18.104.22.168 Duty of Care when Giving Advice or Information
Giving advice or information
Duty of care with regard to advice involves the performance of duties to a reasonable standard of care. 'Reasonable' generally means a standard of care expected of a reasonably prudent public servant administering welfare legislation consistent with sound administrative practices.
Advice can be given either orally or in writing. The consequences of incorrect advice are the same whether the advice is given orally or in writing, so the same degree of care must be taken. Care must be taken to ensure that oral advice is expressed clearly enough for the person to understand, taking into account any obvious educational and language barriers.
Advice or action outside Department's area of expertise
Departmental officers are often asked to provide information about other government departments or agencies.
Example: Information may be about taxation or concession matters.
It is important to make the payment recipient aware that the inquiry is outside the expertise of this Department and that although the Department will offer whatever assistance is possible, the payment recipient should make inquiries with the appropriate department or agency to obtain authoritative advice or action.
Example: Assistance offered by the department may include brochures or a social worker referral.
The question of whether negligence occurred depends on the particular facts of each case. Duty of care is not breached simply because advice is wrong. The duty is only to exercise reasonable care when giving advice. As a rule carelessness will constitute a breach of duty of care.
Example: There is no negligence if a staff member accepts a NSA claim from a payment recipient who is single with a child. There is no legal obligation to advise that PP may be a better entitlement unless the person queries their correct entitlement. There is no carelessness if a person presents a claim form and it is correctly processed.
A person will usually not be able to establish that they have suffered economic loss because of negligent advice if the person has acted on general inquiries made. Payment of compensation as a result of negligence can only be considered if there is a breach of the duty to exercise reasonable care. The payment is made under the Public Governance, Performance and Accountability Act 2013 (PGPA) section 23.