Challenging decisions and conduct of government agencies
The Ombudsman: Watchdogs over government
Overview of the Ombudsman’s role
Who are the Ombudsman?
The Ombudsman investigate complaints from members of the public about the decisions or conduct of government bodies and officials, as well as of a wide range of other public bodies like district health boards and school boards of trustees.
The Ombudsman are appointed by and answer to Parliament, so they’re independent of the government. (Formally they’re appointed by the Governor-General on the recommendation of the House of Representatives, which in practice means that Parliament appoints them.)
The Ombudsman can also investigate where an agency has failed to do something (“omissions”), and not just positive actions and decisions.
They can also decide to investigate an issue on their own initiative, not just after they’ve received a complaint. Usually this will be when there’s been a serious incident (for example, if they’re notified by the Department of Corrections that a prisoner has suffered serious harm) or when it appears there’s a systematic problem in an agency’s work or processes.
Note: The “Ombudsman” concept, and the word itself, were originally Swedish – roughly translated the word means “grievance person”. The role was introduced to New Zealand in 1962.
Why go to the Ombudsman?
Taking an issue to the Ombudsman can be an effective and practical way of challenging a decision that you’re unhappy with, particularly compared with taking the dispute to the courts, for the following reasons:
- fast – Usually the Ombudsman will be able to address your complaint much more quickly than the courts (although the Ombudsman have had difficulty keeping up with the increasing number of complaints in recent years).
- cheap – It won’t cost you anything to complain to the Ombudsman. By contrast, applying to the High Court for judicial review is expensive, as you’d need to hire a lawyer as well as paying court fees and costs (you may be able to get Legal Aid, but this is usually only a loan, not a straight-out grant).
- broad scope – The Ombudsman can consider a wide range of issues and grounds for complaint, including not just how the decision was made and what is good administrative practice, but also whether the particular decision itself was an appropriate one. By contrast, if you go to the courts, there are only a limited set of grounds for challenging a decision, mainly relating to the decision-making process, not the content of the decision. (But the Ombudsman can’t investigate if you have a specific right of appeal to a court or Tribunal on the merits of the case – for example, there’s a specific external review process for ACC decisions.)
- effective – Although the Ombudsman can usually only make recommendations, not legally binding orders like a court, their recommendations carry a lot of weight, and government agencies almost always follow them. But even before that, once you complain to the Ombudsman your issue is automatically brought to the attention of the top managers of the relevant agency, rather than the lower or middle-level staff you would probably have been dealing with up to that point. If you have a valid complaint the possibility of an Ombudsman decision going against the agency will be of concern to its managers, and they may be eager to resolve the dispute before the Ombudsman make a formal finding on it.
Who the Ombudsman can investigate
What kinds of organisations can the Ombudsman investigate?
The Ombudsman can investigate the conduct and decisions of any of the following agencies:
- government departments and ministries such as the Ministry of Education and the Inland Revenue Department – and specific units and services within them, like Work and Income (which is part of the Ministry of Social Development)
- Crown entities (government-owned organisations) – for example, the Accident Compensation Corporation (ACC), Housing New Zealand, the New Zealand Qualifications Authority (NZQA), and the Commerce Commission
- boards appointed under specific Acts – for example, the Charities Registration Board, the Arts Board and the New Zealand Geographic Board
- state-owned enterprises – for example, New Zealand Post and Transpower New Zealand
- committees of local government bodies such as city councils, district councils, regional councils and harbour boards (only the committees, not the local bodies themselves)
- public health authorities – for example, district health boards
- education authorities – for example, school boards of trustees and universities.
Who can’t the Ombudsman investigate?
The Ombudsman can’t investigate complaints about:
- private individuals, and private organisations like companies and incorporated societies
- MPs and government Ministers (however, the Ombudsman can investigate complaints about advice provided to Ministers by government agencies and decisions made by Ministers about requests for official information)
- police conduct – these complaints are dealt with by the Independent Police Conduct Authority (see the chapter “Police powers”)
- decisions made by a local council (but the Ombudsman can investigate decisions made by a council’s committees, including a recommendation from a committee to the council that then results in a decision of the council – so this can be an indirect way of challenging a council’s decision.)
- decisions made by courts, Tribunals and parole boards.
Types of decisions and actions the Ombudsman can investigate
What kinds of decisions and actions can the Ombudsman investigate?
The Ombudsman can hear complaints about administrative decisions and actions by public bodies and their individual officers and employees.
The Ombudsman can’t investigate if you have a right to an appeal or review of a decision – that is, about whether the right decision was made. Even if you haven’t in fact used that appeal or review right, and even if the time limit for using it has already passed, the Ombudsman still can’t investigate the original decision. This means, for example, that you can’t complain to the Ombudsman if Work and Income say you’re not entitled to a benefit, because you can have that decision reviewed by a Benefit Review Committee and the Social Security Appeal Authority. However, you can complain to the Ombudsman if, for example, Work and Income are slow in processing your application or don’t respond to your phone calls or letters.
Note: The right to apply to the High Court for judicial review doesn’t prevent you complaining to the Ombudsman, because judicial review is concerned mainly with the decision-making process, not the merits (that is, the content) of the relevant decision.
The Ombudsman and some specific agencies
In other chapters of this manual we include information about the scope of the Ombudsman’s authority in relation to the following key government agencies (this is based on information published by the Ombudsman):
- Work and Income – see “Challenging Work and Income decisions: Reviews and appeals” in the chapter “Dealing with Work and Income”
- Oranga Tamariki / Ministry for Children – see “How to challenge decisions by Oranga Tamariki or the Familiy Court” in the chapter “Dealing with Oranga Tamariki / Ministry for Children”
- Immigration NZ – see the chapter “Immigration”, in the sections “Temporary Visas / Challenging a Temporary Visa decision” and “If you’re here illegally / Applying for a visa as a special case (‘section 61′ visas)”
- ACC – see “Challenging an ACC decision” in the chapter “Accident compensation (ACC)”.
The Ombudsman have also given some examples of challenging decisions by Inland Revenue (IRD), the government agency that deals with your taxes, which we don’t specifically cover in this manual. The Ombudsman can investigate Inland Revenue decisions where you don’t have any review or appeal rights – for example:
- a refusal to cancel (“remit”) penalties or interest charged in non-shortfall cases, such as late filing penalties and late payment penalties
- a refusal to grant you hardship relief
- a decision to deduct money from your bank account.
The Ombudsman can also investigate how Inland Revenue managed your tax affairs – for example:
- delays in processing tax audits
- a poor standard of service
- delays in responding to your letters.
The Ombudsman usually can’t investigate decisions assessing how much tax you owe, or whether to charge you penalties for tax “shortfalls” (where you’ve incorrectly assessed your tax). This is because there’s a dispute-resolution process you can use and then a right of appeal to the Taxation Review Authority or the courts. They also can’t investigate Inland Revenue decisions about child support issues, because there’s a right to a review and to appeal to the Family Court.
Complaining to the Ombudsman: The process
How do I make a complaint to the Ombudsman?
You can complain either verbally or in writing, but if you do make a verbal complaint you must put it in writing as soon as possible.
These are the contact details for the Ombudsman:
- Letters: The Ombudsman, PO Box 10152, Wellington 6143
- Email: firstname.lastname@example.org
- Phone: 0800 802 602
- Online complaint form: at www.ombudsman.parliament.nz
Will it cost me anything to complain to the Ombudsman?
No – there’s no charge for complaining to the Ombudsman.
When the Ombudsman can decide not to investigate
The Ombudsman can decide not to investigate your complaint if:
- they think you’ve already got an adequate remedy or right of appeal (whether under the law or under an agency’s administrative practices) and it would have been reasonable for you to use it, or
- you’ve known about the relevant decision or action for more than a year, or
- they think your complaint is trivial, frivolous or vexatious, or isn’t made in good faith – in other words, the complaint is about something very minor, or you’ve only made it to cause annoyance, or you have some dishonest or improper motive for complaining, or
- they don’t think you have a sufficient personal interest in what you’re complaining about (that is, it’s not something that affects you personally), or
- after starting an investigation or after initial inquiries, they think for some other reason that it’s not necessary to investigate your complaint.
Note: The Ombudsman will ask you if you’ve tried to resolve the issue with the relevant agency yourself first. Most agencies have a complaints process you can use; if they don’t, you can write to the head or chief executive of the agency. The Ombudsman may decide not to investigate your complaint if you haven’t done this.
How will the Ombudsman investigate my complaint?
The Ombudsman have broad powers to investigate a complaint in the way they think is best. They can hear or obtain information from any person as they think is appropriate, and can make whatever inquiries they think are appropriate.
If they think someone has relevant information, they can require them to provide it and to produce specific documents. The Ombudsman can also summon government officials and employees to give evidence under oath.
The Ombudsman’s investigations must be carried out in private, and the Ombudsman and their staff must keep confidential all the information they receive.
Note: You don’t need to put together a complete case when you complain to the Ombudsman. The Ombudsman have a responsibility to investigate, and you will only need to respond to their questions as they do this.
The Ombudsman’s decision
What can the Ombudsman do about my complaint?
If the Ombudsman decide there’s something wrong with the decision or conduct you’re complaining about, they can report this to the relevant agency and make specific recommendations to it.
The Ombudsman can do this if, after investigating, they decide that the particular decision or action:
- seems to be against the law, or
- was unreasonable, unjust, oppressive, or improperly discriminatory, or
- was under a legal rule or a provision in an Act or regulations that is or may be unreasonable, unjust, oppressive, or improperly discriminatory, or
- was based, either wholly or partly, on a mistake of law or fact, or
- was simply wrong.
The kinds of recommendations the Ombudsman can make include:
- that the issue should go back to the agency for it to reconsider
- that the agency should cancel or change a decision
- that the agency should put right something it failed to do
- that the agency should change a particular practice that its decision or action was based on
- that a law that the agency’s decision or action was based on should be reconsidered
- that the agency should explain its decision.
Note: Although formally the Ombudsman’s recommendations aren’t legally binding, they carry a great deal of weight among public-sector officials and managers and so are almost always followed.
The Ombudsman can ask the relevant agency to respond to the Ombudsman, within a specified time, and explain any steps that the agency plans to make to put the Ombudsman’s recommendations into effect.
The Ombudsman must let you know the result of their investigation.
The Ombudsman will also send a copy of the report or recommendations to the relevant Minister or, if your complaint was about a local government organisation, to the relevant mayor or chairperson.
Note: Usually the Ombudsman are able to resolve complaints without using their formal powers to make a report and recommendations. Instead the moral authority of the Ombudsman’s office is generally enough to persuade the relevant agency to resolve the dispute – along with the threat that the Ombudsman’s formal powers might be used and therefore that criticisms of the agency by the Ombudsman might be published more widely.
What if the Ombudsman’s recommendations aren’t followed?
If within a reasonable time the relevant agency hasn’t taken some action that the Ombudsman think is adequate and appropriate, the Ombudsman can send a copy of their report and recommendations to the Prime Minister and also report to Parliament.
Other functions of the Ombudsman
Some specific functions under specific Acts
As well as their main role of hearing a wide range of complaints about public bodies, the Ombudsman also have some other specific roles under specific Acts, including:
- hearing complaints about official information requests – here government agencies have a legal duty to follow the Ombudsman’s recommendations (see, in this chapter, “Official information: Access to general government information”)
- receiving information from “whistle-blowers” under the Protected Disclosures Act (see the chapter “Employment conditions and protections”).