23. DIRECTIONS, DETERMINATIONS, RECOMMENDATIONS AND FINDINGS OF FACT

23.1 Binding Decisions

While the TIO aims to resolve complaints through conciliation, complaints at level 2 and above may be resolved by binding decisions.

Under Clause 6.1 of its Constitution, the TIO has the power after completion of an investigation, and in the absence of a conciliated settlement of a complaint, to resolve a complaint by:

• making a binding determination as to compensation to be paid to the complainant;
• directing the Member to act to remedy the situation; or
• dismissing the complaint.

Decisions are made by the Ombudsman, or Deputy Ombudsman under delegation, up to an amount of $10,000, and are binding on the Member.

However, where the quantum or value of the matter in dispute exceeds $1200, the TIO may only make a determination or give a direction at Level 4. Where the quantum or value of the matter in dispute equals or is less than $1200, the TIO may make a determination or give a direction at Level 3, provided the TIO is of the opinion that the relevant investigation has been completed.

Where a complaint is a generic systemic complaint and the principal systemic complaint has been resolved or a determination or direction has been made, the TIO may make a determination or give a direction at Level 2, irrespective of the quantum or value involved.

Decisions by the TIO are binding on the Member only. If the complainant declines to accept a decision, they may pursue other remedies and the Member is then fully released from the TIO's decision. If, however, the complainant accepts the decision, the complainant shall fully release the Member from all claims or subsequent actions in relation to the dispute. If compensation is involved, a TIO Release Form is sent to the complainant with a copy of the Determination. The complainant is then provided with 21 days within which to accept, by signing the Release Form, or to decline to accept the TIO's decision.

From 19 January 2004 the TIO began to publish selected decisions on its website. In each instance the identity of the parties has been suppressed.

23.2 Recommendations

After completion of an investigation and in the absence of a conciliated outcome, the Ombudsman may make recommendations to a Member up to an amount of $50,000, i.e. in excess of an amount of $10,000. The Member shall be obliged to consider whether or not to give effect to any such recommendation provided that a decision not to give effect to any such recommendation shall not be the subject of further complaint to the Ombudsman from a complainant.

It is the policy of the Ombudsman that Members who fail to act on recommendations will be named in the TIO's Annual Report.

23.3 Dismissing a complaint

After investigating a complaint at Level 4, the TIO may choose to dismiss a complaint. As with all decisions it makes, the TIO must give reasons for any decision to dismiss a Complaint. Complainants are not entitled to a right of review in such circumstances.

23.4 Arbitration

Where a Complaint involves a total amount in excess of $50,000, the Ombudsman may make findings of fact but shall make no determination, direction or recommendation about compensation or other remedial action.

In such circumstances and if the Member and complainant agree, the Ombudsman may exercise arbitration powers in respect of the complaint.

This power is very rarely exercised.

23.5 Issuing Evidentiary Certificates

At any time during or following the investigation of a complaint, the Ombudsman may, if requested, issue a written certificate stating that a Member has contravened the Customer Service Guarantee Standard and setting out the particulars of the contravention. (Constitution Clause 6.6)

>Next: Reviews

Last updated: 12 February 2007