Oranga Tamariki payment for emotional harm not unreasonable

Complaint about a payment offered by Oranga Tamariki to a family involved in a planned permanent care arrangement involving a baby – Oranga Tamariki acknowledged service failures but advised it had consistently applied its ex gratia payment policy when deciding on the amount – Chief Ombudsman formed opinion that Oranga Tamariki’s payment offer for emotional harm was not unreasonable

Background

The complainant had been progressing through the home for life caregiver process, with the anticipation of a child being placed into their care. They received a letter from Oranga Tamariki which confirmed the placement of a child with them as their ‘homefor life’. [1]

In reliance on this letter, the complainant purchased baby gear, applied for parental leave payments and made cultural arrangements to receive the child into the family. In addition to this, the complainant resigned from their job in order to care for the child full time. 

However, the child was not placed into their care.

The complainant later complained to Oranga Tamariki, raising concerns about service failures by Oranga Tamariki and requesting a payment in recognition. As well as various payments for actual financial loss, the complainant sought a payment of $150,000 for emotional harm. 

Oranga Tamariki apologised for the service failures, and offered an ex gratia payment which included an amount for actual financial loss as well as $10,000 for emotional harm. 

The complainant raised concerns with the Chief Ombudsman about the decision by Oranga Tamariki on the payment. 

Investigation

Part of the Ombudsman’s focus in this investigation was the $10,000 ex gratia offer from Oranga Tamariki for emotional harm.

An ex gratia payment is not compensation. It is a form of discretionary spending made without the giver recognising any liability or legal obligation. The payment is made out of goodwill or a sense of moral obligation, and is often accompanied by an apology.

The complainant was dissatisfied with the $10,000 ex gratia offer for emotional harm or what they described as the ‘hurt, transgression of mana and financial loss that occurred as a result of an Oranga Tamariki social worker progressing with haste, a home for life placement of a new born baby.’

Based on the information provided to the Ombudsman, it appeared Oranga Tamariki had analysed the case consistently with its Ex Gratia policy. The documentation showed that Oranga Tamariki accepted a moral obligation to recognise its practice failings, considered the relationship between Oranga Tamariki and the complainant, the nature and severity of the harm caused, and the foreseeability of the type of harm caused by Oranga Tamariki’s failures.

The Ombudsman indicated that it was not his role to ‘recalculate’ the figure and formed the opinion that Oranga Tamariki did not appear to have acted unreasonably in determining this amount. The Ombudsman could also see no basis for suggesting that $150,000 was a more ‘correct’ figure.

Outcome

Ultimately, the Ombudsman formed the opinion that Oranga Tamariki had not acted unreasonably. 

The Ombudsman noted Oranga Tamariki had:

• offered a genuine apology to the complainant for the harm its service failure had caused;
• accepted responsibility for its actions and admitted they were unacceptable;
• addressed the cause of the service failure; and
• given detailed consideration to the concerns and harm caused to the complainant in line with its policies.

The Ombudsman also specifically acknowledged the magnitude of offering the baby a home for life, and the hurt the complainant would have felt (and continued to feel) when that placement did not eventuate. 

The Ombudsman’s opinion was not intended to diminish the complainant’s experience, but simply consider whether the actions taken by Oranga Tamariki, and the offer made, were unreasonable in the circumstances. 

This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. 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