As an ambulance officer, she saved people’s lives on a daily basis. She was a black belt in karate. But her life changed when she fell from a roof and suffered labral tearing in her hip and shoulder. For nearly a decade her injury went undiagnosed. During this time she developed a serious pain syndrome and depression.
He was young, had a job as a farmer and had the world ahead of him. But when he was only 23 years old he was in a serious motor vehicle accident. Now he lives with paraplegia.
Not only have those two New Zealanders suffered serious injuries that have had unfathomable consequences on their own lives and the lives of the people around them, each of them are the victims of inadequacies in the Accident Compensation Corporation (ACC) scheme. In the first incident, ACC did not properly manage the case. After two review applications were lodged, ACC sent the woman with labral tearing to be assessed for mental injury cover, but only provided the assessor with a fraction of the medical evidence that showed her depressive symptoms before their fraud investigation had begun. ACC then decided not to provide any help and support on the grounds that her mental injuries were caused by their own fraud investigation, rather than her injuries. These issues are only some among the myriad of problems evident within the facts of this case.
The young man with paraplegia wanted to move out of the hospital and return home to his partner. To do this he needed $20,000 for housing modification but ACC delayed making a decision. After mediation with ACC on this issue ACC did not do what they purported they would do. The man sought professional advice and lodged another review application regarding the delay. ACC asked for mediation. Although the matter was not settled at mediation, ACC agreed to let it proceed to review. However, in the week before the review, ACC issued a decision not to fund the modifications and then claimed that the review for delay lacked jurisdiction because a decision had now been made. It was 18 months after the man was discharged from hospital when he could finally leave his flat in the city and go home. But, by this stage, his mental health and his relationship with his partner had deteriorated significantly. He had incurred over $5,000 in legal fees and, despite having three sets of costs awards throughout the process, he was still over $3,000 out of pocket.
The ACC scheme was founded on a set of five principles described in the breakthrough Woodhouse Report. These guiding principles were: community responsibility; comprehensive entitlement; complete rehabilitation; real compensation; and administrative efficiency. The scheme was first legislated in 1972 and has since undergone significant revisions by legislation in 1982, 1992, 1998 and 2001. In the most recently revised Act, the purpose of ACC is to “enhance the public good and reinforce the social contract represented by the accident compensation scheme by providing for a fair and sustainable scheme for managing personal injury ...” However, events over the last decade raise the question: has our government lost sight of these guiding principles?
Somewhere amongst the photos of smiling New Zealanders on ACC’s website, ACC claims that, “Everyone in New Zealand has 24-hour, seven-day-a-week, no-fault comprehensive injury cover through ACC.” This means that under the ACC scheme, everyone in New Zealand (including visitors to the country) is eligible for comprehensive injury cover. The injured person can be of any age, working or not. A person can even be covered if he or she did something to contribute to the injury. It sounds almost too good to be true. Some strong voices throughout New Zealand would tell you that it is. But these same voices would also tell you that it doesn’t need to be – the scheme could do everything it purports to do.
However, what ACC (and, by extension, Government) isn’t doing or is avoiding doing, is not straightforward to find. The recent news stories posted on the ACC website are of claimant fraud and proposed “across the board” levy cuts (relevantly coming into place just before the general election). Both types of stories paint ACC as martyrs. But it is what’s not being reported and acknowledged by ACC that is of concern. That’s where groups like Acclaim Otago play a fundamental role. Given that an accident can happen to any person at any time in New Zealand, it’s crucial for every New Zealander to understand their findings.
In 2010 an ACC policy document was released that outlined plans to increase non-compliance amongst long-term claimants as a means of removing entitlements. Members of Acclaim believed this was done in order to force clients to attend assessments with ACC’s chosen “preferred assessors.” If a claimant does not go to a preferred assessor, he or she gets his or her entitlements cut off. These “preferred assessors” are flown all around the country by ACC to assess claimants and write up medical reports – even if the assessments they are being flown around for only take 30 minutes. Figures released under the Official Information Act show that one doctor in Christchurch billed ACC nearly one million dollars in 2005 and more than $700,000 a year from 2004 to 2007. In 2010, Acclaim received an influx of its members coming to them after ACC stopped their weekly compensation for supposed “non-compliance.” One member had even been cut-off by ACC three times and each time, she has been reinstated after taking legal action against ACC.
This has been an issue since the early 1990s. In a document known as the “Trapski Report,” a retired Chief District Court Judge, Peter Trapski, criticised ACC’s preference of the opinions of their contracted occupational assessors over claimants’ general practitioners. Trapski recorded: “Corporation staff, I was told, had become fed up with clients who were seen to be ‘ripping off the system.’ These people were therefore referred to a specialist who I was told, was unafraid of examining factors aside from the injury. I was told quite clearly that this was where Dr Gluckman’s usefulness lay, as he was a qualified physician, and a psychiatrist, and he had been used over a number of years as the Corporation’s ‘hit man.’” It’s not a coincidence that the most highly paid assessors are also the assessors who cut off the most claimants from payments.
Years later it seems that the situation hasn’t improved. In an interim report (supported by a shadow report grant from the New Zealand Law Foundation) to the United Nations Committee on the Convention on the Rights of Persons with Disabilities (CRPD), Acclaim Otago stated, “the fact remains that the architecture of the ACC scheme and the way it is administered deprives people of fundamental human rights. The state report does not record this, because the state does not accept this.” This state report that Acclaim refer to was the first New Zealand report on implementing the United Nations CRPD. The state report focused almost entirely upon people with disabilities unrelated to personal injury (such as congenital cause or sickness) who are administered through other systems including the Ministries of Social Development and Health. In Acclaim’s eyes, this first report failed to properly examine New Zealand’s ACC system from the perspective of people with disabilities caused by accident.
Acclaim’s recent report – endorsed by a consensus of experts throughout New Zealand – focused on those with long-term disabilities caused by injury. Although it looked at a range of rights infringements, it particularly highlighted four articles of the CRPD; the most significant to the report being Article 13: Access to Justice. This was a concern due to the small amount of lawyers who specialised in ACC cases and the high costs often involved in challenging ACC decisions, especially in comparison to the limited costs of success. However, ACC (which in the 2012-2013 financial year had a revenue of $6.5 billion and made a profit of $4.9 billion) does not have these financial restrictions. With no limit to what ACC can spend on the costs of cases, this creates a huge disparity in funding between claimants and ACC. In fact, over the last five years, ACC’s investment fund has more than doubled from $10.3 billion to $24.6 billion. While, at the same time, people with long-term disabilities due to injury are often suffering more than ever when it comes to costs and entitlements.
These issues have only been exemplified by the recent news that Cabinet has signed off a paper to introduce a bill that will remove access to the courts for injured people. This confirmed desire for change to the ACC appeals process means that cases will go to a tribunal instead of through the District Court, creating a clear bypass of the justice system and cutting judges completely out of the picture. Instead of judges (who cannot be fired) there will be tribunal members (who can be fired), which is especially convenient if, say, too many ACC claimants win cases. Interestingly, it’s the Minister of Justice, Judith Collins, who appoints these tribunal members and Collins is also the Minister of ACC.
It is an elementary lesson in law school that our judicial system is independent from the government. When this kind of decision-making is placed into the hands of Government it’s an affront to our constitutional system. Furthermore, Cabinet’s proposed changes lacked consultation with the very people it concerned, creating a mockery of the idea of “nothing about us without us” and New Zealand’s obligations under the CRPD. As Tom Barraclough, one of the authors of Acclaim’s report, stated, “The Courts are the only institution that exercises any real independent oversight of ACC. Other government departments such as the privacy commissioner or health and disability commissioner generally refuse to investigate ACC matters. Court decisions, like the recent District Court decision stating ACC’s 167 privacy form was illegal, can cause huge nationwide issues for ACC.”
In its 120 pages, Acclaim’s report outlines 10 possible system breaches of the human rights of people disabled in accidents. Included among its questions to the government was: whether there was proper funding for injured people to gain access to justice; what the government was doing to increase the supply of legal representation for injured people; what it was doing to ensure procedural fairness and reliable evidentiary procedures are observed in ACC dispute resolution; and how it planned to allow serious complaints against ACC staff members to be escalated and given external oversight. The last of these questions arises due to the lack of procedural and administrative safeguards in the statutory dispute resolution process. In one example described in the report a person called Jo had a case set for a review hearing. However, before the hearing, Jo became aware that the ACC reviewer had sent an email to her employer demonstrating bias against her. With this evidence, Jo asked the reviewer to step down but the reviewer refused to do so. The reviewer continued with the case and decided against Jo. If a person, like Jo had done, disputes whether a reviewer has met the requirements (like non-bias), there is no authority or process to facilitate the resolution of that dispute.
Acclaim also asked Government what it was doing to ensure people with injuries are not improperly prosecuted or imprisoned because of the management of their injuries and long-term loss of earnings for those suffering from injuries who are not entitled to compensation. Acclaim ultimately found that the government and the administrators of the ACC scheme do not have the correct balance: “There is no proper respect for the privacy of people with disabilities, entitlements are stopped without a person being able to work or being properly rehabilitated, integrity of the person is compromised and effective access to justice is denied.”
After considering this report, the United Nations Committee responsible for this Convention formally raised access to justice and other issues with our government. The Committee’s question to Government was: 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. These issues will also form the basis of the Committee’s examination of New Zealand’s compliance with the Convention in September 2014 – 10 days before the general election.
When the UN Committee responded to Acclaim’s shadow report on the CRPD it came back to our government with a list of issues. Government was required to prepare a formal and detailed response on these issues for the Committee’s consideration. While the recently prepared response did include news about the tribunal proposal, it did not acknowledge any of Acclaim’s objections. Barraclough commented: “They still don’t see ACC claimants as people with disability. For example, they say the dispute resolution process ‘provides access for all people who wish to apply for a review of a decision made by ACC, including persons with disabilities.’ They talk about how costs can be awarded, but don’t even attempt to deal with our objection that these costs are too low to ever make a review financially viable. They talk about how Reviewers are required to be independent, but don’t acknowledge our point that there is no mechanism to enforce that.”
ACC could be a wonderful scheme. It could be world leading. However, considering these damning reports on ACC’s cavalier attitude to it’s founding purpose and the rights of the disabled through accident, it is more than due time to question how it is being implemented, even if there is a general election just around the corner (or, perhaps, especially so because there is). “It’s hard seeing people let down all the time,” Barraclough says when describing his work, “but we’re hoping that the UN will make recommendations that lead to claimants being treated as injured people with varying degrees of disability who need support, rather than just fakers or fraudsters to be persecuted.” An accident can happen to any one of us at any point in our lives. Go on Acclaim Otago’s website and complete their survey (notably, ACC denied all of Acclaim’s attempts for a collaborative approach in answering the UN’s question). Get in touch with them if you have further information or personal stories about the issues discussed in this feature. Without demanding that Government maintains what it purports to do, any concept of a “social contract” and its underlying principles becomes meaningless.