June 2014, 05.47 h (with 7 PDF files w. relevant evidence attached);
4). Email number 4, 16 June 2014, 20.30 h (with 3 more PDF files attached)
5). Earlier email enquiry sent 23 Feb. 2014 14.25 h, re complaint sent 17 Dec. 13 (which had 16 PDF attachments, but which won’t be sent, as they should be on file at the Ombudsmen’s Office)

Here is a link to a down-loadable PDF file containing the full request dated 28 Aug. 2014, which is perhaps easier to read:
OAG, CAG, reqst f. inquiry + audit into Ombudsmen Office, anon, 28.08.2014

Please note:
We have not attached all the above attachments, as some relevant information may already have been presented in the earlier related posts about the HDC complaints and the Ombudsman complaint. Other information is freely available on the Ombudsmen’s website and other sites on the web (try a Google or Bing search!), and some is not of such high importance to be published here. We may consider adding some further information here at a later stage!

 
 

3. THE AUDITOR GENERAL’S FIRST RESPONSE FROM 30 OCTOBER 2014

By way of a letter dated 30 Oct. 2014, Maria Rawiri, Sector Manager at the OAG, responded to the complainant’s request. She wrote the following:

“Dear Mr Xxxxxx

REQUEST FOR INQUIRY AND PERFORMANCE AUDIT INTO THE OFFICE OF OMBUDSMEN AND ITS COMPLIANCE WITH THE OMBUDSMEN ACT 1975

Further to our email of 1 September 2014, we have completed our initial assessment of the material you provided to us.

You requested that our Office carry out an inquiry or performance audit of the Office of the Ombudsmen (the Ombudsmen).

While we appreciate your interest and concern in the functioning of the Ombudsmen, unfortunately, I must advise that we will not be carrying out the specific investigation you request.

Under the Public Audit Act 2001, our Office carries out:

● annual audits of the financial statements and information on performance that public entities provide in their annual reports. As there are over 4000 public entities, this forms the main part of our work;
● performance audits, which are in-depth assessments of how well public entities are carrying out particular parts of their work. We do a small number of these each year and consult with Parliament to agree our programme of work; and
● inquiries into any matter relating to a public entity’s use of its resources. Inquiries are more in-depth again than performance audits. They focus on a particular set of decisions and actions, so that we can accurately describe what happened and why, and set out our comments on the merits of what was done. We carry out only a few inquiries each year.

Your request is far more wide-ranging in scope than a performance audit or inquiry. Essentially, you have requested a review of the entire functioning of the Ombudsmen. This is not something we are equipped to carry out.

We are currently in the early stages of work looking at the accountability systems across government as a whole. However, this work will not include an in-depth review of the specific performance of any single entity.

The Office of the Ombudsmen recently released its Annual Report for 2013/14. This report includes comments on several of the issues you raised, especially around timeliness and resourcing, which you may find of interest. The report is available from the Ombudsmen’s website:
http://www.ombudsman.parliament.nz/resources-and-publications/corporate-documents/annual-reports .

As Sector Manager, I have noted the comments you made and will bear them in mind during our on-going work with the Ombudsmen.

 

Yours faithfully

……….. (Signature)
Maria Rawiri
Sector Manager”

Here are two hyperlinks that will allow you to down-load a PDF version of the authentic response from Maria Rawiri, dated 30 Oct. 2014, with some personal details concealed:
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, Sector Mgr, ltr, 30.10.2014
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, ltr, hilit, 30.10.14

 

Comments by the author:

So the complainant presented a very comprehensive letter of request with ample evidence of the serious issues and apparent dysfunction at the Office of Ombudsmen, and the OAG appears to have considered this as too much of an ask to deal with. The complainant also presented a case, where two formal complaints he had made to the Ombudsman against the HDC, had apparently been poorly assessed and wrongly decided on by the Office of Ombudsmen. The detailed information provided can only lead a reasonable person to the conclusion that investigating officers at the Ombudsmen’s Office were unable to attend to detailed and complex matters, and hence missed important, relevant facts, that had to be considered when forming a decision on the complaints. Instead, it appears, irrelevant or less relevant information was rather considered, and so the complaints were both dismissed, it seems this was done without even properly examining important evidence documents.

Certainly the comments by the Chief Ombudsman herself, repeated in Annual Reports of her Office, and also quoted in media, should have prompted the OAG to have taken a greater interest in the request by the complainant.

But in hindsight, we must probably accept, that the request was simply too wide in scope, and hence the OAG considered that they would not have the time and manpower to conduct such a comprehensive inquiry and audit of much of what the Ombudsmen and their staff do.

 
 

4. A SECOND REWORDED, MORE SPECIFIED REQUEST FOR AN INQUIRY AND SPECIAL AUDIT INTO ACTIVITIES AT THE OMBUDSMAN’S OFFICE

The complainant was not satisfied with this response by Maria Rawiri from the OAG, as it appeared to him, that there was reluctance by a senior Officer to conduct any inquiry or investigation into affairs and processes at the Office of the Ombudsmen. He accepted though that his request for an inquiry and special performance audit may indeed have been too wide in scope, so he made an effort to narrow down the Ombudsmen’s actions and areas of activity covered by his request. He prepared a new reworded request that would be dated 04 November 2014, which he then sent to the OAG by email on 05 December 2014 (in the early morning, just after midnight). Attached to it was only a scan copy of the new request letter he had written.

Here is the authentic text of the whole request letter dated 04 November 2014, which the complainant sent to the OAG:

 

Re: Request under sections 16 (1) (a), (b) and (d) and 18 (1) of the Public Audit Act 2001 – for an inquiry and a special performance audit into administrative and operational activities performed by investigating officer Xxxxx Gxxxxxx at the Office of Ombudsmen, while processing complaint/s 3xxxxx – as to whether they complied with applicable legal obligations and standards

Dear Lyn Provost, dear Maria Rawiri, dear staff at the Office of the Auditor-General

[1] Thank you for your Office’s letter dated 30 October 2014, which was in response to my formal request for an inquiry into, and special performance audit of the effectiveness, efficiencies and legal compliance of administrative, operational and managerial activities at the Office of Ombudsmen (under sections 16 and 18 of the Public Audit Act 2001). I read with much regret and disappointment that you have decided to not carry out the specific investigation I requested. According to your assessment my request is far more wide-ranging in scope than a performance audit or inquiry your Office carries out under the Public Audit Act. You state that you are not equipped to carry out “a review of the entire functioning of the Ombudsmen”. While I am not sure whether my request actually sought such a wide ranging review of the Office of Ombudsmen, I do agree, that my request may have been too wide in scope.

[2] As much as I appreciate your reference to the Office of the Ombudsmen’s recently released ‘Annual Report for 2013/14’, I am afraid that this report does not address some serious concerns that I raised as part of my request letter from 28 August. I understand that the Office of Ombudsmen may as of recent have been provided with more financial resources, and that it may in future be able to better meet its statutory responsibilities and cope with its increased work-loads. But it is somewhat worrying, that with your decision you have also decided to not investigate evident serious failures and apparent professional misconduct by an investigating staff member, which regrettably also seems to indirectly implicate the Chief Ombudsman. I would have thought that any serious failure to meet statutory obligations by staff or management at an Office of Parliament, which appears to fall under your scope of authorities, would raise sufficient enough concerns, to at least conduct an investigation into that part of my requests. In any case, your decision has caused me to re-consider my original request, and to consequently file a new request, which is far more narrowed down in scope, and which your Office should without doubt be able to investigate.

[3] Therefore I ask you to please accept my new request to your Office to conduct a special, independent and thorough inquiry into – and audit of – particular administrative and operational activities, performed by Miss Xxxxx Gxxxxxx at the Office of Ombudsmen, and whether these complied with the statutory obligations under the Ombudsmen Act, same as with other relevant legal requirements and applicable standards. My request is in particular for an inquiry and audit to be conducted into the complete handling, processing and assessment in relation to two complaints, which I filed under their reference 3xxxxx. This is a request seeking your actions under sections 16 (1) (a), (b) and (d) and section 18 (1) of the Public Audit Act 2001. I ask you and your Office to fully investigate and audit relevant aspects of the conduct and performance of said staff member, including her communications with the Chief Ombudsman. My request includes an examination of how the mentioned staff member at that Office coped with performance, output target and service quality expectations set by the Chief Ombudsman, and what exact procedures she was instructed to follow, while processing and assessing my two complaints. In the case that an inquiry and audit cannot be limited to the complaint/s mentioned, I do instead ask you to conduct such of the performance and conduct of the staff member for the period from 01 July 2013 to 15 July 2014, in relation to all complaints she handled over that period. I make this request due to the following very serious concerns about the Office of Ombudsmen and said staff in relation to the handling of these complaints:

● unacceptably long complaints-assessment, processing and resolution times
● long delays in the Office’s responses, even after repeated contacts seeking updates
● serious mistakes and omissions made by the investigating officer during assessments of my complaints, affecting quality and standards of service by the Office
● the investigating officer’s apparent misrepresentation of complaint related details to the Chief Ombudsman; i.e. concealing own mistakes and/or negligence
● poorly formed decisions made by the Chief Ombudsman to not investigate my complaints, while failing to acknowledge or accept clear, compelling evidence
● refusal by the Chief Ombudsman to accept and act upon objections I raised re the handling of my complaints by an investigating officer
● apparent non-compliance with obligations under the Ombudsmen Act 1975 and other law

[4] I consider that the above mentioned, requested measures need to urgently be taken, and that they are in the public interest. The situation at the Office of Ombudsmen has over recent years been extremely unsatisfactory, so that as a consequence I and many other complainants were denied appropriate, fair consideration of our complaints and with that justice. The stated concerns were aggravated by the fact that the Office of Ombudsmen appears to have been seriously under-funded for a number of years since well before 2012, while the Office’s workload increased substantially and disproportionately to available resources over the past years. This became evident from the annual reports the Office of Ombudsmen released, as well as from many somewhat recent media reports. Public trust in the performance and quality of service by the Office of Ombudsmen has been seriously damaged due to the above stated issues (see [3]). This may be remedied to some degree for the near future, but for the fact that I and other complainants have not been served justice under the Ombudsmen Act, an investigation and audit remains justified in at least my particular case, if not more.

[5] As you will be familiar with the details I presented in my original request, I must again refer you to paragraphs [3] to [23] of my letter dated 28 August 2014. In paragraph [19] of that letter I listed the failures that occurred in the handling of my complaints by Miss Gxxxxxx as investigating officer at the Ombudsman’s Office. Of particular concern is the fact that I referred to in paragraphs [6] and [21] in my letter, namely that Miss Gxxxxx failed to establish or accept that staff at the Office of the Health and Disability Commissioner gave wrong information about email correspondence received from me. In paragraph [22] I explained how further crucial evidence I presented to the Office of Ombudsmen appears to have been ignored out of intent, or at least neglect. It is my impression and conclusion that breaches of sections 10, 13 (1) and (3), and also section 17 (1) (b) of the Ombudsmen Act 1975 occurred. I ask you to re-examine and re-assess the particular information provided in my letter to your Office from 28 August in the context of this new request. The further information about the past annual reports issued by the Office of Ombudsmen, same as the quoted media and other reports will by now be familiar to your Office and staff. If you require further information, I trust that the Ombudsman will provide all correspondence and evidence in this matter to your Office.

[6] I also ask that paragraphs [59], [61] and [65] in my letter to you from 28 August are again given some consideration, in the context of this request. I wish to point out again, that I followed the advice given on your Office’s website under the topic or heading ‘How to ask for an inquiry’, and that I first raised the matters of concern with Dame Beverley Wakem as Chief Ombudsman (‘Step 1), before contacting your Office. It is with regret that my correspondence to Dame Beverley from 16 June 2014 was not well received. I have done everything that a person can reasonably be expected to do, when trying to first raise serious issues with the Office of the Health and Disability Commissioner, then with the Office of Ombudsmen, and now with your Office of the Auditor-General. It is extremely disheartening and not assisting me in maintaining any trust in the institutions mentioned, when no significant, committed and sincere efforts are made to appropriately and constructively address and resolve the problems I have presented. In case that you may again decide, to not conduct an investigation or audit at the Office of Ombudsmen, I must insist that you then refer the whole correspondence and evidence that I presented to your Office, to the Speaker of the House of Representatives, as the last resort to have the matters stated in this and my former letter addressed.

Yours sincerely

 

Xxxxxxx Xxxxxx

 

Here is a link to a down-loadable PDF file containing the full request dated 04 Nov. 2014, which is perhaps easier to read (please note an error with the date was made in the link):
OAG, CAG, reqst f. inquiry + audit of Ombudsman complaint handling, anon, 01.11.2014

 

Comments by the author:

With this narrowed down, reworded request, the complainant did focus more on the particular investigator and her actions and alleged failings. In doing so he intended to show with such an example, what challenges and issues staff at the Office of Ombudsmen face, and how this impacted on the quality of their work in complaints assessments and resolution. He thought that the OAG would have few problems in targeting the work areas and historic files where his earlier complaints had been processed, but he was not prepared for the decision he would get upon this formal request.

 
 

5. THE AUDITOR GENERAL’S SECOND RESPONSE FROM 17 DEC. 2014

It did take less time this time around, for the AOG to respond to the new request by the complainant. Again the response was offered by Maria Rawiri, Sector Manager, and it was also somewhat brief – with again somewhat similar, now familiar explanations that they saw no need to conduct an inquiry or performance audit into the Office of Ombudsmen.

 

Here is the authentic transcript of her letter dated 17 December 2014:

“Dear Mr Xxxxxx

REQUEST UNDER THE PUBLIC AUDIT ACT 2001 FOR AN INQUIRY AND A PERFORMANCE AUDIT INTO ACTIVITIES AT THE OFFICE OF OMBUDSMAN

We have reviewed the information you sent us in your email of 5 November 2014.

We have noted your concerns about the handling of your complaint by staff at the Office of the Ombudsman, and what you suggest that may indicate about that office’s systems.

While your letter is more specific than your previous correspondence, we will not be carrying out the specific investigation you request. We have no role in assessing the individual performance of staff in other entities. That is the responsibility of each entity. We note that you have raised your concerns with the Chief Ombudsman as is appropriate.

The Office is part of a broader accountability system for public sector entities. Our primary role is to conduct financial audits of all public entities. In doing so, we provide assurance to the public and parliament about the extent to which they can rely on public entities’ financial statements and in some cases performance information. Parliamentary Select Committees are charged with holding entities to account for their use of public funds. They fulfil this function, in part, through the annual review process. We provide advice to the Committee, but ultimately the Committee completes the review.

As advised previously, we have noted your comments and will bear them in mind during our on-going work with the Ombudsman. Beyond that I am afraid that we cannot be of any more assistance to you.

Kind regards

 

….. …….. (Signature)
Maria Rawiri
Sector Manager”

Here are two hyperlinks that will allow you to down-load a PDF version of the authentic response by Maria Rawiri from 17 Dec. 2014, with some personal details concealed:
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, Sector Mgr, ltr, 17.12.14
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, ltr, hilit, 17.12.14

 

Comments by the author:

The OAG does apparently not have any authority or scope to investigate and audit the performance of individual staff members in an entity, hence this response. It does not quite surprise us, as the performance auditing of individual staff members could leave individual employees in state sector entities exposed to an unreasonable degree of scrutiny that may in many cases better be applied internally, through their superiors and through work process and operational system checks that should be in place in such high level offices.

 
 

6. A THIRD, BETTER TARGETED REQUEST FOR AN INQUIRY AND SPECIAL AUDIT INTO THE OMBUDSMAN’S OFFICE

Again, the complainant felt driven to despair, like he had already been in his efforts to find justice when dealing with the HDC and then the Chief Ombudsman. It appeared that the OAG was following a similar line as the HDC and even the Ombudsman had done earlier, using every provision – or lack thereof – in the statute law, so to avoid having to take any action or responsibility. It appeared he was being fobbed off, and that these high officials had a dim view of any person (like him) trying to take them to task for checking on other high level officials, who they may perhaps even know personally. While this is of course hard to prove, the ongoing dismissive treatment of his concerns had definitely followed a very familiar pattern. NO action was considered necessary; requests for any form of an inquiry or investigation were not accepted and not being acted upon.

But having taken his grievances up to this high level, he decided to persist nonetheless, and write yet another request, after careful consideration of all matters of relevance and deep thoughts about how to formulate a new letter. But already prior to that did he express his frustrations about the handling of his request in a brief email letter from 19.41h on 18 December 2014. In it he expressed his disappointment and impression that the OAG were shying away from responsibilities. He also reminded the OAG staff that he had in his last letter insisted the whole matter (incl. all correspondence and evidence) should be referred to the Speaker of the House of Representatives, if the OAG should again not take any action. He asked for confirmation that this had been done. He also hinted that he may involve the media. His email(s) were acknowledged as received by Jxxx Hxxxxx at 10.00h on 22 Dec. 2014.

So after Christmas, on the second last day of the year 2014, he had completed his third and final request to the Auditor General’s Office, which he would then send in by email at 22.43h on 30 December 2014. Only one PDF with a scan copy of his new letter was attached. That email was then later confirmed as having been received by Txxxx Xxxxxxxx, Personal Assistant, at the OAG, at 11.35h on 12 January 2015. A response was promised once matters that had been raised had been assessed.

 

Here is the authentic text of the whole request letter dated 30 December 2014, which the complainant sent to the OAG:

Re: Request for an inquiry and a special performance audit (under sections 16 (1) (a), (b) and (d) and 18 (1) of the Public Audit Act 2001) – into administrative, operational and managerial activities performed by investigating officers, and the Chief Ombudsman, at the Wellington Office of Ombudsmen, while processing specified complaints

 

Dear Lyn Provost, dear Maria Rawiri, dear staff at the Office of the Auditor-General

[1] Thank you for your Office’s letter dated 17 December 2014, which was in response to my second formal request (dated 04 November 2014) under the Public Audit Act 2001, for an inquiry into, and a special performance audit of, administrative and operational activities performed by staff at the Office of Ombudsmen. My reformulated request was particularly in regards to the processing and assessment of my complaint/s under reference 3xxxxx by Miss Xxxxx Gxxxxxx, and whether she and her Office complied with applicable legal obligations and standards. I read with much regret and disappointment that you have decided to not carry out the specific investigation I requested. According to your comments your Office has no role in assessing the individual performance of staff in other entities. You write that this is the responsibility of each entity. You also comment: “We note that you have raised your concerns with the Chief Ombudsman as is appropriate.” You state that your Office is part of a broader accountability system for public sector entities. You refer to your primary role in undertaking financial audits of all public entities. You also add that you will bear my comments in mind, during your on-going work with the Office of Ombudsmen. When I presented an earlier request you had commented that my request was then far more wide-ranging in scope than a performance audit or inquiry your Office carries out under the Public Audit Act. You stated that you were not equipped to carry out “a review of the entire functioning of the Ombudsmen”.

[2] Both your responses to my requests have been received and acknowledged with great disappointment. It seriously worries me, that with your decisions you have decided to not investigate evident serious failures, and apparent professional misconduct, by at least one investigating staff member, which regrettably also seems to indirectly implicate the Chief Ombudsman. I would have thought that any such serious failures to meet statutory obligations by staff or management at an Office of Parliament, which still appears to fall under your scope of responsibilities, would raise sufficient enough concerns to take some actions. Given my detailed, evidence-supported requests, your Office should in my view have felt prompted to conduct an investigation on your own initiative, and by doing so, within a scope and form that your Office can carry out. You have the statutory authority and ability to define or redefine the exact scope and form of an audit or inquiry under the Public Audit Act. You also have a responsibility, to ensure that legal obligations under statute law are met by public entities.

[3] Your comment, that I had appropriately raised my concerns with the Chief Ombudsman, fails to acknowledge the fact, which I had already explained to you in earlier correspondence, namely that Miss Wakem simply failed to fulfil her own responsibilities. In her letter dated 10 July this year, Miss Wakem firmly refused to even properly look at my whole complaint from 16 June 2014. She protected her staff from any allegations, without examining all the evidence I put forward. She therefore failed at least in her duties as an employer under section 11 (2) under the Ombudsmen Act 1975. In blindly relying on her investigating staff member, who was very poorly handling my two complaints about the Health and Disability Commissioner (HDC), the Chief Ombudsman also failed to perform her functions under section 13 (1) of the Ombudsman Act, to investigate clear, proven misconduct by staff at the HDC Office, who were lying about email evidence they received. The mentioned failures also raise concerns as to whether the oath given by the Chief Ombudsman under section 10 (1) of that Act has been honoured. All this raises a number of issues, which include the use of resources and compliance with statutory obligations. It is my view that your Office has the power, ability and in this case compelling reasons to act in the matters I presented to you under section 16 (1) (a), (b) and (d), same as section 18 (1) of the Public Audit Act. The same Act refers not only to the “efficient” use of resources, but also mentions the “effective” use of them. Also is the performance of staff part of resource related matters that deserve consideration when conducting an audit or inquiry. Most certainly the failure to comply with statutory obligations, not only under the Public Audit Act, must be of concern to you. In any case, your decision has caused me to once again re-consider my request, and to consequently file this new request, which is more appropriately specified to meet your Office’s responsibilities, scope and ability.

Newly defined, third request for an inquiry and special audit

[4] Therefore I ask you to please accept my new, third request to your Office. I request you to conduct a special, independent and thorough inquiry into – and audit of – particular administrative, operational and managerial activities, performed by the team of investigating officer staff members, and the Chief Ombudsman, working at the Wellington Office of Ombudsmen, that cover only Ombudsman Act (O.A.) based complaints about OTHER state sector organisations’ administration and decision-making. This excludes those O.A. complaints against ordinary government departments and local authorities. That is for the period from 01 July 2013 to 31 July 2014. Included should also be complaints made about the Privacy Commissioner’s and the Health and Disability Commissioner’s Offices. Such an inquiry and audit should establish whether the stated activities by the Ombudsman Office’s mentioned staff, relating to the specified types of complaints they handled, did comply with the statutory obligations under the Ombudsmen Act, same as with other relevant legal requirements and applicable standards. The inquiry and audit should also seek to establish whether resources were used appropriately, effectively and not only efficiently.

[5] This is a request seeking your actions under sections 16 (1) (a), (b) and (d) and section 18 (1) of the Public Audit Act 2001. I ask you and your Office to fully investigate and audit relevant aspects of the conduct and performance of said staff members, including their communications with the Chief Ombudsman. My request includes an inquiry into how the mentioned staff at that Office coped with performance, output target and service quality expectations set by the Chief Ombudsman, and what exact procedures they were instructed to follow, while processing and assessing complaints. In the case that an inquiry and audit cannot be focused on the types or range of complaints mentioned, I do instead ask you to conduct one on the performance and conduct of the staff members for the same period, but in relation to a range of O.A. complaints that can be set and managed by your Office. If it may need to be so, that may be reduced to such ones only against the Privacy Commissioner and HDC Office. I make this request due to the following very serious concerns about the Office of Ombudsmen and said staff in relation to the handling of these complaints:

● unacceptably long complaints-assessment, processing and resolution times
● long delays in the Office’s responses, even after repeated contacts seeking updates
● stream-lining, reorganisation and restructuring leading to too many complaints being dismissed or treated as needing no (further) investigation
● serious mistakes and omissions made by an investigating officer during assessments of my complaints, affecting quality and standards of service by the Office
● an investigating officer’s apparent misrepresentation of complaint related details to the Chief Ombudsman; i.e. concealing own mistakes and/or negligence
● poorly formed decisions made by the Chief Ombudsman to not investigate complaints, while failing to acknowledge or accept clear, compelling evidence
● refusal by the Chief Ombudsman to accept and appropriately act upon objections raised re the handling of complaints by an investigating officer
● apparent non-compliance with obligations under the Ombudsmen Act 1975 and other relevant law

[6] I consider that the above mentioned, requested measures need to urgently be taken, and that they are in the public interest. The situation at the Office of Ombudsmen has over recent years been extremely unsatisfactory, so that as a consequence of poor performance and failures in fulfilling statutory obligations, I and many other complainants were denied appropriate, fair consideration of our complaints and with that denied justice. The stated concerns were aggravated by the fact that the Office of Ombudsmen appears to have been seriously under-funded for a number of years since well before 2012, while the Office’s workload increased substantially and disproportionately to available resources over the past years. This became evident from the annual reports the Office of Ombudsmen released, as well as from many somewhat recent media reports. Public trust in the performance and quality of service by the Office of Ombudsmen has been seriously damaged due to the above stated issues (see [5]). This may be remedied to some degree for the future, but for the fact that I and other complainants have not been served justice under the Ombudsmen Act, a special inquiry and audit remains more than justified.

Important information to consider prior to launching an inquiry and special audit

[7] As you will be familiar with the details I presented in my original request, I must again refer you to paragraphs [3] to [23] of my letter dated 28 August 2014. In paragraph [19] of that letter I listed the failures that occurred in the handling of my complaints by Miss Gxxxxxx as investigating officer at the Ombudsman’s Office. Of particular concern is the fact that I referred to in paragraphs [6] and [21] in my letter, namely that Miss Gxxxxx failed to establish or accept that staff at the Office of the Health and Disability Commissioner gave wrong information about email correspondence received from me. In paragraph [22] I explained how further crucial evidence I presented to the Office of Ombudsmen appears to have been ignored out of intent, or at least neglect. It is my impression and conclusion that breaches of sections 10, 13 (1) and (3), and also section 17 (1) (b) of the Ombudsmen Act 1975 occurred. I ask you to re-examine and re-assess the particular information provided in my letter to your Office from 28 August in the context of this new request. The further information about the past annual reports issued by the Office of Ombudsmen, same as the quoted media and other reports will by now be familiar to your Office and staff. If you require further information, I trust that the Ombudsman will provide all correspondence and evidence in this matter to your Office.

[8] I also ask that paragraphs [59], [61] and [65] in my letter to you from 28 August are again given some consideration, in the context of this request. I wish to point out again, that I followed the advice given on your Office’s website – under the topic or heading ‘How to ask for an inquiry’, and that I first raised the matters of concern with Dame Beverley Wakem as Chief Ombudsman (‘Step 1), before contacting your Office. It is with regret that my correspondence to Dame Beverley from 16 June 2014 was not well received. I have done everything that a person can reasonably be expected to do, when trying to first raise serious issues with the Office of the Health and Disability Commissioner, then with the Office of Ombudsmen, and now with your Office of the Auditor-General. It is extremely disheartening and not assisting me in maintaining any trust in the institutions mentioned, when no significant, committed and sincere efforts are made to appropriately and constructively address and resolve the problems I have now repeatedly presented.

The Office of the Auditor General’s powers and authority

[9] While I accept that you may have no role in assessing the individual performance of staff in other public entities, I am aware that you have the authority to conduct special inquiries and audits into individual public entities, in some cases even into the conduct of individual public office holders. Your Office has on your website published a list of “inquiry reports” that show this, and there have also been repeated media reports on certain inquiries and special audits conducted by your Office. Inquiries have been made into particular public entities, into public office holders and into particular activities, like for instance the following:
○ Inquiry into the Mangawhai community wastewater scheme
○ Inquiry into decision by Hon Shane Jones to grant citizenship to Mr Yang Liu
○ Inquiry into the Government’s decision to negotiate with SkyCity Entertainment Group Limited for an international convention centre
○ Inquiry into aspects of ACC’s Board-level governance
○ Inquiry into the use of parliamentary travel entitlements by Mr and Mrs Wong
○ Inquiry into ‘Provision of billboard for Len Brown’s Mayoral Campaign’
○ Investigation into conflicts of interest of four councillors at Environment Canterbury
○ Inquiry into ‘How the Ministry of Education managed the 2008 national school bus transport tender process’.

[10] The fact that the Office of the Ombudsmen may as another Office of Parliament be on a similar level as your Office, does not necessarily mean it is excluded from the same level of scrutiny that applies to other offices and entities falling under your Office’s jurisdiction and responsibility. According to sections 5 (1) (b) and 14 (1) of the Public Audit Act the Offices of Parliament come under your authority. We are here also talking about the Ombudsman’s failures to address major issues that arose during the appalling handling of two complaints to the HDC, which is an independent crown entity (section 7 of the Crown Entities Act 2004), falling also directly under your authority. I may suggest you should also consider an inquiry and audit into their complaints handling, given the apparent misrepresentation by their staff of facts regarding complaint emails and evidence received re complaint C11HDCxxxxx.

[11] Given my experiences with the handling of two complaints by the Health and Disability Commissioner (HDC), and their apparent failures and even dishonest conduct in relation to emails and evidence presented to them (C11HDCxxxxx), your Office should indeed feel prompted to also conduct an inquiry and special performance audit into the Office of the HDC. Sadly the Health and Disability Commissioner Act 1994, which also contains the Code of Health and Disability Services Consumers’ Rights, offers the HDC far too much discretion to take action or to take no action. Certain powers the HDC has to offer complainants remedies are generally not used or applied in most cases. Many cases of malpractice or failures by providers of health and disability services get insufficiently addressed, so that many affected do not even bother filing complaints with the HDC. It is my view that the existing law and practice applied by the HDC is rather undermining the rights of affected patients. That put aside, one would at least expect that complaints are treated appropriately, fairly and honestly, which did not happen in my case. Hence it is doubly disturbing to have the Ombudsman dismiss my complaints as she did, and did not even feel urged to reassess my complaints.

[12] For the case that you may again decide, to not conduct an inquiry or audit at the Wellington based Office of Ombudsmen, I must insist that you then refer the whole correspondence and evidence that I presented to your Office, to the Speaker of the House of Representatives. That is the last resort to have the matters addressed, which I stated in this and my former letters.

The Speaker of the House of Representatives’ responsibility over the Ombudsman

[13] It is the Speaker of Parliament, who holds a higher authority over the Officers of Parliament, including the Office of Ombudsmen. Through statutory reporting requirements and his constitutional position the Speaker can and must hold Officers of Parliament to account for their conduct and functional responsibilities. I may quote from the following report:
New Zealand National Integrity System Assessment 2013 Chapter 5: Ombudsman (pillar 7),
Web link:
http://www.transparency.org.nz/docs/2013/Integrity-Plus-2013-Pillar-7-Ombudsman.pdf:
Extracts from that report:
“7.2.4 Accountability (practice)
To what extent do the Ombudsmen report and be answerable for their actions in practice?”

“Score: 5
The Ombudsmen comply with the legal accountability requirements. There has been no occasion in recent years for judicial review.”

“The Ombudsmen report to Parliament through the Speaker each year, and the report contains comprehensive information on the activities of the Ombudsmen and their staff, including performance against the measures specified in their public Statement of Intent. The report has always been submitted on time. Neither the House nor the Officers of Parliament Select Committee has recently debated the Ombudsmen’s report, 761 though there has been debate in the Government Administration Select Committee.”

It is not unusual for complaints about the Ombudsmen to be made to the Speaker. Although the Speaker has no legal duty to consider such complaints, there is a practice whereby the complaint is forwarded to the relevant Ombudsman, who then reports to the Speaker on it.762“
I may also refer to the following part of that report, for some further relevant information:
7.2.6 Integrity mechanisms (practice)
To what extent is the integrity of the Ombudsmen ensured in practice?

[14] Hence, in case your Office should again decide to not use your authority to conduct an inquiry and a special performance audit into the mentioned section of the Wellington based Office of the Ombudsmen, I ask you to forward ALL the correspondence I sent you with my previous and this requests, including all evidence documents, to the Speaker of Parliament. It will then be up to the Speaker to seek clarifications and explanations from the Chief Ombudsman, if he may so desire. Given the disappointing experiences with Dame Beverley Wakem not even seriously re-considering my complaint, she has in my view not acted as a responsible employer and as the impartial Officer she is expected to be. Her failures may simply be based on reliance on poor advice by some of her staff, but she is ultimately responsible for them. I will reserve my final judgment in this matter depending on the final outcome of this request.

Yours sincerely

 

Xxxxxxx Xxxxxx

 

Here is a link to a down-loadable PDF file containing the full request dated 30 December 2014, which is perhaps easier to read:
OAG, CAG, reqst f. inquiry + audit of Ombudsman’s complaint handling, new, anon, 30.12.14

Comments by the author:

This time the complainant appears to have taken the best possible approach with his request, asking for an inquiry into and performance audit of a section or “team” group of staff and the Chief Ombudsman herself, at the Wellington Office, who processed only certain, more easily identifiable types of complaints, not too great in numbers. So the scope was not set too widely, and it was also avoided to target any individuals, except perhaps Ms Beverley Wakem, who did then though carry responsibility for the whole operation of the Office of Ombudsmen. The complainant and requester felt the OAG could now hardly dismiss his request, given the validity of his claims and the compelling evidence he presented. He even listed earlier inquiries, where the OAG had taken action, even involving clearly identifiable individual office holders, which somehow contradicted their earlier response. But the complainant’s request would again result in a decision that would later only disappoint him.

 
 

7. THE AUDITOR GENERAL’S THIRD RESPONSE FROM 09 APRIL 2015

As there would not be another response from the OAG for some time, the complainant did at 23.17h on 12 March 2015 write a brief email to the OAG Office, enquiring about the progress with his request. He attached his earlier email from 30 December and asked for a brief update. Also did he mention that he had learned that new appointments for the roles of Ombudsman had recently been signalled by the Leader of the House of Representatives.

It was in mid April when the complainant received a new response by Sector Manager Maria Rawiri at the OAG, which was dated 09 April 2015. It was again an extremely disappointing decision that was being communicated, causing the complainant to lose almost all faith in the “watchdog” offices that exist and processes that are meant to be followed in New Zealand.

 

Here is the authentic transcript of Maria Rawiri’s letter dated 09 April 2015:

“Dear Mr Xxxxxx

REQUEST FOR AN INQUIRY AND A SPECIAL PERFORMANCE AUDIT INTO THE WELLINGTON OFFICE OF THE OMBUDSMAN

You have requested that the Auditor-General consider your third request, in this case:

“to conduct a special, independent and thorough inquiry into – and audit of – particular administrative, operational and managerial activities, performed by the team of investigating officer staff members, and the Chief Ombudsman, working at the Wellington Office of Ombudsmen, that cover only Ombudsman Act (O.A.) based complaints about OTHER state sector organisations’ administration and decision-making. This excludes those O.A. complaints against ordinary government departments and local authorities. That is for the period from 01 July 2013 to 31 July 2014. Included should also be complaints made about the Privacy Commissioner’s and the Health and Disability Commissioner’s Offices.”

We have reviewed the material and information provided. It is clear from your correspondence that both the Health and Disability Commissioner and the Ombudsman have looked into the various concerns you have directed to them about breaches of the Code of Health and Disability Services Consumers Rights and the handling of your complaint(s) by the Health and Disability Commissioner. This office has no power to change the outcome of the assessments made by those agencies.

You have raised concerns about the overall capacity and performance of the Office of the Ombudsman within a defined year. The Chief Ombudsman has been very open about the challenges her office faces in her annual reports and briefings to Parliament. In our view any work on our part is unlikely to provide further significant insights on the performance of the Office of the Ombudsman.

It is the Auditor-General’s decision whether she initiates an inquiry. The office’s focus is on the way public entities use their resources, including financial, governance, management and organisational issues. We examine each request to decide the most appropriate way to proceed. We identify whether the matters raised suggest:

● financial impropriety,

● problems with the organisation’s overall governance or management, or

● other systemic or significant concerns that may be important for the organisation, the sector it operates in, or the general public.

Other factors we consider include how serious the issues are, whether we have the resources and technical skills to consider them properly, and whether the issues may be better addressed through other avenues.

To reiterate having considered the evidence you provided and taking into account the factors set out above we do not intend to conduct an inquiry into the matters you raise. We believe there is sufficient public information available to enable the Office of the Ombudsman to be held to account for its performance and to inform decision making by the Executive and Parliament.

We now consider this matter closed.

Kind regards

……………… (Signature)
Maria Rawiri
Sector Manager

 

cc: The Rt Hon David Carter
Speaker of the House of Representatives
Parliament
Private Bag 18 888
Parliament Buildings
Wellington 6160”

Here are two hyperlinks that will allow you to down-load a PDF version of the authentic response by Maria Rawiri from 09 April 2015, with some personal details concealed:
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, Sector Mgr, ltr, 09.04.15
OAG, request f. inquiry, Ombudsmen Office, refusal, M. Rawiri, ltr, hilit, 09.04.15

 

Comments by the author:

This was beyond belief for the complainant; it gave him the impression that there was simply an absolute reluctance by the OAG Officers to conduct any form of inquiry or performance audit into the Ombudsmen’s Office. The reasons given did not convince him, as they did not appear valid enough. Of course he never expected a review and over-ruling of the earlier decisions made by the HDC or the Ombudsman on his complaints filed with them. While there were no signs of “financial impropriety” at the Office of Ombudsmen, the complainant felt there were reasons to consider issues like “problems with the organisation’s overall governance or management”, or “other systemic or significant concerns that may be important for the organisation, the sector it operates in, or the general public”. But Ms Rawiri did as ‘Sector Manager’ not share any of those concerns, it seems. Instead she appeared to think it was up to Parliament to decide on funding for the Office.

 
 

8. THE RESPONSE BY THE REQUESTER AND COMPLAINANT TO THE AUDITOR GENERAL’S DISAPPOINTING DECISION

The response by Maria Rawiri as “Sector Manager” for the OAG’s particular area of responsibility did not only disappoint but angered the complainant, as it was proof to him, that the senior Officers of Parliament have a dim view of ordinary citizens or residents making complaints to them. They rather appear intent on maintaining the status quo of affairs, by protecting their own personnel and established processes, same as those in the other offices of the so-called “watch dogs”. The responses appear to make a mockery of the supposed accessibility of services like the ones offered by these “complaints resolution” agencies. Accountability is only scrutinised if requests may be initiated by perhaps senior media persons, by Members of Parliament, by Ministers or perhaps business or various other established, well resourced and vocal lobby group representatives.

No matter how well worded, well prepared and considered a request or complaint is, and how much detailed evidence is provided, the Officers seem to simply pick and choose as they see fit, while the complainants have no redress, except perhaps challenging the decisions by filing for judicial review at the High Court. That requires payment of high court filing fees, of legal representation fees and so forth, meaning very high costs. Few if any ordinary citizens have access to this. “Justice” seems to depend on a person’s access to finance, perhaps his/her status in society and personal or professional connections.

In order to at least let Ms Rawiri and the rest of the OAG know how he felt and what he thought of their decision, he wrote one more letter to that Office, which was dated 23 April 2015.

 

Here is the authentic text of his letter dated 23 April 2015, which the complainant sent to the OAG:

Request for an inquiry and a special performance audit (under sections 16 (1) (a), (b) and (d) and 18 (1) of the Public Audit Act 2001) – into administrative, operational and managerial activities performed by investigating officers, and the Chief Ombudsman, at the Wellington Office of Ombudsmen; your letter dated 09 April 2015, file ref. 13xxx

 

Dear Lyn Provost, dear Maria Rawiri, dear staff at the Office of the Auditor-General

[1] I have received your letter dated 09 April 2015, which was attachment to an email received by me on that same day. With honest disbelief do I take note of your third response to the third request I presented to your Office in this matter of serious concern. I must inform you that I remain to be convinced that certainly my last request from 30 December 2014, under the Public Audit Act 2001 (the Act), falls into your scope of responsibilities. Yet you have once again decided to take no action, to neither conduct an inquiry, nor an audit, under sections 16 (1) (a), (b) and (d) and 18 (1) of the same Act.

[2] After having reviewed the information I sent you, you wrote the following: “It is clear from your correspondence that both the Health and Disability Commissioner and the Ombudsman have looked into the various concerns you have directed to them about breaches of the Code of Health and Disability Services Consumers Rights and the handling of your complaint(s) by the Health and Disability Commissioner.” You also wrote: “This office has no powers to change the outcome of the assessments made by those agencies”<e.

[3] You furthermore stated in your letter: “The Chief Ombudsman has been very open about the challenges her Office faces in her annual reports and briefings to Parliament. In our view any work on our part is unlikely to provide further significant insights on the performance of the Office of the Ombudsman.” You also made clear that it is the Auditor General’s decision whether an inquiry is initiated. You admitted that amongst other mentioned focus areas, your Office also examines management and organisational issues of public entities. You wrote that you identify whether matters raised suggest financial impropriety, problems with the organisation’s overall governance or management, or other systemic or significant concerns that may be important for the organisation, the sector it operates in, or the general public.

[4] You stated that other factors you consider include how serious the issues are, whether you have the resources and technical skills to consider them properly, and whether the issues may be better addressed through other avenues. You justified your decision not to conduct an inquiry with the comment, that “there is sufficient public information available to enable the Office of the Ombudsman to be held to account for its performance and to inform decision making by the Executive and Parliament.” With that you considered the matter closed.

[5] As I informed you in my earlier correspondence, I did not expect that your Office’s possible actions in the form of conducting an inquiry and/or special performance audit would change the outcome of assessments or decisions made by the Health and Disability Commissioner and the Office of the Ombudsman. What I expected was that your Office takes the above actions, to establish what particular performance issues there are in the specified areas at the Office of the Ombudsman, and to report on this, nothing more or less. Hence your comments about outcome changes are in my view irrelevant. Of course have both Offices “looked into the various concerns” I directed to them, but neither Office did properly assess and address them. They both decided to take no action, despite of ample evidence I presented re breaches of the Code of Health and Disability Services Consumers’ Rights, and also re unprofessional or inappropriate conduct by some staff members, primarily at the Office of the Health and Disability Commissioner. Through close analysis it becomes clear, that neither of both Offices considered all the factual and relevant information or evidence, and the investigating and assessing staff at both Offices based their decisions on rather irrelevant considerations.

[6] I have noted your new acknowledgment re the challenges the Chief Ombudsman’s Office faces, which appears to be in some contrast to your comments in your letter from 30 October 2014, where you wrote: “The Office of the Ombudsmen recently released its Annual Report for 2013/14. This report includes comments on several of the issues you raised, especially around timeliness and resourcing, which you may find of interest.” I informed you before, that I read that Annual Report 2013/14 and that the report would not sufficiently address, and not at all resolve, any of the concerns I have.

[7] In regards to some of the problems mentioned in past annual reports by the Office of the Ombudsmen, I may inform you that my recent experience shows me, that nothing has changed or improved in the performance at the Office of the Ombudsman. This is despite of some information in the annual report 2013/14 stating that more funding had been provided. I am still waiting for an Official Information Act related complaint from mid 2013 (ref. 3xxxxx), about the Ministry of Social Development withholding specified information that I sought, to be resolved by the Ombudsman. Over that time two or three other complaints about other cases where MSD did not provide the reasonably sought and expected information, have been added to that complaint, and are still only extremely slowly “progressed”. Also did I have reason to file a complaint about a decision by the Privacy Commissioner, dated 15 December 2014, and sent to the Ombudsman’s Office on the following day, which has up to this date not even been assessed. That matter under file reference 39xxx9 appears to be still in the process of being allocated to an investigator, as an email from the Office, dated 12 January 2015, informed me. Xxxxx Pxxxx, Manager Intake and Assessment, informed me that “due to the volume of complaints this Office is managing we are experiencing delays in progressing some of the complaints before us.” She also wrote: “We will work through the complaint you have made and the facts you have given us and contact you again. If we have not allocated your complaint to an investigator within the next six weeks, we will send you an update on your complaint.” No update or response has been received by me until this day!

[8] Besides of the ongoing timeliness issues, my main concern has though been the conduct and performance of investigating Officers at the Ombudsman’s Office, when handling complaints. Also the unwillingness of the Chief Ombudsman, to look herself at relevant correspondence and evidence, instead of simply relying on her staff member’s judgment and advice, has been a concern. Miss Wakem did as employer regrettably refuse to examine her investigating Officer’s performance and conduct. I even presented the fact that staff at the Office of the Health and Disability Commissioner lied about email evidence they received with one of my complaint, and that the investigating Officer at the Ombudsman’s Office ignored that and other relevant information. There are evident problems with the whole Office’s and management’s performance, there are systemic performance issues causing significant concerns, important for the organisation and the role the Office of the Ombudsman is meant to perform. Given the Ombudsman’s own admissions, and reports of other complainants experiencing numerous problems, the matters I raised with your Office are of serious concern for the general public.

[9] In my view such serious matters should have compelled you to take some action. It is in my view not sufficient to simply conduct the ordinary annual financial audits for the Office of the Ombudsman and have this included in that Office’s Annual Report. The evidence I provided should have been more than sufficient reason for your Office to conduct a separate, independent and thorough inquiry and audit, as you have done re matters of apparently even lesser significance. Besides of its many other functions, the Office of the Ombudsman is expected to perform a high level watchdog and complaints resolution role, but with the ongoing problems that persist, it has to some degree become dysfunctional.

[10] With much regret, I must inform you that I have now lost confidence in the Office of the Auditor General, same as I have already previously lost faith in the Office of the Health and Disability Commissioner and the Office of the Ombudsman. My experiences have sadly been extremely negative, and it astounds me, that a justifiably aggrieved person, who is seeking an honest and proper effort in the form of a proper assessment and investigation of complaints, is being passed on from one agency to another. From each Office I was simply asking for a proper assessment, followed by an investigation. From the Health and Disability Commissioner and the Ombudsman I expected an official, formal acknowledgment of failures or wrongdoings I experienced at the hands of mentioned persons or agencies. Even just a fair and reasonable recommendation for problems to be remedied would have sufficiently addressed my concerns.

[11] Given my previous experiences, and the recent, third decision by your Office, to take no action, I am left to wonder, whether this decision was made, so as to not upset persons working at the Ombudsman’s Office, who may be personally known to some of your staff. I am indeed missing a sense of integrity to the purpose of the existence of the Office of the Auditor General. But I dare not raise further questions based on such speculations.

[12] While I note that at the end of your letter from 09 April 2015 you ”cc” The Right Honourable David Carter, Speaker of the House of Representatives, there was no clear mention whether you have now actually passed on all the correspondence and evidence I presented to your Office also to the Speaker’s Office. In order to clarify matters, I must therefore ask you to at least confirm to me in writing, that this has been done, and that I can look forward to a response from the Speaker or his staff in due time.

[13] Please find attached to this letter two PDF files containing two emails from the Office of the Ombudsman, confirming the already known, and unchanged serious problems the Office faces. Your written response in this matter will be expected in due time.

Yours sincerely

Xxxxxxx Xxxxxx

Attachments (2 PDF files with last correspondence from Ombudsman Office):

1. Ombudsman, complaint, Priv. Cmsnr, ref. 39xxx9, email acknowledgmt, 18.12.14.pdf;
2. Ombudsman, complaint, Priv. Cmsnr, ref. 39xxx9, update, delay, email, 12.01.15.pdf.”

Here is a link to a down-loadable PDF file containing the letter dated 23 April 2015, which is perhaps easier to read:
OAG, CAG, reqst f. inquiry + audit of Ombudsman’s Office, ref. 13xxx, reply, anon, 23.04.2015

 
 

9. A PRIVACY ACT REQUEST TO THE AUDITOR GENERAL

As the complainant did no longer have any faith in the OAG helping him or other persons affected by flawed and unacceptable decisions by the HDC, Ombudsman or similar Officers, he decided to make a request under the Privacy Act, to seek particular specified information, so he could at least hold the OAG to account for having kept and considered certain documents, or having failed to do so. That way he could also find out what consultations may have been conducted with any other involved parties.

So on 07 May 2015 the complainant sent the following request to the OAG:

 

“Re: Urgent request under section 34 of the Privacy Act 1993 (the Act), for confirmation of information being held on me, in relation to my earlier requests for an inquiry and audit into the Ombudsman’s Office; see also your file ref. 13xxx

Dear Lyn Provost, dear Maria Rawiri, dear staff at the Office of the Auditor-General

Please accept my request under section 34 of the Privacy Act 1993 for confirmation that your Office is holding personal information on me in relation to requests I made to your Office, to conduct an inquiry into, and audit of, the Office of the Ombudsmen. I urgently seek this confirmation under section 6 and Principle 6 (1) (a) and (b) of the Act.

I ask that the information is made available to me according to the provisions of section 42 (1) (e), by listing the individual documents containing any information kept on me, including such that was received from me by email or post, by name, title, date and type of record.

Furthermore I ask you to confirm to me, whether any of the personal information was provided to another agency (or Office) under section 6 and Principle 11 of the Act, whether under section (d), or under any other section (or subsection) of that Principle. In the case information has been disclosed to another agency (or Office), I also ask for this to be disclosed by name, title, date and type of record under section 42 (1) (e) of the Act.

I had already previously asked for confirmation from you, whether the information I had sent to you, had been sent on to the Speaker of the House of Representatives, as I had requested in the case your Office would uphold a decision not to conduct an inquiry or audit into the Ombudsman’s Office. This was by way of my letter dated 23 April 2015 (see Para [12]). But no confirmation had ever been provided. Hence I asked you again in an email dated 01 May 2015 (sent 08:15pm), to expressly confirm the same, but again no response of any sorts has been received from you.

As the matters I raised with your Office are of extreme concern to me, I insist on being informed about what information you hold on me – and in relation to past correspondence, and on what action you have taken to meet my repeated requests, that the matters be referred to the Speaker of Parliament.

Given the huge delay in time since my first request, and given the delay in responding to my last requests for confirmation, I consider this Privacy Act request as being very urgent, as further delays will severely disadvantage me in having the various serious issues resolved in a satisfactory manner.

I expect your considered response as soon as is reasonably possible under these circumstances.

Yours thankfully and sincerely

 

Xxxxxxx Xxxxxx

 

Attachment to email carrying this letter (1 PDF files with a scan copy of this letter):

‘OAG, Privacy Act request, for personal information held, your ref. 13xxx, X. X., 07.05.15’”

Here is a link to a down-loadable PDF file containing the full request dated 07 May 2015, which is perhaps easier to read:
OAG, CAG, Privacy Act request, info held, re ref. 13xxx, ltr, anon, 07.05.2015

 
 

10. THE AUDITOR GENERAL’S ACTING LEGAL ASSISTANT’S RESPONSE FROM 20 MAY 2015

With a letter dated 20 May 2015 Edrick Child, Acting Assistant Auditor-General, Legal, responded to the complainants Privacy Act request. It was reasonably frank and detailed, and copies of requested documents and information were attached or enclosed. But this did hardly offer any remedy to the complainant’s unresolved issues and requests, so all he could gain from it was to get a little more insight into how his requests may have been handled.

We will not bother presenting a transcript of the letter here, but simply offer a down-loadable PDF with a scan copy of it – found via these links:
OAG, request f. inquiry, Ombudsmen, personal info, Priv. Act, E. Child, Assistt AG, ltr, 20.05.15
OAG, request f. inquiry, Ombudsmen, personal info, Priv. Act, Assistt AG, ltr, hilit, 20.05.15

 

Comments by the author:

The Acting Assistant Auditor-General’s letter is largely self explanatory. It reveals that only the OAG’s letter dated 09 April 2015 had been referred to the Speaker of the House of Representatives, for his consideration. No other correspondence had been on-forwarded to the Speaker. There was also no correspondence, indeed there were no communications of any kind, that appear to have been exchanged with the Ombudsmen. So there was no attempt made to seek any comments from their Office, nor was there any correspondence on-forwarded for them to consider. The table attached to Edrick Child’s letter contained a list of documents that mostly showed correspondence that had been exchanged between the complainant and the OAG. Attachments were also listed, but as they were small in number, and were mostly such that had already been attached to the earlier posts on the complaints made to the HDC, or the Ombudsman, we will not bother attaching any of them here, at least for now.

 
 

11. CONCLUSION

We can see now, that the whole system we have here in New Zealand is a highly sophisticated but also difficult one to work with. But it appears to have been constructed with the intention to keep complaints and complainants at low numbers. Going through the difficult process of making formal complaints to the HDC, and then also to the Ombudsman’s Office, the complainant had to find out, that it can apparently only be a small number of complaints that will ever be taken seriously enough to be properly, fairly and reasonably investigated and addressed by any Officer of Parliament. Indeed one may say, the Officers of Parliament seem to even be collaborating in their efforts to keep complainants off their doorsteps – and also out of the courts, offering damned little in true and honest “complaints resolution”.

The law they all operate under gives the Officers in charge a wide scope for discretion to either take action, or take no action, and many provisions allow them to present apparently valid reasons for not investigating complaints.

In the end an unsuccessful complainant, like the person who went through all these stages, has only the courts to try seek remedies, in most cases probably through filing for a judicial review of decisions that were made. But as the law is written, the chances of success will be rare and limited. “Fairness for All” is the slogan the Office of Ombudsmen now uses and prints on their letters and shows on their website. Surely for some it is nothing but a hollow, meaningless or even dishonest slogan.

But any person who may persist and continue challenging earlier made decisions, he or she will most likely be labelled as being overly “litigious”, a “serial litigant”, therefore a frivolous person causing nuisance, and will simply not be taken seriously.

 

Updated: Saturday, 10 September 2016

 

Quest For Justice

 
 

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