Acclaim Otago (Inc)
PRESS RELEASE 16 JUNE 2015
For Immediate Release:
Government ignores UN Committee
Acclaim Otago is disappointed, yet unsurprised, that the Government has again missed an opportunity to reform ACC with a human rights focus.
“The Government missed the point when we first reported in 2010, it missed the point last year in Geneva, and it has missed the point again today with this response.” Says Dr Denise Powell, spokesperson for Acclaim Otago.
The Government holds itself out as a world leader on human rights, but it has explicitly stated it will ignore the UN’s recommendations about ACC. Acclaim Otago anticipated this would be the case when it sought a recommendation for an ACC Commissioner.
“New Zealand has international obligations: the UN Committee examined ACC and it has been found wanting. The Government has simply ignored that,” says Mr Warren Forster, Barrister, of Dunedin who co-authored Acclaim’s reports to the United Nations.
Mr Forster continues, “As we told the UN, we think the significant income the government gets from ACC presents a conflict of interest. Human rights cost money and the government publicly accepts it wants that money to get to surplus.”
The United Nations told the New Zealand government in October to assess ACC to ensure that its processes pay respect to human rights. By rejecting that recommendation, the government rejects the core principle of the Convention on the Rights of Persons with Disabilities, a convention, which it helped to draft.
“For the government to dismiss human rights out of hand is heartbreaking” says Dr Powell. “This will send a particularly negative message to the Accident Compensation Corporation about the Government’s priorities.”
Background
In February 2014, Acclaim Otago analysed the ACC system from a Human Rights focus and produced an interim report for the United Nations to consider in drafting the list of issues for New Zealand. The interim report is available here:
In April 2014, in response to Acclaim Otago’s Interim Report, the United Nations Committee on the Rights of Persons with Disabilities, the United Nations specifically asked the New Zealand Government in the list of issues:
14: Please explain whether New Zealand law provides access to justice for persons with disabilities engaged in the statutory dispute resolution process with regard to adequate funding, procedural fairness and reliable evidentiary procedures under New Zealand’s Accident Compensation scheme.
The Government responded explaining that it had a system of legal aid and review costs.
Reply to the issues raised in paragraph 14 of the list of issues
70. The accident compensation scheme is delivered by the Accident Compensation Corporation (ACC) and provides comprehensive, no-fault personal injury cover for everyone in New Zealand, including overseas visitors. Individuals forego the right to sue for compensatory damages following injury, in return for receiving personal injury cover.
71. Dispute resolution is provided for under the statutory framework (part 5 of the Accident Compensation Act 2001) and this provides access for all people who wish to apply for a review of a decision made by ACC, including persons with disabilities.
72. When a review application is received by ACC, it is forwarded to the ACC unit that made the disputed decision for an internal review. ACC considers whether the decision issued was appropriate, including whether new information needs to be considered. If the dispute is not resolved, the unit will forward the application to an independent external organisation for a review. That organisation will determine, with the applicant, whether an alternative dispute resolution method such as mediation or facilitation is appropriate or whether an independent review hearing conducted by a reviewer should be held.
Funding
73. There is no charge to a client in applying for a review or any other alternative dispute resolution process,. These costs are met by ACC. In addition, clients who have disputes heard at review are usually awarded costs for example, to assist with the costs of advocates or support persons. Regulations set out the prescribed maximum amounts for costs and expenses on review. (the Injury Prevention, Rehabilitation and Compensation (Review Costs and Appeals) Regulations 2002) In summary, costs can be awarded for case preparation, reports, and other expenses incurred, including transport. Legal aid is also available in some cases.
74. The reviewer must award costs and expenses to the applicant if the review decision
is fully or partly in favour of the applicant, and may award costs and expenses if the
reviewer considers the applicant acted reasonably in bringing the review.
Procedural fairness
75. The Accident Compensation Act 2001 (the AC Act) sets out general principles for
the conduct of the reviewer. The reviewer must:
• Act independently and disclose previous involvement;
• Comply with the Accident Compensation Act 2001;
• Comply with the principles of natural justice;
• Exercise due diligence in decision-making;
• Adopt an investigative approach while conducting the review in an informal, timely,
and practical manner.
76. In making a decision, the reviewer must look at the matter afresh based on the
information provided at the review, setting aside ACC policy and procedures, and decide
the matter only on the basis of its substantive merits under the Accident Compensation Act
2001.
77. An applicant who is dissatisfied with the outcome of the review can appeal the
decision to the District Court. Questions of law can be appealed to the High Court and then
to the Court of Appeal.
Evidence
78. Each of the parties to the dispute can provide evidence to support their position,
including evidence that was not available at the time the ACC decision was made. The
reviewer can request additional information to assist their decision-making at ACC’s cost
for example, an additional medical opinion.
Accident Compensation Appeal Tribunal
79. In April 2014, the New Zealand Government considered legislative changes to
enhance courts and tribunals, including replacing the District Court jurisdiction for ACC
appeals with a new Accident Compensation Appeal Tribunal. The new Tribunal would
provide quicker decisions while still maintaining a fair process. The proposed Tribunal is
intended to be accessible, efficient and affordable for all users, including disabled persons.
The proposed introduction of a Chair to oversee and lead the Tribunal’s operation is
designed to ensure consistent, fair and quality decision making processes.
The United Nations Committee then received a shadow report from Acclaim Otago and a survey analysis providing the voices of hundreds of people with disabilities. The shadow report is available here:
The survey data is available here:
At the United Nations in Geneva in September 2014, Acclaim Otago presented its key findings and asked the committee to make recommendations to the Government, the Government for its part admitted that it could do better in relation to ACC. The UN did not accept New Zealand’s claims and recommended that New Zealand deals with the access to justice problems and human rights.
The United Nations Committee recommended in its concluding observations that:
Access to justice (art. 13)
- The Committee notes that, in New Zealand, persons who acquire a disability through injury only have recourse to compensation via the Accident Compensation Corporation. The Committee notes that persons who have suffered injuries are concerned over the lack of access to justice to pursue their claims. There is concern about the limited amount of legal aid funding that is available and about the discretionary basis upon which legal costs are awarded. There is also concern that the Accident Compensation Corporation machinery lacks a human rights focus.
- The Committee recommends that the State party examine the processes for the assessing of compensation by the Accident Compensation Corporation to ensure that adequate legal aid is available and that its processes are fully accessible to all claimants, and finally to ensure that this mechanism has a human rights focus.
- The Committee notes that the Government is considering the establishment of an accident compensation tribunal to replace appeals to the District Court. The Committee is concerned that there has been insufficient consultation with persons who have acquired disabilities through injury, and with their representative organizations, about the establishment and operation of this tribunal.
- The Committee recommends that organizations representing persons with disabilities be consulted about the proposal to establish an accident compensation tribunal. The Committee also recommends that the tribunal adopt a flexible approach to the admission of evidence, and that those who lack the means should be given adequate legal aid to ensure full access to the tribunal.
- The Committee is concerned that no specific training of judges by the Institute of Judicial Studies has been given either on the Convention or on the requirement that justice be accessible to all persons with disabilities, including those with intellectual and those with psychosocial disabilities.
- The Committee recommends that the Institute of Judicial Studies, in conjunction with disabled persons’ organizations, run training programmes on the Convention and on the rights of persons with disabilities who come before New Zealand courts and tribunals.
The Government’s response to the United Nations issued today was:
12. The Committee recommends that the State party examine the processes for the assessing of compensation by the Accident Compensation Corporation to ensure that adequate legal aid is available and that its processes are fully accessible to all claimants, and finally to ensure that this mechanism has a human rights focus (refer paragraph 24).
This recommendation is accepted to the extent that legal aid is available to all persons who cannot afford a lawyer and are seeking to challenge, through a review, court or tribunal, a decision made by the Accident Compensation Corporation (ACC). Subject to other Government priorities, consideration will be given to a review of regulations governing costs/expenses for review hearings.
13. The Committee recommends that organizations representing persons with disabilities be consulted about the proposal to establish an accident compensation tribunal. The Committee also recommends that the tribunal adopt a flexible approach to the admission of evidence, and that those who lack the means should be given adequate legal aid to ensure full access to the tribunal (refer paragraph 26).
There will be an opportunity for submissions on the proposal to establish an Accident Compensation Appeal Tribunal, and its procedures. Within the broader tribunals reform process, it is considered that full, robust and effective consultation with stakeholders could be achieved.
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