Casebook January 2025: Investigations and complaint-handling case studies

In 3 instances, SINSW set unreasonably short deadlines for the complainant to act:

• In November 2022, it gave the complainant 10 days to modify his stormwater drainage
• In December 2022, it gave the complainant 1 day to submit a development application to his local council, and seemingly expected it to be approved within 9 days
• In February 2023, it expected the complainant to immediately pay the first of 2 instalments totalling $18,579.

We also found that SINSW failed to act in line with its own stakeholder engagement guidelines or communication strategy in its communications with the complainant.

We recommended that SINSW apologise to the complainant for its unreasonable actions. We also recommended that SINSW waive or absorb certain costs associated with an easement application (acknowledging SINSW had already absorbed some construction costs during the investigation period).

SINSW agreed to comply with our recommendations.

The safety plan was onerous and, in any event, would have been ineffective in ensuring the safety of the children. The requirement for the wife to supervise her husband at all times while he was with the children was impractical, and it was impossible to ensure that it was followed consistently. Exceptions to the requirements were allowed in response to ad-hoc requests by the couple on over 50 occasions. However, no substantive review occurred. The plan was not replaced by a long-term care plan as it should have been. The explanation for the lack of review was that it was awaiting or dependent on the finalisation of the RCU investigation.

The RCU investigation took 2 years to complete. Due to ‘competing priorities’ the RCU had no capacity to take any substantive action on the investigation for a year after it commenced. The man did not receive any communication about the investigation for over 18 months. He was not told what the specific allegation against him was.

After the RCU investigation was finalised with no findings, DCJ continued to unreasonably set restrictions on the man’s access to the family home by limiting the number of nights he could stay. This was despite the fact a risk assessment and a carer review both determined that the children were safe.

Ultimately the man was required to live outside the family home for 3 and a half years. During that time, he stayed overnight with friends or slept in his ute and from September 2021, he moved into a rented apartment. He told us that at the time they complained to us, he and his wife had spent over half their married life living separately, which caused financial and emotional strain for both.

We recommended that DCJ apologise to the couple for:

• failing to substantively review the safety plan between 14 February 2020 and March 2023
• the delay in finalising the RCU investigation
• the delay in completing a risk assessment after the RCU investigation
• continuing to unreasonably set limits on the man’s access to the family home following the completion of the risk assessment and carer review.

We also recommended that DCJ pay an appropriate amount of compensation to the man to recompense him for the money expended maintaining 2 households from February 2020 until June 2023, and to acknowledge in part the stress caused.

We considered that it was unreasonable for the university to increase the fees by 100% for students who had already enrolled in, and were part-way through, the course.

Having enrolled and commenced their studies, continuing students are already in a relationship with the university. If they are subject to much higher than reasonably anticipated fee increases, they will be faced with the dilemma of either paying the fee or abandoning their studies. In the latter case, they will have wasted the time and financial investment in the subjects they had already completed, without obtaining a qualification. While transfer to another university might be a possibility, this is contingent on recognition of previous studies and the fees that may be charged by that university.

When making the decision to enrol in a particular multi-year course of study at a particular university, students require (and should be entitled to legitimately expect) some broad certainty of the price they will likely pay for their studies. They need to assess whether they will be able to afford to complete their course, and make an informed decision as to whether, for them, the value of undertaking the course and gaining the relevant qualification justifies the price.

We formed the view that students should be able to expect that any future annual adjustments to course fees will be relatively modest and generally reflective of changes in a university’s costs of providing the course. In this case, the fee increase of 100% was far greater than what students could have reasonably anticipated, and was not justified on the basis of relevant changes to the university’s cost of delivering the course.

We recommended that the university:

• reverse the 2023 fee increase for continuing students enrolled in the Graduate Certificate in Person-centred Diabetes Care and Education, and refund any amount of the increase that had already been paid
• review and revise its documented policy to make clear the basis on which fees may be subject to annual review for continuing students, and the expectations students should have regarding the potential quantum of annual fee increases.

The university advised us that it would accept our recommendations and was taking the following action in response:

• Refunding both the student who made the complaint, and other similarly affected continuing students in the Graduate Certificate in Person-centred Diabetes Care and Education the difference between the unit fee at enrolment and the increased fee.
• Amending the Student Fees Policy to:
  • outline the considerations attending fee adjustments, including sector pricing, CPI, and cost of delivery
  • provide that, for continuing students, fee increases over a stated amount/percentage will be grandfathered.
• Reviewing its notifications to students regarding potential fee increases at enrolment, including the likely amount of any such increases in a calendar year, and when fees are increased.
• Changing the fee setting process to establish ‘guardrails’ based on CPI for continuing students. Exceeding these guardrails will trigger consideration of grandfathering arrangements.

Our overarching conclusion is that there has been a systemic failure to follow the requirements of the legislation and the relevant policies relating to inmate discipline. In some cases, this had led to unjust outcomes and potentially unlawful decisions.

We found poor practices amounting to maladministration at all steps in the disciplinary process across centres and decisionmakers. Issues that particularly concerned us included the following:

• Multiple inmates had been convicted of offences in circumstances where it was not open to the decisionmaker to have found the offence proven beyond reasonable doubt, as required by legislation.
• Inmates with intellectual disability or difficulty understanding English were not always given support to ensure a fair inquiry.
• Inmates charged with drug offences were not always receiving referrals to drug intervention programs.
• Inmates whose behaviour would have more appropriately warranted referral for mental health support were being dealt with through the disciplinary process.
• Inmates were being required to pay compensation for damage caused to property in excess of the maximum amount of compensation that can lawfully be imposed.
• In some cases, young Aboriginal inmates were penalised by being confined to a cell alone – despite policy stating this should not happen, and the practice being contrary to the recommendations of the Royal Commission into Aboriginal Deaths in Custody.⁹
• Other vulnerable inmates were also being confined to a cell alone, where records suggested that risk factors for confinement were not appropriately assessed.
• Insufficient regard was being paid to the policy requirement that withdrawal of phone calls and contact visits should be considered as a penalty of last resort.

We made findings under s 26(1) of the Ombudsman Act that some aspects of the administration of inmate discipline across all custodial facilities in NSW are contrary to law, while others are unreasonable, unjust and otherwise wrong.

We also made a finding in relation to (the lack of) review and appeal rights that, although relevant aspects of the administration are in accordance with law or established practice, the law or practice itself is unreasonable and unjust.

We recommended a comprehensive review of the inmate discipline system in NSW, including legislative change, to improve its fairness and effectiveness. We made a range of recommendations aimed at strengthening the current processes in relation to the conduct of inquiries, imposition of penalties, staff training and the information provided to inmates.

We also recommended that a comprehensive and continuous quality assurance program be developed to underpin correct and consistent decision-making and ongoing process improvement.

To address individual inmate discipline decisions and their lasting effects, we recommended that:

• CSNSW review all matters since 2018 where a compensation order was made against an inmate, to ascertain whether the order was imposed contrary to law or policy (for example by exceeding the prescribed maximum of $500) and, if so, reimburse inmates accordingly.
• subject to it obtaining legal advice as to what can be done, CSNSW amend its policies and practices so that decisions about an inmate’s ongoing management (including parole decisions) should only take into account a disciplinary determination made since 2018 if a review of that determination is made which concludes that the relevant finding may be safely relied upon.

We found that some aspects of Serco’s conduct were contrary to law. In particular:

• The available evidence did not support the decision to segregate 3 of the inmates.
• The inquiry process for inmates charged with correctional centre offences was not conducted in accordance with legislation, specifically:
  • all relevant information was not considered when charges were laid, inquiries held and guilty pleas recorded
  • inmates were not provided with the opportunity to examine and cross examine witnesses
  • some inmates with disability were not assisted by a support person during the process
  • inmates were charged, found guilty and penalised for correctional centre offences when the available evidence for charges fell well short of what might be reasonably sufficient to establish the elements of the offences, let alone prove the charges.

We found that some aspects of Serco’s conduct was unreasonable and oppressive, in particular:

• The decision to lock all inmates in Neighbourhood 1 in their cells for 5 days after the incident was not warranted.
• Relevant considerations were not considered when penalties for correctional centre offences were imposed.
• The decisions to confine 3 inmates as a penalty for correctional centre offences did not comply with relevant policy and procedural requirements.
• The behaviour management contracts were imposed for a purpose for which they were not intended and without consideration of relevant information. Conditions restricting inmates’ out of cell hours were unreasonable and oppressive.
• The processes to review, extend and cease the behaviour management contracts and plans contravened relevant policies and procedures, resulting in inmates being treated in an unreasonable and oppressive manner.

We recommended that:

• Findings relating to the correctional centre charges be recorded as unsound and disregarded in future decisions.
• Serco apologise to all affected inmates.
• Corrective Services NSW review the Clarence Correctional Centre routine to ensure it complies with legal and contractual obligations; is documented and is being effectively communicated, including to inmates.
• Serco provide refresher training to staff, including management.
• Serco determine the factors leading to incomplete and erroneous information being recorded or relied upon when charging and segregating inmates and decide whether further remedial or other action is warranted.

The offences of disobeying a direction could not be proven because the GM instruction did not clearly state that inmates should not allow other inmates to use their tablets to log into their own phone accounts. Similarly, the acknowledgement form did not clearly state that an inmate could not lend their tablet to another inmate.

Serco did not prove beyond reasonable doubt¹³ that the inmates misused the telephone system. To do so, it would have had to establish that the inmates had made an unauthorised telephone call.

According to the records, there was no evidence the inmates had made unauthorised calls. For these reasons, we made a finding that Serco’s conduct in finding the inmates guilty of the offences was contrary to law.

In addition, at the time the 2 inmates were charged, many inmates were experiencing issues with their tablets, some of which were failing to reboot once the battery was exhausted. Given that Serco’s management team was aware of the exceptional circumstances, we also concluded that it was unreasonable to have laid charges in the first place.

We recommended that Serco:

• note on the affected inmates’ discipline records that the guilty findings for misusing a telephone and disobeying a direction were unsound, and should be disregarded in future decision making (such as placement and parole decisions)
• make it explicit in the tablet acknowledgement form that inmates are not allowed to lend their tablets to other inmates, if this is the case
• consider issuing a plain English version of the GM instruction
• identify any other inmates found guilty of similar offences in the same period when it was known that inmates were experiencing issues with their tablets, and refer these charges to the CSNSW General Manager, State-wide Operations to review.¹⁴

Serco accepted all of our recommendations.

The records we reviewed documented that the inmate approached 2 correctional officers to discuss an incident that happened earlier that day when he was alleged to have stolen items from the buy-up shop. The record indicated that the inmate told the officers that staff were bringing contraband into the centre. The officers responded by saying that his comments would not be tolerated, and a disciplinary charge was then made against him.

The inmate pleaded not guilty to the charge and stated during the hearing that his comment had been taken out of context and he had in fact been referring to past events. The hearing form recorded that he was found guilty because his account of the conversation had changed several times.

The inmate was charged and found guilty of contravening clause 184 of the Crimes (Administration of Sentences) Regulation 2014 False and Misleading Information, which states that ‘an inmate must not, in or in connection with a notice or application under Parts 2–9 of this Regulation or under Part 2 of the Act, make any statement (whether orally or in writing) knowing that it is false or misleading in a material particular’.¹⁵

The inmate’s comments were made in an incidental conversation. The question of whether or not the comments were false in any material particular did not arise as they were not made in connection with a ‘notice’ or an ‘application’ under the CAS Act or the Regulation.

The CAS Act requires correctional centre offences to be established beyond reasonable doubt. As the alleged conduct of the inmate was not capable of constituting the elements of the offence, it was not open to the decision-make to find, beyond reasonable doubt, that he was guilty of the offence. We therefore found that the conduct of Corrective Services NSW was contrary to law.

We recommended that CSNSW apologise to the inmate and include a note on his disciplinary record that the finding of guilty was unsound and should be disregarded in future decisions.

CSNSW accepted the finding and confirmed that it would comply with our recommendation.

A tenant who had been in social housing properties for many years contacted us to complain about Homes NSW’s response to a leaking roof and water ingress into parts of their home, as well as several less urgent repair requests they had submitted. The complainant stated they had raised several maintenance requests since 2022. Contractors had attended to inspect the property, but the leak was not fixed and the other repairs were not conducted. The complainant told us they had called the ‘maintenance line’ and were told the repairs would be classed as urgent. However, far from addressing the tenant’s concerns, when contractors attended the property they said it was the responsibility of the tenant to clean the gutters, and the problems were essentially of the tenant’s own making.

We made inquiries with Homes NSW to better understand the position and to seek clarity for the tenant, who was increasingly concerned about the protracted nature of the issues and the resultantly significant safety concerns. Staff attended the property, made safe the ceiling that was about to collapse, and attended again a week later to make the roof watertight. Further work orders were raised to:

• Patch, paint and replace impacted floor and ceiling areas.
• Replace an exhaust fan.
• Repair a vanity and benchtop.
• Clean gutters and trim vegetation in the common area.

Homes NSW clarified for the tenant that the agency has the responsibility to clean gutters, and not the tenant. A staff member attended the property to reassure the tenant.

This complaint highlights the importance of treating complainants with respect and agencies being timely in managing issues. Our inquiries assisted the tenant to receive a resolution to their longstanding concerns, and ensured they were able to be provided with correct information about who was responsible for maintenance.

Foster carers complained to us about a delay on the part of the relevant out-of-home care (OOHC) agency in facilitating their adoption of the 2 children who had been in their care for around 10 years. The carers raised concern about a high turnover of caseworkers assigned to their family, and the impact this had on achieving a permanent placement for the children. The carers also raised concern about the care allowance not meeting the needs of one of the children.

Before a carer can adopt a child in their care, the case management agency is responsible for consulting with the children’s birth family members. The case management agency had difficulty locating the children’s family members, who had therefore not participated in regular family time with the children. The children had indicated to both the carers and their case workers that they would like to be adopted by their long-term carers. Importantly, the carers said they were not getting enough clear and consistent information to help move the adoption forward.

We conciliated the complaint.

As a result of the conciliation, an agreement was reached between the carers and the OOHC agency regarding permanency planning, communication between the OOHC agency and its funding body, and communication between the OOHC agency and the carers. The agreement was comprehensive in its contents and purpose, and the carers felt that the detail in the agreement would keep the OOHC agency accountable.

Specific areas of contention that the parties agreed to included:

• Family time – how it will be scheduled, barriers to contact with family members.
• The children’s needs – supports currently in place and supports likely need into the future.
• Cultural planning – better supporting the children’s awareness and knowledge of their heritage and life stories and embedding cultural identity in the children's home and daily lives.

This matter illustrates the importance of clear communication between carers and case management agencies. It was especially valuable for staff of both the case management agency and its funding body to hear the experience of carers and how issues with service delivery can affect foster carers and the children in their care.

A young person had lost both parents some years earlier. When care was required, the young person’s extended family members stepped in to provide them with the care and support they needed. During this time, the family had requested that they be granted guardianship for the young person.

Unfortunately, this had never been progressed by the responsible department, the Department of Communities and Justice (DCJ).

The family members had requested assistance to reestablish contact with other members of the young person's family. However, this had not progressed either. The family advised DCJ that they were not able to fund the young person’s travel expenses to visit their other family members. The family were also concerned that DCJ had not discussed the requirement for them to consent to a guardianship order with the young person, nor what the making of a guardianship order would mean for them.

We brought the parties together to conciliate the complaint.

DCJ agreed to progress guardianship as a matter of urgency, and agreed that progressing guardianship gave recognition to the importance of guardianship for the young person and his carers. Alongside the young person’s guardianship application, DCJ agreed to implement a financial plan which set out expenses to pay for a range of important practical and supportive actions, including gaining life skills, strengthening familiar connections, supporting educational opportunities and emotional support.

A key outcome was that DCJ undertook to reunite family time between the young person and their sibling, whom they had not seen in many years.

The conciliation was a means for DCJ to hear about the experiences of the family, and was a way for DCJ to take ownership of the complaint in order to resolve the family’s concerns.

An inmate in a correctional centre told us he was concerned that staff were not taking sufficient care to appropriately manage his seafood allergy. In particular, he said he had been provided seafood despite staff knowing of his allergy and was subsequently taken to hospital due to an anaphylactic reaction.

We made inquiries and correctional centre staff confirmed the man had been provided with seafood, as food services staff were not aware of the allergy. Other information we received suggested they should have been aware.

As a result, we made suggestions that the centre’s governor:

• conduct a review of the circumstances in which the man’s health alert regarding an allergy was not conveyed to food services staff
• explain to the inmate the reasons why his allergy had not been identified, and apologise to him for this oversight which appeared to have resulted in his hospitalisation
• conduct a review of local processes to ensure allergy alerts are being managed appropriately.

In response to the suggestions we made to the centre’s governor, reviews were conducted both in relation to the individual circumstances of the affected inmate and local processes more generally. As a result, a new local operating procedure was developed and communicated to staff. In addition, the affected inmate received an apology from centre staff and a summary of the review findings.

This matter highlights the vulnerability of people in custody when alerts relating to their health are not appropriately managed.

The complainant purchased property in 2022 in regional NSW. After submitting an amendment to a development application and subsequent construction certificate, Council told the complainant there was an outstanding debt of over $7,000 relating to 2017 development applications and construction certificates attributed to the previous owner. The complainant questioned the debt, including why Council had not collected all the required contributions prior to issuing the construction certificate and why it was not disclosed in the relevant property searches.

We made inquiries with Council, which told us the construction certificate was issued without the previous owner paying the required contributions – which is not the standard process. Council confirmed that the construction certificate was issued in error due to incorrect information in its systems, and the relevant checks were not completed to confirm the contributions had been paid. The complainant paid the contributions so Council would issue an amended construction certificate.

Council advised it did not consider the debt was required to be disclosed on the section 603 certificate prior to the complainant’s purchase of the property.

We wrote to Council about:

• Council requiring the complainant to pay contributions that should have been obtained from the previous owner prior to the property changing ownership.
• Council not disclosing the contributions in the certificate 603 issued to the complainant, as required by s 603(3) of the Local Government Act (LG Act).

Under s 31AC of the Ombudsman Act we can make suggestions where we believe there is the opportunity for the agency to improve its administrative practices.

Using this provision, we suggested to Council that it:

1. refund contributions to the complainant that were owed by the previous owner
2. apologise to the complainant for the inconvenience it caused in failing to collect the contributions from the previous owner
3. review whether it is appropriately disclosing all charges or other amounts owned on a property in accordance with s 603 of the LG Act.

Council agreed to all of our suggestions.

The complainant emailed our office and confirmed that they had received a letter of apology and a cheque reimbursing them in full for the contributions paid.

Foster carers complained to us about the actions of a community services provider delivering out-of- home care services. The carers were concerned that this agency was not progressing guardianship for the children in their care (of which they had 6). Concern was also raised about the agency’s communication with the carers and the case management of children.

The eldest of the children had been living with the carers for many years. One of the children had a significant medical diagnosis and the carers had to prioritise their treatment. The carers were experiencing difficulties in working with the agency in progressing their respective case plan goals because they were attending to the unwell child’s medical needs.

We conciliated the complaint.

The conciliation allowed agency case management staff to gain a much better understanding of the challenges that the carers faced, and the supports they needed to care for the children.

The case management agency agreed to:

• implement the recommendations of the guardianship assessment reports for each of the children, including any outstanding tasks or issues that needed to be completed by the case management agency
• specify a timeframe for completion of each task
• ensure family time for each of the children – including current and future planned contact – and deal with any barriers to successful and sustainable contact
• clarify the roles and responsibilities of its staff
• provide cultural support for the children who identified as Aboriginal, including:
  • facilitating family meetings and/or a Family Group Conference to obtain family members’ views about guardianship
  • referring to the relevant Department for an Aboriginal consultation as needed.

The NSW community relies heavily on authorised carers to care for and support children that cannot live at home. When a carer takes responsibility for a number of children, as was the case here, it is critical that the case management agency is proactive and responsive in providing supports for all of those children. If agencies do not have accessible mechanisms in place for carers to escalate issues, the relationship between the parties can be adversely affected, which can make it harder to meet the needs of children in care.

A foster carer complained to us about repairs that had remained outstanding following property damage caused by a young person living with a disability who had been in their care. Repairs required included replacement of broken structural materials and some communication items in the home. The complainant and their spouse were retiring from foster care and had been unable to resolve the issue for some time, causing them considerable stress.

The complaint remained unresolved due to miscommunication between the parties and an inability to move the matter forward.

We conciliated the complaint.

An agreement was reached between the department (DCJ) and the complainant, with DCJ agreeing to cover the full cost of all repairs and replacement of electronic equipment.

The Manager, Client Services agreed to report back to DCJ’s leadership team about the themes that had emerged when the carer was given the opportunity to describe their experiences, providing valuable insight that could lead to service improvements. Issues that arose during the course of the conciliation included:

• the importance of handovers when matters are in progress and staff change
• the need to manage the impact of staff changes more effectively
• the importance of clear and accurate communication between the DCJ staff and carers
• the importance of committing to timeframes
• the need to clarify the advice that DCJ’s staff provide to carers about managing damage to property.

We ensured that the attending DCJ staff member had the appropriate financial delegation to approve the carer’s claim. That staff member was able to hear directly about the carer's experience and brief senior leadership at DCJ to provide insight into the impact of service delivery concerns.

This matter demonstrates the importance of agencies:

• taking ownership of complaints and promptly resolving matters that are clearly the responsibility of that agency
• ensuring that someone with appropriate delegation and authority is in a position to resolve concerns.

The Point to Point Transport Commission is the regulator for taxis, hire vehicles and rideshares in NSW. The Commission has a Taxi Fare Hotline to receive consumer complaints.

The hotline had been set up by the Commission, with the support of the taxi industry, to help passengers report issues. The Hotline team collects information to ensure the report can be passed onto the appropriate Taxi Service Provider. The provider then looks into the matter and takes any necessary action including providing a passenger with a refund or reprimanding a driver.

We received a complaint from a taxi passenger about how the Commission had dealt with a complaint about the conduct of a taxi driver received via the hotline.

The complainant had provided the taxi details to the Commission twice via its hotline, and had been told that, although it had passed on details to the taxi service provider, the provider was unable to identify the involved vehicle or the taxi driver. The complainant was dissatisfied with the response, and with what they considered to be a failure to adequately investigate. The complainant requested a review, but did not receive a response.

We made preliminary inquiries with the Commission, asking for a summary of the complainant’s matter, including what steps the Commission had taken following the complaint. We also asked for expected timeframes for resolution of the complaint, the options available to complainants in circumstances where the taxi driver identity could not be established, and for the complaint-handling policy to be provided to us for our reference.

The Commission responded promptly to our inquiries.

Following our inquiries, the complainant received an email from the taxi service provider to advise that it had completed an investigation, and the taxi driver had since been identified. The taxi driver in question had received a caution, and the matter was placed on the driver’s record with the provider. A partial refund of the fare was also offered to the complainant.

One of the key concerns for this complainant was the perceived lack of action by the agency in facilitating steps to identify the taxi service provider and the driver. The matter highlights the importance of a complaint handling agency being responsive and giving complainants clear and timely updates.

The Transport Asset Holding Entity (TAHE) is the owner of railway networks across NSW, including tracks, trains, stations, and land holdings around stations. We received a complaint from an elderly person who lived alone, beside a rural rail corridor which was no longer in use. The complainant told us the grass was very high within the corridor, and as a result snakes were entering their property from the unmaintained area. This was causing the complainant distress, and they did not feel safe in their own home. The complainant had been in touch with their local Council but was told it was not responsible for the area.

We made inquiries with TAHE to establish whether it was in fact responsible for the unmaintained area and, if so, what could be done to resolve the issue. An agency representative contacted our office. We explained the issues, and the agency confirmed that they were in fact responsible for this kind of issue. Their representative asked us to refer the complaint directly to them.

We contacted the complainant and explained the direct referral process. In essence, this involves us providing a ‘warm’ handover, by which we can (with a complainant’s consent) refer their complaint to the agency in question. This provides the responsible agency with the opportunity to address the issues directly. TAHE explained to the complainant that it would be able to deal with the matter. The complainant told us they were greatly relieved that the area would be properly maintained, and that their safety concerns regarding the presence of snakes were now alleviated. They were also appreciative that they had been given a contact point within the responsible agency for future reference in the event the situation was to arise again.

Navigating the web of government agencies can be difficult for members of the public, and our office can assist in matching appropriate services to issues. To the degree possible, agencies should aim to take a ‘no wrong door’ approach to help a complainant find the appropriate body to deal with their concerns.

We received a complaint from a student-applicant who had submitted several applications to a particular course at a university, including evidence of previous tertiary study. The student’s applications were declined, because they were under the minimum age of admission nominated in the university’s policies.

We made inquiries of the university. The university confirmed that there was a policy regarding the minimum age of admission. The university had discretion to consider an application from an underage student, but it had not exercised this discretion in favour of the student in this instance.

After considering the university’s response, which focused on the student’s age, we suggested (under s 31AC of the Ombudsman Act) that the university reconsider the grounds put forward by the student warranting admission, including having completed prior tertiary study, and to consider exercising its discretion in the student’s favour. The university agreed with the suggestion – its reconsideration of the matter was informed by a new policy regarding the admission of underage students. The university offered the student a place in the coming enrolment period in their preferred course. The university advised that its new policy is aimed at ensuring consistency in decision making across the university in relation to applications for the admission of underage students.

In this case, the university showed a willingness to be open and learn from the circumstances surrounding the complaint, leading to a positive outcome for the individual student and informing broader improvements, with a revised policy aimed at achieving fair and consistent outcomes for others.

During a visit to a youth justice centre in May 2024, we spoke to a young person who raised concerns about 2 separate incidents where force had been used on him. We reviewed a range of information about the incidents, including CCTV footage. We identified a number of issues, including questions about the adequacy of risk assessments, recordkeeping and the confinement of the young person following one of the incidents.

As a result, in accordance with s 31AC of the Ombudsman Act we suggested that Youth Justice NSW (YJNSW) conduct a further review of the uses of force against the young person to determine whether the incidents had been managed in accordance with relevant legislative and policy provisions, and to assess whether the oversight of these incidents was sufficiently rigorous.

YJNSW accepted our suggestions. It conducted a further review of the incidents where force had been used, with reference to the issues we identified. This review process determined that the uses of force were necessary, reasonable and proportionate. However, while that was the case, arising from the review YJNSW also made several recommendations to improve practice and governance in incidents where force is used, including in relation to the use of body worn cameras, training for officers and enhanced review mechanisms when confinement is used as a punishment.

YJNSW has since provided us with an update on the implementation of these recommendations.

This case illustrates the value of an agency being willing to learn from complaints. Complaints can provide the opportunity to consider broader systems issues, to improve services and to prevent similar complaints in the future.

A complainant joined a volunteer group in their community in 2022, under the understanding that the group (known as the volunteer committee) had been created to provide gardening and simple maintenance support to a local retirement village that was owned and operated by their local council.

The complainant had concerns about how Council was operating the village. In particular, they had concerns that Council was expecting the volunteer committee to take on more and more administration tasks beyond gardening and maintenance. Council expected the volunteer committee to be signatories to tenancy agreements and to collect rents. The complainant argued Council was unduly pressuring this group of volunteers to take on various risks associated with the retirement village when the volunteer committee had no power or expertise to carry out these functions. The complainant also disagreed with Council charging village residents rates for a vacant block of land Council itself purchased to extend the retirement village.

Our inquiries uncovered that at the core of this complaint was a disagreement over whether the volunteer committee was:

• an unincorporated association of volunteers with no ties to Council, or
• a committee set up by Council under s 355 of the Local Government Act 1993 (LG Act).

Under the above section of the LG Act, councils can delegate functions to a committee of council, including a committee comprised of volunteers. There was a lack of clear records to support Council’s position that the volunteer committee for the retirement village was a ‘section 355’ committee, and if so, what functions the volunteer committee was delegated to perform on behalf of Council.

We wrote to Council to suggest that it take action to obtain access to the bank account for the village, which the committee had sole access to.

Council accepted our suggestions. It acknowledged that it needed to improve its financial management practices, have stronger control measures and to improve oversight of its section 355 committees. As a result, it drafted a new instrument of delegation outlining the responsibilities of this volunteer committee. It also commenced a project to enhance governance and risk management of these types of committees throughout its local government area.

Council also agreed to prioritise action to obtain appropriate access to council funds in the bank account managed by the village committee.

This case study illustrates the importance of having strong governance of volunteers that work alongside or perform functions of public authorities. If there had been robust governance and recordkeeping processes been in place during the history of this committee, the ambiguity of whether this particular volunteer committee was a section 355 committee could likely have been avoided.

It also demonstrates good practice – Council’s decision to commence a project to review its current section 355 committees is an example other councils may wish to follow, to identify possible areas for improvements.

In late 2024, we received a complaint from an authorised foster carer about a child who had been in their care for just over 12 months. The case manager was a non-government community service provider. The case was still before the Children’s Court and the Department of Communities and Justice (DCJ) held parental responsibility. The child’s case plan goal was under review, as the child’s mother was seeking restoration and DCJ was reconsidering the case plan goal.

The carers had been consistently clear with the community service provider about the fact that they planned to relocate to another state when their current accommodation changed in late 2024. The carers complained they had been in frequent contact with that provider since mid-2024 in an attempt to resolve issues related to their relocation – however there had been no progress.

The complainant sought parallel planning for a contingency arrangement whereby they could continue to provide care (and ensure minimal disruption) for the child. The carers committed to returning to NSW, and if appropriate, advised that they would seek to be the child’s long-term carers. The relationship with the NGO agency had broken down.

We referred the matter to DCJ for local resolution under s 25(3) of CS CRAMA.

DCJ contacted the carers and met with them to discuss their complaint and their forthcoming move interstate. Time limited authorisation was granted for the child to travel with the carers. DCJ also met with the community service provider and the carers with their advocate to resolve concerns about the provider’s case management. DCJ advised that, considering the irretrievable breakdown between the agency and carers, case management would return to the Department for future casework. The carers were very happy with this outcome.

This complaint was time critical due to the imminent move of the carers and the need for travel to be authorised to minimise disruption to the child. The relationship between the agency and the carers had broken down, and this was preventing any progress in resolving the issue. Complaints are often unnecessarily escalated due to lack of timeliness, communication and responsiveness. In this case, local resolution provided a circuit breaker to the situation, and offered the carers an opportunity to discuss their concerns directly with the funding agency.

We received a complaint from a widow raising concerns that it had taken NSW Trustee & Guardian (NSWTG), in its role as executor, nearly 3 years to finalise the estate of her late husband. The complainant told us that this delay had caused her financial hardship. Further, as English was her second language she had struggled to give NSWTG the information it required. She did not have any family able to assist her with providing documents to the agency.

We wrote to NSWTG on 2 occasions to make inquiries about the delay. NSWTG acknowledged there were some issues with their processes and staffing levels that had contributed to the time taken to finalise the estate.

NSWTG had already agreed to waive fees and other costs. We acknowledged this and suggested to NSWTG (under s 31AC of the Ombudsman Act) that it take further steps, including apologising to the complainant and reviewing its policies and procedures around how it provides support to people who require additional assistance.

NSWTG wrote to the complainant to apologise for the delay in finalising the estate, and noted that it was committed to making its processes more streamlined. NSWTG advised us that while it did have measures in place for people requiring additional supports, it believed its processes could be enhanced. To that end, it intends to have its processes made the subject of a ‘sludge audit’ by the Department of Customer Service in order to identify where further improvement could be made.

While agencies experiencing staffing shortages can see their service delivery adversely impacted, it is important to keep people informed and provide honest explanations for any lack of timeliness.

Learning from a complainant’s experience to use it to help drive process improvements can help prevent the recurrence of similar situations in future and improve service delivery longer term.

The complainant, an international student, emailed our office seeking a refund for tuition fees totalling almost $20,000 paid in advance to the university. Shortly after making the payment, their visa application had been declined. They subsequently applied for a tuition refund, but this was declined on the basis that they had previously failed to disclose to the university a visa refusal to another country several years earlier.

We made inquiries of the university. On receiving its response the position was:

• The complainant had accepted they were at fault in misunderstanding and failing to accurately fill out the university intake form asking them to declare all previous visa refusals, believing that they only needed to disclose student and study-related visa refusals.
• The university had acted in line with its policy to retain the fees paid on the basis that the application had been inaccurate or ‘fraudulent’.

Nevertheless, we asked whether the university considered that the outcome of an almost $20,000 loss without receiving tuition in return could be considered disproportionately harsh. We also noted that the complainant had included the earlier visa refusal in their Australian visa application, which supported their argument that they were not seeking to conceal that episode, but rather made an honest mistake in their interpretation of the question from the university specifically.

Following inquiries by our office, the university advised that prior to this complaint, they had commenced the process of reviewing the relevant policy so that a student in similar circumstances would qualify for a full refund, minus a $500 administrative fee. Noting that it was unlikely that this policy would be applied retrospectively, we made a suggestion under s 31AC of the Ombudsman Act that a full or partial refund be granted to the complainant on the basis of the disproportionate impact of the amount and the fact that the policy was being changed, which indicated a tacit acknowledgement that it was too harsh.

The university accepted the suggestion and granted a full refund to the student, as well as waiving the relevant $500 administrative fee.

Discretion and fairness are important considerations in administrative decisions. An agency’s decision may be technically correct but nonetheless have a disproportionate or unfair impact. In this case, the university recognised the disproportionality and took appropriate steps to adjust its policy.

The complainant, a First Nations person, emailed our office in June 2024 seeking assistance in obtaining medical records from a hospital for themselves and several deceased relatives, as they were the last remaining survivor of their bloodline. The complainant stated that they believed the hospital’s response to their requests demonstrated a lack of cultural understanding and they were also concerned with what was being asked to be provided to support release of their relatives’ documents, as well as how long the process was taking.

We made inquiries of the relevant local health district. We asked if the records could be provided to the complainant and asked for the reasons for the process being so protracted. We also asked whether, in circumstances where someone advises that they are a First Nations person, the hospital would involve an Aboriginal Liaison Officer. We asked what avenues existed for accessing deceased relatives’ records where there was an absence of a will or death certificate.

The local health district responded, informing our office that the complainant’s own records had been released after receipt of our inquiries, but 2 of their relatives’ records had already been destroyed in accordance with NSW General Retention and Disposal Authority Public Health Services. The hospital had written to the complainant to confirm the destruction of the records and explain why another relative’s records could not be released.

Following our inquiries, the hospital acknowledged the need to be flexible in relation to requests for information from First Nations people. Therefore, it provided to the complainant a summary of their relative’s encounters with the hospital in line with disclosures allowed by the NSW Health Privacy Manual under compassionate grounds. The local health district apologised for the delay in the process, noting by way of explanation that waiting times had increased due to the volume of requests, records were stored offsite, required clinical review and checks had to be made to confirm the complainant’s standing as next-of-kin.

In addition, the local health district acknowledged that it was not current practice to involve an Aboriginal Liaison Officer in such requests. However, based on the feedback from the complainant, it has been recognised as a benefit and is now being incorporated in departmental workflows across all Patient Information Services Departments within the local health district.

This matter demonstrates the importance of agencies building cultural competence and ensuring that practices and policies are informed by the needs of First Nations people. This matter also demonstrates the benefits of considering complaints from a systems perspective, and introducing changes to address systemic issues.

Two inmates in a correctional centre contacted us stating they had each been charged and found guilty of 2 correctional centre offences: stealing and failing to comply with correctional centre routine.

These charges related to an incident that occurred where both inmates were observed to be wearing different shoes than they had been wearing earlier. The inmates complained the inmate discipline process was unfair – despite pleading not guilty, there was no clear inquiry process. One of the inmates also complained that he had to pay $500 in compensation as part of his penalty.

We made preliminary inquiries with CSNSW and requested further information. The information received raised questions about:

• the fairness of the inquiry process
• whether the elements for a ‘stealing’ offence had been proven beyond reasonable doubt
• whether not wearing the correct shoes constituted a breach of ‘correctional centre routine’
• the appropriateness of requiring an inmate to pay $500 as compensation when compensation can only be ordered for property damage
• the fairness of requiring one inmate to pay compensation when the other was issued with a reprimand and caution.

As a result, we wrote to the governor of the correctional centre and made the following suggestions under s 31AC of the Ombudsman Act:

1. the disciplinary decisions relating to the correctional centre charges be referred to the General Manager of Statewide Operations for review
2. the inmate be reimbursed the $500 compensation he had paid
3. staff be reminded of their responsibilities during inmate disciplinary proceedings and determinations.

After we made the above suggestions, CSNSW advised us that:

• the charges were reviewed and the guilty determinations found to be unsound
• records have been updated to reflect that the charges are to be disregarded in future decisions
• the inmate who paid the compensation has been reimbursed
• staff will undertake refresher training on inmate discipline processes.

This matter demonstrates the need for agencies to have sound administrative practices whereby decisions are evidence-based and rational.¹⁷