Evidence and Decision Making
1.0 Considering Enquiries and Complaints
2.0 Escalation of Enquiries and Complaints
The purpose of these Procedures is to ensure that the TIO makes decisions to achieve the TIO’s Constitutional objective of fair, just, economical, informal and expeditious resolution of Complaints.
Introduction
When forming any view, assessing any evidence, or making any decision the TIO has regard to:
- the law
- good industry practice
- what is fair and reasonable in all the circumstances,
and will take into account any vulnerability of the consumer, TIO Position Statements, and actions of the consumer and Member both before and during consideration of the Enquiry or Complaint.
The TIO is not bound by previous decisions, and considers each Enquiry or Complaint on its individual merits.
During facilitation and investigation the TIO makes decisions on what constitutes fair and reasonable outcomes based on the assessment of available evidence.
During facilitation and investigation, the TIO Constitution requires a Member to supply to the TIO all evidence relevant to a Complaint, whether it has been requested or not, within a reasonable time specified by the TIO.
When making an evidence based decision, the TIO Officer will take into account whether a Member has neglected to supply relevant evidence that the TIO reasonably believes the Member has or ought to have.
When the TIO makes a decision that affects the consumer it will always explain the basis for that decision to the consumer.
When the TIO makes a decision that affects the Member it will always explain the basis for that decision to the Member.
The TIO’s provision of reasons for its decisions does not extend to a duty to engage in a point by point recitation and analysis of each issue that has been raised by the parties.
1.0 Considering Enquiries and Complaints
1.1
When considering an Enquiry or Complaint, the TIO examines and weighs up the available evidence in any given case.
1.2
When an Enquiry or Level 1 Complaint is referred to the Member’s resolution department, with the expectation that TIO involvement in an outcome is not required, the TIO Officer will generally accept that the consumer has made the complaint in good faith and will generally not require the sighting of evidence.
1.3
In the course of conciliation or investigation, the TIO Officer will generally accept that the consumer has made the complaint in good faith and will generally not require the sighting of evidence unless the evidence is relevant to deciding disputed facts or issues or to support a specific claim.
1.4
When in the course of conciliation or investigation, by notice in writing to the Member, the TIO Officer may request specific evidence with the expectation that the Member will provide this evidence as requested within the timeframe specified by the TIO Officer.
1.5
When the Member responds to written notification during investigation, the TIO Officer requires it to provide all evidence that is relevant to the Complaint, whether it was asked for or not.
1.6
When evidence has been provided by a Member or consumer, the TIO Officer will assess its relevance to the Complaint.
1.7
The TIO Officer will only consider relevant evidence when making a decision.
1.8
When the TIO Officer makes a decision, he or she will explain the reasons for the decision including how the relevant evidence contributed to the decision.
1.9
When a Member does not supply all evidence relevant to the Complaint, and the TIO Officer decides that specific evidence is needed to determine if an offer is fair and reasonable, the TIO Officer may escalate the Complaint in accordance with the Classification and Escalation Procedures to give the Member an additional opportunity to provide that evidence.
1.10
When a consumer does not supply all requested evidence relevant to the Complaint and the TIO Officer decides that the evidence is needed to determine if further investigation is warranted, the TIO Officer may exercise discretion not to investigate the Complaint further.
2.1
When making any decision about escalating an Enquiry or Complaint, the TIO Officer assesses all evidence provided by the consumer and Member to that point to determine if the criteria for Escalation have been met.
3.1
The TIO Officer takes into account a consumer's particular vulnerability when considering what constitutes reasonable conduct by both the consumer and the Member.
3.2
The TIO recognises that in some cases the Member may not be aware of a person's vulnerability, and will consider the reasonableness of the Member's actions once it became aware of the circumstances surrounding the Enquiry or Complaint.
4.1
When forming any view, assessing any evidence, or making any decision the TIO has regard to the law including any legislative entitlements or rights the consumer and Member may have.
4.2
When there is an omission or uncertainty in a piece of legislation about a matter, for example because that matter did not exist, or was not considered when the legislation was drafted, the TIO Officer will have regard to the broad purpose of the legislation when considering what is fair and reasonable.
5.1
When forming any view, assessing any evidence, or making any decision the TIO has regard to good industry practice.
5.2
The TIO generally considers industry codes to be a benchmark of current good industry practice.
5.3
The TIO will compare the actions of the consumer and Member to the benchmark set by an industry code or guideline regardless of whether or not the Member is a signatory or the Code strictly applies to the Complaint.
6.1
When forming a Position on a matter and then issuing a TIO Position Statement, the TIO will have regard to the law, good industry practice, and relevant circumstances that the TIO considers will contribute to fair and reasonable outcomes in relation to that matter.
6.2
When referring to or applying a TIO Position Statement, the TIO Officer will take into account the particular circumstances of the Complaint.
6.3
The TIO Officer may consider that more than one TIO Position Statement is relevant to a Complaint, and will assess evidence and make decisions accordingly.
7.1
When forming any view, assessing any evidence, or making any decision the TIO has regard to what is fair and reasonable in all the circumstances.
7.2
When the TIO Officer considers what is fair and reasonable, he or she:
- has regard to the Benchmarks, and
- assesses the individual circumstances of the Complaint by asking the following questions:
- What resolution results from the application of any relevant law or applicable industry codes?
- What resolution results from an application of relevant TIO Position Statements?
- Has the Member or consumer contributed to the problem? If so, to what extent?
- Has the Member or consumer acted in a manner that was not reasonable in all the circumstances, for example:
- did the consumer fail to follow reasonable advice from the Member?
- did the Member fail to give clear and reasonable advice to the consumer?
- Have the real and relative costs and benefits – financial or otherwise – to the Member and the consumer been considered?
- Has the Member behaved in a way not reasonably necessary for the protection of its legitimate interests?
- What are the particular perspectives, actions and needs of the Member and the consumer?
- Has all the available evidence been considered?
- Would a typical member of the public in possession of all the relevant facts regard the outcome as fair and reasonable?
7.3
When the Member or consumer does not supply all relevant documentation to a Complaint, the TIO Officer may not be able to determine if an offered outcome to resolve the Complaint is fair and reasonable.
7.4
During investigation, if the TIO Officer cannot determine if an offered outcome is fair and reasonable, he or she will:
- convey the current offer to the consumer
- inform the consumer that the TIO has not made a decision about whether the offer is fair and reasonable and what additional information would assist in making such a decision, and
- outline the possible options left to the consumer including whether the consumer would like the TIO to further pursue the matter and make a decision on a fair and reasonable outcome.
7.5
When the TIO Officer can determine a fair and reasonable resolution to the matter, he or she may:
- advise the parties of the TIO’s view on this
- outline the options available to the parties and any timeframes involved for the finalisation of the resolution, or
- provide the parties with the TIO’s Preliminary View that may result in a binding decision or recommendation.
Effective Date: 5 July, 2010
Updated on: 12 January, 2012
