OMBUDSMAN FOR BERMUDA

Ni nt h Annual Report 2013

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Contents
Ombudsmans Message ..................................................................................................................... 1
Former Ombudsmans Comments .......................................................................................................... 3
Letter of Thanks from BPSU ................................................................................................................ 10
Presentations and International Relations ............................................................................................... 11
Complaint Summaries....................................................................................................................... 12
Statistics ........................................................................................................................................ 17
Eight Steps for Resolving Your Own Complaint ...................................................................................... 22
Ombudsman Act 2004 in a Nutshell .................................................................................................. 25
How to Make a Complaint to the Ombudsman .................................................................................... 27
1
Ombudsmans Message
It is my pleasure to present the Ombudsmans Annual Report for the year
2013. As I commenced my duties in March 2014, this Annual Report
covers the work of the Ofce prior to my appointment. I appreciate my
predecessor Ms. Arlene Brock and the members of my new team who
have assisted me in the fulllment of my statutory duty to report on the work
of this Ofce for the last calendar year.
The rst Ombudsman for Bermuda has kept her promise that as she
learned Bermuda would learn. She diligently educated the public and
those who serve them on good governance and best practices, shared
her knowledge at home and abroad and opened the Ofce to train others
from beyond our shores. Arlene Brock and her team built the Ofce of the
Ombudsman for Bermuda on strong foundations and forged its excellent
reputation locally, regionally and internationally. She never wavered in
discharging her responsibilities. I thank her for her service and all that she
has done to establish and develop this important Constitutional Ofce.
I am honoured to have been appointed as the Ombudsman for Bermuda. When the appointment was announced
people approached me wherever they saw me (at the dentist, the hair salon, the movies, the pharmacy or the
supermarket), offering best wishes and encouragement. Many I did not know. They were not shy to tell me about
my new responsibilities and duties as well as their high expectations of the new Ombudsman. I have been
humbled by their kindness and condence. I am storing these kindnesses for times when they may be less than
pleased with my decisions.
In my new role there is much to learn. I am committed to learning as much as I can as quickly as I can. For the
past twenty years I have practiced as a litigator at the Bermuda Bar and it has been my honour and privilege to
serve within my community. Though new to the Ofce of the Ombudsman, I am not new to ghting for fairness for
all, insisting that people are entitled to be treated with dignity, their rights respected and taken seriously. In this new
role I am thankful and blessed to serve our country in another way.
As we move forward we will be reviewing our procedures with a focus on improving our turn-around time and
attending to our outstanding complaints. The Ofce will build on the work done thus far to improve accessibility
and awareness of what we do. We want all to know that this Ofce is an independent ofce of last resort that
provides free, unbiased redress against maladministration within our jurisdiction. We want to know how we can
better assist you.
People deserve fairness and to be treated with respect by those entrusted to serve them. Public servants deserve
guidance on best practices and recommendations that look beyond what went wrong and - through collaboration
- look at how best to get it right. I will talk but I promise I will also listen. I pledge to carry out my duties to the best
of my ability and to serve with integrity and without fear or favour.
Victoria Pearman
Ombudsman for Bermuda
2
Sometimes we feel
that what we do is
just a drop in the sea,
but the sea would be
less without this drop.
MOTHER TERESA OF CALCUTTA
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Former Ombudsmans Comments
The words Accountability and Transparency are bandied about quite freely
by politicians, civil servants and the public at large. But, in the practice of
government and the delivery of public services - what do these two words
actually look like? At least in theory:
Accountability means that civil servants
take responsibility in the rst instance for doing their best to deliver public
services in accordance with fair procedures
and when things go wrong, they acknowledge the problem and look for ways
to redress.
Transparency means that:
procedures and the information that the public needs to take advantage of are
clear and accessible
civil servants must give reasons for why certain procedures are or are not in place and must explain what
happened when things go wrong.
In Bermuda, the Civil Service motto is At Your Service, Bermuda. This implies that the Civil Service is driven and
guided by the principle of serving the public. However, civil servants do not operate in a vacuum. Ultimately, public
services are authorized and dened by the laws set by the Legislature and the policies set by the Cabinet. Ministers
are accountable to the Legislature for answering questions about the effectiveness of their policies as implemented
by the Civil Service.
Accordingly, civil servants, especially senior civil servants, are tasked with explaining or even defending their actions
directly to the Ministers. The balance between serving Ministers and serving the public can sometimes be difcult for
civil servants to navigate - not just in Bermuda but indeed, all over the world. (In the popular culture, this relationship
is epitomized by the British comedy Yes Minister.)
Our Special Report, Todays Choices: Tomorrows Costs, commented on the dilemma:
Given the nature of hierarchy, it would be all too human if a kind of constructive intimidation is sometimes
at work a civil servant may refrain from pressing a point that is contrary to what people more senior may
appear to prefer. A publication of the UK National School of Government (Working with Ministers 4th
ed. 2008 C. Jary) notes: civil servants must ensure that ministers decisions are based on a rm foundation
of fact. This involves setting aside our own personal views and our ministers and saying what, in our
professional judgment, is the best course in these circumstances...We are not doing ministers (or the quality
of government) any favours by telling them what they want to hear, rather than what they need to know. We
have a duty to warn ministers if we feel that their decisions will not work or will produce unwanted results.
As noted in my TEDx Bermuda talk in October 2013, our Civil Service should be encouraged and evaluated by
how well they ask questions, acknowledge problems, and seek resolutions rather than: by how well they cover their
backs; the quickness of knee-jerk cant do responses; hyper-legalistic justications for bureaucratic inaction; and,
how narrowly they interpret what accountability, transparency and at your service actually entail (the Ombudsman
for Ontario has coined this rulitis).
How is the general public to be assured that civil servants (whose salaries are paid with their taxes) are serving them
and not just political bosses or other agendas? Prior to the establishment of an Ombudsman, it was often difcult to
ensure accountability of civil servants for poor or mal administration. Transparency, such as providing reasons
for decisions, was not typical of the culture of the Civil Service. As the seminal 1984 judgment of the Supreme
4
Former Ombudsmans Comments
Court of Canada explained regarding the need for the Ombudsman:
The traditional controls over the implementation and administration of governmental policies and programs
namely, the legislature, the executive and the courts are neither completely suited nor entirely capable
of providing the supervision a burgeoning bureaucracy demands. The inadequacy of legislative response
to complaints arising from the day-to-day operation of government is not seriously disputed. The demands
on members of legislative bodies are that they are naturally unable to give careful attention to the workings
of the entire bureaucracy. Moreover, they often lack the investigative resources necessary to follow up
properly any matter they do elect to pursue... The limitations of courts are also well-known. Litigation
can be costly and slow. Only the most serious cases of administrative abuse are therefore likely to
nd their way into the courts. More importantly, there is simply no remedy at law available in a great
many cases.
1
The Ombudsman institution lls the gap. Since the early 1960s, the Ombudsman has proliferated throughout the
world as the institution that oversees the operations of the Civil Service. In effect, the Ombudsman who does
have the necessary investigative resources acts as the eyes and ears of the Legislature. To do this effectively, with
integrity and without fear of political retribution, the Ombudsman in Bermuda is an ofcer of the Constitution. Like
the Auditor General - who oversees the expenditures of the government and is the only other wholly independent
oversight institution in Bermudas Constitution - the Ombudsman is under the direction and control of no other
person. She reports directly to the Legislature and thereby to the public.
Ombudsman throughout the world are extraordinarily passionate about the need to ensure access to justice for
ordinary persons who do not have political inuence or voices that are readily heard. This has also underpinned
our work in Bermuda. Most important, Ombudsman are also clear and determined that the Ombudsman is neither
an advocate for the complainant nor for the authority, he is a critical friend to both.
2
On the other hand, the
Ombudsman is always an advocate for good administration, accountability and transparency.
Dr. Victor Ayeni, a global expert in the oversight of public administration (Keynote Speaker at the ofcial opening
of our ofce in January 2006) states that the value of the Ombudsman is such that it has become a human right in
itself. That is, countries that do not have Ombudsman institutions are denying inhabitants the right to administrative
justice.
In the second reading of the Ombudsman Bill on 3 December 2004, and at the ofcial opening of our ofce 19
January 2006, then Premier Alex Scott noted that the establishment of the Ombudsman is a
signicant step in entrenching good governance, transparency and accountability for the people
of Bermuda by the Government of Bermuda...the Ombudsman will address not only those issues of
national importance, but also issues related to everyday matters that are signicant to the members of the
community that have been affected...We view your ofce as a cornerstone in the great structure that is
good governance. By investigating complaints to determine whether the Government is doing things in a
fair and proper way, and by learning from what went wrong and translating the recommendations into
action, you are not only improving governance, but you are improving peoples everyday experience
with government.
Accordingly, the failure to implement Ombudsman recommendations without reasonable explanation especially
after agreeing to do so not only makes a mockery of the very notion of accountability, but also essentially
constitutes a deance of the will of the Legislature. There is no harm in Bermuda taking guidance from UK Courts:
while recommendations are not binding, the ndings of the Ombudsman are binding unless it is reasonable to
1 BCDC v. BC (Ombudsman) [1984] 2 SCR. 447 (followed worldwide and noted by Bermudas Supreme Court in Smith v The Minister of Culture and
Social Rehabilitation [2011] Bda LR 7.
2 Succinctly stated by Tom Frawley, Ombudsman for Northern Ireland
5
disagree. It is not enough to disagree because a senior Civil Servant or Minister feels like doing so they must
advance cogent, persuasive reasons for disagreeing.
3
Most of the cases of maladministration over the years can be traced to a failure of due process or due diligence.
It has been astonishing to see how important decisions can be made based on what someone said or what I
believe or feel rather than on clear and objective assessments of all the facts and perspectives that it is possible to
unearth. Too often, advisors and decision-makers latch on to the rst notions they understand about an issue rather
than taking the extra steps of testing and double-checking those notions and/or seeking and embracing other
perspectives.
Accountability would mean acknowledging mistakes and missteps - all humans make them. Transparency would
mean giving reasons for decisions and actions. Accountability means accepting that those reasons might not be
the most appropriate or adequate. Transparency means being open to assessing a variety of options for resolving
issues rather than just narrow, entrenched ideas. Accountability means taking steps necessary to resolve problems
and address Ombudsman recommendations rather than ostrich-like denial. Transparency means acknowledging
that there is more that a department, board or other authority can learn.
Most complainants come to the Ombudsman with two layers of complaint - not only the underlying administrative
problem itself, but also how they were treated when trying to redress the problem. More than the actual maladministration
itself (inefciency, unresponsiveness, mistake of law or fact, etc.) it is the failure to accept accountability and ensure
transparency that tend to frustrate and motivate complainants.
Notwithstanding what has occasionally felt like battering against concrete bureaucratic walls, I must categorically
conrm that over the years, the vast majority of the Civil Servants that we have made inquiries of or worked with
to nd resolutions have been diligent, eager to do the right thing and to craft resolutions. I do not believe that
anyone wakes up in the morning, looks in the mirror and decides I will make life difcult for the public today. In
some instances, Civil Servants may simply be operating with old interpretations of their guiding statutes,
4
or without
knowing details of the other side of the issue or the abyss of documentation falls through bureaucratic cracks.
At the great risk of leaving out an ofce or person who demonstrated notable accountability and transparency, I
commend the following who have stood out over the years as consistent models of Civil Servants who embraced
good governance and were always eager to learn: R. Azhar (former Chief Immigration Ofcer), G. Ness (Planning
Department), L. Lister (Executive Ofcer, Human Rights Commission), D. Taylor (Director of Financial Assistance), R.
Rochester, formerly of the Transport Control Department; the entire Department of Consumer Affairs and the Bermuda
Public Services Union.
It is probably no coincidence that these are also people who peruse our Annual Reports (which are used as
training material in other countries) and took advantage of uncommon opportunities to learn about the Ombudsman
functions. Bermuda hosted the biennial conference of the Caribbean Ombudsman Association in 2008 and the
2010 Annual Board Meeting of the International Ombudsman Institute. I asked both organizations to do something
that is not normally done: public presentations about the work of the Ombudsman in their own countries. It was
important that the public learn about the Ombudsman not just from me but also from visiting Ombudsman. Generally
3 Regina (Bradley and Others) v Secretary of State for Work and Pensions and Others. [2007] EWHC 242; [2008] EWCA Civ 36
the [minister] acting rationally, is entitled to reject a nding of maladministration and prefer his own view. But...it is not enough that the [minister] has
reached his own view on rational grounds; it is necessary that his decision to reject the Ombudsmans ndings in favour of his own view is, itself,
not irrational having regard to the legislative intention which underlies [the Ombudsmans legislation]...it is not enough for a Minister who decides to
reject the Ombudsmans nding of maladministration simply to assert that he had a choice: he must have a reason for rejecting a nding which the
Ombudsman has made after an investigation .
R v Local Commissioner for Administration ex parte Eastleigh Borough Council [1988] 1 QB 855 The Parliamentary intention was that reports by
Ombudsman should be loyally accepted by the local authorities concerned... in the absence of a successful application for judicial review and the
giving of relief by the Court, local authorities should not dispute an Ombudsmans report and should carry out their statutory duties in relation to it.
4 Such as the rst complaint (that arrived in our ofce promptly at 10:30 am on opening day): for decades HM Customs had misapplied the amount of
surcharge allowed by the 1898 Revenue Act for late submission of documents.
Former Ombudsmans Comments
6
speaking, the Civil Servants who took advantage of these opportunities also tended to give exemplary responses to
our inquiries and embraced the effort of continuous improvement.
I also must acknowledge former Premiers Alexander Scott and Paula Cox and former Ministers Randolph Horton and
Lt. Col. David Burch for their proactive inquiries to ensure that complaints were addressed.
On the other hand, I demit ofce with a couple of outstanding matters which hopefully will be rectied in order to
give true meaning to any understanding of what good governance and integrity should entail.
The most important is the Governments unsubstantiated denial of my conclusion (which was supported by two
legal opinions) that the 2001 Environment Charter imposes obligations - including that Bermuda must require
environment impact assessments before approving certain developments. In several reports, I have provided a
mountain of evidence to support this assessment of the Charters legal status including the only Court judgment
that has ever reviewed the Charter. The Bermuda Government insists that the Charter was merely aspirational.
This view is not aligned with the Foreign and Commonwealth Ofce (FCO) with which the Government signed
the Charter. In its 2007 written evidence to the UK House of Commons Environment Audit Committee, the FCO
asserted: The Charters have a list of commitments that both Her Majestys Government and the Overseas Territory
Governments are working towards. The FCO has never backtracked from this and indeed afrmed the Charter
commitments in its recent evidence to the 2012 hearings of the Environment Audit Committee:
The Government of Bermuda cannot simply say we do not agree without substantiating its position or
publicly disavowing the Charter. They claim to have legal opinions. My understanding is that there was a
preliminary cursory view that did not take into account the elements of agreements between governments
or the contemporaneous evidence of the intent of the Charter. If there is another legal opinion to support the
Governments assertion, then they should have shared at least the basic arguments with the Ombudsman. As
the eyes and ears of the Legislature, the Ombudsman should be able to count on all Government authorities
to cooperate fully. This includes waiving legal privilege (as Governments elsewhere do) in order to provide all
relevant information to the Ombudsman. It would be bizarre if Government authorities were to insist on denying
the Legislatures right to see and hear all evidence (via the Ombudsman or the Auditor General).
Also outstanding is the Land Valuation Departments view that it may take internal photographs of peoples homes
from the outside without rst asking permission. As noted (and reported at greater length) in our 2012 Annual
Report:
The Department asserts a Constitutional right not to request consent. It is true that Article 7(b) of the Bermuda
Constitution allows government ofcers to inspect premises without consent for the purpose of any tax. Valuations
determined by the Department are for the purpose of assisting the Tax Commissioner to calculate taxes and issue
bills. However, the Constitution also requires that such entry must be reasonably justiable in a democratic
society. It is my opinion and recommendation that it is not reasonably justiable for the Department to enter onto
peoples premises in the rst instance without rst seeking consent. If people refuse, then the Department still has
recourse to enter with a police escort under s.8 of the Land Valuation and Tax Act 1967.
The Bermuda Police Service (BPS) has a similar right under Article 7(a) of the Constitution to enter on premises
without consent in order to protect public safety, order and morality. Yet, even the BPS has strict parameters and
must in most instances obtain initial authorizations in order to exercise this right under the Police and Criminal
Evidence Act 2009 and certain other legislation. The BPS may enter premises without consent only on the
reasonable belief that a person or relevant evidence is on the premises for the purpose of: executing arrest
warrants; recapturing persons unlawfully at large; saving life or limb; or preventing serious damage to property.
There is an even higher standard of information required to obtain a warrant issued by a Magistrate. Specically:
the warrant must be in connection with an indictable offence; and, the evidence sought must be considered to
be of substantial value. The Department has submitted no persuasive reason to justify why it cannot simply ask
Former Ombudsmans Comments
7
for consent in the rst instance. It is illogical and untenable that the Department of Land Valuation should have a
larger power to invade privacy of the home than even the Bermuda Police Service.
Finally, the responses by the Ministry of the Environment to the Special Report: A Grave Error and the Corporation
of Hamilton to the Special Report: 4 x 6 are sadly of great concern:
4 x 6 = 262 demonstrated a range of governance problems at the Corporation of Hamilton that any responsible
administration that is truly committed to accountability and transparency would eagerly want to x.
The responses to both reports are inadequate and inappropriate and will be the subject of two further brief Special
Reports under s.16 of the Ombudsman Act.
Soon after the ofce opened, a talk show caller asked: why would you want to take on this role? The opportunity
to ll the gap of access to administrative justice is compelling and indeed rewarding when we are able to nd
resolutions for complainants who felt that no one else had listened or treated them fairly. We appreciate that the
public took the role of the Ombudsman quite seriously. Over the years there has been only a handful or two of
complaints that can be characterized as frivolous or not made in good faith. I thank the public for their constant
support.
The need to safeguard and promote accountability and transparency is particularly urgent during periods of budgetary
crisis when governments may be tempted to cut corners or dispense quickly with difcult problems without adequate
due process and due diligence. Worldwide, Ombudsman are reminding governments that periods of nancial
downturn are times when the imperative of good governance is even greater. This is particularly true in small states
which are often more vulnerable than large bureaucracies to wide discretion, intertwined personal relationships
and weak governance. As noted by Dr. R. Koranteng of the Commonwealth Secretariat in a 2011 report: Better
Governance Issues and Challenges in Corruption Control for Small States, transparency and accountability are
antidotes to corruption. The Ombudsman team operates as one of the accountability or integrity physicians in the
modern world who is relied on and trusted by the Legislature and the public to oversee, articulate and administer
these antidotes.
Comparative research by a legal team at the University of Shefeld, UK explored a seminal idea largely from
developments in Australia:
Constitutional lawyers have always talked of three distinct and fundamental branches of the constitution the
executive, the legislature and the judiciary. We should add a fourth branch the integrity or accountability
branch. Such a theoretical development is no more than a practical recognition of how constitutions have
evolved.
5
In Bermuda, the Integrity Branch of Government is comprised of three Constitutional authorities Auditor General,
Ombudsman and Public Service Commission. The permanence of the status of Ofcers of the Constitution enhances
both credibility and execution of our oversight functions. There are also ve statutory accountability authorities. If
they were fully independent, they could also be deemed part of the burgeoning Integrity Branch of Government
Human Rights Commission, Parliamentary Registrar, Police Complaints Authority, Department of Internal Audit and
the impending Information Commissioner.
None of the Ombudsmans work can be effective without the enormous efforts, diligence and dedication of an
incredible staff. I have been blessed with wonderful people to work with who have exemplied what only the very
best staff do: challenge and support me; go the extra mile; bring focus and perspective, and consistently contribute
their best skills and values. The staff at the Ofce of the Ombudsman became a formidable and highly respected team
over the years. International colleagues and also many members of the Bermuda public have expressed amazement
that we could accomplish so much with so few. Quite simply, any positive impact is due to the hard work, care and
5 The Ombudsman Enterprise and Administrative Justice - from Dr. Richard Kirkhams speech at the 2008 conference in Bermuda of the Caribbean
Ombudsman Association.)
Former Ombudsmans Comments
8
persistence of this phenomenal staff. Any shortcomings are mine alone. During 2013 in particular, the team carried
the ofce on their shoulders when my attention had to be focused on unprecedented legal challenges (to be reported
on more fully in the Section 16 Special Report on the response of the Corporation of Hamilton to 4 x 6 = 262).
My profound thanks and respect to:
Quinell Kumalae, Senior Investigations Ofcer, and essentially my right hand for eight years. Mrs. Kumalaes
clarity of thought, wisdom and dedication to justice are nothing short of stellar. Lamentably, an interesting and
totally different career off island has beckoned.
Thankfully, Catherine Hay, Investigations Ofcer, has remained. Her insights, stalwart legal acumen and nger
on the pulse of various aspects of Bermuda are invaluable.
Georgia Symonds (who retired in December) was the heart of the ofce. She organized us all, conducted
research and myriad tasks and always contributed much-needed substantive perspective.
Lamumba Tucker does not merely manage our accounts, budget and ofce administration. He also pitches in with
research, the right questions and anticipates needs with intrepid humour and spirit.
During the rst eight and a half years of the Ombudsman institution in Bermuda, I believe that our team established an
understanding of what maladministration is, what accountable and transparent responses should look like and how
this institution can contribute to administrative justice. We did not accomplish a transformation of the Civil Service
culture into one in which due process and due diligence are uppermost priorities.
The new Ombudsman, Ms. Victoria Pearman, has great Ombudsman instincts and integrity. I believe that - if the
Civil Service is open - she will take the ofce and its impact far along the road to this next level. Godspeed, Ms.
Pearman and team as you forge ahead in this incredible journey - indeed this global movement - of bringing
administrative justice to the public and making the words accountability and transparency come to life.
Former Ombudsmans Comments
Arlene Brock
Former Ombudsman for Bermuda
9
Staff
2013 Seated: Georgia Symonds (Admin./Personal Assistant for Ms. Brock); Arlene Brock (Ombudsman)
Standing: Kara Simmons (Complaint Intake Ofcer and Analyst); Catherine Hay (Investigations Ofcer);
Quinell Kumalae (Senior Investigations Ofcer); Lamumba Tucker (Administrative Ofcer).
The Hard Working Team at the Ofce of the Ombudsman
2014 Seated: Victoria Pearman (Ombudsman)
Standing: Aquilah Fleming (Complaint Intake Ofcer); Catherine Hay (Investigations Ofcer); Lynda Augustus
(Executive Administrative Assistant); Lamumba Tucker (Administrative Ofcer).
10
11
Presentations and International Relations
MAY 2013:
Biennial Conference of the Caribbean
Ombudsman Association
Arlene Brocks presentation: Weaving
Together Human Rights and Ombuds-
manship argued that the institution
of the Ombudsman was evolving so
quickly that the old distinctions between
the classical, complaint-driven and
the hybrid, human-rights ombudsman
were fading. This is especially true since
the UN General Assembly resolutions
of 2009 and 2010 that not only
recognized the role of Ombudsman in
promoting and protecting human rights but also urged
Ombudsman to become accredited as National Human
Rights Institutions. Further, some 25% of Ombudsman
institutions have been designated by their governments
as National Preventative Mechanisms to conduct annual
human rights audits of places of detention.
Ms. Brock was also asked by the Conference host to
pinch-hit at the last minute for Dr. Victor Ayeni who was
unable to attend. Due entirely to her phenomenal staff
at home who put together a power-point presentation,
Ms. Brock spoke on the value of UK Commonwealth
Jurisprudence to suggest global standards to elucidate:
Ombudsman Purpose and Jurisdiction; Powers and
Discretion; Maladministration vs. Legal Causes of
Action; and, Response of Authorities.
SEPTEMBER 2013:
Ms. Brock developed these ideas further at the
Colloquium of the African Ombudsman and Mediators
Association.
JUNE 2013:
Visit to ofce by the Governor of Aruba, HE Fredis
Refunjol, the Director of Cabinet, Mr. Martijn Boelen,
and his ADC, Lt. Roel Samson. Governor Refunjol met
with the Chief Justice, Auditor General and others to see
how Bermuda conducts good governance accountability
and oversight. He spent a spirited hour with our ofce
exploring the powers, authority and effectiveness of the
ombudsman institution within the context of the special
challenges and politicization of small jurisdictions.
OCTOBER 2013:
TEDx Bermuda: Ms. Brock emphasized the importance
of making decisions based on facts rather than mere
opinionagainst a backdrop of emotion and inuence.
(http://www.youtube.com/watch?v=VTtVjoYiWXE)
During the year, Mrs. Kumalae and Ms. Hay
conducted workshops on human rights of inmates and
the Ombudsman complaint handling process at each
of the Islands correctional facilities.
The Bermuda ofce agreed to establish and host an
interim static website of the Caribbean Ombudsman
Association (which paid for this undertaking) the work
and expertise of our Mr. Tucker made this possible.
The Ombudsman for Bermuda continues to respect the
Herculean work done by the Ombudsman for Haiti
(Protectrice du Citoyens). In addition to her many
endeavours, including bringing justice to street girls
and connecting inmate fathers with their sons in a
football league, Madame Florence Elie was asked
by the Government of the US to be the responsible
authority to produce and distribute copies of Haitis
latest Constitution that had been translated into creole.
The Rotary Club of Sandys, Bermuda was so inspired
that they have contributed funds to pay for two years of
membership for Haiti in the International Ombudsman
Institute. Many thanks!
12
CONSUMER A
This is an example where a single incident gave rise
to complaints against three different authorities. As
each complaint requires the same diligence of inquiry,
investigation and, if needed, mediation, each is
counted in our statistics as a separate complaint.
1. Consumer A complained to the Ombudsman
that the Department of Consumer Affairs
(Department) had not adequately resolved
her complaint that a store owner had verbally
attacked her. The Departments investigation
concluded that the store owner had been less
than courteous and issued a written warning
to the store owner. The
Complainant wanted far
greater consequences,
including a written
apology. She felt that
the Department did not
understand the gravity of
the incident.
The Ombudsman
determined that the
Department had conducted its investigation
adequately. Further, the written warning was
appropriate and proportionate because this
was the rst ever complaint led against this
particular store owner.
2. Consumer A also complained against her childs
School (School). The School had exclusively
designated the above-noted store owner to
stock the school uniforms. Consumer A had no
alternative but to purchase the uniforms from the
store owner. Before the above-noted encounter,
she had unsuccessfully tried three times to
purchase the uniforms. On two occasions the
store was not open when advertised. On the
third occasion its credit card machine was not
working. In her frustration she wrote a letter to the
School complaining about these difculties. The
School forwarded a copy of her letter regarding
these original complaints to the store owner.
The next time Consumer A went into the store
she experienced the encounter referred to in
1. above. She managed to quickly record the
conversation on her mobile phone and captured
the store owner saying: Ive been waiting for
you. Consumer A complained that the School
had put her in an uncomfortable position by
leaving her no alternative but to purchase
uniforms from this store and more importantly,
by alerting the store owner to her identity as a
complainant.
The Schools initial response was that it was
actually the Parent Teacher Association (PTA)
that had made the arrangements with the store
owner to stock the uniforms. After meeting with
the Ombudsman the School accepted that the
PTA was operating on behalf of the School, as
the sole purpose of the uniforms was to meet
the Schools dress requirements. Therefore, the
School will encourage a choice of vendors in
the future.
Further, the School acknowledged that it was
the School, not the PTA, that had compromised
Consumer As identity. The School understood
that it was inappropriate and unnecessary
to name Consumer A in raising her original
concerns about opening hours and the difculty
of the credit card machine. The School agreed
that in future it would handle such complaints
generically rather than identifying complainants
without their express consent. The School also
agreed that it would be useful to have training in
complaint handling.
3. Consumer A also complained to the Ombudsman
against the Human Rights Commission (HRC).
In addition to saying Ive been waiting for you,
the store owner referred to her as you people.
She also made comments to the effect that you
people expect to be treated with deference.
(Consumer A is not a Bermudian national/of
Bermudian origin). Consumer A recorded these
statements. Such direct and clear evidence
from recordings of such encounters is almost
unprecedented.
Consumer A complained to the HRC of
discrimination based on country of origin. The
HRC initially determined that because Consumer
Complaint Summaries
13
Complaint Summaries
A was ultimately able to purchase the clothes the
Human Rights Act 1981 (HRA) did not apply
to this complaint.
S.5(1) of the HRA provides: No person shall
discriminate against any other person due to
age or in any of the ways set out in section 2(2)
in the supply of any goods, facilities or services,
whether on payment or otherwise, by refusing or
deliberately omitting to provide him with any of
them or to provide him with the goods services or
facilities in the like manner and on the like terms
in and on which the former normally makes them
available to other members of the public.
S.2(2) of the HRA provides: For the purposes
of this Act a person shall be deemed to
discriminate against another personif he treats
him less favourably than he treats or would treat
other persons generallyor deliberately treats
him differently to other persons becauseof
his race, place of origin, colour, or ethnic or
national origins
Apparently the HRCs conclusion was based
on an interpretation that the words in the like
manner refer only to the items purchased. That
is because Consumer A was eventually able
to purchase the uniforms, there could not have
been any discrimination.
The Ombudsman asked the HRC to reconsider
whether the words in the like manner could
also apply to the encounter preceding the
purchase in addition to the physical exchange of
the school clothes for money. The Commission
agreed to do so and Consumer A was instructed
to contact their ofces.
Full Disclosure: In the course of drafting this
2013 Annual Report, it was discovered that the
new Ombudsman had previously represented
the Store Owner after being notied by the
HRC that the matter would be reopened on the
Ombudsmans recommendation.
MOTHER B
Mother B complained that a Charity had not treated
her fairly after it received a complaint about her.
The Ombudsman declined to investigate because
the Ombudsman Act 2004 (Act) applies to public
authorities within the denitions listed in s.3 of the Act.
The Charity is not a public authority and therefore
does not fall within the jurisdiction of the Ombudsman.
However due to the breakdown
in communication between
all parties the Ombudsman
decided to contact the charity
in order to obtain clarication
of the matter as well as to
provide information to Mother
B regarding their process. The
Ombudsman was able to advise
the Charity generally on some process
improvements that they promised to implement,
including sending clear closure letters for matters
handled by the Charity.
PROPERTY OWNER C
Property Owner C bought a newly constructed house
that split the land of the Developer in half. He stated
that the Developer told him that a wall would be
built dividing the now, two separate properties. The
Developer built a 6ft freestanding wall between the
lots but did not plaster the side on which Property
Owner C lived. Property Owner C complained to the
Department of Planning (Planning) that the wall was
not compliant with Planning regulations which dictate
walls that are four feet and over. In particular, s.6.6 of
the Bermuda Plan 1992 requires that concrete block
walls should be plastered.
In response to the complaint by Property Owner
C, Planning initially inspected the wall and failed
it because: (a) it was not plastered on the northern
side; and (b) it was constructed without the requisite
inspections. There were other issues arising from
the inspection as well. The Developer agreed to
regularise most of the outstanding issues but he did
not agree to plaster the wall because the Planning
approval for the wall did not specically stipulate that
it must be plastered. Planning changed its original
instruction and agreed that the Developer was within
his rights not to plaster the wall.
Further, Planning also seems to have accepted the
Developers view that the approval document must
14
restate all of the conditions set out in the Bermuda Plan
in each approval. There is actually no requirement
that this must be done. This would in fact add a great
deal of unnecessary paperwork if each approval had
to set out paragraphs, in some instances pages, of all
of the relevant requirements of the Bermuda Plan.
In the meantime, after several months of no further
apparent action by Planning, Property Owner C
complained to the Ombudsman that Planning was
both unresponsive and had failed to enforce the
regulations set out in the Bermuda Plan. Planning
informed the Ombudsman that it had written to the
Developer outlining certain issues arising from the
inspection but had conceded to the Developer on the
plastering point and withdrew its original instructions
that the wall must be plastered.
Plannings reasoning was that s.6.6 of the Bermuda
Plan is merely a policy and provided guidance only,
that is, the conditions set out in the Bermuda Plan are
not mandatory.
As required by the Development and Planning Act,
approximately each decade a new Bermuda Plan is
developed. The Plan is developed after over a year
of public and expert consultation on the vision and
requirements to regulate development for the ensuing
decade. Accordingly, approvals of development
applications should not arbitrarily depart from the
community-wide expectations unless there are proper
reasons for doing so.
Chapter 1 of the 2008 Bermuda Plan states:
The main purpose of the Plan is
to provide for the land use and
development requirements of the
Island in a way that makes the most
effective use of its resources, protects
its natural and built environment, and
provides a good quality of life for the
Islands residentsThe Plan comprises
a written Planning Statement and
a series of 89 Zoning Maps. The
Planning Statement contains the key
objectives and policy regulations and
standards for each of the zonings
shown in the Zoning Maps.
Discussions with Planning Ofcers revealed a
difference of opinion about the status of the Bermuda
Plan. Some take the view that the Plan is a set of
regulations which must be followed unless there is
discretion not to do so. Others took the view that
the Plan sets out policies that are not mandatory
and merely provide guidance for Planning Ofcers
and decisions of the Development Applications Board
(DAB). The latter view appears to have prevailed in
Plannings assessment of and advice to the DAB about
this Developers application
In another context regarding the legal obligations set
out in the 2001 Environment Charter, the Ombudsman
has researched and received two concurring legal
opinions that policies are not merely guidelines.
Policies are mandatory unless there are (1) statutory
discretion to vary the policies and (2) reasonable
reasons to do so. Both the Privy Council (regarding
governments public statements) and an Appeal
decision of the Eastern Caribbean Supreme Court
(regarding the legal obligations of the Environment
Charter) have judged that the public has a legal
Legitimate Expectation that the government will follow
its own policies. See the Ombudsmans reports (a)
Todays Choices: Tomorrows Costs which sets out
the Save Guana Bay
Privy Council decision
as well as (b) Diligent
Development which sets
out the Webster appeal
decision of the Eastern
Caribbean Supreme
Court.
Applying the doctrine of
Legitimate Expectation to
the Bermuda Plan, it is the
Ombudsmans considered
analysis that it would be logical and fair to interpret
the status of the Bermuda Plan as follows:
where there is no DAB discretion with respect
to a policy regulation and standard set out in
the Bermuda Plan, then such policy regulation
and standard is mandatory
where there is DAB discretion, then that
policy regulation and standard should
Complaint Summaries
15
Complaint Summaries
guide DAB deliberation on the extent of
and reasonableness of varying the policy
regulation and standard (subject to any
external law or Court decision that stipulates
that the condition is mandatory).
In its initial handling of this complaint, the
Ombudsman did nd maladministration due to
Plannings unresponsiveness in its failure to update
Property Owner C. However, and critically, the
Ombudsman accepted Plannings interpretation of the
Bermuda Plan. Accordingly, the Ombudsman found no
maladministration in Plannings retraction from its original
letter that the wall must be plastered. The Department
wrote a without prejudice apology to Property Owner
C for having raised his expectations that the wall would
be rectied. Upon conrmation of this, his complaint
le with the Ombudsman was closed.
On reection and in particular in light of decisions of the
Privy Council and other Courts that the Ombudsman has
researched regarding the Governments environmental
obligations, the Ombudsmans acceptance of Plannings
interpretation of the role of the Bermuda Plan appears
to be in error.
The s.6.6 requirement in the Bermuda Plan that certain
walls be plastered is not within the discretion of the DAB
and therefore should be considered to be mandatory.
There is no right by the Developer to willfully ignore
the conditions set out in the Bermuda Plan. Property
Owner C has a legitimate right to expect that Planning
would uphold and enforce it. Further, given the fact
that approved plans are not required to restate all of the
regulations set out in the Bermuda Plan, the fact that the
Developers approved plan for the wall did not stipulate
plastering does not override regulation s.6.6.
A hedge now covers the offending wall. Nevertheless,
this is a complaint for which the former Ombudsman
has undertaken to apologise to the complainant,
Property Owner C, for what she concludes was an
error in interpretation of the Bermuda Plan.
GOVERNMENT EMPLOYEE D
After 40 years of employment with Government,
Employee D checked on her upcoming benets and
was told that she would receive health coverage
immediately after retiring. However, after retiring she
was given quite different information. The Accountant
General Government Employee Health Insurance
Scheme (GEHI) told her that she was not entitled to
health benets after retirement until she reached the age
of 60 years.
After considerable time and effort, a letter to GEHI and
several telephone messages trying to clarify the matter,
Employee D complained to the
Ombudsman, not only about
the conicting information
regarding her medical
coverage but also that GEHI
was unresponsive.
The Ombudsmans inquiries
revealed that GEHIs
information was partially
correct. The Complainant was
entitled to health coverage
prior to reaching the age of
60 years under HIP rather than GEHI. Once she
reaches the age of 60 years, she would be entitled
to GEHI coverage. Her le was sent to the
GEHI Management Committee for review. The
Committee approved re-enrollment if she agreed to
pay the HIP premium for the period from retirement
until re-enrollment.
HOMEOWNER E
Homeowner E owned a house that had a retaining
wall owned by Government on its boundary.
Homeowner E wrote to the Department of Planning
(Planning) to express concerns that the retaining wall
was unsafe and did not comply with the Governments
own planning regulations. Planning investigated and
promised a response. However after the initial contact
and despite subsequent telephone calls and emails,
Homeowner E received no further communication.
Approximately a year later Homeowner E still had
not received a substantive response and complained
to the Ombudsman. Homeowner E claimed that the
integrity of the wall was compromised and posed a
danger to the family. The Ombudsman investigated
and Planning advised that the matter was being
reviewed. However, Planning noted that it was a
16
complicated matter and would take time to resolve.
Due to the technicalities as well as legal and nancial
considerations, Planning
had sought legal advice.
After considerable nego-
tiations and numerous pro-
posals Homeowner E and
Planning reached an agree-
ment. The Government ac-
cepted responsibility for
rebuilding more than half
of the new wall and Home-
owner E would rebuild the
remainder. Although it did
take some time for this mat-
ter to be resolved the Ombudsman understood its
complexity and was pleased that both Planning and
Homeowner E assisted, and were able to reach an
agreement.
FOREIGN NATIONAL F
Foreign National F was a Dominican Republic national
recently divorced from her Bermudian husband, with
two non-Bermudian children and one Bermudian
child. Foreign National F came to the Ombudsman
after the Government announced that nationals from
the Dominican Republic must have a visa in order
to land in Bermuda. A subsequent Government
announcement advised that if persons could prove
that they were resident in Bermuda prior to the March
2010 announcement they would be eligible for an
exemption from the landing visa requirement.
Foreign National F claimed that she submitted an
application for her oldest daughter to reside in
Bermuda in April 2010 and was told it would take
two weeks to process. By August she had still not
heard anything from the Department of Immigration.
Our preliminary inquiries revealed that the Minister
refused the application
because he was not
satised that Foreign
National F could nan-
cially sustain herself
and her daughter. This
decision was entirely
within the rights of the
Minister (over which the
Ombudsman has no ju-
risdiction). There was
no evidence that the
information provided to
the Minister by the civil
service (which is within
the Ombudsmans jurisdiction to oversee) was incor-
rect or biased.
The important thing is
never to stop questioning.
ALBERT EINSTEIN
Complaint Summaries
17
Statistics
COMPLAINTS REFERRED
Number (38 total) / Where Referred
DISPOSITION OF COMPLAINTS
Breakdown of complaint disposition for the period of 1 January 31 December
for the years 2011, 2012 and 2013
21.1%
50.0%
10.5%
2.6%
5.3%
2.6%
2.6%
2.6%
2.6%
Other (8 complaints)
Home Aairs (19 complaints)
Health & Environment (4 complaints)
EducaEon (1 complaint)
NaEonal Security (2 complaints)
AIorney General & Legal Aairs (1 complaint)
Public Works (1 complaint)
Community Culture & Sports (1 complaint)
Finance (1 complaint)
Other (8 complaints)
Home Affairs (19 complaints)
Health & Environment (4 complaints)
Education (1 complaint)
National Security (2 complaints)
Attorney General & Legal Affairs (1 complaint)
Public Works (1 complaint)
Community Culture & Sports (1 complaint)
Finance (1 complaint)
2011
2012
2013
18
Statistics
Ministry of Finance
Outstanding Complaints as of 31
st
December 2012 3 1 4
Complaints Opened in 2013 - 3 1 4 8
TOTAL OPEN COMPLAINTS IN 2013 3 3 1 5 12
Complaints Investigated and Closed - 2 - 1 3
Complaints Referred
Complaints Informally Resolved 2 2
Complaints Declined / Withdrawn/Abandoned - - 1 - 1
TOTAL OUTSTANDING COMPLAINTS
AS OF 31
st
DECEMBER 2013 3 1 - 2 6
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Outstanding Complaints as of 31
st
December 2012 1 1 - - 2
Complaints Opened in 2013 - 2 8 2 12
TOTAL OPEN COMPLAINTS IN 2013 1 3 8 2 14
Complaints Investigated and Closed - 1 1 - 2
Complaints Referred - - 1 - 1
Complaints Informally Resolved - - 1 - 1
Complaints Declined / Withdrawn/Abandoned 1 - 5 2 8
TOTAL OUTSTANDING COMPLAINTS
AS OF 31
st
DECEMBER 2013 - 2 - - 2
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Ministry of Education and Economic Development
Outstanding Complaints as of 31
st
December 2012 1 - 1
Complaints Opened in 2013 7 1 8
TOTAL OPEN COMPLAINTS IN 2013 8 1 9
Complaints Investigated and Closed - - -
Complaints Referred 1 - 1
Complaints Informally Resolved 1 - 1
Complaints Declined / Withdrawn/ Abandoned 4 - 4
TOTAL OUTSTANDING COMPLAINTS
AS OF 31
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DECEMBER 2013 2 1 3
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19
Statistics
Ministry of Health and
Environment
Outstanding Complaints as of 31
st
December 2012 1 1 6 1 - - 9
Complaints Opened in 2013 - - 10 3 1 2 16
TOTAL OPEN COMPLAINTS IN 2013 1 1 16 4 1 2 25
Complaints Investigated and Closed - - - - - - -
Complaints Referred - - 3 1 - 1 5
Complaints Informally Resolved - - - - - - -
Complaints Declined / Withdrawn/Abandoned - - 3 - 1 1 5
TOTAL OUTSTANDING COMPLAINTS
AS OF 31
st
DECEMBER 2013 1 1 10 3 - - 15
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Outstanding Complaints as of 31
st
December 2012 17 4 12 1 - - 1 35
Complaints Opened in 2013 11 5 20 4 1 1 2 44
TOTAL OPEN COMPLAINTS IN 2013 28 9 32 5 1 1 3 79
Complaints Investigated and Closed 2 - - 1 1 - - 4
Complaints Referred 2 - 15 1 - - 1 19
Complaints Informally Resolved 1 2 - 1 - - - 4
Complaints Declined / Withdrawn/Abandoned 4 2 3 - - - - 9
TOTAL OUTSTANDING COMPLAINTS
AS OF 31
st
DECEMBER 2013 19 5 14 2 - 1 2 43
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Outstanding Complaints as of 31
st
December 2012 1 - - 1
Complaints Opened in 2013 5 1 2 8
TOTAL OPEN COMPLAINTS IN 2013 6 1 2 9
Complaints Investigated and Closed 1 - - 1
Complaints Referred 1 - - 1
Complaints Informally Resolved - - - -
Complaints Declined / Withdrawn/ Abandoned 2 - 2 4
TOTAL OUTSTANDING COMPLAINTS
AS OF 31
st
DECEMBER 2013 2 1 - 3
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20
Statistics
Ministry of Tourism Development and Transport
Outstanding Complaints as of 31
st
December 2012 1 - - 1
Complaints Opened in 2013 1 2 1 4
TOTAL OPEN COMPLAINTS IN 2013 2 2 1 5
Complaints Investigated and Closed - - - -
Complaints Referred - - - -
Complaints Informally Resolved - - - -
Complaints Declined / Withdrawn/ Abandoned - - 1 1
TOTAL OUTSTANDING COMPLAINTS
AS OF 31
st
DECEMBER 2013 2 2 - 4
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Outstanding Complaints as of 31
st
December 2012 - - - - 1 1
Complaints Opened in 2013 2 2 1 1 2 8
TOTAL OPEN COMPLAINTS IN 2013 2 2 1 1 3 9
Complaints Investigated and Closed - - - - - -
Complaints Referred 1 - - - - 1
Complaints Informally Resolved - - - - - -
Complaints Declined / Withdrawn/Abandoned - 2 - - - 2
TOTAL OUTSTANDING COMPLAINTS
AS OF 31
st
DECEMBER 2013 1 0 1 1 3 6
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Ministry of National
Security
Outstanding Complaints as of 31
st
December 2012 - 2 - - 3 - - - 5
Complaints Opened in 2013 2 1 1 1 4 3 1 1 14
TOTAL OPEN COMPLAINTS IN 2013 2 3 1 1 7 3 1 1 19
Complaints Investigated and Closed 1 - - - - - - - 1
Complaints Referred - - - - - - 1 1 2
Complaints Informally Resolved - - - - - - - - -
Complaints Declined / Withdrawn/Abandoned - - 1 1 - 1 - - 3
TOTAL OUTSTANDING COMPLAINTS
AS OF 31
st
DECEMBER 2013 1 3 - - 7 2 - - 13
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21 21
Every time I sit down in the situation
room, every one of my advisors around
there knows I expect them to give me their
best assessments. And so the fact that there
were some who voiced doubts about this
approach was invaluable, because it meant
the plan was sharper, it meant that we had
thought through all of our options,
it meant that when I nally did make the
decision, I was making it based
on the very best information.
PRESIDENT BARAK OBAMA
22
Eight Steps for Resolving Your Own Complaint
What steps have you taken to
resolve the problem?
That is often one of the rst questions we ask people
who contact us with a complaint.
Under law, one of the scenarios in which the
Ombudsman is not required to investigate is when
the law or existing administrative procedure
provides a remedy adequate in the circumstances
for the complainant and, if the complainant has not
availed himself of the remedy, there is no reasonable
justication for the failure to do so: [Ombudsman Act
section 9.1 (b)] In other words, a complainant must
exhaust the other remedies or channels of complaint
which they could be reasonably expected to use
prior to ling a complaint with the Ombudsman.
And it is not just the law, it is also simple common
sense. Disputes and grievances can be resolved with
simple, honest communication. Certainly not all the
time, but enough that it is almost always worth trying
before ling a complaint with our ofce.
Here are some basic, important guidelines to follow
when you are trying to resolve any consumer
problem, whether it involves a government department
or not.
Be pleasant, persistent, and patient. The
wheels of government usually move, but not
always quickly. We have found the citizens
who are best able to get problems resolved
have three core traits in common: they treat
everyone with respect and courtesy; they
dont give up easily; and they realize that
most problems are not resolved overnight.
Exercise your appeal rights. Does the problem
involve a decision or action that has a formal
appeal process? If you are not sure, ask
the department. The right to appeal usually
has a deadline. Respond well before the
deadline and consider sending your appeal
by certied mail. If you cannot write before
the deadline, call to see if you can get an
extension or if you can appeal by telephone.
Choose the right communication mode. If
you are not ling a formal appeal, decide
whether you want to contact the department
in person, over the phone, or through a
letter or e-mail. Go with the mode you are
most comfortable with, unless the problem is
urgent, in which case you will probably want
to rule out a letter or e-mail.
Strategise. Before making contact, consider
who your likely audience will be. Will it be
someone who can actually x the problem to
your satisfaction? If not, your initial goal might
be along the lines of patiently explaining your
concern, Iistening to the response, and then
politely asking to speak with a supervisor-
perhaps even more than once!
Plan your questions. Write down your
questions before calling or visiting the
department. Be sure to specically ask
which law, rule, or policy authorized the
departments actions. Then ask for a copy of
the law, rule, or policy (so you can read it for
yourself, to see whether you agree).
Be prepared. Be sure to have any relevant
information available before contacting the
department. If you are wanting face-to-face
contact, we recommend you call rst. A
short phone call could save headaches and
wasted time, such as nding that the person
you need to talk to is sick that day.
Keep records. Take good notes of all
conversations. This should include the persons
name and title, the time and date, and what
they told you. Keep all records received from
the department, even envelopes. Also keep
copies of any letters, faxes, or e-mails you
send to the department.
Read what is sent to you. Carefully read
everything from the department, front and
back including the ne print!
If all that fails, contact us. Our ofce has authority
to investigate complaints about government
departments, public authorities, Government boards,
23
Eight Steps for Resolving Your Own Complaint
and any other corporation or body that is established
by Act of the legislature or whose revenues derive
directly from money provided by the legislature.
Major exceptions include any administrative action
taken by the Cabinet or any exercise of power by the
Governor to pardon persons convicted of criminal
offences. We do not have authority to investigate any
civil or criminal proceedings or any administrative
action taken in respect to appointments, removals,
pay, discipline, superannuation or other personnel
matters.
Adopted, with thanks, from State of Iowa Citizens
Aide/Ombudsman in 2012 Annual Report, p.4
- MAHATMA GANDHI
It is unwise to be too sure of ones own wisdom.
It is healthy to be reminded that the strongest
might weaken and the wisest might err.
24
Whenever there is a move
to a new paradigm,
there are reactionary forces.
- DEEPAK CHOPRA INDIAN
-AMERICAN AUTHOR AND PHYSICIAN
25
Ombudsman Act 2004 In a Nutshell
Chapter VI A, s.93A of the Bermuda
Constitution 1968 provides
For appointment of the Ombudsman by the
Governor, after consultation with the Premier who
shall rst have consulted the Opposition Leader.
For removal by the Governor for inability to
discharge the functions of ofce, misbehaviour, or
engaging in any other unauthorized occupation.
That in the exercise of her functions, the
Ombudsman shall not be subject to the direction
or control of any other person or Authority.
The Ombudsman Act 2004 provides that the
Ombudsman:
Section 2 may investigate administrative
decisions, acts, recommendations; failure to do
an act or make a decision or recommendation;
and failure to provide reasons for a decision or
action.
Section 2 determines if there is evidence of
Maladministration which includes actions which
are inefcient, bad, improper, unreasonable
delay, abuse of power (including discretionary),
contrary to or mistake of law, mistake of facts,
irrelevant grounds, unfair, oppressive, improperly
discriminatory, arbitrary procedures, negligent.
Section 3 reviews administrative actions of all
Government departments and boards, Public
Authorities, other bodies established by Legislature
or a Minister or whose revenues or fees derive
from money provided or authorized by Legislature.
Section 5 The Ombudsman investigates
administrative action of an Authority
pursuant to a specic complaint or on her own
motion - notwithstanding that no complaint
has been made - where there are reasonable
grounds to carry out an investigation in the
public interest; and
makes recommendations about the specic
complaint and generally about ways of
improving administrative practices and
procedures.
Section 6 The Ombudsman may not investigate:
until existing procedures or appeals have
been exhausted unless she determines that it
was not reasonable for the Complainant to
have resorted to such procedures; or
those matters listed in the Schedule to the Act,
including: administrative actions that may not
be inquired into by any Court; actions taken
by Cabinet, Ministers or Junior Ministers;
pardon power of the Governor; action taken
for investigation of crime or protecting security
of Bermuda; conduct of proceedings before
a court of law or tribunal; personnel and
employment matters.
Section 7 Complaints may be made orally,
electronically or in writing by a person aggrieved
(or other suitable person) about actions within the
last 12 months.
Persons detained or conned are entitled to
be given a sealed envelope to write to the
Ombudsman.
Sections 8 & 10 The Ombudsman may make
preliminary inquiries before launching a formal
investigation or mediation.
Section 9 The Ombudsman may decide
not to investigate if the Complainant knew of
administrative action more than one year prior
to complaint; existing law or administrative
procedure provide adequate remedy and there
is no reasonable justication for the Complainant
not to have availed himself of the remedy; the
complaint is frivolous, vexatious or not made in
good faith or has been settled.
Sections 11-13 After notifying the Authority
of the intent to investigate, the Ombudsman may
obtain information from such persons and in such
manner as she considers appropriate, including
inspecting premises, summoning persons and
examining them under oath.
Section 14 All information given to the
Ombudsman is privileged. It is not a breach of
any relevant obligation of secrecy to provide
information to the Ombudsman. No person may
be penalized or discriminated against in their
employment for complaining or giving information
to the Ombudsman.
26
Ombudsman Act 2004 In a Nutshell
Section 15 The Ombudsman makes such
recommendations as she sees t including that
an omission be rectied, decision be cancelled
or altered, reasons be given, practice or course
of conduct be altered and an enactment be
reviewed.
Section 16 Within 20 days of receiving the
Ombudsmans recommendation, Authorities must
notify her of action taken or proposed to give
effect to the recommendation or reasons for failure
to implement. She may submit a Special Report to
Parliament if she deems the response inadequate
or inappropriate.
Sections 17 & 24 The Ombudsman submits
an Annual Report and any Special Reports to the
Speaker of the House of Parliament with a copy
to the Governor and a copy to the President of
the Senate. The Ombudsman may not make any
adverse statements in reports without giving the
Authority an opportunity to be heard.
Sections 20 & 21 The Ombudsman and staff
must maintain secrecy and are privileged from
Court proceedings.
Sections 25 & 26 Any obstruction of the
Ombudsman in the performance of her functions
constitutes the offence of Contempt of Court.
Intentional misleading or false statements are
summary offences.
You have to be constantly receptive
to bad news and then you have
to act on itIf you dont act on it,
your people will eventually stop
bringing bad news to your attention.
And thats the beginning of the end.
BILL GATES
27
How to make a Complaint to the Ombudsman
HOW DO I MAKE A COMPLAINT?
By letter, in person, telephone, fax or email:
Suite 102, Dundonald Place,
14 Dundonald Street West, Hamilton HM 09
Monday - Thursday 9:00 a.m.-5:30 p.m.
Friday 9:00 a.m.-5:00 p.m.
Tel: 441 296 6541 Fax: 441 296 7734
complaint@ombudsman.bm
info@ombudsman.bm
www.ombudsman.bm
NOTE: Please submit relevant documents when
making your complaint.
WHAT CAN I COMPLAIN ABOUT?
Any administrative action - that is, a decision,
recommendation made or act done or omitted
including failure to provide reasons for a decision);
Administrative action that appears to be bad,
unfair, arbitrary, discriminatory, unreasonable,
oppressive, inefcient, improper, negligent,
unreasonably delayed or based on a mistake of
law or fact;
Please complain only after you have already tried
to work things out with the Authority or resolve
the matter through existing remedies (unless it is
unreasonable to expect you to resort to such
remedies).
WHO CAN MAKE A COMPLAINT?
Anyone who feels personally unjustly treated by an
administrative action of an Authority. A family member
or other suitable person may make the complaint if
you cannot.
The Ombudsman can also investigate matters on
her own motion in the public interest although
there is no specic complaint
HOW LONG DOES IT TAKE?
The Ombudsman investigates complaints as quickly
as possible and therefore requests timely responses
from Authorities. Many complaints can be resolved in
a few weeks, but more complex complaints can take
much longer.
HOW MUCH DOES IT COST?
Services are free and available to anyone.
Where the mind is without fear.
Where the head is held high.
Where knowledge is free.
Where the world has not been broken into
fragments by narrow domestic walls.
Where words come out from the depths of truth,
Where the clear stream of reason rises into the
dreary desert sand of dead habit.
Where tireless striving stretches its
arms towards perfection.
Where the mind is led forward by thee
into ever widening thought and action.
Into that Heaven of Freedom
my Father, let my country awake....
RABINDRANATH TAGORE, INDIAN POET,
NOBLE LAUREATE AND FREEDOM FIGHTER
28
OMBUDSMAN FOR BERMUDA
Suite 102 14 Dundonald Street West Hamilton HM 09 Bermuda
TEL 441-296-6541 FAX 441-296-7734 www.ombudsman.bm complaint@ombudsman.bm