Howard's End: ACC Vs Natural Justice
Dispute Resolution Services Limited, a wholly-owned subsidiary of ACC who conducts reviews of ACC decisions, is coming under fire from claimants with one preparing to lodge a claim in the High Court alleging breach of natural justice and procedural fairness under the NZ Bill of Rights Act. Maree Howard writes.
Dispute Resolution Services Limited (DRSL) has an agreement with ACC to conduct reviews of ACC employee decisions that are in dispute.
The ACC legislation says that reviewers have a duty to act independently and disclose any previous involvement that the reviewer has had in the claim other than as a reviewer.
Lawyers had told Scoop that's fine, expect there are also the common law principles against bias and the requirements for procedural and substantive fairness under natural justice.
Judges have said in court cases over many years that natural justice means "properly and fairly." Natural justice has also been described by the Privy Council as "fair play in action."
DRSL General Manager, Neil McKellar, told Scoop: "Reviewers are employees of DRSL with employment agreements, and we sometimes engage reviewers on contract to provide services to help us address workload fluctuations."
However, claimants allege that at least one reviewer they are aware of is a former ACC employee and bias, real or perceived, are significant issues when they need to have an ACC decision reviewed.
They say there are likely to be more former ACC employees who are reviewers at DRSL and that needs to be settled.
They say justice must not only be done, but be seen to be done, and that does not appear possible when the reviewers are employed by a wholly-owned subsidiary company of ACC whose decisions are being challenged.
Claimants reviewing an ACC decision have no other choice than to use and rely on a reviewer allocated from DRSL.
Scoop has been told of one recent instance where a claimant was speaking to a DRSL employee who was not able to handle her query so her phone call was then switched to the claimants local ACC office without her having to redial. She then spoke to her ACC case manager.
The allegation has been made that communications between ACC and DRSL and its employees are so inter-twined that bias can be the only possible conclusion. Scoop also understands that DRSL has access to the ACC computer system.
DRSL also provides monthly Adverse Decision Reports to ACC. In the June 2002 report which Scoop has, it says under "Trend analysis" - Of the 72 decisions in this report, 64 were quashed and 8 were modified and then gives reasons why ACC lost the review.
No details are provided of the number of reviews held or of the number ACC won and why.
Scoop made a request to ACC Ministerial Services for copies of the report from June onwards under the Official Information Act but they were not provided and Scoop has now asked the Ombudsman to investigate.
In June, Mr McKellar wrote to Scoop saying that reviewers operate in "the nature of a tribunal" but when questioned further Mr McKellar said: " I am not aware of the relationship between operating as a tribunal and certainty and consistency in decision-making."
Mr McKellar also told Scoop that reviewers decisions do not provide precedent value but District Court decisions do.
One North Island lawyer has since told Scoop that he is amazed with that statement because he has an instance where the reviewer made a decision which did not follow precedent which effectively overturned an earlier decision of the District Court.
DRSL reviewers are also required under the legislation to conduct a review but there is only ever a hearing conducted of some one hour duration.
Claimant's say it is like a David and Goliath scenario with mentally or physically disabled claimants being offered no assistance who are up against a giant well-resourced Corporation who can afford to bring lawyers and doctors to reviews.
Those claimants who can afford a lawyer seem to fair much better than those who cannot.
It is the most unequal and inequitable system that this Scoop correspondent has come across. The High Court now looks likely to review the whole system and set future terms. In that happens DRSL, of course, could find all of its review procedures and decisions under scrutiny by the judiciary - who are truly independent, and seen to be so.