The Office of The Ombudsman is constituted under The Ombudsman Ordinance (Cap. 397) ("the Ordinance"). The Ombudsman is an independent authority which provides a channel for investigation of public complaints against administrative actions to redress grievances, promote fairness and bring improvement in public administration. After the Ombudsman has conducted an investigation into a complaint, he can recommend appropriate redress for an injustice caused by maladministration.

2. Often, what is necessary is to get the injustice put right or the system corrected. Sometimes, a proper explanation and a sincere apology to acknowledge responsibility for the inadequate performance will suffice. There are times when a financial payment is the most appropriate and practical remedy to put right the complainant's loss.

3. Under Section 7 of the Ordinance, the Ombudsman is vested with the power to conduct independent investigation into any action (except such action specified in Schedule 2) taken by or on behalf of an organisation (specified in Schedule 1) in the exercise of its administrative functions in any case where a complaint is made by a person who claims to have sustained injustice in consequence of maladministration in connection with that action.

4. "Maladministration" is defined in the Ordinance to mean inefficient, bad or improper administration and, without derogation from the generality of the foregoing, includes -

(a) unreasonable conduct, including delay, discourtesy and lack of consideration for a person affected by any action;
(b) abuse of any power (including any discretionary power) or authority including any action which -
(i) is unreasonable, unjust, oppressive or improperly discriminatory or which is in accordance with a practice which is or may be unreasonable, unjust, oppressive or improperly discriminatory; or
(ii) was based wholly or partly on a mistake of law or fact; or
(c) unreasonable, unjust, oppressive or improperly discriminatory procedures.

5. One of the major roles of the Ombudsman is to seek redress for complainants who have suffered injustices as a result of maladministration by way of making recommendations to the head of the organisation concerned. However, a distinction between "maladministration" and "injustice" in assessing remedies must be drawn because even if maladministration is found, it does not necessarily follow that the complainant has suffered injustice as a consequence of the maladministration. It is not enough to know that the complainant suffered a disadvantage for it may have been caused entirely by a third party or even by the action (or inaction) of the complainant. For a finding of maladministration causing injustice it must be clear that the injustice, either wholly or partly, occurred as a consequence of the organisation's maladministration.

6. Under Section 16 of the Ordinance, the Ombudsman, after making an investigation, is required to report his opinion and reasons together with -

(i) a statement of any remedy that he considers should be provided; and
(ii) a statement of any recommendation that he thinks fit to make;

if he is of the opinion that one or more of the circumstances as set out below have been revealed -

(a) there is evidence of any maladministration on the part of any officer of any organisation;
(b) the matter should be referred to the head of the organisation affected for further consideration;
(c) an omission should be rectified;
(d) the action should be cancelled or varied;
(e) any practice on which the action was based should be altered;
(f) any view of the law on which the action was based should be reconsidered;
(g) reasons should have been given for the action;
(h) any other steps should be taken.

7. If the report to the head of the organisation concerned is not, in the opinion of the Ombudsman, adequately acted upon, he may submit the report and recommendations together with any further observations, to the Chief Executive. The Ombudsman may make a further report to the Chief Executive if he is of the opinion that a serious irregularity or injustice has taken place and a copy of such further report shall be laid before the legislature.

8. The Ombudsman's recommendations are made to propose appropriate remedies to the complainant when the complaint is substantiated, and where necessary, propose remedies to redress grievances and administrative, procedural, policy or even legal changes with a view to preventing recurrence of similar mistakes and eventually to bringing about improvements in the quality and standard of the public administration.

9. In broad terms, this Office's recommendations fall into two categories -

10. The remedy needs to be appropriate and reasonable to the injustice. In the case of relatively minor faults, an apology on the part of the organisation concerned may be an adequate remedy. Some injustices can be remedied by providing the service deserved by the complainant. In other situations, a change of procedures to prevent future difficulties of a similar kind for the individual complainant or for members of the public generally may be the appropriate solution.

11. When considering remedies for justified and serious complaints, it is important that some practical action rather than remedies extending a simple apology should be put in place to provide all or part of a suitable remedy. Remedies should as far as possible put the complainant in the position he or she would have been in but for the maladministration. Hence, the principle of "putting the complainant in the position that he or she would have been in had the maladministration not occurred" should prevail.

12. Accordingly, remedies should also include financial redress in cases where complainants have suffered specific financial loss or incurred specific financial costs as a result of faulty action on the part of organisations concerned as it is only appropriate and reasonable for the financial reimbursement to the same amount is made.

14. Redress must be effective and fair. The approach to remedies must also be a consistent and fair one for both the complainants and complainee organisations having regard to the circumstances and gravity of the justices caused by maladministration. The two guiding principles in determining the form of redress for maladministration are as follows -

(a) Where maladministration has led to a direct and readily quantifiable financial loss, organisations should seek to set redress at a level which will return the complainant to the position he or she would have been in had the maladministration not occurred.
(b) Where maladministration caused injustice which cannot be measured in financial terms, it will not always be possible to undo or restore the position but organisations should offer other remedies such as an apology, and correction of systems, to ensure that the injustice is not repeated.

15. The distinction of the two guiding principles is whether the injustice is a direct consequence of maladministration and is a quantifiable financial loss for the purpose of determining what would be a satisfactory remedy in the opinion of the Ombudsman in the circumstances.

16. An important consideration in relation to redress is the question of whether this should be a financial remedy. A financial remedy is not always appropriate or something which the complainant is looking for. What the complainant may be seeking is to secure what was being sought in the first place. The main concern of the complainant may be just to be heard, to know that the complaint is taken seriously, and to have a recognition that there was fault and an assurance that steps would be taken to prevent recurrence of such problems. There are cases where the appropriate redress is an apology only.

17. If maladministration has occurred and complainant has suffered injustice as a result and where financial redress is appropriate, the general principle should be to recommend financial redress which is fair and reasonable having regard to the facts and circumstances of the case.

18. If the complainant has suffered actual financial loss as a result of the maladministration or incurred costs which would otherwise not have been incurred, the general approach should be to restore the complainant to the position he or she would have enjoyed had the maladministration not occurred. In cases where there is not an actual financial loss or costs, it will be necessary to identify whether financial redress is appropriate and, if so, what constitutes fair and reasonable in the exceptional circumstances. The central point of financial redress should be as much concerned to promote fairness as to the prudent use of public funds.

19. Financial redress may take the form of ex-gratia payment, a remission or refund, in whole or in part, of the charge or fees involved. In recommending financial redress, this Office would take into account the following factors -

(a) the effect of the complainant's own action or inaction contributing to the financial loss;
(b) money not paid to the complainant or overcharging;
(c) quantifiable loss which would not have been necessary or incurred but for the maladministration;
(d) expenses in pursuing disputes and complaints which are not routine in the normal course of pursuing disputes or complaints; or
(e) excessive or unreasonable delay consequent upon the maladministration which has caused actual financial loss.

20. However, it is not always possible or appropriate for The Ombudsman to express a remedy as a sum of money. In such cases, the remedy could then be expressed as a formula, where appropriate, or be left to the organisation to work out the amount between the complainant and organisation to be settled by negotiation on the basis of the Ombudsman's recommendation.

21. This Office has previously recommended financial remedies for injustice as a result of maladministration, some in the form of ex-gratia payment others by refund/remission of charges and interest payment. They have been accepted and implemented. Some examples of these cases are listed below -

One of the main roles of the Ombudsman is to seek redress for complainants where an injustice has been caused by maladministration. This guidance note sets out the guidelines this Office uses when considering remedies for justified complaints for general information of the organisations subject to the Ombudsman's jurisdiction and the public.

The guiding principle of redress, which this Office has adopted, is to put the complainants back into the position they would have been in but for the maladministration as far as possible. In devising the guidelines, this Office aims to achieve similar remedies for similar injustices in the interests of fairness and consistency while each case will be considered on its own merits in the light of the particular circumstances.

This Office advocates a system of redress which is fair, prudent and consistent, which makes amends and improves services. For any complaint procedure to be effective, there must be the provision for adequate, appropriate and speedy redress when things go wrong. A reasonable and responsible organisation should always make good the loss it caused and act in fair treatment of an individual who has suffered injustice. This Office hopes that this publication will be of value to organisations in devising and reviewing their system of redress as part of their complaint management.