Ombudsman's recommendations - second report

Follow-up on my 2016 Report on recommendations

Every two years, I provide a snapshot of how the implementation of my recommendations is progressing. In my 2016 Report on recommendations, I reported on authorities’ progress to implement 61 recommendations made between April 2014 and March 2016. At the time, 19 (31 per cent) recommendations had been implemented and work to implement a further 38 recommendations had started. Now, 49 (80 per cent) of the 61 recommendations have been implemented.

Further to monitoring the implementation of my recommendations, I evaluate whether the desired improvements have been realised. In some instances, the benefit gained is clear and tangible. However, occasionally it becomes evident that underlying issues remain unresolved. The following are examples of what can happen several years after my reports are tabled.

Councils and complaints – A report on current practice and issues

In February 2015 I tabled Councils and complaints – A report on current practice and issues. The report highlighted the value of complaints, set out seven principles of effective complaint handling and made three recommendations aimed at ensuring councils met high standards when dealing with complaints. This report was accompanied by a guide that provided practical advice to assist councils in developing and implementing effective, efficient and fair complaint handling systems.

When I tabled this report and published the Guide, the Government was in the early stages of reviewing the Local Government Act 1989 (Vic).

After three years of consultation, on 23 May 2018, the Local Government Bill 2018 was introduced into Parliament. If the Bill passes, my recommendations that a ‘complaint’ be defined and that all councils should have a complaint policy will become law.

Investigation into the rehabilitation and reintegration of prisoners in Victoria

In September 2015 I tabled a report on my Investigation into the rehabilitation and reintegration of prisoners in Victoria. The investigation was prompted by the growth in prisoner numbers, rates of reoffending and increasing cost to the Victorian community. This investigation resulted in 25 recommendations. The recommendations centred on a whole of government approach to reducing reoffending, in addition to increasing investment in, enhancing and improving the availability of programs aimed at preventing and reducing recidivism rates.

At the time of my 2016 report, only four recommendations had been implemented. Since then, the Department of Justice and Regulation (DJR) has implemented a further 16 recommendations, with five still in progress. Despite this progress, the same concerns that prompted me to investigate persist. Prison numbers and the cost to the public are at all-time highs, and close to half of all prisoners released reoffend and return to prison within two years. As the Government tightens sentencing and bail conditions, and builds more prisons, there is no indication that these trends are likely to change.

The steps taken by DJR to respond to my recommendations are significant. I have seen tangible benefits, such as the introduction of a new Drug Court in Melbourne, a new Koori Court in Mildura and increased funding to non-government organisations that provide transitional support to prisoners.

However, we are still yet to see a whole of government approach where education, health, housing and employment all play their role in reducing offending.

I will continue to monitor and report on the need for a whole of government approach, but it is clear that the community must also act as advocates for change to achieve long-term and sustainable reductions in offending and its cost to the community.

Reporting and investigation of allegations of abuse in the disability sector

In June and December 2015, I tabled the two phases of my report on Reporting and investigation of allegations of abuse in the disability sector. Together the reports contained 13 recommendations to the Government and Department of Health and Human Services (DHHS).

At the time of my 2016 Report on recommendations, work to implement the recommendations had started, however none were completed. It was difficult to see what changes would be made to ensure that DHHS’s oversight of the disability sector and the processes for incident reporting improved.

Since then, DHHS has kept my office informed of its approach and progress. It has responded to my recommendations by developing an entirely new Client Incident Management System (CIMS). DHHS says that CIMS, and its supporting policies and procedures, is client-focussed, has clear reporting lines, and is easy for disability providers and DHHS staff to use. It gives DHHS clear oversight of incident reporting and investigations, and fulfils the intent of a number of my recommendations to DHHS.

DHHS has expanded its use to other areas of DHHS, including:

• child protection
• family violence and support services, and
• public and some health services.

By doing so, DHHS says it is now able to easily track client access to multiple services, supporting better coordination across its operational divisions.

Why I investigated

Between June and September 2014, I received a series of complaints about Casey City Council’s special charge scheme in Market Lane, Narre Warren South. Special charge schemes are set out under the Local Government Act 1989 (Vic). This scheme required residents to pay a levy that would cover the cost of sealing and installing drainage and lighting in Market Lane.

Residents raised concerns about the council’s:

• consultation process, which appeared to discount submissions or concerns where they were not in favour of the scheme
• provision of information, including about owners’ right to object and the interest rate that would be applied
• decision to increase the interest rate during a closed council meeting, in which residents could not participate.

Why I investigated

About a quarter of the complaints received by my office are about local councils. The varied nature of the issues identified in these complaints reflects the breadth of important services councils provide to their communities. In these complaints, individuals occasionally mention council decisions that were made ‘in secret’ or ‘behind closed doors’ as contributing to their suspicions about, or dissatisfaction with, the council.

The Local Government Act 1989 (Vic) contains provisions that encourage public participation in councils decision making processes. My investigation into Casey City Council’s special charge scheme for Market Lane highlighted the opportunity councils have to make decisions in meetings that are closed to the public without justification, contrary to the Local Government Act.

In March 2016, I started investigating the transparency of council decision making. My investigation considered councils closure of meetings; handling of confidential matters; use of delegations in decision making; and the nature and quality of its records and public availability of those records. While my investigation examined information about all 79 councils, I decided to undertake a more detailed examination of 12 councils which were geographically and demographically representative of councils across Victoria.

In September 2015, the government announced its intention to review the Local Government Act. I intended the evidence obtained during my investigation, as well as the resultant findings and recommendations, to inform the government’s review.

What I found

My investigation found that Victorians are subject to a ‘postcode lottery’ when it comes to local government transparency. Some councils modelled best practice in transparency, utilising new technologies to live-stream their council meetings to the public. In contrast, others prioritised making decisions at closed council meetings, at the cost of input from and accountability to those they were elected to represent.

The Local Government Act allows for this level of disparity. While it supports the flexibility required of councils to accommodate the specific needs of its constituents, it is outdated and does not reflect current community expectations. It allows council meetings to be closed for a very broad range of reasons that too easily permit secretive decision making. This can breed suspicion amongst those not able to access the decision making process. It also lends itself to being misused and makes decisions made in closed meetings almost impossible to question.

Beyond the decisions and processes that take place in council meetings – closed or open – are the discussions and agreements that occur in other fora, such as pre-meetings, briefing sessions and council dinners. These settings are not subject to the same levels of public scrutiny, nor do they attract the record keeping requirements, that apply to council meetings. The deals and arrangements made between councillors outside council meetings, hidden from the public, can improperly influence decisions made within meetings.

What has happened since

Since my report was tabled, the government’s review of the Local Government Act has been completed. On 12 December 2017, the government published an exposure draft of the new Local Government Bill for consultation. On 23 May 2018, the Local Government Bill 2018 was introduced into Parliament.

In keeping with my recommendations, the replacement Local Government Act narrows the grounds on which meetings can be closed; mandates that councils develop a public transparency policy; and strengthens the conflict of interest provisions. Local Government Victoria, which has been responsible for the review, has been open and willing to engage with my office in relation to the recommendations it had partially accepted.

Further to the proposed amendments to the Act, I have noticed many councils have made a concerted effort to increase the transparency of their decision making. Research by my office shows that the number of councils live streaming meetings has almost trebled since my report was tabled, with 30 councils now live streaming meetings and a further two councils due to commence live streaming in July 2018.

Live streaming boosts transparency at Council meetings

In a boost to transparency and community engagement, [City of Port Phillip] Council meetings held at St Kilda Town Hall will be live streamed, starting 6.30pm on Wednesday 17 May [2017]

... Mayor Bernadene Voss said a Victorian Ombudsman report in 2016 identified live streaming of Council meetings as an excellent way to facilitate community engagement with local governments.

‘It’s exciting because live streaming means more people will have easier access to watch democracy in action …’

City of Port Phillip media release, May 2017

Why I investigated

Since the introduction of Authorised Officers (AOs) to check tickets on public transport, my office has received complaints about their behaviour and excessive penalties associated with fare evasion.

Most complaints about public transport fares and fines are dealt with through the Department of Economic Development, Jobs, Transport and Resources’ (DEDJTR) internal review process or the Public Transport Ombudsman, or they end-up in court. Prior to my investigation, the Public Transport Ombudsman had raised concerns with me about an increase in complaints about infringements and on-the-spot penalty fares received by her office.

Between 10 August 2014 and 1 December 2015, my office received almost 400 complaints about public transport infringement-related issues. The complaints included people’s accounts of being fined despite their circumstances clearly indicating they were unaware of their obligations (visitors from rural areas or overseas); entitled to travel on a concession fare; were suffering a significant impairment; or were homeless and would be unable to pay the fine. People also reported that they felt AOs had pressured them into paying the on-the-spot penalty fare, thereby forfeiting any right to appeal or review without being informed of these consequences. I decided to focus my investigation on whether the approach to preventing fare evasions was fair and equitable to public transport users, and whether the use of infringements and on-the-spot penalty fares operated as an effective deterrent to fare evasion.

What I found

In 2014-15, 564 million trips were made using Victoria’s public transport on trains, trams, buses and coaches. In 2015-16, the number of trips made on public transport increased to 594 million. Fare evasion costs the state tens of millions of dollars each year. Fare enforcement is both a deterrent and sanction, acting to mitigate these losses.

The aspects of the infringement system that I found particularly concerning included the:

1. ‘on-the-spot’ penalty fare option created a two-tier system that was not properly integrated and did not target recidivist offenders
2. lack of discretion exercised by AOs in issuing Report of Non-Compliance (RONCs), reinforced by a lack of guidance and training to AOs, including to individuals who:
   
   • evidently had made a genuine mistake that could have been easily rectified had the opportunity been provided
   • clearly had a concession entitlement, regardless of whether they were carrying a concession card
   • met the criteria for ‘special circumstances’ that would likely result in any penalty being waived or withdrawn
     
3. inadequacy of resources dedicated to DEDJTR’s internal review process which involved little consideration of the merits of the decision and was accompanied by poor administrative practices
4. DEDJTR’s tendency to prosecute infringements at significant cost, given only two in ten resulted in any financial penalty

Why I investigated

In May 2016, I received a complaint from a mother, Ms X, who had experienced the devastating loss of her young child. Ms X contacted my office after she had tried to resolve issues concerning her application for documents from the Registry of Births, Deaths and Marriages (BDM). She had requested copies of her son’s birth certificate without a ‘deceased’ annotation; a copy of his surviving twin brother’s birth certificate; and a copy of the death certificate containing correct details. BDM advertised a 10 – 20 day turnaround timeframe, but Ms X had waited months to receive the documents.

Attempts by my office to resolve Ms X’s complaint informally were not successful. Instead, the responses received from BDM to my office’s initial enquiries suggested potentially systemic issues. We also observed that in the 12 months prior to Ms X’s complaint, we had been receiving an increasing number of complaints about BDM, the majority relating to delays and poor communication.

Therefore, as part of my ensuing investigation I not only examined BDM’s handling of the specific complaint, but also looked more broadly at its management of applications; the way in which it communicated its decisions; and whether it took into consideration the personal circumstances of the people and the families which rely on its documents.

What I found

My investigation found BDM had no documented policy, or clear rationale, for including the ‘deceased’ annotation as a matter of course. BDM’s processes were not consistent with the Births, Deaths and Marriages Registration Act 1996 (Vic) which provided BDM the option not to use the annotation.

The fact the legislative discretion exists indicated that law makers anticipated exceptional circumstances where it would not be appropriate to include the annotation. In relation to BDM’s processing of Ms X’s application, I found a series of deficiencies. BDM was unable to confirm receipt of Ms X’s application and had failed to inform her that it had deemed the application documents incomplete, meaning that the applications would not be processed. This all occurred despite Ms X submitting complete applications and paying processing fees totalling $99.65, which had been held by BDM. It was after my investigation had commenced that BDM provided Ms X two birth certificates and one death certificate.

More broadly, I found that processing delays and poor record keeping were not isolated to Ms X’s case. BDM lacked policies, procedures and proper processes for managing and responding to applications. Its database was outdated and could not perform simple tasks, such as linking an email to a record of a person’s life events, with staff resorting to managing applications in spreadsheets. BDM officers’ advice to members of the public was inconsistent and, at times, unhelpful and incorrect. Collectively, these conditions did not support BDM officers to operate effectively and efficiently, and resulted in poor interactions with members of the public.

What has happened since

Since my investigation, BDM has taken steps to remedy the issues I identified. This has included providing Ms X an apology for mishandling her application, and refunding the processing fees for her three applications.

BDM has established a written policy to always include a ‘deceased’ annotation on a birth certificate for a person who is deceased, acknowledging that greater discretion is allowed for by the Births, Deaths and Marriages Registration Act. The policy includes the rationale for this approach. Given this position, BDM has still not provided Ms X with a second copy of a birth certificate that does not contain the ‘deceased’ annotation. Ms X remains dissatisfied with this outcome.

To address the broader processing and record keeping issues, BDM appointed an external auditor to review its business practices. BDM has also completed work to improve communications with the public, which has included a refresh of its templates and updated processes that cover when and how it should follow-up with applicants, including using more helpful language.

My investigation started during a marked increase in complaints about BDM with 197 complaints received in 2016, or almost double the number received in 2015. However, since my report was tabled this trend has turned around. During 2017, we received 90 complaints about BDM and observed a steady decrease month-to-month as the year progressed.

Why I investigated

Sometimes I see an issue that affects all areas of government because it strikes at the heart of how people see the authorities that are meant to provide for, and support, them. Most of the time, the community expects and receives a reliable, responsive and quality service. However, when it does fall below reasonable expectations, the one constant thing many people want is an acknowledgement of the failure – recognition that some disappointment or, in more serious situations, harm has occurred at least in the form of an apology.

I have seen the positive effect of apologies. Relationships between an authority and a member of the public that may have seemed irreparably damaged have been rebuilt on the basis of an apology. I have also seen agencies refuse to say sorry, even where there is no doubt that their actions have been wrong, prolonging the sense of injustice and leaving that matter unresolved.

Given the very different approaches authorities take to providing apologies, I wanted to look at why some apologise and why some do not, the role apologies play in resolving disputes and to share any lessons from this work with the rest of the Victorian public sector.

What I found

I examined the use of apologies using my power to conduct enquiries under section 13A of the Ombudsman Act 1973 (Vic). This power enables me to look at an administrative action – in this case, a decision to apologise – for the purpose of determining if an issue may be informally resolved or investigated.

As part of my enquiries, I asked 80 authorities from different areas of government (including departments, local councils, hospitals, universities, TAFEs, prisons, workers compensation insurers, regulators and complaint handling bodies) to tell me how they deal with apologies. The responses to my survey showed authorities have very different positions on making apologies. While almost all were willing to apologise at least some of the time, many were reluctant to acknowledge fault or responsibility and a small proportion stated they would never apologise. For the more cautious authorities, a common concern was that an apology constituted an admission of liability, leaving the authority open to being sued for costs and damages. This prospect was considered to be a substantial barrier to providing an apology.

After comparing the results of these surveys, my office conducted research into the legislative supports and obstacles to authorities providing apologies, and
examined complaints my office had received. I then identified examples of best practice.

While apologies are not always appropriate or accepted, they are powerful when they are sincere and timely. Effective apologies will often consist of the following elements:

• Recognition - recognition of the mistake and the harm it caused
• Responsibility - an admission of responsibility or fault
• Regret - an expression of regret or sympathy
• Reasons - an explanation of what happened, or what will be done to investigate
• Redress - an explanation of what is being done to fix the mistake or prevent it happening again
• Release - if it is appropriate, a request for forgiveness.

The Government informed my office that it is currently considering the scope of possible amendments to the Wrongs Act. The Department of Justice and Regulation in conjunction with the Department of Health and Human Services is considering introducing a statutory duty of candour for the health sector, which would similarly require amendments to Victoria’s apology laws.

Why I investigated

In March 2016, IBAC referred to me two matters that had been determined to be a protected disclosure complaint. I commenced an investigation into the conduct of the Chief Executive Officer (CEO), Property Manager and Chief Financial Manager of the Mount Buller
and Mount Stirling Alpine Resort, and the Board Chair of the resort’s board. After my investigation started, IBAC referred two more related matters to my office and a number of further allegations arose in the course of my investigation, all of which were investigated.

The allegations related to the subjects’ use of public money and property for their own private benefit, including that they:

• purchased airfares for family members and paid for overseas travel costs for what were essentially personal holidays
• purchased personal goods and services on government credit cards
• provided free accommodation, and resort passes, to family and friends in contravention of the resort’s policies
• awarded monetary and material benefits to senior staff outside the standards and requirements set for government sector executives.

• Travel and Work Related Expenses
• Purchasing Cards, which covers the management and authorisation of purchasing cards and requires that cardholders sign a Cardholder Agreement
• Accommodation policy, which specifies conditions and limits on use, and establishes approval requirements.

In November 2017, the Minister for Energy, Environment and Climate Change announced changes to the governance structure for Victoria’s three northern alpine resorts, including the Mount Buller and Mount Stirling Alpine Resort Board. Additionally, the composition of the three boards was refreshed following an expression of interest process, with the new appointees announced in late March 2018.

Why I investigated

In July 2016, IBAC referred to me a ‘protected disclosure complaint’ about the Chief Information Officer (CIO) of the Metropolitan Fire and Emergency Services Board (MFB). I subsequently received a related disclosure. The allegations included that the CIO had:

• employed two of her children at the MFB and awarded them pay rises, without declaring the relationship
• manipulated recruitment processes to ensure one of her sons was successful in a recruitment process.

• the CIO’s sons changing their surnames, to remove any resemblance to their mother’s surname, shortly before commencing employment at the MFB
• the CIO and her sons failing to declare their relationship or the associated conflict of interest
• the CIO manipulating recruitment agencies’ processes to ensure her sons were offered as candidates.

• in two instances claimed to have conducted interviews, despite evidence indicating no legitimate interviews took place
• claimed to have undertaken pre-employment checks, despite evidence indicating no such checks were made and the investigation uncovering she had fabricated reference-check documents
• falsified both sons’ CVs to include experience or qualifications that they did not have
• arranged for one son’s contract to be extended and for him to receive a pay rise without adequate transparency or justification
• coached and colluded with her sons to prepare them for roles she intended to appoint them to.

Why I investigated

In June 2015, IBAC referred a protected disclosure complaint which detailed failures by disability service provider Autism Plus to manage the behaviour of a disability resident, Edward.² It was alleged that these failures led to Edward sexually assaulting another disability resident, Robert, on multiple occasions as well as making threats of physical violence against Robert and his family.

In this case, both the perpetrator and the person allegedly assaulted had multiple disabilities. Both were resident in a group home operated by Autism Plus.

What I found

Autism Plus was a for-profit provider of disability accommodation and day programs. It provided services to clients of the Department of Health and Human Services (DHHS) on a ‘fee for service basis’, under a service agreement with DHHS. In 2014-15, Autism Plus received over $5 million in funding from DHHS, including $266,923.58 allocated for Edward’s care. DHHS was responsible for both funding and regulating the services provided by Autism Plus.

My investigation found that Autism Plus and DHHS failed to respond to a series of incidents involving Edward, including several alleged sexual assaults against Robert. Both Autism Plus and DHHS were aware of, and had discussed concerns about, the incidents but neither contributed to any significant changes to improve the support and accommodation arrangements for Edward or Robert.

The deficiencies in DHHS’s oversight of Edward’s care and support suggested a systemic problem. Edward was a dual client of DHHS’s Child Protection and Disability Services, however there was a lack of coordination between these areas and confusion about who had primary responsibility for Edward’s case.

DHHS did not adequately assess Edward’s treatment or placement requirements, did not ensure Autism Plus completed necessary tasks and did not properly consider alternative placement options. DHHS’s record keeping was poor, with documents incomplete, inaccurate or missing. In terms of its role as a regulator, DHHS did not adequately monitor Autism Plus and failed to intervene when issues with Autism Plus were known.

My investigation showed that Autism Plus and DHHS repeatedly made decisions that were not in the best interests of those they were charged with protecting, thereby exposing Edward, other clients and Autism Plus staff to unacceptable risks.

The investigation raised questions about the inherent conflict that arises from a private provider operating for profit, receiving government funding to perform a public function.

What has happened since

On 10 April 2018, following a review by DHHS and an order by the Minister for Disability, Autism Plus was placed under administration.

Why I investigated

The workers compensation scheme is an important safety net that provides medical and financial support to those who are injured at work. The scheme is administered by private insurance agents (WorkCover agents) and overseen by the Victorian statutory authority, WorkSafe.

Although I have jurisdiction to investigate complaints about workers compensation, my office had in the past generally advised WorkCover claimants to dispute decisions about their claim at conciliation. The Accident Compensation Conciliation Service (ACCS) was established for the specific purpose of dealing with such disputes. Despite this option, my office continued to receive a significant number of complaints about the claims process, individual claim decisions and issues with payments. On closer examination of the complaints, I found multiple accounts of injured workers being put through unreasonable and unnecessary processes in order to continue receiving payments and other entitlements, and having claims terminated despite still being unable to work.

In September 2015, I decided to investigate the management of the small proportion of complex claims which represent approximately 20 per cent of new claims, but 90 per cent of the scheme’s liabilities.

What I found

Part of my investigation examined decisions of the five WorkCover agents responsible for administering the workers compensation scheme at the time of the investigation, as well as WorkSafe’s oversight of WorkCover agents’ decisions.

I found many instances of good administrative decision making by some staff. However, my investigation also revealed poor behaviour by all five WorkCover agents when it came to complex claims.

I found numerous examples of WorkCover agents failing to adhere to requirements, including:

• selectively using evidence to support a decision to reject or terminate a claim, while disregarding evidence that did not support the decision
• preferentially engaging Independent Medical Examiners (IMEs) that were known to more likely hold an opinion adverse to the worker, as well as WorkCover agents ‘shopping’ for IMEs that would return a desirable assessment
• maintaining unreasonable decisions at conciliation, only to have the decision change or overturned at conciliation or court
• making decisions that were contrary to binding Medical Panel decisions.

Why I investigated

On 1 September 2016, I announced my decision to investigate Victorian state government school expulsions.

This was the result of:

• a number of complaints from parents and guardians about expulsions being a disproportionate disciplinary response, there not being the opportunity to be heard, and a lack of support for students to find another school
• a 2016 report released by the Youth Affairs Council Victoria which concluded expulsions led to students disengaging from education and found a correlation with the longer-term disadvantage
• complaints data from the Department of Education and Training (DET) which indicated a 25 per cent increase in expulsions between 2014 and 2015
• public concern about youth crime in Victoria, and the known correlation with disengagement from education.

• ensure schools complied with the Ministerial order that seeks to protect students from being unfairly expelled
• identify and address the prevalence of expulsions among vulnerable groups of students.

• investing $5.9 million in programs aimed at preventing the behaviours that lead to expulsion
• introducing better supports and additional departmental staff to assist all who are involved in an expulsion through the process – principals, parents, guardians, students and department officers – with a focus on ensuring that students remain engaged in education
• enhancing the expulsion appeals process by appointing a new independent member to the expulsion review panel and introducing a new independent panel that can reconsider overturned expulsion decisions
• improving data collection processes, monitoring and reporting
• supporting school leaders to increase their capability in dealing with complex cases involving students and parents, including providing better access to alternative dispute resolution processes.

Why I investigated

In February 2016, the Tenants Union of Victoria contacted my office on behalf of one of its clients. It alleged that Housing Victoria, part of the Department of Health and Human Services (DHHS), unreasonably raised and pursued a maintenance debt in excess of $20,000 against the client after she had vacated the property.

The client, a victim of family violence, had hastily left the property due to serious concerns for her safety. Despite DHHS being informed of her circumstances, there was no evidence of it having tried to contact her. Instead, DHHS escalated the disputed debt to the Victorian Civil Administrative Tribunal (VCAT). VCAT decided the client was liable for approximately 5 per cent of the original amount sought by DHHS.

As this complaint appeared to raise systemic issues, I decided to investigate DHHS’s management of maintenance claims against its tenants. My investigation focussed on:

• the actions of DHHS at the end of tenancies
• whether DHHS was meeting its obligations as a model litigant when escalating disputed debts to VCAT.

• raised and pursued repair and damage costs for unreasonable amounts, not taking steps to determine the cause of damage or deterioration nor considering the effect of reasonable wear and tear
• failed to send debt recovery notices to former tenants, instead unreasonably sending notices to the address that the tenant was known to have vacated
• breached its obligations as a model litigant by habitually escalating dispute debts to VCAT rather than determining liability for maintenance costs itself
• unreasonably prevented those with a debt from being able to access further housing, despite former tenants being unaware of the debt and in being in circumstances that would mean they cannot afford to repay it without suffering further hardship
• relied on inexperienced staff to assess maintenance requirements and represent DHHS at VCAT, without providing them with adequate time, training or support.

I also found that VCAT consistently awarded DHHS less than half of its original claim where the tenant attended to defend the claims, indicating that the amounts DHHS tried to claim from tenants were often exaggerated.

Overall, DHHS’s end of tenancy practices showed that it was failing to be a fair social landlord. Its propensity to pursue significant amounts of money from people who were only eligible for public housing due to their circumstances, without checking whether they were truly liable, was unjust. DHHS needed to make comprehensive changes to the way it handled end of tenancy assessments and the recovery of maintenance debts.

What has happened since

My recommendations targeted specific areas requiring attention – broad policy and operational changes, improving internal guidance for department staff and embedding this guidance as part of the culture within the department.

At the time my report was tabled, the department had already started taking steps to improve its practices. Work to implement the recommendations has continued, and DHHS has informed me that it expects to complete implementation of all recommendations in 2019

Why I investigated

Kinship care is an increasingly important and relied upon form of out-of-home care for children who cannot live with their parents or immediate families. Although kinship carers are the backbone of out-of-home care, they are not afforded the same level of funding or support compared with foster carers.

My office had steadily received complaints from kinship carers about delays and errors in processing kinship care payments and requests for increased allowances.

Previous research had already revealed that kinship carers were often disadvantaged themselves. They are more likely to be older, female, single and experiencing their own challenges, such as poor health and financial hardship. The research also showed kinship care was critical to ensuring Aboriginal and Torres Strait Islander children in out-of-home care maintained a connection with their kin and culture. These children are significantly over-represented in out-of-home care placements when compared to their non-Aboriginal and Torres Strait Islander counterparts.

Within this context, I investigated the Department of Health and Human Service’s (DHHS) oversight of the kinship care system, focussing on the financial support provided to kinship carers.

What I found

I found serious deficiencies in DHHS’s administration of financial supports provided to kinship carers. These deficiencies repeatedly placed kinship carers under financial stress and were not in the interests of the children.

Kinship carers were automatically allocated the lowest level of allowance. This could be increased, however DHHS routinely failed to complete the assessments required to determine the needs and interests of the children, and failed to initiate the application for a higher allowance, leaving children inadequately supported.

Additionally, kinship carers were burdened with having to repeatedly prove their entitlement to financial support. These issues were further compounded by DHHS’s lengthy delays in processing applications and payments, and a general lack of information being available to kinship carers about the application process and their eligibility for a higher care allowance.

The unnecessarily complicated processes involved in the administration of financial support for kinship carers not only caused financial hardship to kinship carers, but also potentially resulted in a poor outcome for the child where they were unable to stay in kinship care, and removed to foster or residential care. Overwhelmingly, I found the way in which kinship carers were treated in terms of their access to adequate financial support to be inequitable, unjust and wrong.

What has happened since

The findings of my investigation showed there was a clear case for DHHS to improve the financial support available to kinship carers. My recommendations addressed the inequity in the system; the need to complete assessments to ensure that children in out-of-home care kinship placements have their needs and interests met; and the need to increase information and awareness of the financial support that is available to kinship carers, to both carers and the Child Protection. Practitioners who are responsible for ensuring that a child placement is adequately resourced.

In addition to the cases examined during the investigation, my office has continued to receive complaints from kinship carers. As a result of enquiries and investigations undertaken by my office since my report, a further $201,224 of entitlements, including back payments, have been made to kinship carers. Also, $4,108 in debt claimed by DHHS has been waived.

Why I investigated

Given my office’s role and experience in dealing with human rights, I have long held an interest in the United Nation’s Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). OPCAT aims to open environments of detention
up to monitoring bodies, known as a ‘National Preventative Mechanism’ (NPM). The role of NPMs is to ensure that those held in detention are not subject to torture and other cruel, inhuman or degrading treatment. The settings that can be subject to monitoring include well recognised places of detention, such as police cells, immigration centres, psychiatric hospitals and prisons, but may also extend to other settings where liberty is in some way limited, such as aged care facilities.

In February 2017, the Commonwealth Government announced its intention to ratify OPCAT.

To test Victoria’s readiness for implementing OPCAT, I conducted a two-pronged investigation. This first part looked at the current oversight agencies, laws and processes in place for monitoring places of detention in Victoria. It also considered the feasibility and challenges involved in implementing OPCAT.

The second part involved a pilot OPCAT inspection using my existing investigation powers under the Ombudsman Act 1993 (Vic). The inspection took place over seven days monitoring activity at the Dame Phyllis Frost Centre (DPFC) – Victoria’s largest women’s prison – looking for risks that increased the potential for torture, and other cruel, inhuman or degrading treatment or punishment at the prison, and the safeguards that reduce these risks.

There were six focus areas during the inspection, as recommended by the Association for the Prevention of Torture in its Monitoring places of detention: a practical guide (2004).

What I found

The inspection team identified several risks during the inspection, which I addressed through my recommendations:

• the use of controls (force and restraint) and solitary confinement (separation)
• the use of strip searches
• providing better information to prisoners about their rights
• improving health planning and services
• improving facilities for families
• the condition of older units
• better identifying and supporting prisoners with a cognitive disability, and
• increasing the number of women prison officers.

What has happened since

On 15 December 2017, the Australian Government ratified OPCAT and appointed the Commonwealth Ombudsman as the Coordinator for NPM bodies in Australia.

While the Victorian Government has not yet announced any decisions in relation to NPMs in Victoria, my office is well placed to contribute to and participate in the establishment of the network of NPMs as necessary.

Why I investigated

On 25 November 2015, the Parliamentary Legislative Council referred for my investigation, allegations that Australian Labor Party (ALP) members of the Victorian Parliament misused members’ electorate entitlements for party and political activities, in breach of the Parliament of Victoria Members’ Guide. This was only the fourth referral received from Parliament since the creation of the Ombudsman’s office in 1973.

I am required by section 16 of the Ombudsman Act to investigate referrals from Parliament ‘forthwith’. My investigation was delayed by legal proceedings, which finally concluded in April 2017.

What I found

I found that 21 current or former Members of Parliament breached the Members' Guide.

What has happened since

As a result of my investigation report, the ALP has repaid $387,842 to the Department of Parliamentary Services.

In March 2018, the Parliament directed the Privileges Committee of the Legislative Council, to conduct an inquiry into matters relating to the misuse of electorate office staffing entitlements. The committee is due to report its findings by 23 August 2018.

My office will seek an update on implementation of the recommendations six months after the tabling of the report.