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ACC denial focus highlights need for fundamental change

02 February 2018 - By Lynda Hagen

In 2005 Dunedin lawyer Warren Forster took on the ACC on behalf of his mother, who was declined compensation despite suffering a serious back injury.

The experience was career-changing – he became a leading advocate for claimants turned down by ACC, and a key influencer of current reforms to the ACC appeals process. Now, he was recently awarded the Law Foundation’s 2017 International Research Fellowship Te Karahipi Rangahau ā Taiao and is researching new approaches to disability assistance that would remove the causal discrimination underlying the ACC system.

Mr Foster says his mother’s experience exemplified ACC’s focus on denying cover whenever possible but then back-tracking when challenged. Once he took the case to review, the organisation was so determined to win that it manipulated computer records to support its argument that it had not declined cover. He won the day for his mother eventually, but the experience left him astounded yet energised.

“I learned that there were hundreds of thousands of people in this position, many of whom don’t know how to navigate the system,” he says. “Why should we have to have a fight within the public health system about who does what – instead, we need to support people to get the help they want.”

Warren Foster’s Fellowship research aims to realise the original vision of Sir Owen Woodhouse, the author of the 1967 report that led to the establishment of the accident compensation scheme. Sir Owen recognised there was no logic in distinguishing between accident and sickness-related incapacity – what mattered was that people with disabilities got the assistance they needed.

Extending ACC to cover sickness-related disability has been opposed on cost grounds, though Mr Foster argues that this kind of analysis is flawed. Cost doesn’t go away, it just gets shifted on to individuals and their families.

“If we’re going to actually reduce costs, we need to reduce the number of injuries, rather than the rate of claiming. We need to develop mechanisms that reduce the cost of disability to society, rather than just trying to shift it from one place to another,” he says.

Incentivising employment is also important – the labour force participation rate for people with disabilities is around 25-30%, a waste of opportunity and frustrating experience for the individuals themselves and for wider society. The current system discourages employers from taking on people with long-term injuries, by penalising them through higher ACC levies if the worker subsequently has to take time off.

“We need to help people get into meaningful and sustainable work rather than just assessing them as being able to work and then making it their problem to compete in the labour market,” Mr Foster says.

His research aims to feed into a fundamental overhaul of the entire disability support system, with the broad aim of complying with the UN Convention on the Rights of People with Disabilities – something that no signatory country has managed to achieve.

He will study systems in Scandinavia, Germany, Australia, Ontario in Canada and elsewhere that improve on ours in terms of breadth of coverage, though he emphasises that all are flawed in some respects. He will look at existing models for rehabilitation and compensation, how they are funded, and whether they meet the needs of people with disabilities. His report, due in mid-2019, will recommend possible options for fundamental change, drawing on the best overseas experience.

“This isn’t just tweaking ACC – this would transform our disability system,” he says. “This is an opportunity to explore whether New Zealand can realise a vision published 50 years ago by one of our great jurists.”

Warren Foster is well qualified to lead this work – he has already produced several Law Foundation-funded reports that have drawn attention to the plight of declined ACC claimants and informed government consideration of new appeal procedures, including recommending the establishment of a Personal Injury Commissioner.

The International Research Fellowship is New Zealand’s premier legal research award, providing recipients up to $125,000 for study in New Zealand and overseas that makes a significant contribution to our law.

Lynda Hagen lynda@lawfoundation.org.nz is Executive Director of the New Zealand Law Foundation. Further information about the Fellowship is available at www.lawfoundation.org.nz.

Last updated on the 2nd February 2018