Sorry shouldn’t be hard to say – Ombudsmen’s Office

The Ombudsmen’s Office is suggesting a law change to make it easier for government agencies to apologise, without running the risk of facing litigation.

The Annual Report of the Ombudsmen tabled in Parliament today (Thursday) says even where agencies do have sophisticated complaint systems, the Office still finds examples where citizens were not happy with the outcome of the complaint process.

“We would simply urge agencies to consider, particularly in the case of so-called difficult complainants, going back to the beginning to see if the original decisions were soundly made.

“The experience of our overseas counterparts suggests that many complainants just want an agency to listen, understand and respect their concerns and to give them an explanation and apology. When this does not happen, conflicts can ensue.”

The Ombudsmen say some recent complaints have highlighted this issue, raising the question of when if may be appropriate for public owned entities to apologise or to express regret for actions that leave affected parties aggrieved.

“In some circumstances, a complaint may be resolved, or stopped from escalating, by making a clear sincere and timely apology and in appropriate cases, by providing an explanation for the action complained about.”

The Ombudsmen’s Office concedes that an apology for specific conduct runs the risk of being seen as an admission of liability in any potential civil litigation that may ensue and this often acts as a disincentive to making any apology.

“Some overseas jurisdictions, including Australia and Canada, have sought to overcome the risk by enacting legislation that protects the giving of apologies in an attempt to resolve a complaint.

“We believe it would be useful to give consideration to the appropriateness of such legislation in New Zealand.”

Annual report briefs

The Ombudsmen are concerned that some School Boards of Trustees are too ready to exclude or expel students. They say some BOTs are not exploring alternative measures that may keep a student at school and want to see schools doing more in this direction. In individual cases, an Ombudsman might have difficulty in upholding a complaint because the threshold for expulsions or exclusions appear to have been reached. But if alternatives have not been sufficiently explored that is not in the spirit of the judicial guidelines and the Ombudsmen continued to have concerns about the degree which issues surrounding natural justice continue to arise.

The Office of the Ombudsmen is calling for changes to the reporting time limits for claims to the Earthquake commission. It says the move is long overdue. The office has again received complaints concerning the Commission declining claims for damage which would have been accepted if they had been reported within the statutory time limits. The time limit is 30 days extending to three months in certain circumstances. The Office says the Commission cannot currently do anything other than decline a claim if it is not reported within the reporting times. The Earthquake Commission supports changes but with no amendment to the legislation in sight, the Ombudsmen suggests amendment to the Regulations through an existing statutory authority in the Act.

The Ombudsmen are reminding local bodies that they cannot contract out of their responsibilities under the Ombudsmen Act. In the Annual Report, the Office has reported difficulties that have arisen when a local authority contracts out its statutory functions to a third part not subject to either the OA or the Local Government Official Information and Meetings Act 1987.

The Ombudsmen have expressed concern that on occasions, councils are too willing to grant RMA consents to non-complying applications. They have received complaints about councils too readily deciding that people are not adversely affected by non-complying applications. The Ombudsmen say when adverse effects of a non-complying application are more than trifling, case law is clear that notification of an application must be given to those adversely affected, and, in certain cases, applications must be publicly notified.

ENDS

© Scoop Media