Seeking justice for ACC claimants
RESEARCH TEAM: WARREN FORSTER, TOM BARRACLOUGH, TIHO MIJATOV, DENISE POWELL, CURTIS BARNES & BEN BIELSKI
The plight of hundreds of thousands of injured New Zealanders denied ACC support has been highlighted in a series of Law Foundation-backed reports.
Changes that would improve claimants’ access to justice have been slow in coming, but the reports, led by Dunedin-based barrister and researcher Warren Forster, have influenced government thinking and are giving ACC and others considerable pause for thought.
“We have already seen tangible impacts through guidelines for review and appeals, and increased funding for individuals. We are on our way to creating ground-breaking institutions such as a nationwide system of advocates to help people navigate New Zealand’s personal injury system,” Warren says.
The latest report, released in May 2017, finds that up to 300,000 New Zealanders are denied ACC coverage each year, more than triple ACC’s own figures. It calls for the establishment of a Personal Injury Commissioner – “an expert on ACC, but not controlled by ACC” – to help claimants navigate the complex ACC system.
The report also calls for change to the way ACC determines injury causation. The authors say that ACC’s narrow, legalistic application of the causation test, which determines coverage, is shutting out many legitimate claimants and shifting costs to other institutions like Worksafe, the Coroner and the criminal courts.
Warren says that a “tipping point” has been reached in how society deals with injured people.
“We have lots of personal injury services, but they are not working as they should because injured people don’t know how to navigate them. Our report discusses changes needed to redress the balance – the question is whether the political leadership is there for the change, or whether this report will end up in the too-hard basket.”
The 2017 report followed an extensive study of ACC appeals that found numerous problems with the process. It concluded that appellants were disadvantaged at all stages, deterring many from even attempting an appeal.
The research, released in 2015 by ACC claimant support group Acclaim Otago, examined more than 500 ACC appeals in the District and Appellate courts since 2009. It prompted then-ACC Minister Nicky Kaye and Justice Minister Amy Adams to stop plans for new appeals tribunal so that other alternatives could be considered. Kaye acknowledged that the report had raised genuine issues, congratulating Warren and his research team.
The research found that ACC had well-developed systems for obtaining medical evidence and meeting the evidential requirements of the courts. In contrast, claimants whose entitlements had already been cut had to find funding for a medical specialist, but could only get $934 back from ACC if they won a review.
“They quickly work out that it’s not worth doing. People are not appealing because they are making a rational decision not to,” Warren says. “For a number of people, a challenge is simply impossible – they have no choice.”
Other problems identified in the report included insufficient access to relevant court decisions and other legal information; the lack of experienced legal experts to test ACC arguments; and claimants feeling they were not getting fair hearings.
“There needs to be systemic oversight…ACC has all the advantages because it is the funder, the decision-maker and the dispute investigator. It is required to wear so many hats that there is a perception of a conflict of interest.”
An earlier Acclaim Otago report to the United Nations on access to justice for ACC claimants also received funding through the Law Foundation’s Shadow Report award.
Warren says the 2013-14 report focused on the ACC review process, including a detailed study of more than 600 injured people, and raised major concerns about the review system. But the findings were criticised by officials as being unrepresentative and coming from a self-selected minority of disgruntled people.
Warren’s “small, dedicated team of lawyers and researchers” who helped produce the report were Tom Barraclough, Tiho Mijatov, Denise Powell, Curtis Barnes and Ben Bielski. He says the Law Foundation provided crucial backing. “I can’t speak highly enough of the Foundation,” he says. “Their support has given us the chance to actually get to the bottom of the problem and set out a way to do something about it. When you are doing your best trying to maintain a full workload, working on research and reports takes a massive toll on practitioners and their families. The Law Foundation funding takes the edge off that.”
Law Foundation Director Lynda Hagen says funding support for the reports is one of many ways the Foundation helps improve access to the law for disadvantaged groups. “Law Foundation funding has backed the production of accessible legal resources for groups that can struggle with navigating the legal system, such as people with intellectual disabilities, the deaf and hearing-impaired, ethnic minority groups, and young people.”
The 2017 study “Solving the problem” is available here:
The 2015 study “Understanding the problem” is available here:
The 2014 “Interim report” to the United Nations committee in February 2014 to inform the list of issues is here:
The 2014 “Shadow report” addressing the United Nations committee’s questions is here: