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ACC problems solved?

Tell the Government what you think about their response to the United Nations
After our work at the UN with Acclaim Otago in 2014, the Government was asked by the UN to look at some of the problems with ACC. Earlier this year the UN asked the Government how they were getting on with solving these problems. Now the people in Government have drafted a response to the UN. The people in Government want to know what you think about their response. Tell them by Friday 9 November.


Why does the Government have to answer to the UN

About every four years, the Government has to report to the United Nations Committee on the Rights of Persons with Disabilities about how well the Government is doing to realise the goals of the United Nations Convention on the Rights of Persons with Disabilities (the UN CPRD).

One of the things that the UN has focused on whether persons with disabilities caused by injury have effective access to justice. 

UN to Government: what's been done to fix ACC?

The people in Government have been asked by the UN to explain what "measures" the Government has taken to address the problems with ACC that were identified by the UN last time it looked at ACC in 2014. 

The Government has drafted a response and now the people in Government want feedback on this draft response to the UN. 

Specific questions from UN to Government about ACC in 2018?

After reading what the Independent Monitoring Mechanism and others said in 2017, the UN asked the Government how they were going with its 2014 recommendations about ACC and other things in a list of issues.

The UN asked the Government some questions about access to justice and ACC. It asked the Government to explain:

(a) Measures taken to review the processes for assessing compensation by the Accident Compensation Corporation to ensure that adequate legal aid is available and the processes are fully accessible to all claimants, and to ensure that the mechanism has a human rights-based approach;
(b) Measures taken by tribunals to adopt a responsive and flexible approach to the admission of evidence, and to provide free legal aid to ensure full access to judicial remedies, particularly by persons with disabilities with scarce economic resources and those that are still institutionalized;

Draft response from the people in Government

During the process of responding to the UN, the Government's drafts a response and makes it available for people to have their say about whether what the Government has said to the UN is correct. In response to the UN's questions about access to justice for injured people, the Government wants to say:

The Government's Draft Answer to Question 12(a):

All claimants are entitled to apply for a review of Accident Compensation Corporation (ACC) decisions on cover and entitlements. Following a review decision, there is a right of appeal to the courts. There is no charge to a claimant to apply for a review of an ACC decision, and claimants may be awarded costs[1]. Legal aid is available in some cases (see our reply to paragraph 12(b)). ACC has introduced changes to its dispute resolution process to improve service delivery and promote early resolution of issues. A free, independent navigation service is scheduled to begin by mid-2019. The service is expected to help 4,400 clients per year[2] to navigate its processes when they want to challenge, or better understand, a decision[3]. ACC has clear expectations around accessibility for this service, especially to Māori, disabled people and those with language or literacy needs.

The Accident Compensation Act 2001 (the ACC Act) sets out principles for reviewers to: act independently, comply with the principles of natural justice and exercise due diligence in decision-making.

[1] The Accident Compensation (Review Costs and Appeals) Regulations 2002 stipulate amounts. The prescribed amounts were increased in June 2017 and are being further reviewed by MBIE.

[2] This is more than four times the number served by the existing ACC-funded advocacy services.

[3] This was a recommendation from ‘Miriam Dean QCs Independent Review of Acclaim Otago’s Report into Accident Compensation Dispute Resolution Processes (the Independent Review)’. One of the Independent Review’s recommendations is for ACC to consider funding a free nationwide advocacy service and promote advocacy organisations.

The Government's Draft Answer to Question 12(b):

Tribunals are designed to provide low-cost, speedy and accessible justice. They can take a more flexible approach than courts to the admission of evidence. This flexibility can include the power to receive as evidence any statement, document, information or matter that may assist the tribunal (whether or not such material would be admissible in a court of law).

The Government recognises that travel costs and the need to travel to tribunals can be a barrier to access. Parliament is considering legislation[4] that will increase access to Ministry of Justice-administered Tribunals. This legislation will standardise the use of audio-visual or other remote access facilities and offer the option of hearing matters ‘on the papers’ without a physical hearing where appropriate.

Legal aid is available based on a person’s income, and the type and amount of grant will be tailored to the individual’s needs. These needs include whether a disability might hinder that individual’s access to justice.

Legal aid is available for certain tribunals such as the Tenancy Tribunal, Social Security Appeal Authority, and Waitangi Tribunal. Legal aid can be granted for other tribunals where the Legal Services Commissioner considers legal representation is necessary and the person would suffer substantial hardship without aid.
[4] The Tribunals Powers and Procedures Bill 2017


Tell the people in Government whether you agree with their responses to the UN

The Government has drafted its response. It has asked for feedback from people who have lived experience with these problems of getting effective access to justice. The Government wants to know if you think their draft response to the UN is accurate.

Now is your chance to tell people in Government what you think about their response. Before you do this, you may wish to read the rest of this page summary on "How did we get here" which is the story so far. If you don't have time to do that, you will need to remember that in 2014 the UN noted people's concern over:

  • the lack of access to justice in pursuing their claims,
  • the limited amount of legal aid funding which is available
  • the exercise of the discretions to award legal costs, and
  • that the Accident Compensation Corporation machinery lacks a human rights focus.

To address these concerns, the UN specifically asked the Government to review:

  • the systems for disputes to ensure they provide adequate legal aid,
  • ACC's processes for claims to make sure they are fully accessible to all claimants, and
  • the mechanisms ACC uses to ensure these have a human rights-based approach.

The Independent Monitoring Mechanism has told the UN that there has been no action on these issues. The Disability Matters Conference in Dunedin recorded peoples concerns that these problems haven't been fixed.

The Government wants to hear from you

Provide your feedback to the "Office of Disability Issues" by emailing: [email protected] with your thoughts and putting "UN Review" in the subject line.

If you would like to, you can read the full draft government response to the list of issues.

How did we get here?

This section describes the process between 2014 and 2018 that led to these questions from the UN to the New Zealand Government. 

What did the UN recommend people in Government look at in 2014?

In 2014, we worked with Acclaim Otago and went to the United Nations in Geneva. There we explained to the UN that injured people in New Zealand could not get effective access to justice. The United Nations Committee on the Rights of Persons with Disabilities listened to us and in their concluding observations they recommended to the New Zealand Government that it reviews the ACC system. Here's what the UN said:

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 in pursuing their claims. There is concern over the limited amount of legal aid funding which is available and over the exercise of the discretions to award legal costs. 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 assessing 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 also asked a question about the proposed "ACC tribunal" which was going to replace the District Court. This proposal has since been abandoned by the Government. 

How did the Government respond in 2015?

The Governments response in 2015 was disappointing. It said:

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. 

What other work has been done to address these points?

We've done some more research into access to justice questions. This research started in 2015 and showed that the ACC system does not provide effective access to justice and we explained the barriers were to effective access to justice. 

We found that as far as the dispute resolution process is concerned, injured people:

  • can't get effective access to representation,
  • can't get effective access to medical evidence,
  • don't have access to the law, and
  • people felt they weren’t being heard.

This research was reviewed by Miriam Dean QC who agreed with these four barriers to access to justice. 

We then did some research about how to fix this and we published this in 2017. We called for a "Personal Injury Commissioner" to oversee the Personal Injury System and for addressing the causation boundaries of the scheme. 

Independent people told the UN in 2017 that the Government has taken no action to actually fix the issues from 2014

New Zealand has an independent group called the "Independent Monitoring Mechanism". It is made up of the Human Rights Commission, the Office of the Ombudsman and the Disabled People’s Organisations Coalition (DPOs). 

This group tells the UN about things in New Zealand. It wrote a report in 2017. It gave the government a red, yellow or green rating to reflect the work the Government had done. They colour coded their responses: "RED = No action, YELLOW = Some improvement/work underway and GREEN = actioned.

Here's what it said about access to justice for injured persons:

Access to Justice (Article 13)

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.

RED

So the Independent Monitor Mechanism gave the Government a RED rating because it says that the government has taken no action on access to justice for injured people. It thought that the people in government hadn't taken any action to fix the problems with ACC.

Disability Matter conference in November 2017 

In November 2017 there was a conference in Dunedin, New Zealand about making the Convention real. One of the things that people talked about was access to justice. Here's what the conference summary said about access to justice: 

The Government is not providing access to justice in New Zealand in the way it is meant to be done under the Convention. There is not enough access to supports for people with disabilities to enforce their legal rights. The systems for providing healthcare, social support, financial support and rehabilitation in New Zealand discriminate based on the cause of disability which is inconsistent with the Convention and creates legal disputes against Government agencies. This is part of a wider fragmentation of social services and funding streams that undermines access to rights and services. Access to funding, and difficulty of meeting criteria - "arbitrary inconsistent criteria" – and other systemic barriers

Shadow briefing to the incoming Minister in November 2017

After the change in Government, we wrote a Shadow Briefing to the Incoming Minister and Associate Minister for ACC. In that briefing we explained to Minister Iain Lees-Galloway that:

UNCRPD: The previous Labour Government ratified the United Nations Convention on the Rights of Persons with Disabilities in the Disabilities (United Nations Convention on the Rights of Persons with Disabilities in the Disabilities) Act 2008. We obtained a recommendation from the UN Committee about the UNCRPD but we have seen no evidence that ACC has conducted any analysis of the consequences of that recommendation.

Comment from Acclaim Otago to the Office of Disability Issues

Acclaim Otago has provided its comments to the Government’s draft response to the List of Issues. 

The Independent Monitoring Mechanism has said that the Government has taken no effective steps since 2014 to review ACC’s processes in line with the Concluding Observation. Legal aid is unavailable to nearly all claimants. The claims and dispute resolution processes are inaccessible and the mechanisms used by ACC do not have a human rights based approach. Instead, the Government has decided to leave the rights of people with disabilities under the ACC scheme to be litigated through the dispute resolution process. Review costs available to claimants have not been adjusted despite specific recommendations to do so. They are inadequate. 

The Government has not followed the recommendations set out in the concluding observations because the Government does not consider that legal aid is necessary until after the adverse decision is made by ACC. 

The Government has decided not to make the ACC system fully accessible to the 5 million New Zealanders who use its services or the 1.2 million New Zealanders with disabilities. Instead, it will tender a commercial contract to an organisation to provide “navigation services” for up a few thousand people who ACC decides need access to services. The Government has been repeatedly advised that the systems for processing claims create barriers to access to justice (including by Acclaim Otago, the University of Otago and Miriam Dean QC) but the Government will not take steps to remove these systemic barriers because the Government considers that ACC’s own 6 operational needs take priority over the human rights under the Convention. 

The Government has taken no steps to review the processes followed by the Accident Compensation Corporation to ensure that they have a human-rights based approach. This is because the Government does not accept that ACC’s internal mechanisms for processing claims need to have a human-rights based focus. 


Here's how we would answer the questions from the UN

We agree with the Independent Monitoring Mechanism. Between 2014 and 2018, we have seen no real action from the Government to address the concerns raised in 2014. 

Have the people in Government made sure that adequate legal aid is available?

We don't think that people in Government have done anything effective to make sure legal aid is available. We know that this has been repeatedly raised with people in government over the last four years and there is nothing proactive that people in Government have done to address the widespread failure of the legal aid system in New Zealand to provide effective access to justice for injured people. We agree that there has been no action on this issue.

Are ACC processes fully accessible to all claimants?

We don't think that people in Government have done anything effective to ensure that ACC's processes are fully accessible to all claimants. The issues we have raised with ACC's processes have largely been ignored. 

Have the people in government made sure that ACC's mechanisms have a human rights-based approach?

We have not seen any evidence that people in Government have taken any steps to ensure that ACC's mechanisms have a human rights focus. ACC had ignored us when we have raised with it how its mechanisms do not have a human rights-based approach. 

Have people in government taken any measures to provide free legal aid to ensure full access to judicial remedies for people with scarce economic resources?

We have not seen any action by people in Government to ensure that people have effective access to justice. The available evidence shows that the dispute resolution processes are controlled by ACC, the costs regime is still controlled by ACC and MBIE and does not provide effective access to justice for injured people.

What do we think that the people in Government tell the UN?

We think that people in Government should be honest with the UN that the recommendations from 2014 have been largely ignored for the last four years. We think that the people in Government should be upfront about the widespread systemic failure of the ACC system to provide effective access to justice for persons with disabilities caused by injury. We further think that the dispute resolution process does not provide effective access to justice and our Government should recognise this problem and advise the UN what the Government is going to do to fix the problems.

We would invite the people in Government to seriously consider the solutions to these problems that we identified in our 2017 research about solving the problem: remove the causation tests and extend the ACC scheme to all disability and implement a Personal Injury Commissioner to provide oversight of our Personal Injury System