How long does it take?

The Ombudsman investigates complaints as quickly as possible and therefore requests timely responses from Authorities. Many cases can be resolved in a few weeks, but more complex cases can take much longer.

COMPLAINT PROCESS NOTES Ombudsman may investigate in the public interest even if no complaint • "Own Motion Investigation" Complaint received from public Complaints may be: • oral, electronic, written by persons aggrieved (or family if persons cannot act for themselves) within 1 year of event Do we have jurisdiction? Refer Complaint to more appropriate authority • •   Is complaint about a Government Board, Department, or Public Authority? Is matter exempt (Cabinet, court proceeding, crime or employment issue)? Did Complainant try existing complaint or appeal process? Refer Complaint to appropriate process •   Ombudsman can investigate even if matter cannot be further appealed or is final Preliminary Inquiries Decline with reasons Mediate • • • Inquiries resolve complaint; or Investigation or mediation; or Ombudsman declines Investigation • • •   Ombudsman may visit sites, require documents, question under oath, summon any witness Due process opportunity to respond Update complaint periodically Findings and Closure No Maladministration Maladministration with Recommendations Ombudsman makes: • •   specific recommendations re complaint and/or general recommendations on how to improve practices and precedures Authority has 20 business days to respond to recommendations • •   Notify Ombudsman of steps taken or proposed to implement or reasons for not doing so Ombudsman accepts if adequate or appropriate Special Report to Parliament if response is inadequate or inappropriate •   For other complaints, Ombudsman may summarise (without names) in Annual Report

Transport Control Department (TCD)

Vehicle Owner A submitted an application to TCD for the commercial license and registration of a vehicle. TCD did not respond to Vehicle Owner A’s queries for eight months. Although initially told that he would receive a temporary license he was later advised that his application would be suspended pending review of the relevant legislation for new types of vehicles. After preliminary inquiries by the Ombudsman, TCD reviewed the case and approved Vehicle Owner A’s application.

 

Department of Education

Parents B and C felt that the discipline imposed on their daughter was excessive and discriminatory. School discipline is not a complaint the Ombudsman would usually review. However, the Ombudsman did investigate this first such complaint in order to test and clarify the appeal process. After extensive inquiries, the Ombudsman found that although the discipline was quite strict, it was proportional to the infraction and consistent with the discipline of other students.

 

Department of Corrections

Prison Visitor D requested a visitor’s pass to visit a relative in prison but never received a response. Prison Visitor D was searched when he tried to use a pass originally issued to another relative. The Ombudsman found that there was no maladministration as it is within the Department’s powers to conduct a search of visitors even without an obvious reason. The Department did send a written apology for the initial failure to respond.

 

Department of Operations & Engineering

Contractor E alleged that the Department had misplaced his bid and did not respond to several requests to discuss. The Department advised the Ombudsman that the bid had not been addressed to the proper person. On locating the bid, the Department included it in the bid review process equally with other bids. As there was no harm to Contractor E, the matter was not investigated.

 

Department of Child & Family Services

Parent F alleged that the Department failed to provide reasons for having her daughter under its care and supervision for the past several years. The Ombudsman did not launch an investigation as her preliminary inquiries revealed that Parent F was well informed of the reasons.

 

Human Rights Commission (HRC)

Grievant G made a complaint of sexual harassment to the HRC. This could have been the HRC’s first referral to the Department of Public Prosecutions (“DPP”) for review for possible prosecution on such ground as a summary offence. However, the HRC failed to process the complaint in a timely way. Grievant G claimed unreasonable delay. The Ombudsman found procedural errors and delay in the HRC’s handling of the complaint. The result was that the complaint was time-barred from review by the DPP. As there was no remedy that could restore the Complainant’s legal rights or otherwise put her in the position that she would have been in had there been no maladministration, the Ombudsman recommended a without prejudice apology and a consolatory ex-gratia payment (based on analysis of such payments recommended by Ombudsman in the UK and Canada). Note: A consolatory payment is not compensation.

Professional H believed that she was not held to a fair or acceptable standard with respect to her application to be certified to practice her profession in Bermuda. When she complained of discrimination to the HRC, she advised that she could refer the HRC to documents that would prove a pattern, or at least the existence, within the relevant department of a prior bias against Bermudian applicants. After an initial response to the Statement of Complaint from the department, the HRC asked Professional H to engage in a pilot mediation program. The HRC indicated that, should conciliation not be successful, the next steps of the complaint would be a referral to the DPP for prosecution, if warranted, or to the Minister for a Board of Inquiry. When the conciliation failed, the HRC voted by a margin of one to dismiss the complaint.

Professional H complained to the Ombudsman that the HRC had not adequately investigated her complaint and further, had not followed either the promised or proper procedures in dismissing her complaint. After a protracted investigation of the details of the HRC’s actions with respect to this complaint as well as a review of best practices regarding human rights investigations, the Ombudsman found that the HRC (a) had erred in setting out the process as dismissal of a complaint is a reasonable third option if conciliation is unsuccessful (b) had not adequately investigated the documents that Professional H had highlighted at the outset (c) had improperly dismissed Professional H’s complaint in denying her a due process opportunity to be heard first, as required by the Human Rights Act 1981 and (d) failed to respond to her process inquiries.

During the Ombudsman’s investigation, two of the Commissioners who had wrestled with their decision to dismiss the complaint indicated unequivocally that they would have voted to refer the complaint to the Minister to appoint a Board of Inquiry had they known of even a hint of a prior bias against a Bermudian applicant within the department. The HRC eventually accepted the Ombudsman’s recommendations to edit public brochures to ensure an accurate description of its process and to revisit the conclusion of Professional H’s original complaint to ensure that she has an opportunity to be heard.

 

Department of Social Insurance

Pensioner I retired and received a pension for about ten years. The Department informed him that he would no longer receive the pension until he produced additional information. He submitted appeal documents and the Department advised that the matter would be sent to the Contributory Pension Appeal Tribunal. However, years later the appeal had not yet been scheduled. He complained about unreasonable delay and also that his phone calls were not answered. After preliminary inquiries, the Ombudsman found maladministration and recommended that the appeal be submitted without delay to the Tribunal (which upheld Pensioner I’s case – he received $40,000.00 + )

Retiree J felt stonewalled by DOSI and frustrated in pursuing his pension application from abroad. Four months after applying for a pension, DOSI informed him that his application was denied. He appealed, as required, within days of receiving that letter. Another two months later, Retiree J inquired into the status of his appeal because he had not received any communication from DOSI. He then complained to the Ombudsman. Her preliminary inquiries revealed that the Appeal Tribunal could not meet for yet another three months. After reviewing his information, the Appeal Tribunal decided that Retiree J could receive his pension up until the date that he ceased to be ordinarily resident in Bermuda. Fourteen months after submitting his original application, Retiree J received his pension cheque.

 

Department of Planning

Developer K complained that the Department had not inspected his building properly and had not explained what had to be done to correct code infractions. The Ombudsman found no maladministration because full information is provided in the initial package when planning permits are issued.

 

Bermuda Hospitals Board

Patient L alleged that an operation was faulty with the result that she needed overseas medical treatment at additional expense. The Ombudsman had the explanation given by the hospital reviewed by a clinical expert. The complication was within an expected range for that type of operation and both the physician and the hospital responded appropriately. There was no maladministration.

Patient M requested the transfer of her medical records from one physician to another. The documents were placed by the old physician in a mailbox at the hospital but the new doctor never received them. The Ombudsman found no maladministration on the part of the hospital. However, because of the gravity of the matter, she recommended that the hospital review and circulate best practices for the handling of sensitive medical records on its premises by private practitioners.

 

Registry General (RG)

Applicant N complained that the Registry General failed to provide clear and adequate information about how he could make a critical amendment on his birth certificate in order to facilitate his daughter’s application for a UK passport. The Ombudsman declined to investigate as the RG had explained to Applicant N that his issue may have legal complications and that he should seek the advice of an attorney. The Ombudsman did recommend that the RG set out for Applicant N the full and clear process for amending his birth certificate.

 

H.M. Customs (HMC)

Shopper O undervalued her declarable goods. This resulted in a duty payment that was $120 lower than it should have been. Two months later, HMC notified her that the penalty for the offence of misstatement of the value of the goods would be approximately $3,800. Shopper O complained that the penalty was unduly harsh and motivated by personal bias. She also believed that her selection for search at the airport went beyond the normal level of scrutiny.

The Ombudsman declined to investigate Shopper O’s complaint with respect to the amount of the penalty as an existing review process was already in place. Two months later HMC conceded that, although the penalty amount was fair, it had erred in notifying Shopper O of the penalty after she left the airport. The penalty should have been imposed immediately when the misstatement was discovered. The Ombudsman found no evidence of unfair treatment or scrutiny as this was Shopper O’s second offence in two years. [Note that, by law, the penalty for undervaluing goods may be up to $12,000.]

 

Department of Immigration

Job Seeker P had applied for two jobs with the same employer in the private sector. She notified the Department of her concerns that the employer may have violated Immigration regulations by hiring a guest worker despite the fact that she was qualified for both posts. She received no response for 10 months and complained to the Ombudsman that the Department not only did not respond but had not adequately investigated her complaints.

The Ombudsman found that the Department had, indeed, failed to respond to Job Seeker P. The Department should have notified her in writing that her complaint had been investigated but there was no evidence the employer had violated immigration policies. The Department accepted the Ombudsman’s recommendation to write a formal letter apologizing for its unresponsiveness and to explain the reason for its conclusion with respect to the employer.

 

Rent Commission

Tenant Q faced eviction after refusing to pay what she believed was an illegally increased rent. She complained to the Rent Commissioner who advised her to find out directly from the previous tenants what they had paid. She complained to the Ombudsman that this was an unfair burden, especially because the previous tenant now lived abroad. She did not understand why the Rent Commission did not have this information in its files or would not take the responsibility of ascertaining this information.

The Rent Commissioner explained that, by law, his function is only to process applications to increase rents. Only when a landlord applies to do so would the Rent Commissioner be provided with information about the prior rent. Usually this is through a formal declaration from the landlord to justify that the proposed increase is true and correct. If, as in this case, a landlord raises the rent without making an application, then the Rent Commissioner is unlikely to have information about the prior rent of a unit.

Although Tenant Q’s questions were understandable, the Ombudsman found that the Rent Commissioner is not legally required to have information on file about the original rent for all rent-controlled housing. Further, the Rent Commissioner refrains from inquiring about the prior rent because his past experience is that some tenants have faced retaliation when landlords learned that their tenants had taken their suspicions to the Rent Commissioner. The Rent Commissioner agreed to assist Tenant Q in ensuring that she could not be evicted unless proper procedures were followed.

Below are some interesting facts that arose from investigations.

Financial Assistance

Under the Financial Assistance Act 2001, persons without Bermuda status cannot qualify to receive financial assistance. Possession of a Permanent Residency Certificate is not sufficient in meeting the criteria for Bermuda status.

As a consequence of the changes to the Hospital Medical Clinic, all applicants for indigent status are now required to have periodic assessments by the Department of Financial Assistance.

 

Transport Control Department

If a commercial vehicle is off the road for three months the owner must notify TCD. Within 30 days of the expiry of any vehicle license, you must make a declaration to TCD regarding storage or disposal of the vehicle.

 

HM Customs

If importers deposit an estimated duty in order to take goods from the dock and do not submit appropriate paperwork within 30 days, there is a 50% surcharge. This surcharge is based either on the actual duty (if proper documentation is submitted) or on the estimated duty (if proper documentation cannot be submitted in time).

The maximum penalty that can be levied for making misstatements on a customs declaration for and/or undervaluing the goods declared is $12,000. However, HM Customs must impose the penalty for this offence at the time of entry onto Bermuda.

For goods to be regarded as samples by HM Customs when shipped to Bermuda, they must be incomplete goods that are unable to be re-used or re-sold. Importers must ensure that the goods have the manufacturer’s stamp stating the words “sample” or “this product is a sample and is not intended for re-sale” or such other notice that the goods are samples.

 

Department of Land Valuation

The Department of Land Valuation must send property owners/ land tax payers written notice 24 hours prior to conducting an on-site survey and assessment for land valuation purposes.

Conversion units that have the effect of creating a separate residence from an already existing structure must receive a Certificate of Use and Occupancy Permit from the Department of Planning before a Land Valuation Assessment Number can be granted.

 

Rent Commission

Persons in rent controlled housing who wish to complain about increases that were not approved by the Rent Commission must provide proof that the rent paid by the previous tenant was lower. Such proof can be obtained from the previous tenant or from the landlord who is required to give a new tenant a written statement of the previous tenant’s rent (but only if the rental unit was subject to rent control for the previous tenant).

 

Pension Commission

Subject to certain exceptions, once pension benefits become vested, the contributions (plus any interest) cannot be taken out of the pension fund as a cash lump sum. Vested funds can only be used to provide a retirement income to the plan member (or to be distributed to the member’s beneficiary). Portability to overseas pension plans is possible when a plan member terminates employment before reaching retirement age. [National Pension Scheme Act 1998]

 

Treatment of Offenders Board

Inmates facing concerns regarding their care whilst in prison may ask to meet directly with a representative of the Treatment of Offenders Board and request their assistance in resolving the issue.

 

Department of Social Insurance

A guest worker supporting a dependent spouse must have a salary of at least $55,000 ($90,000 with a dependent child).

It is the responsibility of guest workers who must leave Bermuda before they are eligible to receive a pension refund to inform the Department of Social Insurance of their new address abroad as well as any subsequent changes of contact information.

Widows under the age of 50 years are entitled to a six month allowance from the Contributory Pension Scheme whereas those 50 years and over receive an allowance for life.

Employees who withhold information (e.g. on the medical enrollment form) and do not register unemployed spouses are responsible for paying any medical claims for their unemployed spouses.

All Health Insurance Plan reimbursement claims are to be paid within 60 days of submitting.

 

GEHI

An insured employee who must undergo surgery abroad is required to have a doctor’s letter submitted to GEHI and obtain GEHI’s approval before their surgery. The letter must indicate that the procedure is a medical necessity.

 

Department of Immigration

The Minister for Immigration is entitled to not approve a spouse’s application for Bermuda status if the parties to the marriage are estranged for 2 years preceding the application. Estrangement may be concluded even when the parties are living in the same residence. The powers of officers in the Department of Immigration to investigate concerns raised about a spousal application are broad and may take whatever time the officers deem necessary.

 

Department of Environmental Protection

The importation of Palm plants is prohibited under the Agriculture (Control of Plant Disease and Pest) Regulations 1970.

 

Post Office

Postal Codes must have the two letters in front of the numbers, even for post box addresses in sub-post offices.

 

Department of Planning

If you are a neighbour of proposed developments who is asked to sign Letters of Consent, you should make sure that:

• Every line is filled out clearly before you sign;
• Developer gives you a copy of the plan that will be submitted to the Development Applications Board (DAB) (to ensure that the plan shown to you is not different from the plan submitted);
• You write in any conditions or objections you may have;
• You consult an attorney if you have any questions or concerns;
• You make and retain a copy of the Letter of Consent immediately upon signing.

Sometimes at the outset of a development or prior to revision applications, neighbours who have concerns (usually) about boundary issues may forge agreements with developers about conditions for going forward. Even those verbal agreements facilitated or witnessed by planning officers may not be recorded in planning files or conveyed to the DAB as conditions for approval of the development applications or revisions. Therefore, neighbours should ensure that all agreements made with developers are set out in writing.

The Bermuda Plans 1992 and 2008 state that fencing should retain the rustic, rural appearance compatible with the “Bermuda Image”. In practice, planning permission has not normally been required for fences four feet and under. In considering applications for fencing over four feet, the Department has decided that the material must be wood, rather than PVC.

The Ombudsman has recommended that any instructions or advice given by the Department to the public should specify or refer to the relevant sections of the Development & Planning Act, the Planning Statement or other source documents and policies. This would help to alleviate confusion with respect to highly technical requirements or procedures.

The Bermuda Coastal Erosion Vulnerability Assessment Report is available for reference at the Department of Planning. Coastal Protection and Development Planning Guidelines can be found at WWW.PLANNING.GOV.BM

 

Works & Engineering

To report paint or oil spills on the roads you may contact the Superintendent for Highways at 747-3023 or the Marsh Folly Plant at 292-7454 and leave a message.

 

You may request the anaesthetist of your choosing for surgical procedures at the hospital.

If you are dissatisfied with a decision we have made or how we have handled your matter, you may make a complaint about us with us.  The following outlines the types of complaints that you can lodge with us, how to make such a complaint, and how we handle them.

There are two types of complaints about us:

• service delivery complaints, which are about customer service; and
• substantive decision complaints, which are about decisions related to complaints.

 

How do you make a complaint to us about us?

You can make such a complaint via email, letter, telephone or in person.

You will be asked to provide the following information:

1. your name and contact information;
2. your case reference number if known;
3. the officer handling your matter or about whom you wish to complain; and
4. a concise summary of the event you wish to complain about.

If you are making a substantive decision complaint, you will also need to provide:

5. the date you became aware of the decision about which you are complaining;
6. any information that should be considered in reviewing the matter;
7. copies of any relevant documents that should be considered in reviewing the matter; and
8. the outcome being sought.

 

Service Delivery Complaints

When can you make a service delivery complaint?
Service delivery complaints can be made up to one month after you were made aware of the action you wish to complain about.

How do we handle service delivery complaints?
First you must raise the service delivery complaint with the officer who was assigned your complaint.  The officer will attempt to address your concerns and resolve your service delivery complaint.

You may be referred to the Ombudsman or Deputy Ombudsman if:

• the officer cannot reach a resolution;
• it is determined a review by the Ombudsman or Deputy Ombudsman is required; or
• you request a review by the Ombudsman or Deputy Ombudsman.

For service delivery complaints, our Office may:

• decline your request to change the decision with reason;
• re-open your original case and assess how to proceed with your complaint; or
• open a new case record and assess how to proceed with your complaint.

What if I am not satisfied with the service delivery complaint decision?
You may request that the decision be reviewed by the Ombudsman or Deputy Ombudsman.  Please note the review decisions are final and not subject to further review.

 

Substantive Decision Complaints

When can you make a substantive decision complaint?
Substantive decision complaints can be made up to one year after you were notified of the decision about you wish to complain.

How do we handle substantive decision complaints?
If you make a substantive decision complaint on a case we have not investigated, your complaint will be received by the officer assigned to your complaint unless the Ombudsman determines otherwise.  If you lodge a substantive decision complaint at the conclusion of an investigation, your complaint will be reviewed by an officer who was not involved in the investigation you are complaining about.

What happens at the conclusion of a review?
We will aim to provide the decision in writing within one month of receiving the complaint.

For substantive decision complaints, we can decide to either:

• uphold the decision;
• change the decision;
• determine that further inquiries or investigation is warranted; and/or
• suggest amendments to address inefficiencies identified in our processes, policies or procedures.

Accessing our Services: Adjustments for Persons with Disabilities

The Office of the Ombudsman recognises that we should take reasonable steps in the way that we work with people with disabilities to ensure they are not disadvantaged in comparison to people who are do not have a disability.

Our Reasonable Adjustment Policy provides guidance on when we will make adjustments to our services and the types of adjustments which can be requested.

If you have any questions about this policy or if you wish to request an adjustment please do not hesitate to contact us.

What can the Office of the Ombudsman ("Office") do once I make a complaint?

After you have made a complaint, the Office may do any of the following.

• Refer you to a more appropriate authority. We may refer you when the complaint subject matter and the body complained of fall within our jurisdiction, but there is a more appropriate remedy still available to you (see s.6(1) and (2) Ombudsman Act 2004). This may be the case if you have not raised the issue with the correct authority or had not yet exhausted the authority's complaint handling procedure, and we determined that it is necessary and fair to give the authority an adequate opportunity to address the issues raised (see s.9(1)(b) Ombudsman Act 2004).
• Make preliminary inquiries with the authority about which you have complained. We will seek to clarify the issues of your complaint and, if possible, assist in resolving it without an investigation.
• Conduct a full, confidential investigation, reviewing all relevant documentation and gathering evidence (under oath if necessary). An investigation may be called for when the subject matter of a complaint is complex, facts are in dispute and the Ombudsman determines that she must decide whether or not an authority's action constitutes maladministration;
• Mediate a complaint if the Ombudsman or the Deputy Ombudsman decides this is appropriate.
• Decline your complaint as being outside of our jurisdiction because either:
  • a) the action complained about is something we cannot investigate; or
  • b) the authority you have complained about is not one we can investigate (see s.6(1)(3) and the Schedule of the Ombudsman Act 2004).

We may also decline your complaint if it is lodged with our Office over a year after you became aware of the issue you're complaining about (see s.9(1)(a) Ombudsman Act 2004) or the Ombudsman has determined that your complaint is frivolous (see s.9(1)(c) Ombudsman Act 2004).

If we decline your complaint we may refer you to another body which may be able to assist with your complaint.

 

What happens if the Ombudsman investigates my complaint?

If the Ombudsman investigates a complaint she will make findings based on the evidence she has reviewed. She may determine the evidence she has reviewed does not support a finding of maladministration on the part of an authority. If she does so, she is not likely to take any further action.

She may determine the evidence she has reviewed supports a finding of maladministration.
If she finds that there is evidence of maladministration on the part of an authority, she has the power to make such recommendations as she sees fit (see s.15 (3)).

Recommendations that the Ombudsman may make include the following.

• An omission or a delay be rectified.
• A decision or recommendation be cancelled or altered.
• Reasons be given for actions and decisions.
• A practice, procedure or course of conduct should be altered.
• A statute or regulation should be reviewed.
• Improvements be made to practices, procedures and policies.
• A financial payment be made (see guidance below on the type of payments we may recommend and when we may recommend them).

It is also possible that even if the Ombudsman makes a finding of maladministration that she does not make any recommendations.

 

What are the Ombudsman's timelines for handling complaints?

Stage	Purpose	Target to complete
Intake	Receive and record cases as well as assess our jurisdiction to assist	Up to 5 days
Facilitated Resolution	Resolve the issues identified by (re-) establishing direct and clear communication between the complainant and the authority, along with potential solutions, as soon after when the administrative action took place	Up to another 4 weeks
Pre- Investigation	Assess whether the matter should be investigated and further review any potential challenges our Office may face in carrying out an investigation. Also carry out initial planning	Up to another 2.5 weeks
Investigation	Gather and assess the evidence necessary to determine whether or not to uphold a complaint of maladministration, through formal and informal means of evidence gathering	Up to another 2.5 months
Post- Investigation	Issue Draft Investigation Report to parties for their input, before finalisation	Up to another 5.5 weeks
Investigation Conclusion	Receive and assess Authority's statutory response to Final Investigation Report	Up to another 7 weeks
Review	Assess whether to uphold the complainant's request for a decision related to a concluded investigation, if made	Up to another 4 weeks

 

FINANCIAL REMEDIES

What kind of financial payments can the Ombudsman recommend?

The Ombudsman can recommend financial consolation and financial compensation payments.

• A financial consolatory payment is an ex-gratia payment that signifies the Ombudsman's conclusion that an apology does not sufficiently address the maladministration found. The aim of a consolation payment is to console a complainant and not to compensate a complainant for a financial loss.
• A financial compensation payment is used to restore the complainant to the position they were in before the maladministration occurred.

Both forms of financial remedy are rarely recommended and can only be recommended after a finding of maladministration. Unlike the Courts, the Ombudsman's recommendations are not binding or enforceable.

Can I complain to the Ombudsman instead of taking an authority to Court to receive payment?

In most cases when Complainants are seeking a financial payment from an Authority the Complainant can pursue this payment in the Courts or with a Tribunal. Under the Ombudsman Act 2004 we cannot investigate such complaints until either: a) the Court or Tribunal process the Complainant has the right to pursue is complete; or b) the time limit for exercising that right has expired.

Our Office will usually decline these complaints and suggest that the complainant speak with a lawyer.

The Ombudsman does have the discretion to investigate a complaint which would otherwise have to be pursued with a tribunal or in the Courts (s.6(2)). However, this discretion is only exercised when it would not be reasonable to expect the complainant to pursue his/her claim in Court or with a Tribunal (s.6(2)).

What does the Ombudsman consider when deciding whether she should recommend consolation or compensation payments?

Each recommendation is decided on a case-by-case basis. The Ombudsman is unlikely to recommend financial compensation for unquantifiable or intangible losses. For example, it is unlikely the Ombudsman will award financial compensation for distress or for pain and suffering.

Consolation

A consolation payment can range from $50 - $5,000, depending on the severity of the maladministration found. The amount of the payment is determined at the Ombudsman's discretion.

Compensation

When deciding whether a complainant should be financially compensated, the Ombudsman considers the following questions.

• Has the complainant suffered a financial loss as a result of maladministration?
• Is the loss quantifiable?