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TRANSPORT CONTROL DEPARTMENT (TCD) DEPARTMENT OF PLANNING
DEPARTMENT OF EDUCATION BERMUDA HOSPITALS (KEMH)
DEPARTMENT OF CORRECTIONS REGISTRY GENERAL (RG)
DEPARTMENT OF OPERATIONS & ENGINEERING H.M. CUSTOMS (HMC)
DEPARTMENT OF CHILD & FAMILY SERVICES DEPARTMENT OF IMMIGRATION
HUMAN RIGHTS COMMISSION (HRC) RENT COMMISSION
DEPARTMENT OF SOCIAL INSURANCE



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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.]

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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.

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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.

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