Research made possible by Law Foundation funding has helped change the course of government reform to the ACC appeals process.
The report, released last month by ACC claimant support group Acclaim Otago, examined more than 500 ACC appeals in the District and Appellate courts since 2009.
Lead author Warren Forster said the findings highlighted numerous problems with the ACC appeals process, which collectively create serious barriers to justice for people challenging ACC decisions through the court system.
Among other things, the authors were concerned about a government plan to replace access to courts with an ACC appeals tribunal. They argued that the Government was required to consult on this, under the United Nations Convention on the Rights of Persons with Disabilities. The UN agreed. In September last year, the Convention committee recommended that the Government consult organisations representing persons with disabilities about the tribunal plan.
Late last month, ACC Minister Nicky Kaye and Justice Minister Amy Adams announced a halt to setting up the new tribunal, to allow for consultation and consideration of other alternatives.
In a Radio New Zealand “Nine to Noon” interview on 23 July, Nicky Kaye acknowledged that the Acclaim Otago report had raised “genuine” issues, such as the cost to claimants of preparing medical and legal evidence for appeals.
“There are a group of people who, if we don’t get those costs right, they will just look at it and they won’t go through the process,” she said.
“A number of issues Warren has raised run quite a bit deeper and do cut to the heart of people’s access to justice and having a level playing field.
“It’s a fulsome report, it deserves absolute consideration. I think there will be changes as a result of this report … I just want to congratulate Warren and all the researchers involved in this report,” the Minister said.
The Law Foundation provided $37,000 to the researchers from Acclaim Otago and the Otago University Legal Issues Centre. An earlier Acclaim Otago report to the UN on access to justice for ACC claimants also received funding through the Law Foundation’s Shadow Report award.
Mr Forster commended the Minister for accepting that the research raised important questions requiring proper consideration.
“The Minister accepted that this is really good research. Until now ACC has been avoiding everything we have written. In a sense she has overruled her officials. That is really brave and shows strong leadership,” he said.
He also acknowledged the importance of the Law Foundation’s backing for the research.
“These changes wouldn’t be happening without Law Foundation support – I can’t speak highly enough of it,” he said. “Their support has given us breathing space. Working on these things takes a massive toll on practitioners and their families. The Law Foundation funding takes the edge off that.”
Acclaim Otago’s Shadow Report, prepared in 2013-14, focused on the ACC review process, including a detailed study of more than 600 injured people, Mr Forster said. It raised major concerns about the review system. But the findings were criticised by officials for being unrepresentative and coming from a self-selected minority of disgruntled people.
The latest report found that ACC appellants were disadvantaged at all stages of the process, deterring many from even attempting an appeal. ACC had well-developed systems for obtaining medical evidence and meeting the complex and technical evidential requirements of the courts.
In contrast, claimants who had already had their entitlements 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,” he said. “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 and impartial 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.”
Mr Forster said the Minister’s decision was the start of a long change process.
“We want to arrange a conference towards the end of this year or next, get all the stakeholders in one room – injured people, lawyers, judges, case workers, and officials – to discuss change.
“It will probably be a year or two before we get substantial change. But I do get the impression that the Minister has committed herself to doing something about understanding the problem and consulting on ways to fix it,” he said.
For more information on this research and other Law Foundation-funded projects, visit www.lawfoundation.org.nz.
Lynda Hagen is the Executive Director of the New Zealand Law Foundation.