Challenging decisions and conduct of government agencies
The Ombudsman: Watchdogs over government
Overview of the Ombudsman’s role
Who is the Ombudsman?
The Ombudsman investigates 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 acts independently of the government (or any party that is in power at the time). They’re appointed by the Governor-General on the recommendation of the House of Representatives, which in practice means that parliament chooses them and they answer to parliament.
The Ombudsman can also investigate where an agency has failed to do something (“omissions”), 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 looks like there’s a systematic problem within 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?
If you’re unhappy with a decision, complaining to the Ombudsman can be an effective and practical way of challenging it. It can be a lot more effective than going 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 has 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 and pay court fees and costs (you might be able to get Legal Aid, but this is usually a loan, so you’ll have to pay it back).
- broad scope – The Ombudsman can investigate many different problems and complaints, including how a decision was made, and whether the decision is appropriate. If you go to the courts, you are only allowed to challenge a decision based on the way that a decision was made, not the actual decision. However, the Ombudsman can’t investigate in situations where there is a court or tribunal that you are able to complain to instead – for example, if you want to complain about a decision made by ACC there is already a specific external review process set up to do that.
- effective – The Ombudsman can only make recommendations, not orders, but their recommendations are important and government agencies usually listen to them. But even before that, when you complain to the Ombudsman the top managers of the agency involved will hear about it, instead of the lower or middle-level staff you would probably have been dealing with before. If you have a valid complaint the managers will be worried about the chance of the Ombudsman deciding against the agency, and may want to answer the complaint before the Ombudsman makes their recommendation.
Who the Ombudsman can investigate
What kinds of organisations can the Ombudsman investigate?
The Ombudsman can investigate the behaviour and decisions of any of the following agencies:
- government departments and ministries – for example, the Ministry of Education and the Inland Revenue Department – and certain departments within them, like Work and Income (which is part of the Ministry of Social Development)
- government-owned organisations (“Crown entities”) – for example, 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 that are part of local government organisations – for example, 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: “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 which 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.
In other words, if there’s already a process set up for you to review whether the right decision was made – even if you haven’t yet used that process, and even if the time limit to use it has already passed – the Ombudsman still can’t investigate the original decision. For example:
- The Ombudsman can’t investigate a decision by Work and Income if they refused you a benefit. This is 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.
- The Ombudsman 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.
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 content (the “merits”) 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:
- Work and Income – see: “Challenging Work and Income decisions: Reviews and appeals”
- Oranga Tamariki / Ministry for Children – see: “How to challenge decisions by Oranga Tamariki or the Family Court”
- Immigration NZ – see: “Challenging a Temporary Visa decision”, and “Applying for a visa as a special case (‘section 61’ visas)”
- ACC – see: “Challenging an ACC decision”.
The Ombudsman can also challenge some decisions made 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 –
- 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.
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: email@example.com
- 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 complaint 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 has 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 all the information they receive confidential.
Note: You don’t need to put together a complete case when you complain to the Ombudsman. The Ombudsman has 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 decides 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:
- 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
- the agency should cancel or change a decision
- the agency should put right something it failed to do
- the agency should change a particular practice that its decision or action was based on
- a law that the agency’s decision or action was based on should be reconsidered
- 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.
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 can 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 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 has 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: “Official information: Access to general government information”)
- receiving information from “whistle-blowers” under the Protected Disclosures (Protection of Whistleblowers) Act (see: “Employment conditions and protections”).