27. SYSTEMIC PROBLEM INVESTIGATIONS

The TIO Constitution grants the Telecommunications Industry Ombudsman special powers to investigate problems that are potentially systemic in nature.

Clause 5A of the TIO Constitution defines a "systemic problem" as:

“ … a problem with or the failure of a system, process or practice of a Member that causes detriment (that is not trivial) to a significant number or a class of end-users of a carriage service and which arises from a complaint that is within the jurisdiction of the TIO by virtue of another provision of the TIO Constitution.”

Unlike other types of complaints, Systemic Problem Investigations are not managed in accordance with the normal TIO Complaint Classification and Escalation Guidelines. The Operational Procedures below provide detail about how the TIO identifies and investigates potential systemic problems.

Systemic problem investigations are managed by the Systemic Complaints Officer, who reports directly to the Deputy Ombudsman.

The TIO’s powers, and the procedures set out below, took effect from 20 May 2006.

Systemic problem investigations—operational procedures

• 27.1 Introduction
• 27.2 Jurisdiction and threshold criteria
• 27.3 Identifying potential systemic problem(s)
• 27.4 Investigation
• 27.5 Resolution
• 27.6 Notifications
• 27.7 Referral to regulator

27.1 Introduction to operational procedures

27.1.1	These Operational Procedures have been developed by the TIO in consultation with Council under Clause 5.1 of the TIO Constitution.
27.1.2	The procedures are intended to guide the investigation by the TIO of complaints which raise a potential Systemic Problem.
27.1.3	Neither these Procedures nor Clause 5A of the TIO Constitution extend the matters which the TIO may investigate under Clauses 3 and 4 of the TIO Constitution.

27.2 Jurisdiction and threshold criteria

27.2.1	Clause 5A.1 of the TIO Constitution defines a Systemic Problem as meaning: “ … a problem with or the failure of a system, process or practice of a Member that causes detriment (that is not trivial) to a significant number or a class of end-users of a carriage service and which arises from a complaint that is within the jurisdiction of the TIO by virtue of another provision of the TIO Constitution.”
27.2.2	In deciding whether to investigate a potential Systemic Problem, the TIO shall consider whether:
	(i)	an investigation would be ‘practical, fair, efficient and effective’;
	(ii)	the detriment caused is not trivial; and
	(iii)	the number or class of end-users affected or potentially affected is significant.
27.2.3	The potential Systemic Problem must arise from a complaint that is within the TIO’s normal jurisdiction.
27.2.4	The TIO has no discretion to extend the period of twelve (12) months after receipt of the individual complaint under Clause 5A.2 (a) of the TIO Constitution. This period represents a reasonable time within which the TIO may commence an investigation of a potential Systemic Problem.
27.2.5	If the TIO is not satisfied that each of the above criteria is established, the TIO shall not commence a Systemic Problem investigation. Any complaints received should be handled by normal procedures.

27.3 Identifying potential systemic problem(s)

27.3.1	The question of whether the detriment is ‘trivial’ is one of fact, the judgement of which is a matter for the discretion of the TIO. The detriment, however, must be real and must affect more than one customer.
27.3.2	Similarly, the question of whether a number of customers is significant is one of fact, the judgement being a matter for the discretion of the TIO.
27.3.3	In deciding whether a class of end-users has suffered detriment, the TIO should describe that class by objective criteria.
27.3.4	In considering whether to investigate a potential Systemic Problem the TIO may also have regard to the following matters: the likelihood of the potential Systemic Problem recurring; the necessity for a long-term solution; whether the potential benefit to customers justifies the costs to the TIO member; whether, as an alternative, a report should be made to a Member in accordance with Clause 7.2(b) of the TIO Constitution.

27.4 Investigation

27.4.1	Where the TIO, having considered the matters in Sections 2 and 3 of these procedures, is of the opinion that a complaint may raise a Systemic Problem, the TIO shall:
	(i)	notify the relevant Member of the complaint and of the TIO’s opinion;
	(ii)	describe the nature of the potential Systemic Problem;
	(iii)	invite the Member to make submissions as to whether the complaint raises a Systemic Problem.
27.4.2	The ‘test case’ complaint to consider the potential Systemic Problem may be raised at Level 3, notwithstanding any other prohibition in the TIO’s Case Classification and Escalation Guidelines. This reflects the likelihood of a complex and time-consuming issue which requires a detailed investigation.
27.4.3	Where the member wishes to make a submission under Clause 4.1(iii), it has twenty eight days from the date of receipt of the notice from the TIO in which to do so.
27.4.4	The TIO may decide, having regard to any submission from the Member or, in the absence of any submission, to:
	(i.)	investigate the complaint as a potential Systemic Problem; or
	(ii)	investigate the complaint in accordance with Clause 5.1 of the TIO Constitution; or
	(iii)	take no further action on the complaint.
27.4.5	Where the TIO decides to investigate a complaint as a potential Systemic Problem, the TIO shall notify the Member of that decision and of the reasons for that decision. This advice should also seek any additional documentation relevant to the investigation and resolution of the potential Systemic Problem. Where such documentation contains confidential information of a third party and the Member has not been able to obtain consent to disclosure of the confidential information despite its reasonable efforts, the Member is not required to provide this information to the TIO.
27.4.6	While the “test case” complaint is being investigated, the TIO may defer investigation of other related cases that may arise. These cases will not be further escalated. The complainant is to be advised of the deferral and the Member is to be advised of the complaint and the deferral.
27.4.7	Where an agreed resolution is reached, deferred complaints will not be further escalated.

27.5 Resolution

27.5.1	The Ombudsman shall consider the information provided by the member on the ‘test case’ to determine whether there is a Systemic Problem.
27.5.2	If the Ombudsman concludes that a Systemic Problem does exist, the TIO shall notify the member of:
	(i)	that conclusion and of the reasons therefore; and
	(ii)	a recommended resolution of the Systemic Problem.
	Such recommended resolution may involve all or any customers and may involve the same or different outcomes for different customers.
27.5.3	In recommending a resolution of a Systemic Problem the TIO shall have regard to the following matters:
	(i)	whether the Systemic Problem has occurred previously;
	(ii)	the likelihood of the Systemic Problem recurring;
	(iii)	whether the Systemic Problem requires a long-term solution;
	(iv)	the cost to the Member of the recommended resolution, including the cost(s) of: compensating customers; and rectifying any system, process or practice;
	(v)	whether the Member is able to identify individual customers who form the class described by the TIO; and
	(vi)	whether the matter is better dealt with by another body.
27.5.4	Where a Member receives a notification under Clause 5A.4(a) of the TIO Constitution, the Member shall consult with the TIO about the TIO’s conclusion and recommended resolution.
27.5.5	Where the TIO and the Member agree on a resolution, the Member shall implement that resolution.
27.5.6	Any resolution under Clause 5.5 may be applicable to:
	i	the complaint which has been investigated.
	ii	a complaint deferred.
	iii	other customers.
	as agreed between the TIO and the Member.
27.5.7	If the Ombudsman concludes that a Systemic Problem does not exist, then the member will be advised of that conclusion and of the reasons thereof. The ‘test case’ and complaints deferred according to Clause 4.6 above, may be investigated and escalated in accordance with usual procedures under clause 5.1 of the TIO Constitution.

27.6 Notifications

27.6.1	All notices referred to in Clause 5A of the TIO Constitution shall be in writing.
27.6.2	Submissions under Clause 5A.2(b)(iii) of the TIO Constitution may be partly written and partly oral.
27.6.3	The TIO will provide regular and timely reports of the progress of the investigation of a Systemic Problem to:
	(i)	the complainant in the test case; and
	(ii)	complainants whose complaints have been deferred under Clause 5A.3 of the TIO Constitution.

27.7 Referral to regulator

Where a resolution is not agreed or a Member fails to implement a resolution agreed under Clause 5A.4(d) of the TIO Constitution, the TIO may refer the matter to the Australian Communications and Media Authority, the Australian Competition and Consumer Commission or such other statutory authority or industry body as the TIO considers appropriate. Where the TIO refers a matter under this Clause the TIO must notify the Member.

Page created: 6 July 2006