ombudsman for bermuda annual report 2015

7/25/2019 Ombudsman for Bermuda Annual Report 2015

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as an ultimate objective, the Ombudsman can bring to the Legislaturehis observations on the misworking of administrative legislation. He can also

focus the light of publicity on his concern as to injustices and needed change.It must, of course, be remembered that the Ombudsman is also a fallible

human being and not necessarily right. However, he can bring the lamp ofscrutiny to otherwise dark places, even over the resistance of those who woulddraw the blinds. If his scrutiny and observations are well-founded, corrective

measures can be taken in due democratic process, if not, no harm can bedone in looking at that which is good.

- Re Alberta Ombudsman Act 10 D.L.R (3rd) 47 Chief Justice Milvain, 1970

FRONT AND BACK COVERS:Built in 1844, the Gibbs Hill Lighthouse considerably reduced the number of shipwrecks on the hidden

reefs around the Island. It stands at a height of 117 feet on one of the highest hills on the Island. The

tower contains a 1,000 watt bulb inside a revolving lens. Ships can see the light beam from 40 milesaway, and airplanes can see its ashes from 120 miles away. It is now operated electronically andmaintained by the Governments Department of Marine and Ports Services.

- Information from www.bermudalighthouse.com

Cover photograph credits:Front Pierangelo Lanfranchi | www.pierangelolanfranchi.com

(as seen on bernews.com)Back

Gavin Howarth | www.bermudascenics.com


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CONTENTS

INTRODUCTION ......................................................................................................................4

Ombudsmans Message .......................................................................................................................... 4

Mission Statement and Core Values ........................................................................................................ 7

Ombudsmans Ofce Staff...................................................................................................................... 8

Congratulations to Former Ombudsman ................................................................................................. 9

Ombudsman for All People .................................................................................................................. 10

STRATEGIC AIM I: GREATER PUBLIC ACCESS .........................................................................12

How to Make a Complaint ................................................................................................................... 12

Points of Contact .................................................................................................................................. 13

Empowering the Public to Resolve their Complaints with Authorities.................................................... 13

More Transparency in Government: PATI .............................................................................................. 14

Did You Know? ..................................................................................................................................... 16

STRATEGIC AIM II: GREATER PUBLIC AWARENESS 2015 IN FOCUS ..................................20

2015 in Numbers ................................................................................................................................. 20

Recommendations in 2015 ................................................................................................................... 2

Outstanding Complaints ....................................................................................................................... 26

Selected Complaint Summaries ............................................................................................................ 27

Types of Ombudsman Referrals ............................................................................................................ 34

STRATEGIC AIM II: GREATER PUBLIC AWARENESS 10 YEARS IN FOCUS ...........................35

Complaints Over 10 Years..................................................................................................................... 35

Special Reports Over 10 Years .............................................................................................................. 37

STRATEGIC AIM III: CHAMPIONING BEST PRACTICE ...........................................................41

Assessing Good Administration............................................................................................................. 41

Improving Internal Processes and Accountability .................................................................................. 41

Ombudsman Out and About .............................................................................................................. 42

Staff Training ......................................................................................................................................... 42

Afliations ............................................................................................................................................ 4

SUPPLEMENTARY RESOURCES ...............................................................................................46

Ombudsman Act 2004 In a Nutshell .................................................................................................. 46

PATI Information Statement .................................................................................................................. 47

Complaint Process ................................................................................................................................ 4


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FIGURES

Figure 1: How People Contacted Us in 2015 ........................................................................................ 13

Figure 2: Cases Received in 2015 ......................................................................................................... 20

Figure 3: Cases Open in 2015 .............................................................................................................. 20

Figure 4: Cases Worked On in 2015 per Disposition............................................................................ 21

Figure 5: Cases Worked On in 2015 per Disposition and per Open Year or Period................................ 21

Figure 6: Disposition Category .............................................................................................................. 22

Figure 7: Cases Received in 2015 by Ministry ....................................................................................... 23

Figure 8: Cases Received in 2015 by Authority ................................................................................ 24-25

Figure 9: Recommendations in 2015 .................................................................................................... 26

Figure 10: Cases Carried Into 2016 ....................................................................................................... 26

Figure 11: Individual Complaints Referred per Year ............................................................................... 24

Figure 12: Individual Complaints per Year and per Disposition............................................................. 35

Figure 13: Systemic Investigations......................................................................................................... 36

Figure 14: Duration of Systemic Investigations ...................................................................................... 36

Figure 15: Special Reports to Parliament on Systemic Investigations per Year Published........................ 37

Figure 16: Special Reports to Parliament on Systemic Investigations..................................................... 39


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OMBUDSMANS MESSAGE

It is my pleasure to present the Annual Report ofthe Ofce of the Ombudsman for Bermuda forthe year 2015.

Last year, Victoria Park in the City of Hamiltonwas featured on the cover of our Annual Report.

I may have been inuenced by its proximity toour Ofce and familiar name. The cover showeda series of ropes holding up trees which had beenuprooted and nearly devastated after Bermudawas hit by two hurricanes in the span of a week.Tied together, the trees supported each other.They stand strong again today.

This years cover features Gibbs Hill Lighthouse,with which I am also acquainted. The lighthouseis in the neighbourhood of my childhood home

to which I have recently returned to live. Childrengrowing up on St. Annes Road often playedthere, racing each other to the top of its 185steps with me bringing up the rear. There wasalso the excitement and jitters of trying to get tothe top without being stopped by the lighthousekeeper, without a ticket or an adult. The beamwas a constant in the dark after Mamas lightsout order or when power lines were blowndown by storms.

Lighthouses are towers or structures displayingvery bright lights for the guidance of vessels.They are a source of reliable illuminationassisting navigation and the avoidance ofhazards in following certain routes. They areusually funded and free of charge for users,not unlike our Ofce. The Ombudsmans rolewas famously described in an early Canadianauthority as bring[ing] the lamp of scrutiny tootherwise dark places, even over the resistanceof those who would draw the blinds (see inside

cover for reference). The late Peter Woolcock,cartoonist and illustrator, humorously capturedthe metaphor of the Ombudsmans light in one ofhis cartoons.

Our Ofce opened to the public in September2005 and celebrated its 10th anniversary inthis reporting year. We later commemoratedthe anniversary with a week of training for

the Ombudsmans team, entitled Advancing

the Ombudsmans Impact Roles, Services,Performance. Our training was withpreeminent authority, Dr. Victor Ayeni,Director of Governance and ManagementServices International and former Director ofGovernance & Institutional Development atthe Commonwealth Secretariat. This culminatedwith a well-attended public lecture byDr. Ayeni entitled Ombudsman in EverydayLife. Our training helped to change our focusfrom what has gone wrong, to how we can help

to make it better. This is an important lesson wehave learned.

The timing was serendipitous. When the datewas xed, we were unaware it had been 10years earlier almost to the day that Dr. Ayeni hadgiven a public address on the occasion of thisOfces ofcial opening on 19th January 2006.The address was held at the Bermuda NationalLibrary. Many thanks to the Director, JoanneBrangman, and her staff for accommodating this

and visually recording it.

Our Ofce undertook an extensive review ofoutstanding complaints during 2014 and waspleased to report signicant progress. Our mainpriorities in this reporting year were working toaddress complaints carried over from previousyears and to improve complaint turn-aroundtimes. This is an ongoing part of our duty to be

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accountable. We take it seriously and endeavourto model best practice. Additionally, considerableresearch and work was carried out in procuringan updated complaint management systemto improve our efciency. We look forward tofully implementing our new system in the nextreporting year.

Our Ofces 10th anniversary is an opportunityto reect on our principles, gauge our positionand plan our way forward. We are intenton continuing to reduce turn-around-timein complaint handling. We also are focusedon awareness and accessibility to our Ofcewith education and information. This requiresboth traditional and non-traditional outreach.Social media will not cover all those withwhom we want to connect. It also remains ourgoal to reach out to Permanent Secretaries,Heads of Department and their staff to betterunderstand our respective roles and developimproved relationships. This is done mosteffectively face-to-face, but also by the toneof our correspondence. We hope to build onour improved relationship and encourageopportunities for early informal resolution ofcomplaints, where possible.

Our suggestion in our last report that departmentsshould have their own internal complaintprocesses remains a goal. This will take sometime as departments have indicated they arealready stretched for resources as they grapplewith the demands of their core work. Managingcomplaints will not tax the work of departmentsas it will ultimately save time and money. Itwill put the departments at the forefront ofgetting it right. Our wish list following our 10thanniversary year is ambitious yet attainable.

The work of our Ofce is normally neitherglamorous nor heralded, but it is consequential.Our complainants are often people in ourcommunity who rely on us to condentiallyensure public ofcers hear and address theirconcerns, complaints and grievances. Most of ourwork is not reported publicly. We have learnedthat a single, seemingly small complaint can bethe impetus for signicant improvements. Thismirrors what we have learned about our Ofce.

Even the work of a small team of six (sevenincluding our student intern through the SummerEmployment Programme) can make a big impactto affect change and improvement over time.

In the course of our work, we have encounteredinstances where cost cutting has signicantlyimpacted stafng and service levels in the

public sector. Departments have had to adjustto hiring freezes and budget cuts. Duringdifcult economic times, competition for publicresources and services intensies. This is whena high standard of service in the public sectoris required the most and warrants a renewedfocus on good administration. Reduced fundsdo not mean that the publics entitlement to fairtreatment by public authorities is diminished. Weare mindful that civil servants are members of thepublic. Unreasonable expectations and demandson them come at a price and can compromisethe quality of service and employee wellbeing.

Fair treatment in the provision of public servicesand in administrative decision making is a humanright. No one should be required to convinceofcials that he has the right to be treated fairlyand with respect. It is a human right to be treatedfairly and with respect. It is not a privilege. Thisshould be a guiding principle for the publicservice, and we can purposefully work togetherto make it so.

The Ombudsman is an ally and a resource inthe cause of good governance. Watchfulness,vigilance and attentiveness are necessary.Understanding the Ombudsmans role requiresan appreciation that she is not an advocate forany side, but an advocate for what is fair. TheOmbudsman cannot permit any concerns overthe relationship with Government, any entity orany individual to compromise the independence,integrity or authority of her work. Natural justiceand scope for disagreement and objection arebuilt into the Ombudsmans processes. Publiccondence and trust are what encourage peopleto bring forward their matters. Statements thatdiminish the Ombudsmans authority underminethe publics right, willingness and condenceto complain. They also undermine the CivilServices responsiveness to and respect for the

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Ombudsmans work and process.

In the next reporting year, we continue tobalance our priorities and resources with matterswe have under consideration. These may involveanalysis of particular issues or systemic reviews,if necessary. Improvements in regulation andoversight of entities caring for seniors and

persons with disabilities are an area of focus.Another area of focus is the sufciency ofeffective oversight of nancial institutions wheremembers of the public allege unfair practicesin complaint handling. In the case of privateentities, we do not have jurisdiction to investigateunless the entity receives Government fundingor was created by the Legislature or a Minister.We are in ongoing discussions with the Ministryof Health & Seniors as well as the BermudaMonetary Authority, as the nancial regulator,and Consumer Affairs. These public authoritiesare within my jurisdiction.

During our in-house training, Dr. Ayeni shareda surprising statistic. On average only 4% ofpeople with grievances within a populationcomplain. The remaining 96% of those who feelaggrieved do not formally make their feelingsknown. Therefore, I would like to sincerely thankthose members of the public who bring theircomplaints to us. We appreciate the trust andcondence placed in our Ofce. We understandthe seriousness of the issues at hand and thefrustration that is felt. Matters you bring to ourattention alert us to challenges which may impactthe wider community. As an ofce of last resort,we do not take your complaints lightly. Wealways seek to assist in bringing about the bestavailable resolution. This may mean at times thatthe response or proposed solution is not whatcomplainants were expecting. It is our hope that,

even in such cases, individuals will feel they havebeen heard and have received some outcome fortheir complaint.

To those who work in all sectors of the publicservice, I wish to thank you for the job thatyou do, often under difcult and challengingconditions. The knowledge and expertise youshare with us along with the support youprovide assists greatly in our efforts to uphold

our constitutional responsibilities. Weappreciate the spirit of cooperation displayedby so many in order to achieve fair, timely andreasonable resolutions.

I wish to express a special thank you to my teamat the Ofce of the Ombudsman. They are young,gifted Bermudians of whom I am very proud.

They are dedicated to the work we are chargedwith and believe what we do has an impact ongood governance in Bermuda. They fortify me.As they will be the rst to read this, I want eachof them to know their invaluable contributionsare appreciated. I also wish to thank GeorgWilson, a Business Studies and Politics graduatewho worked as our 2015 summer intern. Ms.Wilson was instrumental in helping us to reviewles, conduct research and compile informationin preparation for this report as well as generalassistance on ofce projects. Teaching andlearning are not one-way streets. Thanks to allinternational colleagues who are never too busyto discuss and share. It is gratifying to have theassurance that they are always on the other endof the telephone or just an e-mail away.

My thanks to all who have played a part andshared in the growth and accomplishmentsof the Ofce in 2015. Our team is committedto assisting the public and to assisting theGovernment to improve service to the public.This is in keeping with the tradition establishedin the rst 10 years of this Ofce and ourcontinued advancement as we navigate thechallenges to come. As an African proverb thatDr. Ayeni brought to our attention teaches us,If you want to go fast, go alone. If you want togo far, go together.

Victoria Pearman

Ombudsman for Bermuda

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MISSION STATEMENT AND CORE VALUES

To investigate administrative actions of an authority for the purpose of deciding whetherthere is evidence of maladministration on the part of the authority; and

Pursuant to an investigation, to make recommendations to an authority concerningadministrative action that formed the subject of the investigation and, generally, about

ways of improving its administrative practices and procedures.

It was to me never reason or irritation but rather a source o comort when thesebodies were asked to adjudicate on actions o my government and Office and judgedagainst it. One o the first judgements o our Constitutional Court, or example, oundthat I, as President, administratively acted in a manner they would not condone. From

that judgement my government and I drew reassurance that the ordinary citizens oour country would be protected against abuse, no matter rom which quarters it wouldemanate. Similarly, the Public Protector [Ombudsman] had on more than one occasionbeen required to adjudicate in such matters.

- Dr. Nelson Rolihlahla Mandela, Former President o South Arica

International Ombudsman Institute Conerencein Durban, South Arica in 2000

FAIRNESS

CONFIDENT

IALITY

IMP

ARTIALITY

INDEPENDENCE

CORE VALUES

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SPECIAL THANKS TOLynda Augustusformer Executive Assistantwho left our Ofce in December 2015.Our appreciation for the invaluable support and assistance she provided cannot be overstated.

Georg WilsonSummer Intern 2015

Victoria PearmanOmbudsman for Bermuda

Joined March 2014

Lamumba TuckerManager Finance& Administration

Joined September 2012

Catherine HayDeputy Ombudsman /Investigations Ofcer

Joined October 2011

LaKai DillInvestigations Ofcer

Joined December 2014

Aquilah FlemingComplaint Intake Ofcer

Joined March 2014

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Robyn EveExecutive Assistant

Joined January 2016


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CONGRATULATIONS TO FORMER OMBUDSMAN

L-R: Former Ombudsman for Bermuda, Arlene Brock; Dr. Victor Ayeni, Director of GMSI;Ombudsman for Bermuda, Victoria Pearman

The Ofce of the Ombudsman extends a warm congratulations to our former Ombudsman, ArleneBrock, on her appointment as Director of the African Ombudsman Research Centre (AORC) inKwaZulu-Natal, South Africa. Ms. Brocks work as Bermudas rst Ombudsman in creating this Ofcespeaks for itself and has laid a strong foundation for our continued growth. It is AORCs good fortune

to have the benet of her expertise and vision. We have no doubt that, with her guidance, AORC willcontribute great things for Ombudsmanship and for people globally. This is an exciting opportunity, andwe wish her every success in her new endeavour.

We view your Office as a cornerstone in the great structure that is good governance. By

investigating complaints to determine whether the Government is doing things in a airand proper way, and by learning rom what went wrong and translating recommendationsinto action, you are not only improving governance, but you are improving peopleseveryday experience with the Government.

- Te Hon. Alex Scott, Former Premierin January 2006 at the official opening o our Office

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OMBUDSMAN FOR ALL PEOPLE

The Ombudsman rst set out her strategic aims forthe start of her term, which commenced on 17thMarch 2014, in our Annual Report 2013. Thesestrategic aims were: greater public access; greaterpublic awareness; and championing best practice.

In pursuit of greater accountability to the public, theLegislature, the Government and the Civil Service who all have a vested interest in the success ofBermudas national Ofce of the Ombudsman our team has continued to work diligently to achievethese aims. In our Annual Report 2015, we reporton these efforts and our progress during this Ofces10th year in service. We also reect generally on thework of the Ombudsman over the 10 years of ourexistence.

Continuing on from an initiative introduced in lastyears report, the Ombudsmans strategic aims lay out a structure for presenting this Annual Report.

The second section on Greater Public Access describes how the public can reach us, whatthe advent of the Public Access to Information Act 2010 (PATI) regime means for our Ofce, andsuggestions on how complainants can help us assist them. We also describe useful information onhow authorities operate and what policies, procedures, practices or laws guide their decisions inour 'Did You Know' section.

The third section on Greater Public Awareness reviews our complaint handling both in 2015 aswell as over the past 10 years. We rst focus on the past year, providing selected summaries ofcomplaints closed in 2015 with our reections on important lessons learned. Then looking backover our 10 years, we report on our complaint handling since 2005 and provide an easy referenceguide on the Ombudsmans systemic investigations and special reports to Parliament.

The fourth section on Championing Best Practice describes what we have done to build upon ourstrengths and improve our processes, as well as our outreach and training activities for 2015.

The fth section features quick reference resources, including an overview of the law that guides ourwork the Ombudsman Act 2004 (the Ombudsman Act) and our complaint process owchart.

This Annual Report is geared towards presenting our overall performance in the year 2015 in an easy-to-follow format. Our complaint handling data is illustrated using various gures, in a performance-focused

way to give a snapshot of how our complaints process works. We provide more detailed informationon how we addressed cases in 2015, including complaints carried over from previous years, along withour denitions of what each disposition category means. We also show basic comparisons of complaintsfrom year-to-year during our 10 years.

We hope you nd our Ofces publications to be an engaging and informative insight into our progresstoward improved performance and greater accountability to Bermuda. We welcome your feedback.

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When you behave the same way, you get the same results.

But when you behave differently, you get different results.

- Spencer Johnson

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STRATEGIC AIM I:

GREATER PUBLIC ACCESS

An Ombudsman exists to address complaints

from the public. It is that simple. An Ombudsman

can perfect her ofces policies and procedures

and have well-trained and procient staff,yet without addressing complaints, she is not

fullling her function. In keeping with this,

an Ombudsman must focus on making her

services accessible to all. Our Ofce has made

accessibility a priority, and we wish to highlight

our efforts to that end.

We want to remain relevant and responsive, so

we keep abreast of developments and public

opinion. We also also gain insight when people

come through our doors or approach us on the

streets. It is gratifying to hear people express

condence in our ability to help address a wide

variety of their concerns. We are also aware of a

misconception that we are a catch all ofce. In

fact, our Ofce is one of last resort.

While the Ofce of the Ombudsman exists

to help the public resolve complaints about

Government services, there are areas where our

powers may be partially or wholly restricted.

There are good reasons for these restrictions. An

Ombudsman is meant to be the nal decision

maker on what is and what is not administratively

fair. To be effective in this way, an Ombudsman

should avoid becoming side-tracked by matters

within the purview of other bodies.

See past commentaries on: (a) the Evolution

of the Modern Ombudsman in our Annual

Report 2010, with reference to the Ombudsman

and other independent bodies forming the

integrity branch of Government; and (b) the

Indicators of Independence in our Annual

Report 2010 Interim.

HOW TO MAKE A COMPLAINT

Anyone can make a complaint to the

Ombudsman about Governments services.

You do not have to be a Bermudian or a resident

of Bermuda. Should you have questions about

whether or not we can address your complaint,

contact us.

Even if a complaint is outside of our jurisdiction,

we will endeavour to assist you by providing

information or by referring you to another body

which may be able to look into the issues you

raise. If you are aggrieved and are able to make

a complaint to the relevant authority, you should

do so at your earliest opportunity. It is better

to seek assistance quickly than to remain in a

quandary on your own. We are here to assist you

If you are dissatised with how your complaint

to a Government authority was addressed, or feel

you were mistreated, we encourage you to reach

out to the Ombudsman. You can contact us in

various ways: by telephone; in person as a walk-

in or by appointment; by email or online through

our website; or by letter or fax.

ADDRESS:

Dundonald Place, Suite 102

14 Dundonald Street West

Hamilton HM 09, Bermuda

OFFICE HOURS:

Monday to Thursday 9:00 a.m. 5:30 p.m.

Friday 9:00 a.m. 5:00 p.m.

CONTACTS:

Tel: (441) 296-6541 | Fax: (441) 296-7734

Emails: [email protected]

[email protected]

Online: www.ombudsman.bm

www.facebook.com/bermudaombudsman

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POINTS OF CONTACT

One of our primary outreach tools is the

Ombudsman for Bermudas website, found at

www.ombudsman.bm. Not only can you submit

a complaint to us by an online form, you can also

nd all of our special reports and annual reports

in a downloadable format.

In terms of online trafc, our website hosted

2,523 users and 6,962 page views in 2015.

Of those page views, 78% were made by new

visitors and 22% were made by returning visitors.

The average session duration on the site was one

minute and 26 seconds. By far the busiest month

for site trafc was June, corresponding with

the release of our Annual Report 2014 which

included updates on two systemic investigations.

In comparison, in 2014 we hosted 2,142 users

where 74% were returning visitors and the peak

month was also June. From 2014 to 2015, there

was an 18% increase of online trafc to our

website. We hope to attract even more online

users, locally and internationally, including to our

social media presence at www.facebook.com/bermudaombudsman. Here we aim to regularly

post facts of interest and provide important

information from an Ombudsmans perspective.

A majority of complainants in 2015, a total

of 80%, contacted us either by telephone

or by visiting our Ofce in person. This is a

consistent trend. Complainants want to be

heard. Contacting us by telephone or speakingin person means that questions can be more

quickly acknowledged, and we can clarify what

we can or cannot do for the complainant. This

direct interaction also allows us to gather the

information we need to assess the complaint

and determine what further information we

may still need.

EMPOWERING THE PUBLIC TO RESOLVETHEIR COMPLAINTS WITH AUTHORITIES

When things go wrong, sometimes the stressand frustration can feel overwhelming. Thereare practical steps that people can take toassist themselves in making a complaint. Weencourage complainants to be proactive and tofeel empowered, whether complaining directly toan authority or when coming to our Ofce.

STEP 1 - BEFORE MAKING A FORMALCOMPLAINT, ASK YOURSELF:

What is my concern? Make note of what yourconcerns and/or questions are. For example,do you feel you were treated fairly? Do youhave a concern about an outcome or decision?Do you feel that a process is fair? Do not beafraid to write down more than one concernor question.

Figure 1: How People Contacted Us in 2015

Telephone52%

120By phone

In Person28%

64By walk-in or appointment

Email16%

38By email or website

Letter4%

10By letter

(mailed, hand delivered or faxed)

Total Contacts in 2015: 232

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How can I be assertive and effective? Try to be

specic and use details to explain yourself.

Have I taken ownership of an error or oversight

on my part or by someone else on my behalf?

Be honest with yourself.

Have I spoken with the right person? Often

misunderstandings can be solved informally

by talking to the right person who is familiar

with the issue. If addressing your concern will

require more decision making power beyond

the frontline staff, say that you wish to speak

with someone more senior.

Would it be good to ask a trusted friend or

family member to help me? Set yourself up for

success by seeking support or assistance whenyou need it.

STEP 2 - BE PREPARED WHEN

FILING A COMPLAINT:

Keep a record of all communication with the

authority and any other body you contacted

about the issue (names, dates, what was said,

agreed upon next steps for yourself and

the authority).

Compile and organise all relevant documents,

emails and correspondence (this could include

envelopes with post ofce date stamps).

Take notes at each stage of the process. This

will help you prepare a summary and timeline

of what happened.

Ask the authority to explain its complaint

procedure and whether it is availablein writing.

Promptly carry out directions, instructions

or guidance provided by the authority which

that will assist you. Otherwise, make clear why

you decided not to follow them. Delays on

your part can make addressing your complaint

more difcult.

MORE TRANSPARENCY IN GOVERNMENT:PATI

In April 2015, Gitanjali S. Gutierrez commencedher term as Bermudas rst InformationCommissioner. Ms. Gutierrez provides oversightof all public authorities application of the PublicAccess to Information Act 2010 (PATI). Whatthis means for all of us is that public authoritieshave to provide more information about their

activities and that any Bermudian or resident ofBermuda can request copies of public records.If the Government or public authority refusesto provide a record, there is an independentoversight body that has the nal say.

Much like our rst Ombudsman 10 years ago,Ms. Gutierrez has the arduous task of not onlysetting up a new public ofce and makingdecisions on appeals, but also educating thepublic on what PATI means for Bermuda.From the perspective of our Ofce, the powerto request records from an authority is a veryimportant one. There are limited exceptionswhich restrict access to a record. There is apresumption that a record should be providedunless a specic justication exists in PATI forexample, to protect condentiality or other rights

In the years before PATI, we received severalcomplaints which hinged upon an authoritysrefusal to provide a complainant with adocument or other record. For instance, oneindividual complained that an authority wasarbitrary in its classication of documents. Theauthority refused to provide the complainantwith a document which she believed shouldhave been classied as a document availableto the public. That complaint is an illustrationof the importance of PATI and the InformationCommissioners Ofce (ICO). Now with

We do not, and never will, accept theproposition that the business o the publicis none o the publics business.

- Te Hon. Ian Scott, July 1985(Former Member o Provincial Parliament in

Ontario, Canada)

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PATI in effect, public authorities can no longerimplement their own classication policiesdeeming huge categories of records out of thepublics reach.

As of April 2015, if an authority refuses toprovide an individual with a document, theindividual can apply for this decision to be

reviewed rst by the authoritys head and then,if the individual is still unhappy with a decision,by the ICO. The Information Commissionersdecisions are binding and they can be led withthe Registrar of the Supreme Court to be enforcedin the same way as an order of the SupremeCourt. Any party (including the requester,authority or a notied third party) to a decisionby the Information Commissioner has the right toapply to the Supreme Court to judicially reviewher decision.

At our Ofce, we believe it is important for thepublic to be empowered to resolve disputes withpublic authorities. Being informed can positivelyimpact the resolution of a complaint. The accessto public documents created by PATI couldhave provided vital information for many of thecomplainants who sought the assistance of theOmbudsman before April 2015. It is our hopethat members of the public will avail themselvesof this right of access. Below is guidance from theICO on how to make a PATI request.

WHERE TO START

Decide which records you want.Think abouthow a public authority keeps records of thetype of information you are looking for (forexample, in a report, policy document,manual, minutes of meetings, or email, etc.).

Figure out which ofce has it.You should le

your request to the public authority thatholds the records of information you arelooking for. There are over 200 publicauthorities. A good place to start is to searchthe Government portal or refer to theGovernment organisational chart(www.gov.bm).

Make your request to the information ofcer.Each public authority has a staff member

assigned to take PATI requests called aninformation ofcer. Once you have decidedwhich public authority to approach, you cannd out how to le your request by lookingat its Information Statement. An InformationStatement tells you whom to send your requestto and also describes the kinds of records heldby a public authority. The InformationStatements are listed on the ICOs website(www.ico.bm) and on the Government portal(www.gov.bm). Paper copies of the InformationStatements are held at the ICO, the BermudaNational Library and the Bermuda Archives.

WHAT TO INCLUDE IN YOUR REQUEST

Put it in writing.Your request should be inwriting. Requests can be made by email. Somepublic authorities may ask you to complete a

PATI Request Form, but this is not mandatory.

Be specic.Give as much detail as you canabout the information you are looking for.Your request should clearly describe therecords so that the public authority canunderstand what you are looking for andcan search to nd the records.

Decide how you want to receive theinformation.Make it clear in your request

how you want to receive the records. Keepin mind the public authority may charge youa fee. Consider asking for an email copy,which should be free. Be sure to provide yourcontact information so that the public authoritycan reach you about your request.

TIPS WHEN MAKING YOUR REQUEST

Call ahead.Once you know who theinformation ofcer is, call and ask for guidanceabout the public authoritys procedures beforeyou le your request.

Ask for help.If you are unsure about whatspecic records to ask for, do not hesitate toadmit that you are unsure. The publicauthority has a duty to assist you with makingyour request. They can even transfer yourrequest to another public authority if therecords are held by another public authority.

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Have your ID ready.When you make yourrequest, the public authority may ask you forproof that you are Bermudian or a resident ofBermuda. This is to conrm your eligibility. Beprepared, but know that public authoritiesshould not demand to keep a copy of yourpersonal identication without your consent.

Insist on condentiality.Your identity mustbe kept condential by the public authority.You should tell the information ofcer if youare worried about someone nding out aboutyour request.

Be proactive.The public authority has ve daysto acknowledge that it received your requestand six weeks to decide if it can give you therecords. This can be extended in certain cases.Monitor the deadlines. If you have not heard

from the information ofcer, call and ask foran update. Remember, they are there toassist you.

WHAT IF THEY SAY NO?

Consider their reasons.If you agree with theinformation ofcers reasons for not giving youall or part of the records, or you are satisedwith the records they have given you (even ifit is not all the records you asked for), then

there may not be need to take further action. Ask again.If you are dissatised with the

outcome, you can ask for the person in chargeof the public authority to conduct an internalreview of the decision. The informationofcers decision should tell you how to askfor this. Some reasons to ask for an internalreview are: you were not given access to allor part of the records; the information ofcerfailed to decide within six weeks; the

information ofcer chose not to give you therecords in the way you asked for them; or youdisagree with the fee (a full list of reasons arefound in s.41 of PATI).

Appeal.If, after you receive a decision bythe head of the public authority, you are stilldissatised with the decision, you can askfor the Information Commissioner to conducta review and make a binding decision.

Be aware of time limits. For information onhow to le an application for appeal with theICO: go to www.ico.bm; send an email [email protected]; call the ICO on 294-9187; orvisit their ofce at Valerie T. Scott Building,60 Reid Street, Hamilton HM 12.

DID YOU KNOW?

In our daily work, we learn new informationabout the Governments services and processes.Here is a selection of information on a variety oftopics of public interest.

APPEALING A DEPARTMENT OF SOCIALINSURANCE DECISION

The Department of Social Insurance (DOSI)handles the day-to-day administration of theGovernments Contributory Pensions Fundand oversees benets to war veterans. It alsodistributes disability benets and widow(er)benets. When a person is eligible to receivehis social insurance, he must le a claim withthe Director of DOSI who is charged withdetermining claims made under the ContributoryPensions Act 1970 (the CPA). She is alsocharged with addressing questions arising underor in connection with the CPA (s.25 CPA).

If a person is aggrieved with the Directorsdetermination on his question or of his claim,section 26 of the CPA provides the person withthe right to appeal to a tribunal embodied underthe CPA. An appeal must be made by notice tothe Director within 30 days after the date onwhich the Directors decision was given (s.26(1)CPA). Further, if a person is aggrieved by adecision given by the Tribunal, he may appeal tothe Supreme Court (s.28(1) CPA).

Under section 32(1) of the CPA, All sums dueto the [Contributory Pensions] Fund shall berecoverable as debts due to the Crown, andwithout prejudice to any other remedy, maybe recovered summarily as a civil debt by theDirector. In other words, the Director may takea legal action to recover a debt owed for anyoutstanding amounts (e.g. payments which aformer employer failed to pay).

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It is open to an individual to take legal actionagainst a former employer under the CPA forfailing or neglecting to pay any contributionsit was liable to pay (s.33 CPA). There are timelimitations which may need to be consideredand addressed. However, these time limits donot commence at the time of the alleged wrongdoing. Rather, the CPA anticipates that legalaction under section 33 must be commencedwithin one year after the date on which theperson would have been entitled to the benet.This means that a court action may be takenagainst a former employer 20 years after theemployer failed to make social insurancecontributions on his employees behalf, as longas the employee commences his action within ayear of the date on which he becomes eligible forsocial insurance benet.

STEPS FOR LODGING A HEALTH ANDSAFETY COMPLAINT

If you wish to make a complaint about healthand safety conditions at your place ofemployment in the private sector, you maycontact the Health and Safety Ofcer (theOfcer) within the Department of Health.The Ofcer receives complaints about privateentities concerning potential breaches of the

health and safety standards outlined in theOccupational Safety and Health Act 1982(OSHA). The Ofcer is responsible for manyimportant areas, including the inspection ofmedical equipment at the King Edward VIIMemorial Hospital and in medical practitionersofces as well as inspecting for asbestos andmould in buildings. He is also called to the sitesof industrial and private accidents.

You can make a complaint by telephone andcan choose to remain anonymous if you wish.Section 7C of OSHA protects employees fromlosing their job if they make a complaint of abreach of health and safety standards againsttheir employer. After your complaint is made,the Ofcer may investigate the site complainedof and take note of any breaches. Subsequently,he will discuss how the problem can be resolvedwith the management of the entity responsiblefor the breach. After the discussion, the Ofcersets a deadline for the problems to be addressed.Depending on the level of danger, the Ofcermay require immediate action, may give a neand/or may shut down the operations of theentity on the spot. However, he will not specifyhow the problem should be addressed as themanagers have the ultimate responsibility of

deciding how the problem will be solved. TheOfcer will follow up with the management ofthe entity once the deadline has passed to ensurethat the entity site is in compliance with healthand safety standards. If the deadline has passedand the entity still has not resolved the breach,the Ofcer may give the entity one last chanceto rectify the breach before referring the matterto the Department of Public Prosecutions. Anemployer can be ned a maximum of one milliondollars (s.21 OSHA).

Under section 19 of OSHA, the Ofcers reportsare condential and can only be subpoenaed bythe Courts. Employees may request a summaryof the reports arising from their complaints. Themanagement of entities found in breach do notreceive the full report; instead, they receive a listof problems and the date by which the breachesshould be rectied. The reports are exempt fromPublic Access to Information requests.

Health and safety complaints about Governmentworkplaces can be made to the Safety and HealthCoordinator who falls under the Cabinet Ofce.

POLLUTION COMPLAINTS

There are a variety of ways in which people canpollute our beautiful Island. There are also severaGovernment agencies responsible for handlingdifferent types of pollution complaints.

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The Department of Environment and NaturalResources (DENR) can assist you withcomplaints and questions about the followingtypes of pollution:

For air, including exhaust, fumes, dust orodours emitted from equipment or facilities(e.g. sewage treatment plants, electrical

generators, spray paint facilities, sand sifters,rock crushers, etc.), or for open-air burning ofany materials; and

For water, including pollution of groundwater,ponds or seawater from any sources (e.g. fueltanks, boats, ships, etc.).

If you witness the above types of air or waterpollution, you may contact DENR at:

Tel 1: 239-2303

Tel 2: 239-2356Tel 3: 239-2318Email: [email protected]

Additionally, the following environmentalconcerns are addressed by other authorities:

For asbestos, drinking water quality issues,air quality within buildings and industrialnoise, contact the Environmental Healthsection in the Department of Health at:Tel: 278-5333

Email: [email protected]

For litter and illegal dumping, contact theMinistry of Public Works at:Tel: 278-0560Email: [email protected]

For garbage collection, contact theMinistry of Public Works at:Tel: 292-7454

For vehicle emission pollution, contact theTransport Control Department at:Tel: 292-1271

CUSTOMS SEARCH POWERS

An example of the Ombudsmans restrictedjurisdiction is seen in complaints about Customssearch powers. Paragraph 4 of the Schedule to theOmbudsman Act prohibits us from investigatingadministrative actions taken for the purpose ofprotecting the security of Bermuda. While this

means that our assistance with search powerscomplaints is limited, it does not prevent usfrom raising issues with the Collector of Customswhen people reach out to us. The Collector wasvery responsive to our inquiries. She is willingto speak with those who have questions aboutsearch powers or have raised complaints and arenot satised with the response received.

Over the last two years we have seen a numberof complaints questioning Customs search

powers at the L. F. Wade International Airport(the Airport). Through our inquiries, we havelearned that Customs ofcers at the Airportare tasked with serving multiple functions inaccordance with Governmental agreements andempowered by statute.

These includes the inspection of passengersfor the purposes of immigration and healthand security risk assessments. The breadthof questions that Customs ofcers may ask

passengers extends beyond the import of dutiableand non-dutiable goods to broadly encompassmany sensitive aspects of border control. Thisalso means that a passenger who does not havegoods to declare or travels with carry-on luggageonly is not exempt from being inspected byCustoms ofcers by virtue of standing in thegreen channel. Given its multiple functions,it can be routine practice for a passengerspassport to be taken into a separate ofce foran immigration manager to complete a morethorough inspection of the record. It is alsoroutine practice for a passenger to be questionedregarding his ability to sustain himself nanciallywhile staying in Bermuda.

Hands washed together come out cleanerthan a single hand washed by itsel.

- Sierra Leonean Proverb

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NEW ONLINE EXAMINATION FORGENERAL PRACTITIONERS

The Bermuda Medical Council launched a new,online qualifying examination for registrationas a General Practitioner in Bermuda in January2016, as part of its efforts to stay abreast of bestpractice initiatives. The standardised examination

is administered through the National Board ofMedical Examiners in the USA and proctoredby qualied staff at the Ministry of Health &Seniors. For more information on the GeneralPractitioners registration process, contact theBermuda Medical Council through its ExecutiveOfcer by email at [email protected].

LAND TITLE REGISTRY

In last years Annual Report, we provided Did

You Know information on Bermudas LandTitle Registry (the LTR) and called upon theGovernment to take the remaining necessarysteps to commence the operation of this ofce.The Government anticipated that the publicwould be able to start registering land in2016. In November 2015s Throne Speech, theGovernment expressed its intention to table theLand Title Registration Amendment Bill in thisParliamentary session. Thereafter we soughtupdates from the Ministry of Public Works and

the Ministry of Legal Affairs.

The LTR is still not operational and has yet toopen its doors to the public. In June 2016 inpreparation of this Annual Report, we have beentold that the Ministry of Public Works is stillworking towards the implementation timeline of2016. As we said last year, we anticipate that theGovernment will ensure this is not delayed anyfurther and will proceed with all necessary steps.

We stated in our Annual Report 2014 that itwas surprising to learn that Bermuda was sofar behind much of the developed world in itsexclusive reliance on a deed-based propertytransaction system. The length of time takenfor Bermuda to adopt a title-based registrationsystem and bring this ofce on line frankly isembarrassing and expensive.

In the past year there also has been lost revenuesfrom fees the [LTR] should have generated.

The total cost of running and setting up the ofcefrom 2005 to 2016 has been over $11 million. Ifthe LTR were operational, it is projected that itsminimum annual income would be $1.1 million.

The LTR was set up between 2005 and 2006, thesame time when the Ofce of the Ombudsmanwas established. Two experienced Land TitleOfcers were seconded from the UK LandTitle Registry Ofce to assist with training theBermudian ofcers and to help supervise themonce the LTR had become operational. However,so much time has passed since the ofce wasset up that the two secondees returned to theirpositions in the UK in 2014 and 2015.

The LTR currently has six employees, fourof whom are Bermudian. The Bermudianstaff includes:

Two Land Title Ofcers who have undertakenthe certicate in Land Title Registration Lawand Practice and also were seconded to theUK in 2011 for six months to work in a UKLand Title Registry Ofce;

A Mapping Ofcer who has also undertakenthe certicate in Land Title Registration Lawand Practice, and who has visited a UK LandRegistry Ofce to learn about its functions; and

A Trainee Legal Ofcer who has beenseconded for two years to work in the UK togain experience working in a jurisdictionwhere land registration is practiced andwhere she is working toward qualifyingas an attorney.

For more information on the purpose and

functions of the LTR, see pp.23-25 of our AnnualReport 2014. Note that we referred to it then asthe Land Title Registry Ofce. This year, due todepartment transitions, we refer to it simply asthe Land Title Registry.

Download the report from www.ombudsman.bm

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STRATEGIC AIM II:GREATER PUBLIC AWARENESS 2015 IN FOCUS

2015 IN NUMBERS

From 1st January to 31st December 2015, ourinvestigations team of four worked to addressa total of 333 cases (see Figure 5). Our 2015complaint activity may appear to be substantivelyhigher on comparing it with past years for tworeasons (see Figure 12).

As of 1st January 2015, we began to captureinformation on enquiries. These were instanceswhen people contacted us to seek informationwithout making a complaint. Most enquirieswere answered immediately, but sometimes moretime was needed to provide the person withguidance. We received and dealt with a total of71 enquiries in 2015.

In addition to the enquiries, we received 161new complaints in 2015. Hence, the number thatmore accurately describes new cases receivedin 2015 is 232, this being the total of complaintsand enquiries (see Figure 4). But this number stilldoes not capture the full scope of our caseloadin 2015. We need to add to it the data aboutcomplaints that were carried over from 2014.

Figure 2: Cases Received in 2015

As of 31st December 2014, we carried overinto 2015 a total of 101 complaints that hadbeen opened in previous years. (A furtherreconciliation revealed that the number of activecomplaints at the end of 2014 was not 98 aspreviously reported but 101.)

When these two factors are considered, wedemonstrate that during 2015 we worked toaddress a total of 333 cases (see Figure 5).Of this total, 269 cases were closed in 2015,and 64 cases were carried over into 2016 (seeFigure 3). Of those 64 cases carried over into2016, 33 were closed by 31st May 2016.

Figure 3: Cases Open in 2015

o get lost is to learn the way.

- Arican Proverb

3216 16

23254 47

0%

20%

40%

60%

80%

100%

2015 2014


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Figure 4: Cases Worked On in 2015 per Disposition total 333(categories are listed clockwise from top centre)

Figure 5: Cases Worked On in 2015 per Disposition and per Open Year or Period total 333

Disposition 2015 2014


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Figure 6: Here is a description of each disposition category, with reference to the relevant sections ofthe Ombudsman Act which provide guidance on our defnitions.

Disposition Defnition

AbandonedComplainant did not provide sufcient contact information or respond to our attempts to make contact(see s.9(2)(a) re decision not to investigate).

Closed AfterInquiries

We decided not to proceed with the complaint after making inquiries or based on an initialassessment because: (a) the issues within jurisdiction were adequately addressed; or (b) thequestions we raised to the authority were sufciently answered (see s.8 repreliminary inquiries).We may have used alternative resolution techniques (see s.10 re mediation; and s.8 repreliminaryinquiries). We also may have made general suggestions to assist the authority in improving itsprocesses.

ClosedMaladministration

At the conclusion of a formal investigation, the Ombudsman made ndings of maladministration,and the authority provided its statutory response (see s.15(3) reprocedure after investigation; ands.16 re authority to notify Ombudsman of steps taken).

Closed MixedMaladministration

At the conclusion of a formal investigation, the Ombudsman made ndings of maladministrationand no maladministration, and the authority provided its statutory response (see s.15(3) reprocedure after investigation; and s.16 re authority to notify Ombudsman of steps taken).

Closed NoMaladministration

At the conclusion of a formal investigation, the Ombudsman made ndings of no maladministration(see s.15(1) reprocedure after investigation).

Declined

Issues raised were outside of our jurisdiction because of the subject matter and/or body complainedof (see s.6(1)(3) and the Schedule re actions not subject to investigation). Or, issues raised mayhave been within jurisdiction but were out-of-time (see s.9(1)(a) re decision not to investigate) ordetermined to be frivolous (see s.9(1)(c) re decision not to investigate). In these cases, we may havedeclined outright or made inquiries to establish jurisdiction and/or determine whether there mightbe other forms of redress available for the complainant (see s.8 repreliminary inquiries).

Declined and

Referred

Issues raised were outside of our jurisdiction because of the subject matter and/or body complainedof (see s.6(1)(3) and the Schedule re actions not subject to investigation). Or, issues raised may havebeen within jurisdiction but were out-of-time (see s.9(1)(a) re decision not to investigate). We mayhave made inquiries to establish jurisdiction and/or determine whether there were other forms of

redress available (see s.8 repreliminary inquiries). These inquiries may have included general orspecic questions about the issues. We determined that there were other ways for the complainantto seek redress and provided information to the individual on possible next steps (see s.9(1)(b) redecision not to investigate alternative remedies).

Enquiry

Person contacted us to seek information, not necessarily to complain, with questions about anauthoritys processes and/or our services. Person may have been aware that there were othersteps to pursue before complaining to us. This may have included complaint letters addressed toauthorities or other bodies that were copied to us.

InformallyResolved

Complaint was resolved between the authority and the complainant with informal interventionfrom us. We may have facilitated resolution by making brief, informal enquiries that prompted theauthoritys action and/or by coaching the complainant on how to approach the authority (see s.9(2)

(c) re decision not to investigate settled; and s.8 repreliminary inquiries).

Referred

Complaint subject matter and/or body complained of fall within our jurisdiction, but there wasa more appropriate remedy still available to the complainant (see s.6(1) and (2) re restrictions onjurisdiction to investigate). Complainant had not raised the issue with the correct authority or hadnot yet exhausted the authoritys complaint handling procedure, and we determined that it wasnecessary and fair for the complainant to give the authority adequate opportunity to address theissues raised (see s.9(1)(b) re decision not to investigate alternative remedies).

WithdrawnComplainant requested that we take no further action on the complaint. This may have been doneat any stage during the process (see s.9(2)(b) re decision not to investigate).

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To summarise our work on new cases openedin 2015:

We received 232 new cases:161 complaints + 71 enquiries.

Of the 161 complaints, 102 were in ourjurisdiction, and the other 59 were not.

We assisted 25 of the 59 that were Declinedwith additional resources, plus 36 of those102 within jurisdiction giving a total of 61that were Referred. We helped them raise theirissues with the right entity or directed themback to the authority complained of.

13 complaints were Abandoned or Withdrawnby the complainant.

6 complaints were resolved between thecomplainant and the authority with informalintervention from us, and 14 were Closed

After Inquiries.

1 complaint was investigated and resulted inndings and recommendations. In addition,we concluded 5 other investigations intocomplaints that were carried over into 2015.

Figure 7: Cases Received in 2015 byMinistry total 232

Figure 7 shows abreakdown of thecases we received in2015 by the relevantMinistry according tothe Governments 2015organisational chart.

(As of May 2016,several changes weremade to the organisationof Ministries,

departments andother bodies underthe Governmentsresponsibility.)

The graph also includesa breakdown of twocategories of Non-Ministry and Not-in-Jurisdiction todepict the number ofcases received against

bodies which are Non-Ministry, not part of theGovernments executivebranch, or not part ofGovernment.

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Figure 8: Cases Received in 2015 by Authority total 186

Figure 8 shows the total number of cases received in 2015 in respect of the relevant authority that fallsunder the responsibility of a Ministry. The gures do not include 46 cases that were made against Non-Ministry or other bodies Not-in-Jurisdiction. Some of these departments have a higher volume of publicinteraction than other areas and thus may have a higher volume of service users.

6

2

1

1

1

12

7

2

1

4

4

1

2

7

1

12

1

11

1

7

1

1

1

13

0 3 6 9 12 15

Accountant General

Ageing & Disability Services

Airport Opera>ons

Bermuda College

Bermuda Health Council

Bermuda Hospitals Board

Bermuda Housing Corpora>on

Bermuda Land Development Corpora>on

Bermuda Medical Council

Bermuda Monetary Authority

Bermuda Police Service

Cabinet HQ

Child & Family Services

Corpora>on of Hamilton

Corpora>on of St. George's

Correc>ons

Court Services

Customs

Economic Development Ministry HQ

Educa>on

Energy

Environmental Protec>on

Finance Ministry HQ

Financial Assistance

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There are notable peaks in complaints that can be observed for certain Ministries and authorities in2015. These numbers represent complaints and enquiries made, not ndings of the Ombudsman inrelation to the cases. These numbers alone do not indicate whether the complaints were upheld by theOmbudsman through our inquiries.

1

4

4

4

5

10

6

1

1

2

9

2

2

2

2

1

4

2

2

4

2

2

14

0 3 6 9 12 15

General Post Office

Health

Health, Seniors & Environment Ministry HQ

Human Resources

Human Rights Commission

Immigraon

Legal Aid Office

Naonal Drug Control

Naonal Security Ministry HQ

Pensions Commission

Planning

Police Complaints Authority

Public Lands & Buildings

Public Transportaon

Registrar of Companies

Rent Commission

Social Insurance

Tax Commissioner

Tourism Development & Transport HQ

Transport Control

Treatment of Offenders Board

West End Development Corporaon

Workforce Development

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RECOMMENDATIONS IN 2015

The Ombudsman may make recommendationsconcerning any administrative action thatformed the subject of an investigation(s.5(1(b)). Specic recommendations aim toput complainants in the place they would havebeen in had no maladministration taken place.

General recommendations are made to offerimprovements for the authorities administrativepolicies, procedures and practices. In addition toformal recommendations, when we observe thatan authoritys processes could be improved wecan make suggestions.

Figure 9 depicts the Ombudsmans generalrecommendations arising from investigationsinto individual complaints that were concludedin 2015. It describes the number per type of

recommendation and the number acceptedor partially accepted by the authority beforewe formally closed the complaint. Theauthorities agreed to implement 86% of thegeneral recommendations. The most prominentform of specic recommendation made wasfor the authority to write a without prejudiceapology letter to the complainant. (See a pastcommentary on the value of this tool in ourAnnual Report 2012.)

Figure 9: Recommendations in 2015

OUTSTANDING COMPLAINTSSince the Annual Report 2013, we have statedthat one of the Ombudsmans strategic aimswas to tackle outstanding complaints. Thesehad been carried over previously during ourOfces systemic investigations, the last three ofwhich had overlapped in time. Our last systemicinvestigation was concluded in January 2014(see Figure 13). We did not launch any new

systemic investigation in 2015 allowing us toconcentrate on individual complaints.

As a result of implementing a prioritisationstrategy, we are pleased to report that, as of31st May 2016, we have addressed 82% (83of 101) of all the outstanding complaints thathad been carried into 2015. This leaves only 18

cases open as of 31st May 2016 which had beenreceived in 2014 or prior (see Figure 10). Ourgoal is to address these remaining 18 cases by31st December 2016. Based on our current trendshown in Figure 10, this goal is within reach.We also hope to report for 2016 a signicantreduction in the number of outstandingcomplaints carried over more than six months.

Figure 10: Cases Carried Into 2016 total 64

Made Accepted

General 23 19

Specific 6 6

TOTAL 29 25

19

7 7

13

9 9

0%

20%

40%

60%

80%

100%

2015 2014


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SELECTED COMPLAINT SUMMARIES

Complaints are opportunities to improve. Thepublic may think that only authorities havesomething to learn. Addressing complaintsrequires all parties to reect on their roles inthe matter. And when the Ombudsmanbecomes involved, complaints also act as tests

for how effective we are in our functions ofbringing about resolution. So, all complaints no matter their size or weight really areopportunities for learning for complainants,authorities and the Ombudsman.

Here is a selection of anonymised complaintsthat were closed by our Ofce in 2015. Thesecomplaints resulted in information that we havechosen to share for its public benet, includingreections on each case. Complainant details

have been altered to protect condentiality.

PRACTICE DOES NOT EQUAL POLICY

ISSUE: An applicant complained that anauthoritys registration process was outdated,mostly guided by ad hoc practices, andnot transparent to the public. As a resultof the authoritys alleged failure to provideclear information, the applicant felt she wasdisadvantaged during the registration process,

namely because she did not know what thebenchmarks were. Failed registration hadaffected her ability to secure a new job. Shesuspected that her application had not beenreviewed on its merits. She believed an ofcerof the authority prejudiced the process sincethis ofcer was aware of a related employmentmatter, the outcome of which had not beenfavourable to the applicant.

INTERVENTION: We carried out a formal

investigation into the complaint, rather thaninformal enquiries, because the issues werecomplex, remained in dispute and required fact-nding. The investigation involved interviews,documentation reviews, and evidence analysis.The outcome included:

three ndings of maladministration againstthe authority;

one nding of no maladministrationupholding the authoritys position;

seven recommendations to assist in generalimprovements; and

two recommendations to provide specicredress for the applicant.

The authority only challenged one of the generalrecommendations, citing resource limitations. Inresponse, we invited the authority to reconsiderhow it could address the gap highlighted in itsrecord-keeping in a way that, without additionaleffort, could be absorbed into its current process.

LEARNING: In this instance, a complaint aboutan administrative process escalated to allegationsof sabotage. The authority recognised issues thatcould arise when it interchanged policy and

practice. Our intervention led the authority toproduce written policy and procedure documentsas a priority. We also found that the authority hadextended leniency beyond its stated requirementsto accommodate the applicant, which helpedto balance her perception of how she had beentreated throughout the registration process. Forus, it was a reminder that consulting regularlywith authorities about their policies, proceduresand practices can highlight general areas of

improvement on which we might provide advice.

27

VOCAB ALERT

Policy is a ormal, approved statement thatdescribes a goal or how something is done.Policy should help to answer the why.

Process is a way to do something rom startto finish. It should answer the how at a highlevel.

Procedure sets out the step-by-step tasksneeded to carry out the process and achievethe policy. It breaks process down intomultiple, basic actions with details.

Practice means what is actually done.


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BEWARE OF TIME LIMITS

ISSUE: A complainant, identifying himself asa whistle-blower against his former employer,had promptly reported claims that he viewedas very grave to an authority. Dissatised withhow the authority had dealt with his claims,he then complained to us that the authority

failed to follow-through with its investigationof his claims, ultimately closing his le withoutadequately addressing the issues he raised abouthis former employer.

INTERVENTION:As we needed moreinformation on why the authority had closedhis complaint, we made preliminary inquiries.These included discussions with the authorityand a comprehensive review of its le on thecomplainants claims against his former employer.

The le had a chronology of the authoritysactions, along with correspondence between theauthority and the complainant starting fromwhen the complainant rst lodged his complaintuntil after the authority closed the le.

At the conclusion of our inquiries, weestablished that the authority had notinvestigated the complainants complaint.The failure to investigate, however, was dueto the complainants failure to cooperate with

the authoritys process. We found that thecomplainant did not follow-through to submit acomprehensive complaint statement within twoyears of the events he had complained of, as isrequired. This meant that the authority could notproceed with its statutory process.

We provided the complainant with a detailedreport on the authoritys actions in relation to hisclaims, including the authoritys frequent requestsfor the complainant to provide his completed

complaint statement. We closed his complaintpursuant to section 9 of the Ombudsman Act.

LEARNING: For our review, we found theauthoritys detailed log to be the key for piecingtogether and assessing what happened withthe complaint. The authority could demonstratethat it had repeatedly offered to assist thecomplainant in completing his complaint

statement. Contemporaneous logs that canbe easily reproduced are invaluable for anyorganisation involved in some form ofcustomer relations.

The complainant repeatedly had presentedreasons for delaying the submission of hiscomplaint statement. But the authority, much like

other complaint handling bodies, had to weighup the reasons for the delay against the possibilitythat his former employer would be prejudiced bythe delay in responding to the claims.

Ultimately, the authority could not investigatethe complaint because the complainant hadnot met the statutory deadline for submission.Such rm, statutory time limits must be observedby authorities and cannot be waived at thediscretion of an authority. In this case, as the

complainant had been reminded repeatedlyabout this time limit and offered assistance, wefound that the complainant was the author of hisown misfortune.

NEXT STOP, REDRESS AVENUE

ISSUE: A retirees family claimed to have madean application for a nancial award, to whichthe retiree was entitled, on her behalf about 13years prior. Then ten years later, her family began

to question whether she had ever received heraward and decided to check with the authority.After reviewing its les, the authority informedthe family that it had no record of an applicationfor the retiree. Further, the authority explainedthat awards are made only once applications arereceived and that those made after the specieddeadline are only eligible for a fraction of theawards. For the retiree, the difference wouldhave been more than $100,000. Her familycomplained of an unfair decision to our Ofce.

INTERVENTION: First we researched thestatutory provisions that govern the authorityand found that, where a person disagrees withthe authoritys decision, a request can be madethat the head of the authority refer the matter toa tribunal to be decided. Then we followed upwith the retirees family. They claimed to havenever been told of this avenue of redress. So we

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reached out to the head of the authority directly,and she was willing to refer the issue to a tribunalfor an independent review and determination.

LEARNING: We saw how easy it could be forpeople to feel hopeless and helpless when theydo not have the relevant information to addressissues that confront them. In the interests of

fairness, it is imperative that authorities informthe public of all avenues of redress availableto them because the public may not know.Likewise, as an advocate for oneself, it is veryimportant that the public take the step to askauthorities whether there is any way theirdecisions can be appealed or reviewed, and thento document what is learned.

RETURN TO REDRESS AVENUE

ISSUE: An employee was laid off then terminated.He suspected his boss had red him becausehe had raised attention to workplace healthand safety issues. He immediately reached outto two separate authorities. Frustrated with theauthorities responses, he then contacted us tocomplain. He complained that the rst authorityslack of follow-through on a previous inspectionof his workplace had allowed the safety issuesto worsen, which ultimately led to his layoff andthen to him being red. He also claimed that

the second authority had not fully considered allaspects of his employment complaint.

INTERVENTION: Based on what the formeremployee told us, we decided to try to facilitatecommunication between him and the authoritiesby rst gathering background information. Fromour inquiries, we learned that the rst authorityhad looked into previous complaints about thisworkplace. But when the former employee hadraised his concerns to the authority, he did so

anonymously. This prevented the authority frombeing able to address some of the specic detailsof his workplace complaint. We also learnedthat the second authority had dealt directlywith his employment complaint. The authoritysrecords showed that it had been settled bymediation, where the former employee and hisformer employer were able to come to a betterunderstanding of the circumstances leading up to

his layoff and termination.

After hearing the authorities, we conveyedto them that the former employee remainedaggrieved. Both authorities agreed to review withhim what had been done and what might bedone moving forward. We closed his complaintsby referring him to return to both authorities to

pursue his concerns. To help with his follow-up,we provided two letters addressed to the formeremployee outlining what we had learned fromour inquiries. We copied the second authority inone letter since it already had a complete le onhis matter. But since he had been cautious aboutproviding the rst authority with his contactdetails originally, we chose not to copy the rstauthority in our letter, so he could determine thelevel of detail he wished to share.

LEARNING: Until we reached out about theformer employees case, the second authoritywas not aware that the former employee still hadquestions about how his complaint had beenhandled. By him returning, the second authoritywas able to help him pursue another avenue ofredress still available. This led to his complaintbeing heard by an independent tribunal fordetermination on the facts of his case againsthis former employer. The former employee alsosaw that when he chose to make a complaintanonymously, he actually limited the rstauthoritys ability to address his complaint in theway he had expected. We learned more detailsabout the scope of the authorities processes inaddressing work-related complaints.

VOCAB ALERT

We use enquiries (with an e) when ourquestions are general and typically donot disclose the specific details about thecomplainants issue. When we invoke ourormal act-finding powers, we use inquiries(with an i).

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GIVING SUFFICIENT NOTICE

ISSUE: A consumer complained that theGovernments efforts to communicate a policychange about increased rates to the public weretoo little too late. This resulted in unnecessaryconfusion about the changes actual impact.Feeling ambushed by the announcement of the

change, the consumer had phoned an authority,but the call provided partial information only. Healleged that the Governments late noticationreected a level of insensitivity towardsconsumers. In particular, the consumer said hewas concerned that the change had the greatestimpact on senior citizens, whom he believed tohave been disadvantaged by the substance ofthe change and the way in which it had beencommunicated. As his household was directlyaffected, he asked us to look into whether theGovernment had handled the matter fairly.

INTERVENTION: We rst decided to makepreliminary inquiries to determine our

jurisdiction to review the complaint becauseit was not obvious who the decision-makersresponsible for the change actually were. At thesame time, we looked into whether there wereother appeal mechanisms in place to review thecomplaint. We conrmed that the decision hadnot been made by the authority the consumerhad called but by the Cabinet. Therefore, wehad to decline to investigate the complaintbecause actions taken by the Cabinet or aMinister are not within our jurisdiction. Althoughwe could not formally investigate, we invitedinput from the authority on our observations andencouraged the authoritys efforts to implementsolutions it had considered to address thecommunications gap identied by the complaint.The authority accepted our suggestions on ways

to improve its communication plan movingforward. We also conrmed for the consumer theappropriate way to pursue his complaint, if hewished to take it further.

LEARNING: Even though our jurisdiction waslimited in the matter, we were not preventedfrom discussing important issues arising fromthe consumers complaint with the authority inthe public interest. The authority also received

validation that it was on the right track to addressan identied gap in its communication plan. Wesaw that regularly setting aside time to reviewGovernments public announcements on policythat broadly impact the public would be aproactive solution.

PRESERVING THE RELATIONSHIP

ISSUE: An entrepreneur approached anauthority seeking to lease its property for aunique business venture. After the entrepreneurpresented its proposal, the authority determinedthat Government would have to issue specicguidelines before any consideration couldbe given to leasing the property for theentrepreneurs business. After several monthsduring which the entrepreneur consulted otherGovernment departments, the authority notied

her that it could not enter into a lease with her.The entrepreneur raised two issues with ourOfce, alleging that the authority: (a) had failedto provide reasons for its inability to enter into alease with her; and (b) had delayed unreasonablyin giving its decision and in providing furtherinformation that she had requested. Even still, theentrepreneur hoped to ultimately secure a lease.

INTERVENTION:As we sought to understandthe negotiations between the parties, we

conducted preliminary inquiries which includedmeeting with the authority and reviewingcorrespondence. We were alert to the factthat negotiations between the parties werecommercial in nature. We did not review theactual decision made by the authority butthe timeliness and quality of information aboutthe process provided to the entrepreneur duringthe negotiations.

Having completed our inquiries, we advised the

parties that we faced the choice of whether or notto pursue an investigation into the entrepreneurscomplaint. Such an investigation would taketime and could potentially impact any ongoingor future negotiations. We advised that it wouldbe best for the parties to resolve the disputebetween themselves and, towards this end, wesuggested that the authority: (a) provide in writingreasons for its inability to enter into a lease with

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the entrepreneur; and (b) give an account of itsdelay in giving the entrepreneur this information.After discussions and correspondence withboth parties, the authority sent a letter to theentrepreneur in accordance with our suggestion.The entrepreneur agreed that an investigationwould not be the best way forward for the parties,and we closed the complaint.

LEARNING: Our Ofce must approachcomplaints which involve authoritiescontractual negotiations differently fromcomplaints about the provision of Governmentservices to the public. We recognise thatreasonableness and fairness in commercialdecisions will require a greater degree ofdiscretion on the part of authorities, especiallyin assessing the commercial factors involved.Our inquiries assisted the parties by facilitatinggreater understanding of the other partysposition. This complaint was one in which a fullinvestigation, involving further fact-nding andinterviews, would have possibly hampered theircontinued negotiations.

COINCIDENCE AND CLOSURE

ISSUE: A professional, who had alwaysdreamed of working as a civil servant, claimedto have submitted hundreds of employment

applications to the Government over a longperiod. He had been unsuccessful for all andfurther claimed to have received limited, if any,feedback on his applications. Now nearingretirement age, the professional, who had auniversity education, wanted to nd out why hehad been unsuccessful on every attempt. Hewrote to a Permanent Secretary who referred himto two Government ofcers (the Referees) whocould handle his concerns more appropriately.When he had not received a response fromthe Referees after almost two years, he made acomplaint with our Ofce.

INTERVENTION: We made inquiries and,coincidentally, the same person who hadreferred the professional now held the posts ofone of the Referees. Both of the current post-holders agreed to meet with him to advise on theGovernments hiring process, why he might havebeen unsuccessful and to answer other questionshe may have had.

LEARNING: What seemed to be a simple matterof unresponsiveness was actually an opportunityto provide answers to questions that hadtroubled the professional for a long time. Itprovided insight into how initiative may betaken to assist persons who are actively seekingpositions within Government. It also providedan example of how an easy problem to remedymay lead to a signicant outcome for thecomplainant. By addressing unresponsiveness,our Ofce was able to provide an avenue for theprofessional to gain closure.

IMPORTANCE OF SELF-ADVOCACY

ISSUE: A family man alerted an authority thata vendor had insisted he pay more than therates approved by the authority for his family toreceive a service. Claiming the vendor was takingadvantage of his vulnerability, he had decidedto withhold payment from the vendor, and the

matter ended up in the Courts. In reviewing thefamilys circumstances, the authority determinedthat the level of support it had been providingto the father should be reduced according toits regulations. The father complained that theauthority did not fully consider his familysunique situation when reviewing the changesin circumstances arising from his dealings withthe vendor. He also did not understand whythe authority would not provide him with moreguidance in how to handle the action takenagainst him by the vendor.

INTERVENTION: We were mindful of thesensitivity of the fathers situation as well asthe ongoing court matter which would addressthe specic issue with the vendor. We decidedthe best approach would be to make informalenquiries with the authority to better understandthe legal basis of the relevant policy that had led

He who orgives ends the argument.

-Arican Proverb

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it to reduce its support for the father. Once wewere clear on what guided the authority, we metagain with the father to explain the authoritysposition. We also learned there was an appealprocess in place to review the authoritys decisionwhich the father had not yet pursued. As an ofceof last resort, we declined to take further actionon his complaint but committed to keeping somegeneral issues arising under continued review.We wrote the father to conrm what we hadalready shared with him in person. Our letter wasalso copied to the authority for its records.

LEARNING: In preparation for meeting with us,the father had to review and reorganise recordsthat would have been critical to his court case.He also became clearer about the reasons,rooted in law, behind what the authority was ableand unable to do for him. In responding to ourgeneral enquiries, the authority was prompted toconsider which of its decisions would be subjectto appeal. We were alerted to a possible trend incomplaints about the unintended impacts

ombudsman for bermuda annual report 2015

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