Persistent Complainants to Ombudsman Offices
Commonwealth Ombudsman
AUSTRALIAN INSTITUTE OF ADMINISTRATIVE LAW
2006 NATIONAL ADMINISTRATIVE LAW FORUM
Administrative Law: Protection of Individual and Community Interests
Surfers Paradise Marriott Resort
22-23 June 2006
Ombudsman offices face a dilemma. Their function is to receive any complaint that a person chooses to make about government administrative action. Some of those complaints will have substance, but others will be unsubstantiated or groundless. Some who complain will not easily be persuaded that their complaint is of the latter and not the former type. The community is a mixed bag of people. Most will accept a reasoned answer, even if they disagree with it, but others are not so accepting. Some are inflexible and stubborn. Others have an unrealistic view of what government can be expected to do for them. Others are simply wrong-headed, even vengeful, concerning issues about which they are passionate.
Those characters (and more) all have the same right to approach the Ombudsman’s office. There is no charge for doing so, and little formality. There are no rigid procedures or rules of pleading to be followed. Submissions and information can usually be presented in any form. Time limits are not fixed inflexibly.
It would be contradictory for Ombudsman offices to place any greater restraint on the process of complaint. A common Ombudsman catchcry is that ‘you have a right to complain’. A defining feature of the office is that it is accessible to all members of the community, and will listen to any complaint. The problems that people have with government are infinitely varied, and new problems arise as government itself evolves. Nor is it self-evident whether a new complaint has substance: government actions that seem rational or acceptable at first glance can appear untenable on further inquiry.
Ombudsman offices are also expected to be an exemplar of public law values. They must display procedural fairness, and listen to what someone has to say before denying their complaint. A decision to cease or conclude an investigation must be reasoned and defensible. A person who disagrees with the decision must have an opportunity for internal review by a more senior Ombudsman officer, perhaps the Ombudsman personally. The office should also eschew formality for its own sake, and be prepared to engage flexibly and informally with complainants to gain a better understanding of their grievance.
Those principles are not problematic in themselves. Yet they do expose Ombudsman offices to a pattern of engagement with some complainants that can be inefficient and debilitating. Far more time can be spent on handling some individual complaints than is warranted. The more drawn out an investigation, the greater the chance that a complainant’s belief in being wronged will be hardened, and that no satisfactory outcome will be possible. Ombudsman offices are there to solve problems, not create them. The diversion of investigation resources to satisfying the demands of persistent or difficult complainants also robs the office of its capacity to deal with other complaints and issues. Ombudsman offices have meagre resources from a whole-of-government perspective, and strategic use of those resources is essential if the office is to fulfil any of its objectives.
Those conflicting pressures pose a challenge for Ombudsman offices. At one level it is a practical challenge, of how to deal efficiently with all complaints in an effective and principled manner. At another level the challenge is more conceptual, of articulating the role of the office in relation to the community, and how it should balance its duty to the public yet its discretion to control its manner of operation. Hovering above those challenges are some sensitive questions that cannot be ignored. Are Ombudsman offices partly to blame for the (growing?) phenomenon of difficult complainants? Have we given rise unhealthily to a culture of complaint?
This paper explores how one Ombudsman’s office is addressing those questions. The questions are not new, but there is a renewed focus upon them. An exciting venture that began recently is a joint project between a few Ombudsman offices in Australia,[1] initiated by the NSW Ombudsman’s office. Described as a study of ‘Unreasonable Complainant Conduct’, it will examine the experience of each office in dealing with unreasonable conduct. The study will culminate with the publication of a number of papers that develop principles and strategies for dealing with unreasonable conduct. A trial application of the strategies will occur during the project, which is expected to take two years to complete.
A good place to start is by describing the categories of people and conduct that are a cause for concern. A common approach is to use single descriptive labels, by describing a complainant as ‘persistent’, ‘difficult’, or ‘querulent’, or describing a complaint as ‘vexatious’ or ‘frivolous’. Those labels are a convenient shorthand, but they mask the variety of situations in which complainant behaviour is a problem for Ombudsman offices.
A paper prepared by the NSW Ombudsman’s office for the joint Ombudsman study identifies five different categories of problem behaviour. This approach has the advantage of moving the focus away from the person and their personality, by looking instead at the conduct or behaviour that is viewed as problematic. A strategy can then be devised which is tailored to the nature of the problem. This approach also recognises that where there are multiple or serial complaints from an individual, some complaints may be regarded as unreasonable either in substance or in presentation, while others deserve to be handled in the normal manner. The categories are not self-contained, but illustrate that a wide spectrum of conduct is potentially associated with the label of ‘unreasonable complainant’.
· Unreasonable persistence. This describes a person’s persistence with a complaint that has already been investigated and closed by the Ombudsman’s office, possibly after internal review of the investigation. The person’s persistence may be manifested in different ways – for example, insisting that the complaint be looked at again by another officer, re-framing the complaint to present it as a fresh complaint, persevering with an argument that has earlier been addressed, or continuing to write to or phone the Ombudsman’s office for no specific purpose.
· Unreasonable demands. This describes a complaint that does not take account of the role or capacity of the Ombudsman’s office, and expects an outcome or approach that is unrealistic or disproportionate. Examples include a repeated demand for investigation of a matter that is beyond jurisdiction, for a remedy that is impractical or will not be granted (such as compensation or personal retribution), for more time to be devoted to the investigation than is warranted, or seeking to direct the Ombudsman’s office as to how to conduct the investigation.
· Unreasonable lack of cooperation. This describes both wilful and naive disorganisation in the presentation of a complaint. Examples are poor or confused definition of the complaint, unnecessary presentation of voluminous material, transforming the complaint midway through the investigation process, and dishonesty in the statement of facts.
· Unreasonable arguments. This category is self-explanatory, and includes exaggerating issues, holding irrational beliefs, being obsessed with irrelevancies and trivialities, obstinately refusing to consider counter-arguments, and being guided by conspiracy theories.
· Unreasonable behaviour. Examples of unreasonable complainant behaviour are threats of violence, abuse of investigation staff, rude or aggressive conduct, and threats of self-harm.
Another part of the picture that warrants mention is the mechanisms beyond the Ombudsman’s office that can be used by a person to persist with their grievance and to impose an added burden on the office. One such practice is for the person to make a request under the Freedom of Information Act 1982 (Cth) for access to their complaint file. The Ombudsman is in no different position to other agencies that are subject to the FOI Act, but there can be special difficulties. Chief among these is that the Ombudsman clientele can by nature be quarrelsome and sceptical of the decision given to them. Thus, for example, they may not accept that the office has fully or honestly identified all the documents on their file. If, as is common, there are documents on file that came from another agency, the person may dispute the Ombudsman’s decision to transfer that part of their request to the other agency. Occasionally the person will make repeated FOI requests, which can become a self-generating cycle because new documents are necessarily created every time a new request is made. As discussed below, some Ombudsman offices in Australia are exempt from the FOI Act, essentially to reduce the chance of a ‘dispute about disputes’.
Another practice is to commence an action for judicial review against the decision of the office to cease an investigation. Once again, it is conventional and consonant with the rule of law that Ombudsman offices are subject to judicial review. But it is probable that they become involved in a proportionately higher number of legal disputes than many other government agencies of the same size. It can be a considerable drain on a small agency to defend an action for judicial review. It is rare for an action to succeed, because of the breadth of discretion available to the office to decide what to investigate and how to do so.[2] To that extent at least an action for judicial review can be distracting rather than educative.
Some complainants who are dissatisfied with the Ombudsman’s handling of their complaint also take their grievance to another forum. The Commonwealth Ombudsman is within the portfolio of the Prime Minister, and probably once a month a person complains to the PM. The response is the same on each occasion, that the Ombudsman is an independent agency and is not subject to the PM’s direction or review; briefing the PM’s department on the complaint nevertheless takes time. Some complainants likewise take their grievance with the Ombudsman to their local member of parliament. This is usually more taxing for the office, because MP’s can become more engaged – sometimes in spirited debate – in taking up the cause of an aggrieved constituent.
Another avenue for complainants, more as a threat than a disturbance, is to assert that they will expose the office to the media, especially a current affairs program. If this threat is followed through as often as it is made, it apparently achieves little response from the media. Occasionally, however, a journalist does take up a person’s cause, and the main difficulty for the Ombudsman’s office is in explaining to a journalist that there are formidable privacy and secrecy constraints that make it difficult for the office to discuss the case.[3]
There is it seems a widespread view in the Ombudsman world that unreasonable complainant conduct is a problem, perhaps a growing problem. The project noted earlier that is being conducted by five Ombudsman offices in Australia is a sign of this concern. Some offices have recently highlighted the issue in their reports or publications.[4] The issue is commonly discussed at meetings both within and among Ombudsman offices. There are equally many signs in the wider community of a growing concern. There is an emerging body of literature on the topic, spanning many disciplines including law, psychiatry and public administration. The popular use of a new descriptive noun – ‘querulent’ – aptly captures the current trend.
The main burden that unreasonable complainant conduct imposes on Ombudsman offices is the time that is taken to deal with issues that could have been resolved more simply or definitively. This burden can be felt particularly at senior levels in the office, because unresolved and disputed cases gradually ascend through the office. Added to this is a distinctive feature of Ombudsman offices, that the title of the office holder is also the name of the institution; this spurs some complainants to insist that the Ombudsman handle their case personally.
The time spent engaging with difficult complainants is time that cannot be devoted to other complaints or activities. This is a concern in numerous ways. First, probably the most substantial criticism that is made of Ombudsman offices is that they take too long to deal with some cases. Most complaints and inquiries are handled informally and efficiently, usually by telephone. But a small number of investigations take far too long. This is unsatisfactory since, in turn, one of the most frequent complaints to the Ombudsman is delay by government agencies in dealing with matters. It belies the philosophy of an Ombudsman’s office if its standard of administrative performance is no better than that of the agencies being complained about. Asked how best they could coordinate their resources to avoid the problem of delay, most Ombudsman offices would probably answer that they should spend less time responding to the demands of difficult complainants.
Secondly, government is nowadays a highly complex activity, and it is that complexity which is a major cause of complaints to the Ombudsman. Illustrations from the Commonwealth jurisdiction are taxation legislation (now nearing 10,000 pages in length), the eligibility criteria for social support benefits (an example being the Family Tax Benefit), and the child support formula (that requires difficult estimation of the incomes, work patterns and parental roles of separated parents).[5] A modern-day challenge for Ombudsman offices is to grapple with that complexity, both to demystify it for complainants, and to fathom whether there are unnoticed or systemic flaws in the way the law is being administered, interpreted or drafted. Complex issues necessarily take time to work through.
Thirdly, since Ombudsman offices were first established nearly all government agencies have created their own internal complaint handling mechanisms and have published a service charter with a practical commitment to informal dispute resolution. Ombudsman offices have themselves played a major role in promoting this trend and in monitoring the effectiveness of agency complaint handling.[6] This in turn has altered the function of Ombudsman offices, since nearly every complaint which comes to them has already been examined by an agency. In fact, the general rule is that the Ombudsman will only investigate a complaint after the complainant has first taken the issue up with the agency. There is less justification in this setting for spending further time on cases that lack apparent merit or have had a thorough hearing. The greater responsiveness of government agencies in dealing with problems in their own administration provides a corresponding opportunity for the Ombudsman to be more selective and strategic in the allocation of investigation resources.
There are other downsides as well. Difficult cases quickly become messy. When that happens, there is a reduced chance that the investigation will meet with the approval of the complainant, however much time and senior expertise is devoted to it. This is counterproductive both for the complainant and for the Ombudsman’s office. Indeed, a feature that typifies many badly-handled investigations is that the file has passed through numerous hands, usually as a consequence of the length of time the investigation has been unfinished. Each transfer of the file can result in a further delay as the new investigator gets on top of the file. There is an associated risk that the new investigator will not fully understand every detail, at least not to the satisfaction of the complainant. In the process a disgruntled complainant can become embittered and querulous.
A not infrequent consequence is that the person’s original complaint against a government agency becomes transformed into a complaint directed at the complaint-handling agency. Almost all the person’s argument and emotion becomes directed at the complaint agency. When this stage is reached it is usually a sign that the process has gone awry and that common sense has been lost. The person’s remedy (if any) lies ultimately with the agency that took the action or decision that is under complaint. This objective becomes steadily less likely when the complainant has turned their attention away from that agency and has become an antagonist of the oversight agency whose support and assistance they felt to be necessary.
Unreasonable complainant conduct is also confronting and at times distressing for Ombudsman staff. In the extreme case there are instances of actual or apprehended violence perpetrated by agitated complainants. Verbal abuse is more common, and is predictably stressful for staff. A subtler problem is that it can be dispiriting for professionally trained staff to spend unwarranted hours dealing with hopeless cases and unreasonable conduct. Staff who come to work in an Ombudsman’s office do so in the expectation both of assisting people to resolve problems with government and of contributing to the improvement of public administration. The work of the Ombudsman’s office is the aggregation of their contribution and motivation. It is important that their keenness is sustained.
The strategies that are devised to deal with unreasonable complainant conduct must be attuned to the role and philosophy of an Ombudsman office. Some elements of that picture were discussed in the introductory part of this paper. It was there pointed out that an Ombudsman’s function is to receive complaints from any member of the public who chooses to complain. It is to be expected that some complaints will lack substance, that some complainants will be passionate about their grievance, and that some others will have become embittered and mistrustful of anything said or done by a government agency. Even where a grievance has intensified to the point that it cannot be quelled, there may still be a residual role for an Ombudsman investigation. Others – such as parliamentarians, the media, community leaders, and government agencies – can be reassured that closure of a dispute should occur if they know it has been looked at in an objective and impartial manner by an Ombudsman’s office that has no stake in the outcome. In short, it is part and parcel of the Ombudsman’s role to deal with people who are difficult, persistent, quarrelsome and even querulous.
That dimension of Ombudsman work is well understood. Perhaps it is time though to rethink other features of the Ombudsman philosophy. A maxim that is commonly used in self-description by Ombudsman offices is that they are ‘an office of last resort’. The initial purpose of this maxim was to explain that in the first instance a complaint should be taken up directly with the agency being complained about. But complainants sometimes hear a different message. They perceive that their final chance for justice lies with the Ombudsman, who is committed after all to being rational and impartial. Once the Ombudsman closes the file they will be cast adrift.
Other things said by Ombudsman offices are apt to convey the same message. Complainants are sometimes told that the Ombudsman’s decision on the case is final, that they must accept the umpire’s decision, and that the Ombudsman’s view is the final pronouncement in the case. There is a risk in these messages of erroneously conveying the notion that the Ombudsman has a determinative role, and finally settles disputes. It is easy to see why some people then focus their attention and energy almost exclusively on the Ombudsman’s office.
An alternative approach is to make it clear to complainants that their problem started and must end with the agency that took the action or decision about which the complain. The Ombudsman provides the opportunity for an independent examination of that complaint, but not to take control of the complaint. The most that can emerge from the Ombudsman’s investigation is a recommendation to the agency, possibly followed up by a public report or a report to Parliament if the agency resists the Ombudsman’s pressure. On the other hand, if the Ombudsman is not persuaded that the agency has acted unreasonably, then it is time for the person either to abandon the complaint, or to pursue whatever other action they choose to take. One such option is for the person to go back to the government agency if they still insist that there is a grievance that should be remedied.
Further afield there are other issues of context or philosophy that warrant re-examination. At least in Australia, the Ombudsman’s office was born and has matured in a legal setting. The language and concepts that are used to describe the methodology of the office draw heavily from legal doctrine. Prime among these are that the office observes procedural fairness in investigations, that it strives for evidence-based reasoning, and that it upholds administrative justice. These principles are laudable, but they are apt to focus attention on the importance of procedural propriety in administrative decision-making. It is a feature of the administrative law principles applied in judicial review that they are procedurally focussed, and generally eschew any consideration of whether the outcome would likely have been different if there was no procedural flaw.
Legal discourse, at least in the public law field, tends to give reduced emphasis to questions of outcome, practical result or early finalisation of a dispute. There are many instances of decisions being remitted by a court for reconsideration by reason of a minor flaw in the decision-making process, that result in a substantial prolongation of a dispute. It is possible that Ombudsman offices have been unduly influenced by legal theory and sometimes allow investigations to continue longer than they ought with a view to procedural exactness. This aligns quite frequently with the typology of a persistent or difficult complainant, for whom arguments about procedure are common and have a multiplying effect. An alternative approach is to focus principally on whether there is a practical remedy that can resolve a dispute and lead to its early resolution.
Another example of a contestable notion that is often espoused is that ‘behind every querulent is a grievance that was badly handled and allowed to fester’. On this view, irrational complainants are created by organisations that ineptly handled smaller problems at an earlier stage of the dispute. One consequence of this belief, when held by Ombudsmen or similar agencies, is to downplay the unreasonable side to complainant conduct. Another is to assume that there may still be an injustice that warrants redress.
Doubtless there are cases that aptly illustrate that notion. But it is questionable whether they are as common as folklore would suggest. Other features of complainant history perhaps suggest a different explanation. A feature common to many intractable disputes is that an incident occurred that substantially or abruptly changed a complainant’s quality of life. For example, a severe taxation penalty was imposed, the person’s business collapsed, they were dismissed from employment, or there was a marriage breakdown. Life-changing incidents of that kind lie behind many of the intractable disputes that people develop with agencies such as the Taxation Office, Centrelink and the Child Support Agency. It is necessarily part of the Ombudsman’s function to investigate those disputes. But it is important to take a cautious view of the role that the investigation can play in untangling the multiple threads in the dispute.
Dealing effectively with unreasonable complainant conduct is principally a strategic practical challenge for Ombudsman offices. For the most part that challenge is to be met in the familiar way that organisations develop and implement policies – by staff training, development of internal work practice manuals, the adoption of quality assurance practices to ensure internal consistency both among staff and over time, and by periodic managerial review of those practices and policies. This is not the place to spell out the detail of those mechanisms, which extend to many pages. But a few remarks are in order.
First, it is not an easy task to develop and implement policies and practices to regulate complainant conduct. There is no bright line that divides conduct that is deemed unreasonable from conduct that is at the persistent, passionate or colourful end of the spectrum of normal behaviour. Whatever rules are devised have to be understood and applied by numerous officers – or, to take the example of the Commonwealth Ombudsman’s office, by up to 100 investigation officers spread over 8 offices. There is also constant turnover in the investigation staff, making it all the more difficult to ensure consistency and coherence. Added to this, investigation staff are trained to be independent thinkers, and (particularly in oral communication with complainants) are largely in control of how the communication occurs.
Secondly, the strategy for dealing with unreasonable conduct will necessarily vary according to the type of conduct that is of concern. The response to violent or abusive conduct will be different to the response to an unreasonable lack of cooperation from a complainant. The manner of dealing with a person whose behaviour is distorted by drugs or alcohol must take account of that condition. Many other personality and character variables – age, language skills, ethnicity, mental stability – will also be relevant. In short, the policies of an Ombudsman’s office on relating to complainants will require flexibility and adaptability.
Thirdly, a key policy message to staff must be that unreasonable complainant conduct is a problem for Ombudsman offices that cannot be ignored. The effectiveness of the office in responding to all the complaints it receives, and in addressing systemic problems in government, will be hampered if the office is unduly diverted to dealing with high demand complainants. This message must be repeated and put in different ways if it is to influence the way that staff go about their work. It is in the nature – the good nature – of investigation staff that they will go the extra mile to provide assistance to a dissatisfied complainant. Moreover, as noted earlier in this paper, professional investigation staff can easily be persuaded by a complainant that ‘administrative justice’, ‘procedural fairness’ or some other worthy value requires that a further issue be addressed. Consequently, the office must be both clear and firm about the policy that is to be followed. A part of the message to be conveyed to staff will be that a firm approach is being taken to unreasonable conduct in order to safeguard the wellbeing and professional satisfaction of the Ombudsman’s staff.
Fourthly, a key policy message to complainants must be that the Ombudsman’s office is in control of how the investigation will be conducted. The office has the discretion to define the scope of the investigation, its expectations of the complainant, the conduct that is regarded as unacceptable, which staff member will conduct the investigation, that only one internal review will be undertaken of how the investigation was handled, and when an investigation has been closed. These matters can be explained courteously yet firmly.
Fifthly, some Ombudsman offices in Australia (though not the Commonwealth Ombudsman) are exempt from judicial review and freedom of information laws. It is a difficult proposition to argue that an administrative law agency should be exempt from administrative law oversight, but there is some merit in that proposition. Exposing an oversight agency to the oversight of like agencies runs the risk of fuelling disputes about disputes. The core role of an Ombudsman’s office is to reach a view after investigation as to whether another agency of the executive branch of government was in error in the way it handled a matter. The danger to be avoided is that the complaint against that agency mutates into a dispute with other agencies.
[1] The participants are the Ombudsman offices of NSW, Queensland, Victoria, Western Australia and the Northern Territory, and the Commonwealth Ombudsman.
[2] Eg, Botany Council v The Ombudsman (1995) 37 NSWLR 357 at 367-8.
[3] Eg, Ombudsman Act 1976 (Cth) s 35; Privacy Act 1988 (Cth).
[4] Eg, NSW Ombudsman, Dealing with Difficult Complainants (2004); Commonwealth Ombudsman, Annual Report 2003-04 at 90.
[5] The number of complaints in those three areas in 2004-05 was 1633 (taxation), 7699 (social support), and 2094 (child support). Collectively this constituted two thirds of the complaints to the office that year.
[6] Eg, Commonwealth Ombudsman, A Good Practice Guide to Effective Complaint Handling.