Decision to reduce access to phone and video calls for young person in residence

Complaint from rangatahi (young person) about their time in a Barnardos residential programme (Oranga Tamariki care and custody provider) – unhappy about a reduction in access to phone and video calls – Ombudsman formed opinion Barnardos acted unreasonably by failing to appropriately plan for the young person’s phone and video calls on admission, and not explaining to the young person when their call times were reduced or helping them through the transition – Ombudsman also formed opinion Barnardos acted unreasonably by not responding in a timely manner to recommendations by the Grievance Panel, and failing to take an appropriately restorative approach towards the young person – Ombudsman recommended Barnardos apologise, update policy and practice, ensure the process for phone and video calls are clearly communicated to all young people in the Residence, and establish a process to ensure responses to Grievance Panel recommendations are implemented in a timely manner – Barnardos accepted all of the Ombudsman’s recommendations.

Background

The Chief Ombudsman received a complaint from a young person who was placed in a specialist residential programme (the Residence) operated by Barnardos Aotearoa (Barnardos), in its capacity as a care and custody provider [1] for young people in the custody Oranga Tamariki.

The Residence is set up to provide comprehensive, integrated therapeutic residential treatment programmes for young people. It has a large focus on providing day-to-day care, education and therapeutic assistance. Its aim is to help rangatahi return to their community in a safe and positive way. 

For the first six month period after admission, the young person was allowed to make three phone calls of 20 minutes a day and one 40-50 minute video call a day. These calls were to family members or other approved people. The Residence explained that, initially, the extended communication helped the young person settle in, particularly during a COVID-19 isolation period. Given the capacity of the Residence at the time, this did not cause any staff resourcing issues. 

However, after a visit to the Residence by Oranga Tamariki auditors, the young person’s communications were reduced to two 15 minute phone calls and one 15 minute video call a day. The Oranga Tamariki auditors noted that the young person was making ‘significantly more frequent and longer’ calls than the other residents, and the calls did not comply with the policy at the Residence. 

The young person complained about the reduction in call times to the Residence. 

The Residence’s internal investigation into the young person’s complaint found that the complaint was justified in part, as there was a lack of information and clarity around the rules for making phone and video calls. There was limited information about the time, length and frequency of calls for the residents. The change to the call regime was instituted suddenly, and the young person received mixed messaging that led to them feeling frustrated and unsupported. 

Following the internal investigation, the young person received a written response acknowledging the suddenness of the reduction in their call times, the lack of clarity around the rules, and the lack of clarity about family contact and messaging. They were advised that they would be allowed two 15 minute calls in the afternoon, and one 15 minute video call outside of programme times depending on staff availability. 

The young person remained unhappy and asked for their concerns to be referred to a Grievance Panel. [2] The Grievance Panel found that the young person’s complaint was justified in part because of a lack of information and clarity around the rules for calls including length and frequency. The panel made a number of recommendations to the Residence, to resolve the situation. 

Following this, the young person escalated their complaint to the Ombudsman. The young person told the Ombudsman that reducing the call times meant they had less time to connect with the important people in their life. They did not agree that the calls had caused any issues for themselves or staff at the Residence. They found the changes to be unsettling and this had been intensified by a lack of explanation about the reductions. 

The Oversight of Oranga Tamariki System Act 2022 

The Oversight of Oranga Tamariki System Act 2022 (the Oversight Act) expanded the Ombudsman’s jurisdiction to include ‘care or custody providers’. 

A care or custody provider is contracted by Oranga Tamariki to provide care or custody services to children and young people. ‘Care or custody provider’ is defined in the Oversight Act as:

• an organisation into whose care any child or young person is placed under section 362 of the Oranga Tamariki Act 1989;
• an organisation that operates a residence established under section 364 of the Oranga Tamariki Act; and
• an organisation or body approved under section 396 of the Oranga Tamariki Act.

Care or custody providers can be:

• iwi social services;
• cultural social services, such as Kaupapa Māori, Pacifica;
• child/tamaiti and family support services; and
• community services.

Barnardos is a care or custody provider as defined in the Oversight Act. 

Previously, concerns about care or custody providers would have been dealt with by the Ombudsman through Oranga Tamariki, [3] as the Ombudsman did not have jurisdiction over the individual providers. Now, the Ombudsman can resolve and investigate complaints about care and custody providers directly. 

This has the benefit of enabling direct engagement between the Ombudsman and care and custody providers, both in terms of resolving complaints and identifying opportunities for practice improvements. 

Investigation

The Ombudsman notified Barnardos that he was investigating the young person’s complaint about the reduction of their call times in the Residence. 

Initial access to calls 

The Ombudsman noted the Oranga Tamariki (Residential Care) Regulations 1996 state that young people in a residence shall be permitted at all reasonable times to communicate freely with whānau (family) and other significant person. The regulations do not include detail about the level of communications that are considered reasonable. [4]

The Ombudsman observed that one 15 minute phone call per day is common practice in residences across the country. This ensures that rangatahi have the opportunity to contact whānau in a manner that does not disrupt daily programmes and activities. 

Because the Residence in this case is focused on therapeutic programmes, the Ombudsman considered it could be expected that there would be an emphasis on communication with whānau. 

The Residence’s own operations manual noted 15 minutes as the maximum time for calls, but it did not limit the number of calls per day. Barnardos explained that the number of daily calls in the Residence were balanced with the operational requirements of the programme and the needs of other residents.

The Ombudsman observed that the young person was initially allowed significantly longer and more frequent calls than other rangatahi. It was understood this was intended to help the young person settle in to the Residence.

The Ombudsman noted a lack of staff oversight and poor record keeping at the Residence. There were minimal records about the frequency of calls. Senior staff said they were unaware of the full extent of the young person’s call times until it was pointed out to them by Oranga Tamariki auditors six months later. It is the Ombudsman’s expectation that youth residences have systems in place to ensure that any relevant information is documented and shared, alongside individual care plans, which should also be subject to regular review. 

The Ombudsman also noted there was a corresponding lack of clarity in the Residence’s operations manual about the number of daily phone and video calls for residents, which was unhelpful for both staff and residents. The Ombudsman also observed there was nothing to suggest that the expectations of the young person concerning call times were appropriately managed when they arrived at the Residence, which likely contributed to what happened and left the young person feeling frustrated.

The Ombudsman formed the opinion that Barnardos had acted unreasonably by failing to appropriately plan for the young person’s phone and video calls with whānau on admission.

Transition to fewer calls

After a visit from Oranga Tamariki auditors, the young person’s calls were reduced from three 20 minute phone calls and one 40 minute video call a day, to two phone calls of 15 minutes and one 15 minute video call a day. 

The young person advised the Ombudsman that they felt the call times were abruptly reduced after the auditors’ visit, and that no explanation was given for the reduction. The young person considered there was ample time for all residents to make calls. 

Barnardos acknowledged the changes were not properly communicated to their staff and to the young person. Barnardos also acknowledged that no action was taken to help the young person transition to fewer and shorter calls. 

The Ombudsman considered that Barnardos had acted unreasonably by failing to appropriately explain the reduction in call times to the young person and due to the lack of support through the transition. 

Response to the Grievance Panel recommendations 

Following the escalation of the young person’s complaint to the Grievance Panel, the Panel identified a number of issues, and made a number of recommendations to the Residence to address those issues. These recommendations related to:

• discussing the young person’s communication regime with them before any changes are made and, if possible, accommodating their preferences;
• communicating to all staff any changes in the communication regime to avoid staff giving conflicting information to the young person;
• giving clear guidance regarding the expectation around calls to rangatahi upon their admission, and including it in written information;
• ensuring input from both rangatahi and decision makers in the complaint investigation report; and
• that the residence review its decision on the young person’s phone allowance and consider if more flexibility around the plan could be given during weekends. 

The Ombudsman asked Barnardos what action had been taken to implement the recommendations by the Grievance Panel. In response, Barnardos advised that the Residence operations manual had been updated and changes had been made and communicated to all staff. Changes included:

• the possibility of calls in the morning before the school day begins;
• weekday calls now being regulated as two 15 minute phone calls in the afternoon and one 15 minute video call outside of programme times;
• weekend calls now being regulated as two 15 minute phone calls in the morning and two 15 minute phone calls in the afternoon, as well as one 15 minute video call outside of programme times; and
• flexibility for phone calls during weekends outside of the regular guidelines. 

However, this occurred several months after the recommendations of the Grievance Panel, and in the context of enquires by the Ombudsman.

The Ombudsman accepted that the approach taken to calls in the Residence’s updated operations manual appropriately balanced the regulatory requirements of maintaining contact with whānau and other important people, and the practicalities of running a full programme in which rangatahi were expected to participate. 

However, on the available information, it was difficult for the Ombudsman to be confident that Barnardos’ overall response to the Grievance Panel recommendations was timely. It was not clear when the recommended review of the young person’s case or discussions with them occurred. In addition, a full review of the operations manual did not occur until several months later.

Due to these issues, the Ombudsman formed the opinion that Barnardos had acted unreasonably by not responding in a timely manner to the Grievance Panel recommendations, and not providing an appropriately restorative approach towards the young person.

Outcome

The Ombudsman formed the opinion that Barnardos had acted unreasonably in: 

• failing to appropriately plan for the young person’s phone and video calls on admission;
• not explaining appropriately to the young person when their call times were reduced and failing to help them through the transition; and
• not responding in a timely manner to the Grievance Panel’s recommendations, and failing to take an appropriately restorative approach towards the young person.

Recommendations

The Chief Ombudsman recommended that Barnardos:

1. apologise to the young person;
2. review relevant policy and practice to establish why senior Residence staff did not know about the amount of time the young person was spending on phone and video calls; and
   1. make any changes to policy and practice needed to remedy the lack of senior Residence staff awareness;
   2. undertake an education session with staff about phone and video call processes;
3. take steps to ensure the current communication regime and any future changes are clearly communicated to all rangatahi in the Residence in a supportive and appropriate manner;
4. establish a process for ensuring that new residents are clearly informed about the phone and video call regime, and their expectations are managed appropriately on arrival at the Residence; and
5. establish a process to ensure that responses to Grievance Panel recommendations are clearly recorded and implemented in a timely manner. 

Barnardos accepted and actioned all of the Ombudsman’s recommendations, including undertaking to prioritise, track and monitor the implementation of Grievance Panel recommendations. 

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

Footnotes

1. Section 396 of the Oranga Tamariki Act 1989. Return to text
2. The Oranga Tamariki (Residential Care) Regulations 1996 (the Regulations) provide a right for young people to complain to the Grievance Panel operating in the residence. The Grievance Panel may review a complaint already considered by the residence, or may look at the complaint directly. If the young person remains dissatisfied, their complaint may be escalated to the Ombudsman. It is important to note that there is ‘no wrong door’ and a young person may also complain directly to the Ombudsman at any time. Return to text
3. By the Ombudsman considering a complaint about how Oranga Tamariki had dealt with any concerns about a contracted care or custody provider. Return to text
4. Clause 10, Oranga Tamariki (Residential Care) Regulations 1996. Return to text